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https://www.courtlistener.com/api/rest/v3/opinions/2259918/	777 F.Supp. 1032 (1991) MASSACHUSETTS PUBLIC INTEREST RESEARCH GROUP, Plaintiff, v. ICI AMERICAS INC., Defendant. Civ. A. No. 89-1334-H. United States District Court, D. Massachusetts. November 20, 1991. 1033 Valerie J. Stoupis, Choate, Hall & Stewart, David A. Nicholas, Hale & Dorr, Charles C. Caldart, Public Interest Litigation, Boston, Mass., for plaintiff. Gregory A. Bibler, John Kenneth Felter, Marie Lefton, David S. Mackey, Allan van Gestel, Gerard A. Caron, Goodwin, Proctor & Hoar, Boston, Mass., for defendant. MEMORANDUM AND ORDER HARRINGTON, District Judge. This case arises from a so-called "citizen suit" brought by the Plaintiff Massachusetts Public Interest Research Group ("MASSPIRG") against the Defendant ICI Americas, Inc. ("ICI"), for alleged violations of the Clean Water Act also known as the Federal Water Pollution Control Act ("FWPCA" or "Act"), 33 U.S.C. § 1251, et seq. The Defendant ICI operates a manufacturing facility in Dighton, Massachusetts, that produces dyes and other specialty chemicals. In accordance with a National Pollution Discharge Elimination System permit ("NPDES permit"), issued pursuant to Section 1342 of the Act, ICI discharges treated process wastewater as well as non-contact cooling water and stormwater runoff into the Muddy Cove Brook. This discharge then flows into the Taunton River. ICI was issued its original NPDES permit in 1976 ("1976 Permit"). This permit set forth both flow and substance limits for ICI's discharged water.[1] In June of 1989, MASSPIRG, initiated a citizen suit, pursuant to Section 1365 of the Act, alleging, inter alia, that ICI was in violation of its 1976 Permit. In August of 1990, the United States Environmental Protection Agency ("EPA") and the Massachusetts Department of Environmental Protection ("DEP") issued a new NPDES permit to ICI ("1990 Permit"). The 1990 Permit relaxed the flow limits set forth in the 1976 Permit by increasing the volume of discharge allowed. It strengthened the previous substance limits, however, both by decreasing the levels previously allowed and by providing for new substances not accounted for in the 1976 Permit. The 1990 Permit became effective as of August 20, 1990. By its terms, the 1990 Permit supercedes all previous permits and the limits contained therein. On December 4, 1990, MASSPIRG filed a Motion to Amend and an Amended Complaint which alleged additional violations of both the 1976 and 1990 Permits committed by ICI since the filing of the original Complaint. In March, 1991, the EPA and the DEP jointly brought an enforcement action and entered into a Consent Decree with ICI regarding violations of ICI's 1990 permit. In the Matter of ICI Americas, EPA Docket No. 91-17; DEP Docket No. 90-207. This Consent Decree became effective on March 20, 1991, and encompassed many of the violations cited by MASSPIRG in its Amended Complaint. The Consent Decree established interim compliance limits with June 4, 1992 set as the date for ICI to be in full compliance with its permit. In addition, the Consent Decree set forth a schedule of stipulated penalties to be paid by ICI should they fail to meet any of the established deadlines. On April 29, 1991, this 1034 Court allowed MASSPIRG's Motion to Amend. ICI has now filed a Motion for Partial Summary Judgment with respect to certain portions of Count II, relating to the NPDES permit violations. Specifically, ICI asserts that the issuance of the 1990 Permit has rendered moot MASSPIRG's claims for flow violations of the 1976 Permit.[2] Additionally, ICI states that because the EPA and DEP have taken enforcement action with respect to the substance violations under the 1990 permit, any claims brought by MASSPIRG are barred insofar as they relate to the same violations addressed by the EPA and DEP. I. The Flow Violations ICI asserts that MASSPIRG's claims for flow violations are moot because they rely upon limits that have been relaxed in the 1990 Permit which, by its terms, supercedes any and all previous permits. While it acknowledges that it did violate the flow limits of the 1976 Permit, ICI points to the fact that, to date, there have been no flow violations of the 1990 Permit. In addition, ICI notes that only a handful of violations under the 1976 Permit would constitute violations under the more lenient standards of the 1990 Permit.[3] In the landmark case of Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), the Supreme Court concluded that in order to maintain a citizen suit under Section 1365 of the FWPCA (Section 505 of the Clean Water Act), the citizen-plaintiffs must allege "a state of continuous or intermittent violation that is a reasonable likelihood that a past polluter will continue to pollute in the future." Id. at 57, 108 S.Ct. at 381. In other words, citizen suits for "wholly past violations" are not permitted under Section 1365 of the Act. Id. at 64, 108 S.Ct. at 384. While the Court in Gwaltney was concerned primarily with the question of when a District Court had jurisdiction to hear a citizen suit under Section 1365, it also addressed the question of mootness, which is currently before this Court.[4] In Gwaltney, the petitioner raised a concern that citizen-plaintiffs could press a suit to conclusion despite the fact that, during the course of the litigation, the defendant would have come into compliance with the Act. Gwaltney, 484 U.S. at 66, 108 S.Ct. at 385. The Supreme Court reasoned that longstanding principles of mootness would prevent the maintenance of suit when "there is no reasonable expectation that the wrong will be repeated." Id. (Citations omitted). The Supreme Court noted that a defendant seeking a dismissal on mootness grounds faces a heavy burden, and that it must be "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. quoting United States v. Phosphate Export Ass'n, Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968) (emphasis added in Gwaltney). The Supreme Court concluded that the "[m]ootness doctrine thus protects defendants from the maintenance of suit under the Clean Water Act based solely on violations wholly unconnected to any present or future wrongdoing, while it also protects plaintiffs from defendants who seek to evade sanction by predictable `protestations of repentance and reform.'" Id. at 67, 108 S.Ct. at 386. (Emphasis supplied). Since the decision of the Supreme Court in Gwaltney, there have been few cases regarding the issue of post-complaint mooting of claims under the FWPCA. The case 1035 most analogous to the one before this Court is Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281 (D.Del.1989), vacated and remanded on other grounds, 906 F.2d 934 (3d Cir.1990). In Texaco Refining, the plaintiffs brought a citizen suit under the FWPCA seeking injunctive relief and civil penalties, for the defendant's violations of its NPDES Permit. After the complaint was filed, the defendant was reissued its permit for the site. The defendants then filed a supplemental motion for summary judgment based, inter alia, upon the fact that the reissuance of the permit, under which there had been no violations, rendered the plaintiffs claims for violations of the earlier permit moot. The court weighed the fact that, in order to maintain a citizen suit, a discharger must be "in violation of an effluent standard," 33 U.S.C. § 1365, against the plaintiffs' concern that a defendant faced with such a suit would simply go out and obtain a reissuance of its permit. Texaco Refining, 719 F.Supp. at 290. The court concluded that, "where the limits contained in a superceded permit are incorporated into or made more strict in the new permit, there is no reason to allow the defendant to avoid enforcement of those limits." Id. (emphasis supplied); see also Public Interest Research Group of New Jersey, Inc. v. Carter-Wallace, Inc., 684 F.Supp. 115, 123 (D.N.J.1988). Following the logic of Texaco Refining, it would appear that where the relevant governmental authorities have relaxed the NPDES standards, a plaintiff's claims for violations of the superceded permit do indeed become moot. The key factor is that the terms in the new permit have been relaxed, not the issuance of a new permit in and of itself. Unlike the situations in which permit limits are carried over or even strengthened, the relaxation of permit limitations is, in effect, a statement by the government agencies that, to an extent, conduct that was impermissible before is now permissible.[5] Considering the Supreme Court's view that "the interest of the citizen-plaintiffs is primarily forward-looking" and that "the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past." Gwaltney, 484 U.S. at 59, 108 S.Ct. at 382. It is logical that, in this limited circumstance, the plaintiffs claims for flow violations are rendered moot. This Court feels that such an approach adequately protects the interests of potential plaintiffs under the FWPCA. This is not a situation in which the defendant is merely pleading "repentance and reform." Gwaltney, 484 U.S. at 67, 108 S.Ct. at 386. On the contrary, governmental relaxation of permit terms represents a change in circumstances from those in which the suit may have been originally brought. Furthermore, this Court is satisfied that a defendant, faced with a citizen suit under the FWPCA, would have substantial difficulty in obtaining a last-minute relaxation of its permit terms from the government agencies, so as to render such a scenario highly unlikely. In examining the particular facts of this case, this Court concludes that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Gwaltney, 484 U.S. at 67, 108 S.Ct. at 386. There have been no flow violations of the 1990 Permit for the fifteen months in which it has been in effect. The last recorded violation which would have constituted a violation of the 1990 Permit occurred in August of 1987, almost four and one-half years ago. Given these circumstances, this Court determines that MASSPIRG's claims for flow violations are moot under the standards articulated by the Supreme Court in Gwaltney. This determination applies to both MASSPIRG's claims for civil penalties and 1036 injunctive relief. The Supreme Court, when considering the issue of mootness in this context, made no distinction between claims for civil penalties and injunctive relief and this Court sees no reason to make such a distinction either. See Gwaltney, 484 U.S. at 66-67, 108 S.Ct. at 385-86. ("Mootness doctrine thus protects defendants from the maintenance of suit under the Clean Water Act ...") (emphasis supplied). Thus, Defendant's Motion for Partial Summary Judgment as to Count II, relating to all claims for flow violations, is GRANTED. II. The Substance Violations The second argument raised by ICI in its motion is that MASSPIRG's claims for substance violations under the 1990 Permit are barred insofar as they are the subject of a parallel government enforcement action. In support of its position, ICI directs this Court's attention to 33 U.S.C. § 1319(g)(6)(A) which provides in relevant part that any violation "(ii) with respect to which a State has commenced and is diligently prosecuting an action under a state law comparable to this subsection" shall not be the subject of a civil penalty action under the citizen suit provision of the FWPCA (33 U.S.C. § 1365). ICI, however, ignores the very next subparagraph of this subsection which refers specifically to citizen suits. Subparagraph (B) provides that the limitations contained in subparagraph (A) on civil penalty actions brought under the citizen suit provisions of the FWPCA shall not apply with respect to any violation for which the citizen suit "has been filed prior to commencement of an action under this subsection." 33 U.S.C. § 1319(g)(6)(B) (emphasis added). In other words, if the citizen suit was filed before the DEP or EPA commenced action for the same violations, then there is no bar to the citizen suit. In this case, MASSPIRG filed the Amended Complaint accompanied with a Motion to Amend on December 4, 1990. Despite the fact that the Motion to Amend was not allowed until April 29, 1991, for the purposes of this subsection, this Court deems the Amended Complaint to have been filed on December 4, 1990. See Mayes v. AT & T Information Systems, Inc., 867 F.2d 1172-1173 (8th Cir.1989). The Consent Decree between the EPA, the DEP and ICI, which covered violations of ICI's 1990 Permit was entered into in March, 1991. Thus, MASSPIRG filed its action for violations of ICI's 1990 Permit prior to the commencement of any state or federal action for those same violations. By the plain terms of 33 U.S.C. § 1319(g)(6)(B), MASSPIRG's suit is not barred. Cf. North and South Rivers Watershed Association, Inc. v. Town of Scituate, 755 F.Supp. 484 (D.Mass.1991). (Action taken against the town by the DEP under Mass.Gen.L. ch. 21, § 44 was "comparable" to action taken under 33 U.S.C. § 1319(g)(6) so as to bar citizen suit which was filed after the commencement of governmental enforcement action.) Therefore ICI's Motion for Partial Summary Judgment as to Count II relating to substance violations under the 1990 Permit that were subject to the March, 1991 Consent Decree is hereby DENIED. SO ORDERED. NOTES [1] Flow limits refer to the volume of water that ICI may discharge into Muddy Cove Brook. Substance limits refer to the level of chemicals, minerals, etc., present in the discharge as well as the characteristics (e.g., toxicity) of the discharge water. [2] MASSPIRG has made no allegations of flow violations under the parameters of the 1990 Permit. [3] Between April, 1984 and August, 1987, there was a total of nine months during which the flow from ICI's plant would constitute violations of the 1990 Permit. Specifically, they were April, May and August of 1984; March and September of 1986; and April, May, July and August of 1987. Since August of 1987, there have been no flows which would constitute violations of the 1990 Permit. [4] It is undisputed that ICI was in violation of its 1976 Permit regarding flow limits before, during and after the filing of this suit. Thus, there is no question regarding this Court's jurisdiction to hear this case. [5] It was suggested in oral argument before this Court that relaxing the flow limits was done as some sort of trade-off for tightening the substance limits and that, in reality, this Court should view the 1990 Permit as being more restrictive than the 1976 Permit. This Court rejects such a view. The various limits contained in the permits are separate and distinct and this Court will treat them as such. Nor will this Court attempt to second-guess the EPA and DEP as to why they established the various limits that they did.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259923/	421 A.2d 47 (1980) Shirley H. REEVES v. TRAVELERS INSURANCE COMPANIES et al. Supreme Judicial Court of Maine. Argued September 15, 1980. Decided October 15, 1980. 48 Abbott J. Reeves (orally), Old Orchard Beach, for plaintiff. Preti, Flaherty & Beliveau, Jonathan S. Piper (orally), John Flaherty, Portland, for Travelers Ins. Companies. Hunt, Thompson & Bowie, James M. Bowie (orally), Portland, for Lloyd's, London, England, Jefferson Ins. Co. and American Home Assurance Co. Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and ROBERTS, JJ. McKUSICK, Chief Justice. Plaintiff Shirley H. Reeves[1] appeals from the Superior Court's dismissal with prejudice of her action against four insurance companies because of her failure to comply with a pretrial order, M.R.Civ.P. 16(d).[2]49 We find that the Superior Court acted well within the scope of its permissible discretion, and accordingly we deny the appeal. The complaint, filed on August 1, 1975, alleging the existence of an insurance contract between plaintiff Reeves and the four defendant insurers,[3] sought to recover for damage to rental real estate at Old Orchard Beach allegedly suffered in a windstorm in May or June, 1975. As later amended, the complaint claimed damages for repair, replacement, materials, and labor in the amount of $1,940 and for loss of earnings and rent in the amount of $1,175. On June 15, 1979, the Superior Court on its own motion dismissed the action under the two-year rule of M.R.Civ.P. 41(b)(1). At that time the docket showed no entry more recent than November 1, 1976. On June 23, 1979, a different justice of the Superior Court, pursuant to M.R.Civ.P. 60(b), granted plaintiff's motion for relief from the Rule 41(b)(1) dismissal of June 15, 1979, and at the same time denied defendants' Rule 41(b)(2) motion to dismiss for want of prosecution and ordered that the case be brought to trial "as swiftly as practicable." A pretrial conference before a third Superior Court justice was held on September 4, 1979. His pretrial order expressly stated that the case was not to be set on the jury trial list "until after documentation and amended pretrial memos as below. Plaintiff to supply Defendants with copies of bills within 90 days (plus some testimonial augmentations and expansions)." (Emphasis added) Neither plaintiff nor her counsel did anything whatever to comply with the September 4, 1979, pretrial order. After a hearing held on February 7, 1980, a fourth Superior Court justice dismissed plaintiff's action with prejudice pursuant to M.R.Civ.P. 16(d). The justice found that compliance with order of pretrial has not been had and failure thereof is not the result of excusable neglect when viewed in the light of the history of this case and upon assertion by plaintiff that "documentation" as ordered by the court is not known as to availability and may be determined only by discovery should defendants so wish to pursue that course . . . . That dismissal is now before us on appeal. The purpose of the pretrial conference is "to make the other procedures of the rules effective tools in the preparation for efficient and speedy trial of the case." 1 Field, McKusick and Wroth, Maine Civil Practice § 16.1 at 317 (2d ed. 1970). To achieve that purpose, counsel must be prepared for the pretrial conference and must act diligently to meet the obligations that result from it. Because judicial economy is such an important goal of the pretrial conference, M.R. Civ.P. 16(d) confirms the inherent power of the court "to enforce the provisions of the rule aimed at making pretrial procedure effective, including not only appearance at the conference, but also the basic requirements of the memorandum and preparation for the conference." Id., § 16.6 at 328. Although in this case the Superior Court rested its decision to dismiss plaintiff's case with prejudice on M.R.Civ.P. 16(d), it was imposing a sanction for noncompliance with a discovery order, and its action may equally find support in M.R.Civ.P. 37(b)(2).[4] The discovery rules (M.R.Civ.P. 26 through 37) 50 are informed by a philosophy of litigation similar to that governing the pretrial conference. "[P]rior to trial every party to a civil action is entitled to the disclosure of all relevant information in the possession of any person, unless the information is privileged." 8 Wright & Miller, Federal Practice and Procedure § 2001 at 15 (1970). It is the purpose of both the discovery rules and the pretrial conference to eliminate the sporting theory of justice, Tiedman v. American Pigment Corp., 253 F.2d 803, 808 (4th Cir. 1958), and to enforce full disclosure. Meaningful pretrial conferences and liberal discovery are two of the principal devices available to effectuate the purpose of the Maine Rules of Civil Procedure "to secure the just, speedy and inexpensive determination of every action." See M.R. Civ.P. 1. Conduct of counsel or his client that frustrates the beneficent purposes of Rule 16 and of discovery orders must be appropriately penalized. An appellate court reviews the propriety of a sanction under M.R.Civ.P. 16(d) or 37(b)(2) by an "abuse of discretion" standard. Thus, the Superior Court's dismissal of the present action must stand unless an abuse of discretion is shown or there is an error of law. Lerman v. Inhabitants of City of Portland, Me., 406 A.2d 903, 904 (1979). In the language of the United States Supreme Court, with appropriate adaptation, "[t]he question, of course, is not whether [the Law] Court . . . would as an original matter have dismissed the action; it is whether the [Superior] Court abused its discretion in so doing." National Hockey League v. Met. Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1975). In exercising its discretion under Rule 16(d) or 37(b)(2), the trial court must answer three questions: (1) whether to impose a sanction; (2) upon whom-party or counsel or both-to impose the sanction; and (3) what sanction to impose. The answers to those questions depend upon the circumstances of the particular case, viewed in the light of the functions intended to be served by sanctions. In addition to penalizing noncompliance with a court order and trying to remedy the effect of the noncompliance by compensating the innocent party for the costs incurred therefrom or by extracting compliance from the recalcitrant party, the sanction selected should also serve as a deterrent to similar conduct by the same offender or others. See Note, "The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions," 91 Harv.L.Rev. 1033, 1034 (1978). The ultimate goal of any pretrial sanction is to promote fair and efficient litigation, both in the pending case and in the court system generally. Faced with the increasingly heavy demands upon limited judicial resources, all courts are more conscious than ever of the necessity for strict enforcement of their procedural orders. Id. at 1055. An appellate court will not lightly overrule a trial court's judgmental choice of an appropriate sanction under Rule 16(d) or 37(b)(2). On the facts now before us, the February, 1980, dismissal clearly did not represent any abuse of discretion. On appeal, plaintiff's counsel does not question the Superior Court's statement of fact that counsel asserted at the February, 1980, hearing that he, even at that late date, did not know whether there existed documentation such as had been ordered to be produced. Indeed, at oral argument before this court counsel still would not answer the question with any certitude. We emphatically reject plaintiff's contention that defendants, during the 90 days subsequent to the pretrial order, should have pursued plaintiff to get the ordered documentation or find out whether any existed. Defendants were not required to make any request for the documentation; they already possessed a court order requiring plaintiff to produce it. Furthermore, the Superior Court, contrary to plaintiff's contention on appeal, committed no error of law in viewing plaintiff's noncompliance with the pretrial order "in the light of the history of this case." For 32 months following November 1, 1976, plaintiff took no action whatever to prosecute her action. During all that time she was represented by her present attorney, 51 who is her brother. Although the second Superior Court justice saw fit to restore the case to the docket in July, 1979, that ruling at most represented that justice's conclusion that plaintiff's failure to prosecute the action up to that point was not sufficiently blameworthy in itself to justify the ultimate sanction of dismissal. However, the justice's ruling merely restored the case to the docket (along with ordering the case to trial "as swiftly as practicable") and did not give plaintiff and her counsel a "pardon" for their past failure to exercise ordinary diligence in prosecuting the suit. Their unexplained failure to comply with the subsequently entered pretrial order, or even to come forward promptly with any showing that no documentation existed, if that was the fact, when added to their prior nonaction for well beyond the critical two-year period set by Rule 41(b)(1), could well be found to justify dismissal. We recognize that the sanction of dismissal, or of default judgment if imposed on a defendant, is a drastic one; its direct consequence falls not upon the attorney, but upon the party, who thereby loses all chance for an adjudication on the merits. For that reason, the ultimate sanction should be imposed only for the most serious instances of noncompliance with pretrial procedures. Mindful of that fact, we are nonetheless well satisfied that the special circumstances present in this case make it an appropriate occasion for dismissal, in order to penalize a serious delinquency and to deter like conduct by others. Cf. Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 713 (1st Cir. 1977) (Coffin, C. J.) (dismissal for failure to attend pretrial conference and comply with discovery order). The Superior Court justice did not commit any abuse of discretion by making that choice. The entry must be: Appeal denied. Judgment of dismissal with prejudice affirmed. All concurring. NOTES [1] Shirley H. Reeves sued in her capacity as administratrix of the estate of Minna C. Reeves. Her complaint alleged that as such she had contracted with defendants for insurance and had suffered losses from wind damage. [2] Prior to September 1, 1980, M.R.Civ.P. 16(d) read as follows: (d) Sanctions. If a party fails to comply with the requirements of this rule or any order made hereunder, the court may impose upon the party or his attorney or both such penalties and sanctions as the circumstances warrant, which may include the dismissal of the action or any part thereof with or without prejudice, the default of a party, the exclusion of evidence at the trial, and the imposition of costs including attorney's fees and travel. By amendment effective September 1, 1980, the permissive "may" was changed to "shall" and the following sentence was added to Rule 16(d): The court may expressly order, where appropriate in its discretion, that the costs of such sanctions be borne by counsel and that they shall not be passed on to counsel's client. The Advisory Committee's Notes to that amendment of Rule 16 (July 14, 1980) in section 10 make clear the draftsmen's intent that the Superior Court should, under the recently rewritten Rule 16, make greater use of Rule 16(d) sanctions as appropriate, rather than less. [3] The action as against Jefferson Home Insurance Company of New York and two other insurers was dismissed on October 6, 1975, for insufficiency of service of process. Proper returns of service upon them were finally filed on August 27, 1979, and those defendants were restored as parties. [4] M.R.Civ.P. 37(b)(2) provides in pertinent part: If a party ... fails to obey an order to provide ... discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . . . (C) An order ... dismissing the action or proceeding or any part thereof .... See 1 Field, McKusick and Wroth, Maine Civil Practice § 37.4 (2d ed. 1970).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259924/	280 Pa. Superior Ct. 531 (1980) 421 A.2d 849 Dennis McERLEAN, Appellant, v. Sara McCARTAN. Superior Court of Pennsylvania. Argued December 4, 1979. Filed September 19, 1980. 532 Myron H. Deutsch, Philadelphia, for appellant. Michael R. Bradley, Media, submitted a brief on behalf of appellee. Before SPAETH, CAVANAUGH and O'KICKI, JJ.[] SPAETH, Judge: This is an appeal from an order denying appellant's post-trial motions and entering judgment on the jury's verdict in favor of appellee in appellant's action in trespass. Appellant argues that the lower court erred, inter alia, in instructing the jury on the doctrine of sudden emergency.[1] On June 30, 1972, at approximately 5:00 p.m., appellant was driving his automobile west on Springfield Road in Delaware County. A heavy rain storm had occurred and the 533 street was very wet. Appellee was proceeding east on Springfield Road when her automobile went out of control, crossed over into appellant's traffic lane, and struck appellant's automobile. Appellant was seriously injured. Appellee testified that the road surface was sloped down toward the westbound lane, that it was very wet from the storm, and that she had been proceeding at only fifteen miles per hour when her automobile suddenly skidded across the road and struck appellant's automobile. She also testified that she had neither touched her brake nor turned her steering wheel prior to the skid. Appellant took exception to the trial court's instruction on the sudden emergency doctrine. The instruction was as follows: It is urged by the defendant here that due to the condition of the highway she was faced at the time of the accident with a sudden emergency not brought about by any conduct of her own. Sudden emergency rule. This rule in its best form says that where one finds himself in a position to danger which was not the result of his own negligence, he will not be held responsible if he makes a mistake of judgment in extricating or attempting to extricate himself from the dangerous situation in which he finds himself. One confronted with the sudden perilous situation not created by fault of his own is not required to exercise the highest or ordinary degree of judgment. One may be legally blameless in spite of an error of judgment when other conditions have placed him in a situation where it would be unreasonable to hold him to the exercise of correct judgment. R.R. at 263a-64a. The instruction should not have been given. We have permitted a sudden emergency instruction in automobile accident cases where, for instance, a driver is confronted with an object that suddenly moves into his assured clear distance ahead. However, we have not permitted the instruction in cases involving confrontations with pre-existing static road surface conditions. Sullivan v. Wolson, 262 Pa. 534 Super. 397, 396 A.2d 1230 (1978); Brown v. Schriver, 254 Pa.Super. 468, 386 A.2d 45 (1978). In Brown, for example, this court sitting en banc was unanimous in holding that the doctrine did not apply where the defendant's automobile skidded on a patch of loose gravel on the highway. In Sullivan, a panel of this court cited Brown in holding the doctrine inapplicable to an icy highway. It is therefore clear that the doctrine does not apply to the wet road surface in this case.[2] None of the cases cited by appellee is apposite, for none of them involves a road surface condition. See, e.g., Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977) (pedestrian confronted with automobile that suddenly backed up toward him); Rohay v. Breyak, 409 Pa. 568, 186 A.2d 913 (1963) (automobile moving toward defendant); Chadwick v. Popadick, 399 Pa. 88, 159 A.2d 907 (1960) (allegation that deer entered highway); Arble v. Murray, 359 Pa. 12, 58 A.2d 143 (1948) (truck moving toward defendant). Reversed and remanded for a new trial. O'KICKI, J., files a concurring and dissenting statement. O'KICKI, Judge, concurring and dissenting: I concur with the majority Opinion in this case. However, I do not feel the sudden emergency doctrine should be limited, in automobile cases, to whether the object suddenly moves in front of the motorist. The better view was stated in Carpenter v. Penn Central Transportation Company, 269 Pa.Super. 9, 409 A.2d 37 (1979). "The purpose of the sudden emergency doctrine is to relive a victim from the sometimes stringent reasonable man standard when he is confronted with an occurrence that permits no opportunity to apprehend the situation and act accordingly. The doctrine is applied most often in automobile cases in which a driver is confronted with an occurrence requiring some form of immediate, evasive 535 action." 269 Pa.Super. at 17, 409 A.2d at 40. (Citations omitted), (emphasis added). NOTES [] President Judge JOSEPH F. O'KICKI, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation. [1] Because of our decision that a new trial is necessary, we need not reach appellant's other arguments in support of his claim that a new trial is necessary. [2] Since we have held that the sudden emergency instruction should not have been given there is no need to discuss the correctness of the standard of care defined in the instruction in this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259928/	777 F.Supp. 779 (1991) The REGENTS OF THE UNIVERSITY OF CALIFORNIA, Plaintiff, v. ELI LILLY & CO., Defendant. No. C 90 0373 DLJ. United States District Court, N.D. California. April 17, 1991. 780 Gerald P. Dodson, Townsend and Townsend, Thomas D. Nevins, Broad, Schulz, Larson & Wineberg, San Francisco, Cal., Robert C. Miller, and Allen B. Wagner, Counsel with the University of California, Oakland, Cal., for plaintiff. Robert A. Weikert with Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., and Charles E. Lipsey and Susan H. Griffin with Finnegan, Henderson, Farabow, Garrett & Dunner, Washington, D.C., for defendant. ORDER JENSEN, District Judge. I. INTRODUCTION On April 10, 1991, this Court heard oral argument on the following motions: plaintiff's motion for leave to amend the complaint; defendant's motion to amend the original answer, add affirmative defenses and counterclaims, and for an extension of time for discovery; defendant's motion to compel joinder of a necessary party; and lastly, plaintiff's motion for appointment of a special master. This order addresses only the defendant's motion to add an interference counterclaim, defendant's motion for joinder of a necessary party and plaintiff's motion for appointment of a special master. At the hearing the Court granted plaintiff's motion to amend the complaint and asked the parties to submit discovery schedules. Furthermore, a status conference was set for July 17 at 9 a.m. For the following reasons, defendant's motion to add an interference counterclaim under 35 U.S.C. 291 is DENIED; defendant's motion to compel joinder of a necessary party is DENIED; and plaintiff's motion for appointment of special master is DENIED. II. BACKGROUND In the original complaint filed by the Regents of the University of California ("U.C.") on February 7, 1990, U.C. claimed that defendant, Eli Lilly and Company ("Eli Lilly") infringed, inter alia, U.C.'s U.S. Patent No. 4,431,740 ("the 740 patent"). The 740 patent is directed to the production of human insulin, the hormone used to treat diabetes, by recombinant DNA technology. Plaintiff contends that this invention was developed by researchers at the University of California at San Francisco. Eli Lilly manufactures insulin, through recombinant DNA methods using a gene which encodes proinsulin. The proinsulin gene presently utilized by Eli Lilly in its process was obtained from Genentech, Inc. ("Genentech") pursuant to an agreement between Eli Lilly and Genentech relating to the production of insulin. See Defendant's Memorandum in Support of Motion for Joinder, Exhibit A (hereinafter, Defendant's Motion for Joinder). Eli Lilly contends that it is the use of this proinsulin gene which U.C. alleges infringes the 740 patent. See Defendant's Motion for Joinder at 5. U.C. contends that the alleged acts of infringement are Eli Lilly's "manufacture and sale in the United States of its 781 recombinant DNA origin human insulin products." See Plaintiff's Memorandum in Support of Motion to Amend the Complaint at 2 (hereinafter, Plaintiff's Motion to Amend). In Eli Lilly's countermotion it contends that under an agreement between it and Genentech, Genentech assigned to it an exclusive license in claim 6 of U.S. Patent No. 4,704,362 ("the 362 patent," also referred to as the "Riggs-Itakura" patent) owned by Genetech. Eli Lilly, therefore, contends that it is the exclusive licensee of the subject matter claimed in claim 6 of that patent. The agreement entered into on August 25, 1978, provides in part: [G]enentech hereby grants to Lilly the exclusive, irrevocable world-wide rights with the right to grant sublicenses, to use all Genentech Recombinant Microorganisms for the limited purpose of manufacturing, selling and using Recombinant Insulin without regard to Genentech Patent Rights, and in connection only with such production, sale and use, to use all technical information and know-how supplied by Genentech hereunder. Rights granted hereunder shall include the right to practice under any applicable Genentech Patent Rights. See Defendant's Motion for Joinder, Exhibit A at pp. 18-19, para. 6.01. This agreement does not expressly state that Genentech assigned, in whole or in part, any patent rights owned by it. Eli Lilly, however, contends that the agreement encompassed the subject matter covered in claim 6 of Genentech's 362 patent and, therefore, it is the exclusive licensee of such rights. See Defendant's Memorandum in Response to Plaintiff's Motion to Amend and to Amend Answer and Counterclaims and for Enlargement of Time for Discovery at 7 (hereinafter, Defendant's Counterclaims). Elsewhere in the briefs, Eli Lilly contends that it is the beneficial owner of claim 6 of the 362 patent. See Defendant's Motion for Joinder at 9. In light of these facts, defendant asserts it may allege a counterclaim of interference under 35 U.S.C. section 291. Also, defendant contends that if it is not allowed to assert the interference counterclaim in its own name, it should be allowed to join Genentech as a necessary party to the interference counterclaim. Further, defendant asserts that during discovery in a collateral suit against Genentech[1] it discovered a document pertaining to an agreement entered into by Genentech and U.C. which suggested the existence of possible defenses to the alleged infringement of the 740 patent. According to defendant, Genentech and U.C. purportedly entered into an agreement which settled a dispute which arose over an improper transfer to Genentech of chemical and biological materials by two U.C. post-doctoral fellows, Dr. Peter Seeburg and Dr. Axel Ullrich. Defendant believes that certain of these transferred materials were used to produce or are included in the proinsulin gene supplied to it by Genentech. See Defendant's Countermotion at 5. According to defendant, the agreement, attached to defendant's countermotion as tab c, releases Genentech from all claims U.C. otherwise had against Genentech from the use of the materials transferred. Defendant believes that Genentech agreed to pay U.C. a portion of the monies received from defendant pursuant to the Genentech/Lilly agreement in return for the release. Id. at 6. In light of this alleged agreement, defendant asserts that its use of the proinsulin gene has been, in essence, authorized by U.C. and, therefore, U.C. has no right of action for infringement of the 740 patent against Eli Lilly. Under the facts as alleged, defendant seeks to amend the answer to assert the affirmative defenses of estoppel, waiver, release, license, laches and payment. Additionally, defendant seeks to file a counterclaim for declaratory judgement based on the alleged agreement between Genentech and U.C. III. DISCUSSION A. Because the defendant lacks standing to assert an interference counterclaim under section 291, its proposed amendment would be futile. Under Rule 15(a) of the Federal Rules of Civil Procedure a party shall plead in response 782 to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading. Since the Court granted plaintiff's motion to amend the complaint, defendant's motion to amend the answer is moot. Rather, defendant is required to file a new answer to the amended complaint within 10 days after service of the amended complaint. Plaintiff, however, argues that defendant should not be allowed to add to the answer the proposed counterclaim of interference under 35 U.S.C. section 291 because such a counterclaim would be futile for two reasons: one, defendant does not have standing to assert a counterclaim because it is not the owner of the 362 patent, rather Genentech is the owner; and two, defendant is barred from bringing an interference counterclaim because plaintiff, as an agent of the state, is immune from suit under the Eleventh Amendment. A claim is futile if "it appears beyond doubt" that the claim will be dismissed for failure to state a claim. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 188 (9th Cir.1987). An interference action may be brought under section 291, which provides: The owner of an interfering patent may have relief against the owner of another by civil action, and the court may adjudge the question of the validity of any of the interfering patents, in whole or in part. The provisions of the second paragraph of section 146 of this title shall apply to actions brought under this section. The second paragraph of section 146 of title 35 provides, in pertinent part: Such suits may be instituted against the party in interest as shown by the records of the Patent and Trademark Office at the time of the decision complained of, but any party in interest may become a party to the action. As plaintiff explains, in the United States the first to invent something is entitled to a patent. See 35 U.S.C. § 102(g). Thus, an interference action under 291 is designed to ascertain if the same invention is claimed in two patents, and, if so, to determine the priority of inventorship between interfering patents. See Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1574 n. 2 (Fed.Cir.1985). In addition to determining the priority of inventorship as between interfering patents, the court may also consider the validity of the competing patents. 35 U.S.C. § 291. An action under section 291 is only possible if two or more parties are claiming the same or substantially the same subject matter. Nitz v. Ehrenreich, 537 F.2d 539, 543 (C.C.P.A.1976). Generally, interference claims are resolved while patent applications claiming the same subject matter are pending in the United States Patent Office. Nevertheless, once two or more patents are issued to different owners, and thereafter are found to contain interfering claims, i.e., both owners' claims are directed to the same invention, the only way to resolve priority of inventorship is under 35 U.S.C. section 291. See Engler v. General Electric Co., 144 F.2d 191 (2nd Cir.1944), cert. denied, 325 U.S. 857, 65 S.Ct. 1184, 89 L.Ed. 1977 (1945), (an applicant for a patent could not maintain a suit for interference under former section 66 (current section 291) of title 35 before his patent was granted). Defendant contends that as the exclusive licensee of claim 6 of the 362 patent, which it acquired from Genentech, it is entitled to assert a counterclaim under section 291 to determine the priority of inventorship as between claim 6 of the 362 patent and plaintiff's 740 patent even without joining Genentech as a party to the action.[2] Plaintiff, however, contends that since defendant, as an exclusive licensee, is not the owner of the patent it does not have standing to bring the counterclaim for interference 783 and, therefore, the counterclaim is futile. As explained above, section 291 actions are governed by the provisions of the second paragraph of section 146 which provides that "suits may be instituted against the party in interest as shown by the records of the Patent and Trademark Office at the time of the decision complained of, but any party in interest may become a party to the action." And, section 291 itself states, "The owner of an interfering patent may have relief against the owner of another by civil action ..." The question arises as to what interest is sufficient to enable a person to initiate an interference claim under section 291. In Dooley Improvements, Inc. v. Motor Improvements, Inc., 66 F.2d 553 (3rd Cir.), cert. denied, 290 U.S. 689, 54 S.Ct. 127, 78 L.Ed. 594 (1933), (interpreting predecessor statute, 35 U.S.C. § 66,[3] to current section 291) the court held that a patentee, though having granted an exclusive license, was still considered an "owner" under the meaning of then section 66 because said licensor still held legal title and was, therefore, an indispensable party defendant to an interference suit. The court upheld the district court's dismissal of the complaint for interference against the exclusive licensee defendant since, even though the exclusive licensee under the facts[4] was also considered an owner within the meaning of section 66, all owners were indispensable parties and without all owners present no action could be maintained. See Dooley Improvements, 66 F.2d at 554. In so holding, the district court distinguished interference actions from patent infringement actions: Title that will enable a licensee to sue in his own name to protect a patent against infringement is not the question here. This proceeding under section 4918 (section 4918 of the Revised Statute was 35 U.S.C. § 66) is to destroy patents, not to protect them. In such a proceeding all the owners of the patents must be brought before the court as in any condemnation or cancellation proceeding. Dooley Improvements, 1 F.Supp. at 642. Here, defendant contends that it is an exclusive licensee of part of the 362 patent. Regardless of this characterization, the agreement makes clear that title to the subject matter of the agreement is to remain in Genentech for a 20 year period after the effective date of the agreement which was August 25, 1978. See Defendant's Motion to Compel Joinder, Exhibit A, pp. 19, 20. Additionally, the agreement provides that "know-how and chemical and biological materials including Recombinant Microorganisms furnished to Lilly for use following the seventh (7th) year of this Agreement shall at all times remain the property of Genentech." Id., Exhibit A, p. 20. Thus, following Dooley, defendant cannot bring this interference claim unless Genentech, as title holder of the patents and property therein, is joined since Genentech is an "owner" and indispensable party under the provisions of section 291. In finding the rationale in Dooley persuasive, the Court recognizes the subtle 784 distinctions between the facts in Dooley and this case. For example, in Dooley the interference action was being brought against defendants, whereas here it is being brought by a defendant, and the statute in effect at the time provided that such actions must be brought "against the owners of the interfering patent," but the statute did not employ similar language for those who could initiate such actions. Rather, the statute stated that "any person interested" in an interfering patent could seek relief. 35 U.S.C. § 66, superseded by 35 U.S.C. § 291. In contrast, section 291 of the current statute provides an "owner" of an interfering patent may have relief against the "owner of another." Although the language has changed, the Court believes that the old statute as well as the current statute required that the person initiating the action have an ownership interest. This conclusion is in accord with the language of then section 66, which states, "But no such judgment or adjudication shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment." This language suggests that parties to an interference action are title holders of the patent. This conclusion is also supported by the rationale in Dooley which explained that the purpose of an interference action is to "destroy" patents and, therefore, all owners of the patents must be before the court. Whether initiating a section 291 action or defendants to such an action, all owners of the patents at issue should be brought before the court because each stands the chance of having their patent declared invalid and void. In addition to this requirement, section 146, incorporated into the provisions of section 291, provides that any party in interest may become a party to the action. Since the Court finds that joinder of Genentech as an indispensable party would be barred by the Eleventh Amendment (see below), defendant's counterclaim would, upon motion, be dismissed and is, therefore, futile. See DCD Programs, 833 F.2d at 188. Even if Genentech, as "owner" under section 291, was not an indispensable party, under the facts of this case defendant has an insufficient interest to bring an interference claim in its own name. Defendant contends that the agreement between Genentech and it encompassed claim 6 of the 362 patent. This agreement, however, does not amount to an assignment of the patent itself, either in whole or in part. The agreement states that Genentech grants the exclusive, world-wide right to use the Genentech Recombinant Microorganisms for the limited purposes set forth. The agreement, however, states that this right is granted "without regard to Genentech Patent Rights." This language suggests that no patent right, in whole or in part, was assigned, rather a kind of sharing of technology and know-how was to take place between the parties. At most, the language warrants that Genentech would not sue defendant for infringement of Genentech patent rights while the agreement was in effect. Thus, defendant was licensed to practice under the Genentech patent rights without the fear of infringing Genentech's patents. This type of arrangement is a mere license and would not grant in defendant the right to sue for infringement of the patent in its own name. (See Waterman v. Mackenzie, 138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923 (1891) where the court set forth three types of transfers that amounted to an assignment of a patent right which gives the assignee the right to sue infringers in the assignee's own name: (1), "the whole patent, comprising the exclusive right to make, use, and vend the invention throughout the United States"; (2), "an undivided part or share of that exclusive right"; or (3), "the exclusive right under the patent within and throughout a specified part of United States." Id. at 255, 11 S.Ct. at 335. The Court stated that all other transfers not falling into one of these categories is a mere license which does not convey a title in the patent and does not give the holder the right to bring suit in his own name. Id.) Since, as an exclusive licensee, defendant could not bring an infringement suit in its own name without joining Genentech, it is equally precluded 785 from bringing an interference action, here a counterclaim, in its own name. Arguably, the rationale for not allowing an exclusive licensee to bring an interference action in its own name is stronger than in the infringement context because the owners of the patents in an interference action run the risk of having their patents declared invalid. See Dooley, 1 F.Supp. at 642. Therefore, the Court concludes that defendant does not have standing to assert an interference counterclaim under section 291 in its own name. B. An interference action under section 291 is barred by the Eleventh Amendment. Plaintiff contends that as an agent of the state it is immune from a section 291 counterclaim under the doctrine of sovereign immunity under the Eleventh Amendment. The parties do not dispute that U.C., as a branch of the government of the State of California, is entitled to the full protection of the Eleventh Amendment. See e.g., BV Engineering v. University of California, Los Angeles, 858 F.2d 1394, 1395 (9th Cir.1988), cert. denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 859 (1989) ("`The University of California and the Board of Regents are considered to be instrumentalities of the state,' Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982), and therefore enjoy the same immunities as the State of California.") In BV Engineering the court held that UC was immune from suit for copyright infringement due to the Eleventh Amendment. And, in Chew v. State of California, 893 F.2d 331, 334 (Fed.Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 44, 112 L.Ed.2d 20 (1990), the court held that plaintiff's suit for patent infringement damages was barred by the Eleventh Amendment and that the patent statutes did not waive this immunity. The parties do dispute, however, the issue of whether U.C. has waived its immunity by bringing this infringement action. When a state unequivocally waives its immunity and consents to suit in federal court the Eleventh Amendment will not bar the action. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985) (where Court held the Art. III, § 5, of the California Constitution was not a waiver of the Eleventh Amendment immunity). For example, in Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883), the State of Rhode Island voluntarily appeared in a federal interpleader action and prosecuted a claim to the fund in controversy. The Supreme Court held that by voluntarily submitting to the federal court's jurisdiction, the State, "made itself a party to the litigation to the full extent required for its complete determination." Id. at 448, 2 S.Ct. at 883. In Woelffer v. Happy States of America, Inc., 626 F.Supp. 499 (N.D.Ill.1985) the court, referring to Clark, stated that "despite this broad statement, federal courts have consistently held that a state plaintiff does not waive its sovereign immunity with respect to all plausible counterclaims." Id. at 502. In order to be a cognizable counterclaim, the court in Woelffer stated that the counterclaim must: one, "arise from the same event underlying the state's action," and two, "be asserted defensively, by way of recoupment, for the purpose of defeating or diminishing the State's recovery, but not for the purpose of obtaining an affirmative judgment against the State." Id. In Woelffer the court addressed the availability of various types of equitable relief for counterclaims asserted in a copyright action. The court held that a counterclaim for injunctive relief against further copyright infringement was "not sufficiently equivalent to a recoupment or set-off to fall within the narrow exception to sovereign immunity recognized by the court." Id. at 503. The court did find, however, that it had jurisdiction over the declaratory portion of the counterclaim, "which largely mirrors the complaint." Id. at 502. Applying Woelffer, plaintiff contends that it has not waived its immunity from a counterclaim under section 291 because defendant seeks affirmative relief. Defendant contends, however, that the counterclaim under section 291 is solely a defensive claim to determine if the plaintiff's 740 patent is void and if it lacks priority over the 362 patent. Thus, defendant contends it seeks nothing in the way of affirmative 786 relief, such as an injunction or monetary damages; rather, the interference claim is intended only to eliminate plaintiff's recovery. It is true that defendant seeks no monetary damages, nor does it assert an infringement claim against plaintiff, however, an interference action under section 291 may result in a declaration that U.C.'s patent or Genentech's patent is invalid, in whole or in part. The Court believes that such an affirmative declaration of invalidity is beyond the waiver of immunity intended by such cases as Woelffer. Although, the law in this area is sparse, a few older cases under section 66 suggest that a judgment of invalidity in an interference proceeding is affirmative relief. For example, in Electrical Accumulator Co. v. Brush Electric Co., 44 F. 602 (C.C.Ohio 1890), the court held that a defendant may obtain "affirmative relief" on an answer alleging the validity of his own patent, and the invalidity of plaintiff's, even though the defendant did not assert the claim in a cross-bill. See also, Lockwood v. Cleaveland, 6 F. 721 (C.C.N.J.1881). Affirmative relief would result if the Court was to grant defendant's prayer and declare U.C.'s 740 patent invalid. Such relief goes beyond mere recoupment or set-off from U.C.'s infringement action against defendant, and, therefore, is barred by the Eleventh Amendment. The parties did not argue whether or not the counterclaim arises from the same events underlying U.C.'s action, and since the relief sought is barred by the Eleventh Amendment, the Court does not need to address this question. A cursory review of the facts underlying U.C.'s infringement action and a review of the relevant inquiry in interference actions (e.g. when the patents at issue where in fact invented), however, suggests that the Court would be delving into an entirely different set of facts which do not involve the same events underlying the infringement claim. This consideration may be weakened by the fact that defendant has asserted an affirmative defense of invalidity under 35 U.S.C. section 102(g) which will entail a review similar in scope to that reviewed in a section 291 action. For the above reasons, the Court concludes that U.C. is immune under the Eleventh Amendment from a counterclaim of interference under section 291 as proposed by defendant. Plaintiff does not object to defendant's proposed affirmative defenses and first and second counterclaims for declaratory judgment. C. Genentech, as owner of the 362 patent is an indispensable party to a section 291 action, however joinder of Genentech is barred by the Eleventh Amendment. It is clear that an exclusive licensee can join a patent owner as a defendant to an infringement suit when the owner is unwilling to voluntarily join the action. See Independent Wireless Tel. Co. v. Radio Corp. of America, 269 U.S. 459, 46 S.Ct. 166, 70 L.Ed. 357 (1926), (exclusive licensee as coplaintiff could join owner of patent, being with in jurisdiction, as party defendant to an infringement action). This result seems equally applicable to an interference action under section 291 indeed, it is compelled by the rationale in Dooley, 66 F.2d at 554, where all owners of a patent are indispensable parties to an interference proceeding. Even though defendant, as an exclusive licensee, arguably would be able to compel joinder of Genentech as an indispensable party, it cannot under these facts because U.C. is immune from an interference action brought by way of a counterclaim in the name of Genentech for the same reasons U.C. is immune from counterclaim asserted by defendant. Specifically, the affirmative relief sought by way of a declaration of interference is beyond the scope of a State's waiver of its Eleventh Amendment immunity. D. Plaintiff's request for reference of privilege disputes to a special master. Plaintiff's request for a special master is DENIED. The Court, however, hereby orders, pursuant to Local Rule 415-1, that discovery matters of this case be referred to the Chief Magistrate to be heard and 787 considered at the convenience of his calendar, or to be assigned by him to another available Magistrate. Counsel will be advised of the date, time and place of the hearing by notice from the assigned Magistrate. IV. CONCLUSION For the foregoing reasons, the Court rules that plaintiff's motion to amend the complaint is GRANTED. The amended complaint is to be filed within 10 days from the date of this order. Defendant's motion to add affirmative defenses of estoppel, waiver, release, license and laches is GRANTED, as is defendant's motion to add the first and second counterclaims of declaratory judgment. Defendant's motion to add the counterclaim of interference under 35 U.S.C. section 291 to the answer is DENIED. Defendant's motion to join Genentech as a necessary party is DENIED. Lastly, plaintiff's motion for appointment of a special master is DENIED; however, discovery matters are hereby referred to the Chief Master. IT IS SO ORDERED. NOTES [1] Eli Lilly and Co. v. Genentech, Inc., Civil Action No. IP 87 219C (S.D.Ind.); Genentech, Inc. v. Eli Lilly and Co., Civil Action No. IP 88 1463C (S.D.Ind.). [2] Specifically, defendant believes that some claims of the 740 patent interfere with claim 6 of the 362 patent, and because the subject matter of the 362 patent was invented prior to the subject matter of the claims of the 740 patent, claim 6 of the 362 patent should be granted priority and the interfering claims of the 740 patent should be dismissed. See Defendant's Countermotion at 6 and 7. [3] 35 U.S.C. section 66 is the predecessor statute to section 291 and it states: Whenever there are interfering patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoperative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented. But no such judgment or adjudication shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment. [4] The district court explained that even if the agreement conveyed an assignment to defendant, not merely a license, as plaintiff contended, it did not necessarily follow that the assignor/licensor was divested of all ownership such that an interference action could proceed in the assignor's absence. Dooley Improvements v. Motor Improvements, 1 F.Supp. 641, 642 (D.C.Del.1932), aff'd 66 F.2d 553 (3rd Cir.), cert. denied, 290 U.S. 689, 54 S.Ct. 127, 78 L.Ed. 594 (1933).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259930/	777 F.Supp. 1105 (1991) Irwin PLOTKIN, Plaintiff, v. BEARINGS LIMITED, John Bauer, Michelle Saunders, Jeff D. Feldman, and Martin Granowitz, Defendants. BEARINGS LIMITED, Defendant, v. Irwin PLOTKIN, Plaintiff, and Ga-Ro International, Inc., Counterclaim-Defendant. No. CV 91-0472. United States District Court, E.D. New York. November 21, 1991. 1106 Alan Polsky, Bohemia, N.Y., for plaintiff/counterclaim-defendant. Feldman & Feldman by Steven A. Feldman, Hauppauge, N.Y., for defendants. MEMORANDUM AND ORDER WEXLER, District Judge. Plaintiff/counterclaim defendant Irwin Plotkin ("Plotkin") brings this action against defendant/counterclaim plaintiff Bearings Limited ("Bearings" or "the company") as well as defendants John Bauer ("Bauer"), Michelle Saunders ("Saunders"), Jeff D. Feldman and Martin Granowitz, (collectively "defendants"), alleging, inter alia, violations of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1024(b)(4) and 1132(a)(1)(B). This Court has jurisdiction to hear this action pursuant to 29 U.S.C. § 1132(e). Additionally, both Plotkin and Bearings assert various state claims and counterclaims. Currently before the Court is Bearings' motion to dismiss[1] in its entirety Plotkin's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Plotkin's cross-motion to dismiss Bearings' counterclaims against Plotkin and counterclaim defendant GA-RO International, Inc. ("GA-RO"). For the reasons set forth below, the Court grants defendants' motion to dismiss the ERISA claims and declines to hear the remaining state claims and counterclaims. BACKGROUND On July 6, 1990, Bearings, a ball and roller bearings importer/exporter and wholesaler, terminated Plotkin, who for fifteen years had been an employee of the company. On August 21, 1990, Bearings commenced an action in the Supreme Court of Suffolk County, New York, alleging, inter alia, that Plotkin had secretly violated his duty of loyalty by incorporating and operating GA-RO,[2] a competitor company, while he was employed by defendant. On 1107 October 5, 1990, Plotkin filed his answer and that suit is currently pending. On February 7, 1991, Plotkin filed an action in this Court alleging a violation of 29 U.S.C. § 1024(b)(4). Specifically, Plotkin contends that defendants failed to respond to written requests made to Bauer, on May 3 and May 21, 1990, two months prior to Plotkin's termination by Bearings, for information regarding the company pension plan including "how the figures were compiled, how the PLAN works, the rules and regulations of the PLAN and the plaintiff's current statement." Complaint at 3. Defendants contend that Plotkin made these requests to parties who are not designated as administrators of the plan as required by the statute and, thus, has failed to set forth any basis for relief. Plotkin also asserts, pursuant to 29 U.S.C. § 1132(a)(1)(B), that defendants "failed to properly clarify [his] rights to future benefits under the PLAN." Id. In addition, Plotkin alleges various state law causes of action. DISCUSSION On a motion to dismiss, the allegations of the complaint must be accepted as true, Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972), and the complaint must be construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Furthermore, a complaint cannot be dismissed for failure to state a claim unless it appears beyond a doubt "`that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir.1984) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)), cert. denied, 470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985). ERISA Claims As noted, Plotkin alleges that defendants violated 29 U.S.C. § 1024(b)(4) which states: The administrator [of the plan] shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments upon which the plan is established or operated. 29 U.S.C. § 1024(b)(4). Deliberate failure by the plan administrator to provide such information within thirty days allows a court, in its discretion, to impose a penalty of up to $100 per day. 29 U.S.C. § 1132(c)(1)(B). Plotkin asks this Court to impose a penalty of $100 per day commencing June 1, 1990. Defendants contend that Plotkin received the information he requested on November 21, 1990. Plotkin disputes this contention but admits that he obtained the requested information on February 20, 1991, after the commencement of this action. The Court finds that defendants have failed to overcome the stringent standard that would allow this Court to grant defendants' motion to dismiss on that basis. See Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02. Under ERISA, the decision to impose a penalty on an administrator who fails to furnish the requested information to a participant of the plan within 30 days is placed within the discretion of the court. 29 U.S.C. § 1132(c)(1)(B). However, penalties are generally not imposed for "technical violations" of that statute. See Chambers v. European American Bank and Trust Co., 601 F.Supp. 630, 638 (E.D.N.Y.1985) (no penalty imposed where information was provided 42 days after the statutory deadline). As stated, on a motion to dismiss, a court must accept the allegations made in the complaint as true. See Cruz, 405 U.S. at 322, 92 S.Ct. at 1081. Thus, this Court must assume for purposes of this motion that Plotkin directed his request to the proper individual. Plotkin claims to have received the information he requested ten months later. In this Court's view, a delay of ten months cannot be characterized as a *1108 "technical violation." Accordingly, defendants' motion to dismiss cannot be granted on that ground. However, the length of the delay is not dispositive with regard to the imposition of penalties. In this case, Plotkin has wholly failed to allege that he was harmed or otherwise prejudiced by the delay in receipt of the information. Similarly, Plotkin has not even demonstrated bad faith or intentional delay on defendants' part. "The weight of authority indicates that penalties are not imposed when a plaintiff has failed to demonstrate [such injury]." Chambers, 601 F.Supp. at 638 (citing Paris v. Profit Sharing Plan, 637 F.2d 357, 362 (5th Cir.), cert. denied, 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117 (1981); Wesley v. Monsanto Co., 554 F.Supp. 93, 98 (E.D.Mo. 1982), aff'd 710 F.2d 490 (8th Cir.1983); Shlomchik v. Retirement Plan of Amalgamated Ins., 502 F.Supp. 240, 245 (E.D.Pa.1980), aff'd, 671 F.2d 496 (3d Cir. 1981); Pollock v. Castrovinci, 476 F.Supp. 606, 618 (S.D.N.Y.1979), aff'd without opinion, 622 F.2d 575 (2d Cir.1980); Adams v. Western Conference of Teamsters Pension Plan, 484 F.Supp. 933, 935 (D.Utah 1979) (even if defendants failed to send one or more documents, plaintiffs were not harmed by such failure)). See also Kelly v. Chase Manhattan Bank, 717 F.Supp. 227, 233 (S.D.N.Y.1989) (nine month delay without a showing that plaintiff was prejudiced by the delay is not sufficient to overcome defendant's motion for summary judgment). It is for this reason that the Court grants, without prejudice, defendants' motion to dismiss Plotkin's claim under 29 U.S.C. § 1024(b)(4) and declines to impose penalties under 29 U.S.C. § 1132(c)(1)(B). Plotkin also asserts a claim pursuant to 29 U.S.C. § 1132(a)(1)(B) is dismissed with prejudice. As noted, Plotkin alleges that defendants "failed to properly clarify [his] rights to future benefits under the PLAN." Complaint at 3. However, an examination of the papers before the Court reveals conclusively that Plotkin was provided with this information several months prior to commencing this action. Accordingly, Bearings' motion to dismiss is granted with prejudice with respect to this claim. State Claims As noted, Plotkin commenced this action in February of 1991. Therefore, 28 U.S.C. § 1367, enacted December 1, 1990, applies. Subdivision (a) of § 1367 provides the district court with supplemental jurisdiction over related claims provided the district court has original jurisdiction over a claim. 28 U.S.C. § 1367(a). However, clause (3) of subdivision (c) allows the court to decline supplemental jurisdiction if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Under the circumstances of the case this Court determines that considerations of judicial economy, comity, and fairness to the parties warrants the dismissal of the state claims and counterclaims.[3]See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). CONCLUSION For the reasons stated above, Plotkin's claim under 29 U.S.C. § 1024(b)(4) is dismissed without prejudice. Accordingly, the Court declines to exercise its discretion to impose penalties on the plan administrator under 29 U.S.C. § 1132(c)(1)(B). Plotkin's claim under 29 U.S.C. § 1132(a)(1)(B) is dismissed with prejudice. Lastly, the Court declines to exercise supplemental jurisdiction over Plotkin's state claims and Bearings' counterclaims. The Clerk of the Court is directed to close the file in this case. SO ORDERED. NOTES [1] The motion seeks, in part, to dismiss the action against Bauer and Saunders on the ground that they are not administrators under the plan in question. [2] GA-RO is a named defendant in the state action and a counterclaim defendant in the federal action. [3] It is to be noted that Bearings' counterclaims virtually replicate those pending in the state court action.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259937/	280 Pa. Superior Ct. 213 (1980) 421 A.2d 688 The THOMAS MERTON CENTER, a nonprofit Pennsylvania corporation and the Stop The B-1 Bomber Task Force of the Thomas Merton Center, an unincorporated nonprofit association, v. ROCKWELL INTERNATIONAL CORPORATION, a corporation, and Crosby M. Kelly, an individual. Appeal of The THOMAS MERTON CENTER. Superior Court of Pennsylvania. Argued November 15, 1979. Filed August 8, 1980. Petition for Allowance of Appeal Granted February 23, 1981. 214 215 Vincent A. Colianni, Pittsburgh, for appellant. Thomas R. Johnson, Pittsburgh, for Rockwell, appellee. James D. Morton, Pittsburgh, for Kelly, appellee. Before SPAETH, HOFFMAN and VAN der VOORT, JJ. HOFFMAN, Judge: Appellant contends that the lower court erred in granting judgment on the pleadings in favor of appellee in this defamation action. We agree and, accordingly, reverse the order of the lower court and remand for further proceedings. Under Pa.R.C.P. 1034, a motion for judgment on the pleadings may be granted in cases which are so free from 216 doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party's well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him. . . . Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is further circumscribed by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967) (footnote and citations omitted). See also Karns v. Tony Vitale Fireworks Corp., 436 Pa. 181, 259 A.2d 687 (1969); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980); Leidy v. Deseret Enterprises, Inc., 252 Pa.Super. 162, 381 A.2d 164 (1977). Moreover, in passing on a motion for judgment on the pleadings, a court has the "obligation to consider the pleadings and the inferences therefrom in the light most favorable to the [non-moving party]." Karns v. Tony Vitale Fireworks Corp., supra, 436 Pa. at 183, 259 A.2d at 688. Viewed in this light the pleadings in this case disclose the following facts. Appellant, the Thomas Merton Center (Merton), is a nonprofit corporation, some of whose members worked actively in 1976 to oppose the United States' development of a controversial military aircraft known as the B-1 bomber.[1] At the time this action was instituted appellee Crosby M. Kelly (Kelly) served as vice president of communications for appellee Rockwell International Corporation (Rockwell), the prime contractor for the B-1 bomber project. On December 21, 1976, the Pittsburgh Post Gazette, a newspaper of general circulation in the Pittsburgh area, published an article written by the Associated Press entitled "B1 Foes Linked to Soviet Funds." The article, in relevant part, reads as follows: 217 A top official of Rockwell International, prime contractor for the B1 bomber, says he's convinced the Soviet Union is secretly funding opponents of the controversial weapons project. "Oh absolutely, oh sure," responded Crosby M. Kelly, vice president of communications, when asked during a lengthy interview if the Soviets were providing funds. ..... Kelly offered no specific documentation for Soviet activity in the B1 controversy, but he said the Institute for the Study of Conflict in London supports his thesis in general. Yesterday, when Kelly learned of The Associated Press' imminent story, he called from California to disclaim that he was speaking as a company official. "That's pretty dramatic stuff. I have no documentation to establish proof of one dime of their funding," he said. But Kelly did not deny that he believes Soviets are involved financially. "Sure, undoubtedly they are. I say that, but not from any position of authority." ..... "I can't understand why he would say that unless it's to discredit us," responded Stella Smetanka, assistant director of the Thomas Merton Center here, another group which Kelly singled out. Following publication of this article Merton filed a complaint in trespass against both Rockwell and Kelly in which it alleged that the article was intended to convey, and did convey to the community at large, the impression that members of . . . Merton . . . were Communist sympathizers, associated with Communists or were in fact Communists and . . . was calculated to, and did, hold [Merton] up to public scorn, hatred, [and] ridicule. Both Rockwell and Kelly denied these allegations and subsequently moved for judgment on the pleadings, contending that the statements attributed to Kelly were not defamatory 218 as a matter of law and did not identify Merton sufficiently to sustain its claim of defamation. The lower court agreed that the statements were not defamatory as a matter of law and granted judgment on the pleadings in favor of Rockwell and Kelly. This appeal followed. As the lower court correctly noted, it is the duty of the trial court, "in the first instance, to determine whether the communication complained of is capable of a defamatory meaning . . . . If the court determines that the statement is capable of a defamatory meaning, it is for the jury to determine whether it was so understood by the recipient." Corabi v. Curtis Publishing Co., 441 Pa. 432, 441, 273 A.2d 899, 904 (1971) (citations omitted). See also Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962); Vitteck v. Washington Broadcasting Co., 256 Pa. Super. 427, 389 A.2d 1197 (1978); Doman v. Rosner, 246 Pa.Super. 616, 371 A.2d 1002 (1977). A libel is "a maliciously written or printed publication which tends to blacken a person's reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession." Corabi v. Curtis Publishing Co., 441 Pa. 432, 441, 273 A.2d 899, 904 (1971); Volomino v. Messenger Publishing Co., 410 Pa. 611, 613, 189 A.2d 873, 874-75 (1963). A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him, Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962), and necessarily involves the idea of disgrace. Vitteck v. Washington Broadcasting Co., 256 Pa.Super. 427, 389 A.2d 1197 (1978). "The test is the effect the [statement] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate." Corabi v. Curtis Publishing Co., supra, 441 Pa. at 447, 273 A.2d at 907, quoting, Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936). Beckman v. Dunn, 276 Pa.Super. 527, 534, 419 A.2d 583, 586 (1979). 219 In Clark v. Allen, 415 Pa. 484, 204 A.2d 42 (1964), Chief Justice BELL observed that "[c]ertain charges or accusations have been determined by this Court to be libelous. We have decided that calling or referring to any American citizen as a Communist, or knowingly a member of a Communist organization, or engaging in Communist activities, is libelous per se: Matson v. Margiotti, 371 Pa. 188, 193, 88 A.2d 892 [1952]; Albert Appeal, 372 Pa. 13, 92 A.2d 663 [1952]." 415 Pa. at 496, 204 A.2d at 48 (BELL, C.J.) (emphasis in original). See also Solosko v. Paxton, 383 Pa. 419, 119 A.2d 230 (1956), aff'g 4 Pa.D. & C.2d 240 (Somerset County 1954) (statements that plaintiff was communist held capable of defamatory meaning); Americans for Democratic Action v. Meade, 72 Pa.D. & C. 306 (Phila.County 1950) (statements that plaintiff association "has Communist members, harbors Communists, espouses Communist doctrines, is influenced in its policies by Communists or Communism, and that candidates for public office supported by [it] were consequently receiving support from Communists," id. at 309, held reasonably capable of defamatory meaning). But see Clark v. Allen, supra (Opinion of BELL, C.J.) (not libelous to write of U.S. Senator that his voting record displayed "communist tendencies"); McAndrew v. Scranton Republican Publishing Co., 364 Pa. 504, 72 A.2d 780 (1950) (not libelous for newspaper to erroneously quote plaintiff as saying, "of course, we all have to have a little Communism today"). Cases in numerous other jurisdictions have held statements identifying persons as communists or associating them in some manner with communism to be defamatory. See, e.g., Spanel v. Pegler, 160 F.2d 619 (7th Cir. 1947); Grant v. Reader's Digest Association, 151 F.2d 733 (2d Cir. 1945), cert. denied, 326 U.S. 797, 66 S.Ct. 492, 90 L.Ed. 485 (1946); Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 138 A.2d 61 (App.Div. 1958), opinion after rehearing, 49 N.J.Super. 551, 140 A.2d 529 (App.Div. 1958); Toomey v. Farley, 2 N.Y.2d 71, 156 N.Y.S.2d 840, 138 N.E.2d 221 (1956). See generally Annot., 33 A.L.R.2d 1196 (1954). Evaluating the cases in this area Professor Prosser wrote that "the accusation of membership in the Communist party, 220 or of Communist affiliation or sympathy, which has led to varying conclusions over the last two decades, is at present all but universally regarded as clearly defamatory." W. Prosser, Handbook of the Law of Torts § 111, at 744 (4th ed. 1971) (footnotes omitted). In the present case Merton alleged in its complaint that Kelly responded affirmatively when asked whether the Soviet Union was secretly funding opponents of the B-1 bomber, reasserted in a later interview that such funding was taking place, and "singled out" Merton as one of the B-1 bomber opponents to whom he had been referring.[2] Viewing these allegations as true, as we must where judgment on the pleadings has been granted, Karns v. Tony Vitale Fireworks Corp., supra, we conclude that the lower court erred in granting judgment on the pleadings to Rockwell and Kelly. It is conceivable, even likely, that some readers of the Pittsburgh Post Gazette believed after reading the statements attributed to Kelly that Merton or some of its members either were communists, communist agents, or communist sympathizers. Thus, the statements are clearly capable of a defamatory meaning, and it was error for the lower court to preclude Merton from proceeding with its case. Accordingly, we reverse the order of the lower court and remand this case for further proceedings. One final matter merits our attention. In its opinion the lower court stated its view that, pursuant to the decisions of the United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), Merton could not recover absent proof that Kelly had made his statements "with `actual malice'-that is with knowledge that [they were] false or with 221 reckless disregard of whether [they were] false or not." New York Times v. Sullivan, 376 U.S. at 279-80, 84 S.Ct. at 725-26. See also Gertz v. Robert Welch, Inc., 418 U.S. at 328, 94 S.Ct. at 3001. This was so, the court stated, because Merton, having injected itself into the B-1 bomber controversy, was a "public figure." See Gertz v. Robert Welch, Inc. supra; Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The lower court further stated that it did not believe Merton had met its burden of showing "actual malice" on the part of Kelly. We are not certain why the lower court reached this issue, given its holding that the statements complained of were not defamatory as a matter of law. It is far from settled that the New York Times standard of "actual malice" applies to cases involving nonmedia defendants, such as Rockwell and Kelly. The United States Supreme Court has expressly left this question open, Hutchinson v. Proxmire, 443 U.S. 111, 132 n.16, 99 S.Ct. 2675, 2687 n.16, 61 L.Ed.2d 411 (1979), and we are aware of no Pennsylvania appellate decision applying the standard to nonmedia defendants as a matter of state law. Cf. Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976) (holding the New York Times standard applicable to nonmedia defendants as a matter of Maryland law). Moreover, the question of whether a given plaintiff can be deemed a "public figure" is a difficult one which has, at times, divided the United States Supreme Court. See, e.g., Wolston v. Reader's Digest Association, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976). Even assuming, arguendo, that the New York Times standard does apply to the present case, the court's conclusion that Merton failed to prove "actual malice" on the part of the defendants was premature. The case was presented to the court for decision on the pleadings alone. The record before the court was limited to the pleadings, the motions for judgment on the pleadings, and the parties' respective briefs on the motions, none of which discussed the applicability of the constitutional privilege. The lower court was *222 without the benefit of any other materials, such as depositions or interrogatories, to aid in determining whether Kelly knew that his statements were false or made his statements with reckless disregard of whether they were false or not. It may well be that after further proceedings the lower court will be called upon to determine the effect, if any, of the New York Times standard on the present case based on a record containing sufficient facts to decide the issue. We hold only that the lower court could not properly conclude on the limited record before it that Merton had failed to prove "actual malice" within the meaning of New York Times and its progeny. Order reversed and case remanded for further proceedings. NOTES [1] Those members formed an unincorporated association called the "Stop the B-1 Bomber Task Force" (Task Force) which joined Merton as a plaintiff in the lower court. The Task Force has not appealed from the order granting judgment on the pleadings to appellees. [2] Accordingly, there is no question that Merton was sufficiently identified in the allegedly defamatory statements to maintain this action. See Farrell v. Triangle Publications, Inc., 399 Pa. 102, 105, 159 A.2d 734, 737 (1960) ("[I]f the defamatory publication can reasonably be interpreted as referring to a particular complainant, whether recipients did so conclude is for a jury to determine." (footnote omitted)).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259946/	280 Pa. Superior Ct. 388 (1980) 421 A.2d 777 COMMONWEALTH of Pennsylvania v. Alfred Melvin DORSEY, Appellant. Superior Court of Pennsylvania. Submitted December 6, 1979. Filed August 15, 1980. 389 Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant. Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee. Before BROSKY, WICKERSHAM and ROBERTS, JJ.[] ROBERTS, Judge: Appellant Alfred Melvin Dorsey was charged by three separate complaints with conspiracy to commit burglary, loitering and prowling, and possessing instruments of crime. These charges were subsequently set forth in three separate indictments. On June 12, 1979 appellant pleaded guilty to these charges. In sentencing appellant, the court assessed costs on each of the three indictments. Appellant then filed a motion challenging the propriety of assessing three sets of costs. The court denied the motion, and an appeal from that order followed. 390 This case is controlled by the Act of March 10, 1905, P.L. 35, § 2, which provides: "It shall be unlawful, in all criminal prosecutions hereafter instituted, to tax costs in and on more than one return, information, complaint, indictment, warrant, subpoena or other writ, against the same defendant or defendants, where there has been a severance or duplication of two or more offenses which grew out of the same occurrence, or which might legally have been included in one complaint and in one indictment by the use of different counts."[1] The crimes charged here, according to Commonwealth testimony at the guilty plea and sentencing hearing, arose out of the same occurrence or transaction. Accordingly, only one set of costs should have been assessed. See Commonwealth v. Adams, 280 Pa.Super. 391, 421 A.2d 778. The Commonwealth raises two objections to this conclusion. First it claims that the plea agreement, to which appellant allegedly consented in a knowing and intelligent fashion, provided for three sets of costs. It must be obvious, however, that a plea agreement cannot contain a term proscribed by the Legislature. It is appropriate, then, to strike such a term from the agreement, especially when, as is undisputed here, that term did not induce the Commonwealth to enter the agreement. Second, the Commonwealth contends that appellant failed to raise his claim in a timely fashion. We disagree. Pa.R.Crim.P. 1410 provides that motions to modify sentence shall be filed within ten days of imposition of sentence. Such procedure was complied with here. Accordingly, we modify appellant's sentence to assess only one set of costs against appellant and remand for proceedings consistent with this opinion. NOTES [] Justice SAMUEL J. ROBERTS of the Supreme Court of Pennsylvania, is sitting by designation. [1] This statute, formerly 19 P.S. § 1294, was repealed subsequent to imposition of sentence. Act of April 28, 1978, P.L. 202, § 2(a) [879], effective June 27, 1979.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259951/	280 Pa. Superior Ct. 323 (1980) 421 A.2d 744 Patricia Ann GARBER v. The TRAVELERS INSURANCE COMPANIES and Charles Shimmel and Virginia Shimmel, his wife. Appeal of The TRAVELERS INSURANCE COMPANIES. Superior Court of Pennsylvania. Argued April 16, 1980. Filed September 26, 1980. 324 Denis P. Zuzik, Greensburg, for appellant. Thomas P. Cole, II, Greensburg, for appellee. Before SPAETH, WICKERSHAM and LIPEZ, JJ. SPAETH, Judge: This is a declaratory judgment action. The issue is whether appellant insurance company is obliged to provide appellee with coverage following an automobile accident in which appellee was involved while driving her husband's automobile. The lower court found coverage and the insurance company has appealed.[1] Almost all of the essential facts were stipulated, and are as follows. On April 13, 1975, the date of the accident, 325 appellee was married to Louis Garber. Appellee owned a 1971 Ford Maverick, which was covered by the policy at issue. Appellee's husband owned a 1966 Buick. Appellee drove her husband's Buick only with his specific permission, and when her Ford was unavailable. On the day of the accident, appellee was driving her husband's Buick because her Ford was inoperable because of a mechanical problem. The one relevant fact not stipulated was whether appellee and her husband were residing in the same household at the time of the accident. The lower court found that appellee's testimony established that they were, and no party has objected to that finding. The construction of an insurance policy is a question of law, Adelman v. State Farm Mutual Auto Insurance Co., 255 Pa.Super. 116, 386 A.2d 535 (1978), but it is not the function of the court to rewrite a policy or give its terms a construction in conflict with their plain meaning, Pennsylvania Manufacturers Association Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967). Any ambiguous term must be construed favorably to the insured, Patton v. Patton, 413 Pa. 566, 198 A.2d 578 (1964), but a term is ambiguous only "if reasonably intelligent men on considering it in the context of the entire policy would honestly differ as to its meaning," Celley v. Mutual Benefit Health & Accident Association, 229 Pa.Super. 475, 481-82, 324 A.2d 430, 434 (1974). The policy before us is a standard automobile insurance policy. The first page contains the declarations or statements particular to the policy; Item 1 identifies appellee as the named insured, and Item 3 identifies her 1971 Ford. Following this page are eleven pages of printed policy terms; only the first two of these concern us. On the first page of printed policy terms is a large heading, "Part I-Liability." Under that heading at the top of the right hand column in bold type is another heading, "Persons Insured," and under that, still on the first page, in the same bold type, the heading "Definitions." The "Definitions" 326 section continues onto the second page of printed policy terms; this continuation is indicated in bold type on the first page.[2] The coverage provided under the "Persons Insured" is "(a) with respect to the owned automobile," and "(b) with respect to the non-owned automobile." Since appellee was driving her husband's Buick, the question is whether coverage was extended with respect to the Buick as either an "owned" or "non-owned" automobile. 327 It might seem that since the Buick was appellee's husband's, coverage would extend to it as a "non-owned automobile." However, "non-owned automobile" is defined as an automobile "not owned by . . . either the named insured or any relative . . . ." (Emphasis added.) "Relative" is defined as "a relative of the named insured who is a resident of the same household." Therefore, the Buick was owned by a relative of appellee-her husband-and so was not a "non-owned automobile." The question therefore becomes whether coverage extended to the Buick was an "owned automobile." "Owned automobile" is defined as the "automobile described in Item 3 of the declarations." That automobile was appellee's Ford. However, "owned automobile" is also defined as a "temporary substitute automobile." The issue in this case is whether the Buick was a "temporary substitute automobile." "Temporary substitute automobile" is defined as "any automobile . . ., not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile . . . when withdrawn from normal use because of its breakdown, repair, servicing. . . ." Appellee argues that her husband's Buick fit within this definition, because she was using it with her husband's permission while her Ford was being repaired. The difficulty with this argument is that to qualify as a "temporary substitute automobile," the Buick had to be an automobile "not owned by the named insured." "Named insured" is defined as "any individual named in Item 1 of the declarations [i.e., appellee] and also includes his spouse, if a resident of the same household [emphasis added]." Thus, appellee's husband is a "named insured," and the Buick therefore was "owned by a named insured," and so did not qualify as a "temporary substitute automobile." The lower court believed that this construction of the policy, which makes a distinction between appellee's temporary use of her neighbor's automobile, which would have ..... 328 been covered as a non-owned automobile, and appellee's use of her husband's automobile, which was not covered, was "[i]llogical and unconscionable." Slip op. at 10. The court noted that appellee's husband would not have been covered under the policy while driving his own uninsured automobile despite his characterization as a "named insured." Id. This is true but it does not follow that the policy is either illogical or unconscionable. The entire design of the policy is to provide broad coverage to the named insured in driving the automobile identified in the policy declarations and also in driving other vehicles except for those owned by or regularly made available to the named insured. Thus while the policy would not have covered appellee's husband when driving his own automobile, it would have covered him while driving appellee's automobile (the "owned automobile" when driven by the "named insured") and also while driving a neighbor's car (a "non-owned automobile" when driven by "the named insured"). Courts should protect the reasonable expectations of insurance policy holders, but policy holders should read their insurance contracts. DiOrio v. New Jersey Manufacturers Insurance Company, 79 N.J. 257, 398 A.2d 1274 (1979).[3] When the terms of a policy are clearly defined and form a coherent whole, it is not the role of a court to find ambiguity or unconscionability where none exists, and then rewrite the policy piecemeal. This case appears to be of first impression in Pennsylvania. We are, however, fortified in our belief that we have reached the correct result by our review of cases from other states. Three recent cases have construed policies essentially identical to the one before us, and have found that because of the spouse's status as a named insured, an automobile owned by the spouse of the policy holder does not qualify as a temporary substitute automobile. Government Employees Insurance Co. v. Kligler, 42 N.Y.2d 863, 397 329 N.Y.S.2d 777, 366 N.E.2d 865 (1977); Cotton States Mutual Insurance Co. v. Bowden, 136 Ga.App. 499, 221 S.E.2d 832 (1975); Illinois National Insurance Co. v. Trainer, 1 Ill. App.3d 34, 272 N.E.2d 58 (1971). Appellee cites two somewhat older cases where under the same or similar policy language coverage was provided to an automobile owned by a spouse. The first, Baxley v. State Farm Mutual Auto Liability Insurance Company, 241 S.C. 332, 128 S.E.2d 165 (1962), had reasoned by analogy from two other cases, which had not only not involved married couples but also appear to have turned on particular aspects of state law, Farley v. American Automobile Insurance Company, 137 W.Va. 455, 72 S.E.2d 520 (1952); St. Paul Indemnity Company v. Heflin, 137 F.Supp. 520 (W.D.Ark. 1956). The second, Caldwell v. Hartford Accident and Indemnity Company, 248 Miss. 767, 160 So.2d 209 (1964), followed Baxley without engaging in any independent analysis. These cases do not persuade us. The order of the lower court is reversed. NOTES [1] In keeping with the requirement of the Uniform Declaratory Judgments Act, Act of June 18, 1923, P.L. 840, § 11, 12 P.S. § 841, which was in effect when this action was started, that all persons who have any claim or interest in the matter be made parties, Charles and Virginia Shimmel, the owner and driver respectively of the other automobile involved in the accident, were also named parties in the declaratory judgment action. The Shimmels are not parties to this appeal. [2] The relevant printed policy terms are: Persons Insured Each of the following is an Insured under Part I: (a) with respect to the owned automobile, (1) the named insured and any resident of the same household, (2) any other person using such automobile with the permission of the named insured, . . . . (b) with respect to a non-owned automobile, (1) the named insured (2) any relative, but only with respect to a private passenger automobile or trailer, . . . . ..... Definitions Under Part I: "named insured" means any individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household; "insured" means a person or organization described under "Persons Insured"; ..... "relative" means a relative of the named insured who is a resident of the same household; ..... "owned automobile" means (a) a private passenger or utility automobile described in Item 3 of the declarations for which a specific premium charge indicates that coverage is afforded, ..... (d) a temporary substitute automobile; "temporary substitute automobile" means any automobile or trailer, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction. "non-owned automobile" means a four wheel land motor vehicle . . . which vehicle or trailer is not owned by or furnished or available for the regular use of either the named insured or any relative, but does not include a temporary substitute automobile. [3] The court in DiOrio had before it a policy very similar to the one before us. Justice CLIFFORD's opinion is a thoughtful discussion of the public policy issues involved when terms in an insurance policy are defined clearly and unambiguously, although it is necessary to read the policy to know what they mean.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259983/	280 Pa. Superior Ct. 316 (1980) 421 A.2d 740 COMMONWEALTH of Pennsylvania v. Hugh M. RIDALL, Jr., Appellant. Superior Court of Pennsylvania. Submitted June 29, 1979. Filed September 26, 1980. Petition for Allowance of Appeal Denied December 31, 1980. 317 318 Lewis J. Bott, Assistant Public Defender, Wilkes-Barre, for appellant. Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee. Before PRICE, GATES and DOWLING, JJ.[] PRICE, Judge: Appellant appeals from the judgment of sentence following his conviction for willfully failing to remit $4,883.12 of 319 sale taxes[1] collected from May 1973 through September 1974. On March 19, 1976, appellant was found guilty in a jury trial. Timely post-trial motions for a new trial and in arrest of judgment were filed on March 22, 1976, which motions were denied. Subsequently, on May 30, 1978, appellant was sentenced to a two (2) year probationary period, ordered to make restitution, and required to pay the costs of prosecution. A notice of appeal to this court was duly filed on June 23, 1978. In seeking reversal of the judgment of sentence, appellant contends that the trial judge erred: (1) in admitting Commonwealth exhibits 4, 5, 6, 7 and 8; (2) in admitting Commonwealth exhibit 9; (3) in refusing to grant his demurrer; and (4) in refusing to grant his motion alleging that the verdict was contrary to the weight of the evidence and the law. We find these claims lacking in merit and affirm the sentence of the trial court. Exhibits 4 through 8 are sales tax returns which were introduced by the Commonwealth. Prior to their introduction, testimony established that appellant, Hugh M. Ridall, Jr., had applied for a sales tax license for Pennsylvania Galleries, and that license number XX-XXXXX-X had been issued. Daniel B. Swantko, a tax examiner for the Department of Revenue, Bureau of Sales and Use Taxes, testified that these returns came from his department's files. He further testified that such returns were sent to all sales tax taxpayers. The disputed returns were addressed to Pennsylvania Galleries and contained the aforementioned license number. Finally, Mr. Swantko testified that these returns were signed by Hugh M. Ridall, Jr. as owner. Appellant's counsel objected to their admission, citing lack of proper authentication as the grounds. We believe the trial judge properly overruled the objection. According to Professor McCormick, 320 "where a public office is the depository for private papers such as wills, conveyances, or income tax returns, the proof that such a purporting deed, bill of sale, tax return or the like has come from the proper custody is usually accepted as sufficient authentication." C. McCormick, Law of Evidence § 224 (2d ed. 1972). This view has been accepted in the federal courts. See, e.g., Wausau Sulphate Fibre Co. v. Commissioner of Internal Revenue, 61 F.2d 879 (7th Cir. 1932). In the instant case, the circumstances surrounding the production of these tax returns at trial indicated their authenticity. Consequently, no error was made by the trial judge when he admitted this evidence. Moreover, assuming arguendo that an error was made, such error was harmless because appellant later admitted signing the returns. Appellant's second ground for excluding the tax returns is that they are hearsay. However, we conclude that appellant has waived any hearsay objection. To be preserved for appeal, an objection must be timely made. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Here, the objection was not made until appellant demurred after completion of the Commonwealth's case, well after the evidence had been presented. Furthermore, "it has long been the rule in this state that if the ground upon which an objection to testimony is based is specifically stated, all other reasons for exclusion are waived." Commonwealth v. Raymond, 412 Pa. 194, 202, 194 A.2d 150, 154 (1963). Lack of authentication was the only timely objection, and, therefore, was the only objection preserved for appeal. Exhibit 9, a notice of assessment, was also objected to by appellant.[2] Again, the objection was lack of proper foundation or authentication. The notice was sent by certified 321 mail to appellant. At trial, the Commonwealth produced a mail receipt with appellant's alleged signature. Under 39 U.S.C. § 5010 (1964), such a receipt is prima facie evidence of delivery to the addressee. Chester County Tax Claims Bureau Appeal, 208 Pa.Super. 384, 222 A.2d 602 (1966). Accordingly, the objection was properly overruled. Furthermore, appellant conceded that he had signed the receipt, received the notice of assessment, and had not appealed the assessment. Careful scrutiny of the record similarly supports the trial judge's refusal to sustain the demurrer. We recognize that: "In order for the trial judge to properly overrule a demurrer following the close of the prosecution's case, the Commonwealth's evidence, together with all reasonable inferences therefrom, must be sufficient to support a jury finding of guilt beyond a reasonable doubt." Commonwealth v. Kelly, 245 Pa.Super. 351, 369, 369 A.2d 438, 447-48 (1976). Commonwealth v. Carroll, 443 Pa. 518, 278 A.2d 898 (1971); Commonwealth v. Mason, 211 Pa.Super. 328, 236 A.2d 548 (1967). Read in the light most favorable to the Commonwealth, testimony in the case at bar disclosed that appellant had not remitted any sales tax revenues from Pennsylvania Galleries for the period in question. A Department of Revenue auditor testified that appellant collected $1,796.76 in sales taxes from May 1, 1973, until September 30, 1973. Furthermore, the tax returns indicated that he owed $3,086.36 from October 1, 1973, until September 30, 1974. These facts, combined with their logical inferences, lead us to conclude that the prosecution established a prima facie case and met its initial burden of proof. Thus, the demurrer was properly dismissed. Finally, the record establishes that the verdict is not against the weight of the evidence nor contrary to the law. 322 Various witnesses for the defense testified that the tax returns could not possibly be correct. Appellant claimed that although he signed the returns, he did not participate in their completion. However, "[w]hen a person is charged with executing a signed document, for the purposes of affecting him with certain legal consequences, the act which suffices to charge him is any act by which he adopts and makes his own the terms of the writing. It is therefore, in general immaterial whether he has himself written the body of the document or not, if he has signed it . . . . Hence, proof of the signature of the document is sufficient to charge him. . . ." 7 Wigmore, Evidence § 2134 (Chadbourn rev. 1978) (emphasis in original). Consequently, the question thus becomes which witness or witnesses to believe. Credibility is for the jury to decide, and we will not disrupt its findings unless the record fails to support its determination. Commonwealth v. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975); Commonwealth v. Shriner, 232 Pa.Super. 306, 332 A.2d 501 (1974). Granting a new trial on the ground that the verdict is against the weight of the evidence is within the sound discretion of the trial judge and will not be ordered absent a clear abuse of that discretion. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Stiles, 229 Pa.Super. 411, 323 A.2d 841 (1974). Thus, since the record clearly established the elements of the crime, we will not reverse the jury's findings. Finally, the verdict was not contrary to the law, but rather consistent with the charge given to the jury. Commonwealth v. Ashford, 227 Pa.Super. 351, 322 A.2d 722 (1974). For the above stated reasons, the judgment of sentence is affirmed. NOTES [] President Judge G. Thomas Gates of the Court of Common Pleas of Lebanon County, Pennsylvania, and Judge John C. Dowling of the Court of Common Pleas of Dauphin County, Pennsylvania, are sitting by designation. [1] 72 P.S. § 7268(b). [2] The trial judge's opinion incorrectly states Exhibit 9 was admitted without objection. The objection appears on page 36 of the Record.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259989/	421 A.2d 906 (1980) Henry LERMAN, Plaintiff, v. DIAGNOSTIC DATA, INC., a Delaware Corporation, Defendant. Court of Chancery of Delaware, New Castle County. Submitted September 8, 1980. Decided September 23, 1980. 907 David A. Drexler and Lawrence A. Hamermesh of Morris, Nichols, Arsht & Tunnell, Wilmington, for plaintiff. Bruce M. Stargatt and Jack B. Jacobs of Young, Conaway, Stargatt & Taylor, Wilmington, for defendant. BROWN, Vice Chancellor. This is an action brought by a dissident shareholder who, along with others, is attempting to wage a proxy contest so as to elect a slate of directors in opposition to those nominated for the board by management. As a result of certain amendments to the defendant corporation's by-laws which were accomplished after incumbent management was on notice of plaintiff's intention to wage a proxy contest, it has now become impossible for the plaintiff and his compatriots to literally comply with the amended by-laws, the requirements of which impose conditions which must be met before opposition candidates can qualify for election to the board of directors at the annual meeting. As such, the outcome of this action is necessarily governed by the scope of the Delaware Supreme Court's ruling in Schnell v. Chris-Craft Industries, Inc., Del.Supr., 285 A.2d 437 (1971), and it therefore seems appropriate at the outset to briefly review that decision so as to establish the principles to be applied to the facts set forth hereafter. I. In Schnell, as it is by now well known to those involved with Delaware corporation law, it was held that inequitable action by management in amending corporate by-laws so as to change the date of the annual meeting did not become permissible simply because it was legally possible. There, with knowledge that an insurgent group wished to wage a proxy contest in an effort to replace incumbent management, the board of the defendant corporation amended the by-laws so as to enable it to move up the date of the annual meeting of shareholders. The by-laws had fixed the meeting date for the second Tuesday in January. On October 16, 1971 a committee of shareholders filed with the Securities and Exchange Commission its intention to wage a proxy battle. On October 18, 1971 Chris-Craft's board met and did two things. First, it amended the by-laws so as to permit the annual meeting to be held at any time during the two-month period from December 1 through January 31, with the board to designate the precise date. Secondly, the board then fixed the date of the meeting for December 8, 1971. It also fixed the place of the meeting at a comparatively remote location in upstate New York. In this Court, Vice Chancellor (now Chancellor) Marvel concluded on the facts of record that incumbent management had "seized on a relatively new section of the Delaware Corporation Law for the purpose 908 of cutting down on the amount of time which would otherwise have been available to plaintiffs and others for the waging of a proxy battle." Schnell v. Chris-Craft Industries, Inc., Del.Ch., 285 A.2d 430 (1971). Nonetheless, after noting that the plaintiff and his group had been contemplating their open challenge for many months prior to the sequence of events described above, but that they had chosen to talk and negotiate their position rather than to take affirmative action sooner, the Court concluded at 285 A.2d 437 that the plaintiffs "... slow approach toward a battle designed to oust management is outweighed by management's technical compliance with the law having to do with the calling of an annual meeting." Accordingly, plaintiffs' application to preliminarily enjoin the December 8, 1971 meeting, and to have the Court reset it for the second Tuesday in January 1972 in compliance with the former by-law, was refused. On appeal, that determination was reversed by a 2 to 1 decision of the Delaware Supreme Court. It was stated for the majority as follows at 285 A.2d 439: "In our view, those conclusions [of the then Vice Chancellor] amount to a finding that management has attempted to utilize the corporate machinery and the Delaware Law for the purpose of perpetuating itself in office; and, to that end, for the purpose of obstructing the legitimate efforts of dissident stockholders in the exercise of their rights to undertake a proxy contest against management. These are inequitable purposes, contrary to established principles of corporate democracy. The advancement by directors of the by-law date of a stockholders' meeting, for such purposes, may not be permitted to stand. Compare Condec v. Lunkenheimer Company, Del.Ch., 230 A.2d 769 (1967). "When the by-laws of a corporation designate the date of the annual meeting to stockholders, it is to be expected that those who intend to contest the reelection of incumbent management will gear their campaign to the by-law date. It is not to be expected that management will attempt to advance that date in order to obtain an inequitable advantage in the contest." In voicing his dissent to the decision of the majority, then Chief Justice Wolcott stated as follows at 285 A.2d 440: "I do not agree with the majority of the Court in its disposition of this appeal. The plaintiff stockholders concerned in this litigation have, for a considerable period of time, sought to obtain control of the defendant corporation. These attempts took various forms. "In view of the length of time leading up to the immediate events which caused the filing of this action, I agree with the Vice Chancellor that the application for injunctive relief came too late." Against this precedential backdrop, I turn to the facts of this case as established at trial. II. The defendant Diagnostic Data, Inc. (hereafter "DDI") is a Delaware corporation headquartered in California. It was formerly a California corporation which was reincorporated under Delaware law. It is engaged in the development and manufacture of certain federally regulated ethical pharmaceutical products. DDI owns a patent on a drug named "Orgotein" which it believes operates to substantially alleviate, if not cure, the painful symptoms associated with rheumatoid arthritis. In fact DDI's president, Monroe G. Smith, states that it has been established to DDI's satisfaction that their drug will cure almost any kind of inflammation, with no side effects to the patient. DDI has been working on the development of this drug for a number of years and it feels that it is on the verge of receiving federal approval so as to place it on the market in the United States. The drug is presently marketed on a limited basis in certain foreign countries, but as yet DDI has not been granted a license from the Food and Drug Administration. Its present business derives from selling certain horse 909 food additives. From this line it has gross sales of some $3 million, with a net profit somewhere in the vicinity of $500,000. At the same time, as a publicly held corporation having 4,446,110 shares issued and outstanding, its stock was trading over the counter at $17 per share at the time of trial. This would indicate a shareholder value of over $70 million in a corporation grossing $3 million per year from the manufacture and sale of horse food additives. Its future, therefore, would seem to be dictated by the long sought-after, and hopefully forthcoming, licensing of Orgotein. In this respect, DDI takes on the appearance of a ship laden with gold, lying in the harbor waiting to be unloaded once it is cleared for docking. These circumstances have undoubtedly generated interest in DDI's management and control. At least it has caused the plaintiff Lerman, a DDI shareholder of many years, along with certain other shareholders assembled as part of his group, to seek to place in nomination a slate of candidates for the board of directors in opposition to those nominated by management. DDI has taken the position that Lerman's slate is ineligible for election based upon the following sequence of events. In January 1980 Russell Teasdale, Secretary and General Counsel to DDI, attended a seminar at which, among other things, there was a discussion concerning "anti-takeover" precautions that could be undertaken on behalf of a corporation by its management. Teasdale, in turn, discussed this with Smith, DDI's president, and as a result, during late January or early February 1980, a California law firm was retained by DDI for the purpose of revising its by-laws. During late March, 1980 the plaintiff Lerman and three others made Schedule 14B filings with the Securities and Exchange Commission, thereby giving notice of their intention to wage a proxy contest at the next annual meeting of DDI. DDI was advised of this by letter of March 28, 1980 from Jay J. Miller, Lerman's New York attorney. At that time, according to DDI's existing by-laws, the annual meeting was to be held on the third Thursday in June of each year. On April 8, 1980 DDI's board of directors met for the purpose of reviewing and adopting the proposed revision of the by-laws. The revised copy of the by-laws was delivered to the board for the first time on the day of the meeting. The board was unable to complete its task on that day. As a result, it met again on April 21, 1980, at which time the amended by-laws were formally adopted. The amended by-laws contained two changes which are of significance here. First, as in Schnell v. Chris-Craft Industries, Inc., supra, the by-law fixing the annual meeting for the third Thursday in June was repealed in favor of one which left the date of the annual meeting to the discretion of the board of directors. Secondly, a new provision, known as Section 14, Article III, was added. This by-law is said to be virtually identical in its requirements to those imposed by Schedule 14B of the Securities and Exchange Commission in that it requires that the corporation be given, in writing, certain personal and professional information concerning a person who is being nominated as a candidate for the board of directors by anyone other than management itself. The by-law adds a requirement not contained in Schedule 14B that information also be provided concerning the proposed nominee's standing as a competitor of DDI as well as his or his family's affiliation with competitors of DDI. This additional requirement is not in issue here even though it was not complied with in the materials which were ultimately sent to the corporation by Lerman. The element of Section 14 of the by-laws that is in issue, however, is its added requirement that such information be submitted to the secretary of the corporation, in writing, "not less than seventy days prior to any meeting of stockholders called for the election of directors." This portion of the challenged by-law is hereafter referred to as "the 70 day requirement." 910 On April 30, 1980, Teasdale wrote to Miller, counsel for Lerman and the three others. Along with this letter, Teasdale forwarded a copy of Section 14 of the amended by-laws so as to make Miller aware of the new requirements for board nominations, including the 70-day requirement. The full content of that letter is as follows: "Enclosed is a copy of Article III, Section 14 of the Company's By-laws. The annual meeting of the Company has not been called for June, so that your client(s) will have time to submit nominations as required by the By-laws. After May 19, 1980, the Board will consider setting a record date and calling the annual meeting, whether or not nominations have been received from your client(s). If your client(s) do not wish to submit nominations, please notify me of that fact so that the Board can proceed to consider setting a record date and calling the annual meeting. "The By-laws are intended to provide a fair notification procedure so that shareholders can be fully informed regarding the names and qualifications of nominees during the solicitation of proxies from shareholders. Floor nominations and substitutions of nominees are inconsistent with that procedure and will not be permitted." On May 7, 1980 Miller replied by letter, stating that he felt the new by-law provision to be illegal. He viewed it as "an effort to thwart shareholders in the exercise of their rights as such." He requested that he be provided with a full set of the new by-laws so that he might further analyze the matter. He stated that he did not feel that he could be in a position to respond by the May 19 deadline set forth in Teasdale's letter. A complete set of the amended by-laws was never sent to Miller by DDI, although he did obtain a copy during June from another source. On May 9, 1980 Smith, DDI's president, sent a letter to all DDI shareholders. The full content of that letter is as follows: "Enclosed please find the annual report for our fiscal year which ended February 29, 1980. We hope you find it informative. The real purpose of this letter is to advise you that our Board of Directors has not yet set a date for our annual meeting. The reason for this delay is because we feel a meeting will be much more informative when we can at least give some meaningful answers to the two burning questions we know are uppermost in your mind. "First: Where do we stand insofar as a U.S. licensee is concerned? "We hope to have an `agreement in principle' with a major U.S. pharmaceutical company within the next 30 days, so we should be able to give reasonable answers when we have a shareholders meeting. "Second: Where do we stand insofar as the FDA is concerned? "This is a much more difficult response. Prior to a shareholders meeting, we will have re-filed our New Drug Application (NDA) and in the annual report I have outlined the reasons for this re-filing being so tardy. We can't promise any answers from the FDA, or even any timetable for a response. We will be able to tell you about the NDA, our requests made to the FDA, and any deductions we may have concluded as a result of any informal conversations with the FDA. "We won't attempt to hazard a guess for the meeting date at this time, as that will be determined based on events. However, you will receive ample notice once we can set a meeting date." (Emphasis added.) Also under date of May 9, 1980 (based upon a stocklist which he says he was able to accumulate over a period of time) Lerman himself wrote to all shareholders of DDI. He advised that he and other shareholders had formed a committee as a result of their dissatisfaction with DDI's management and that they would possibly be soliciting proxies later after complying with Securities and Exchange Commission requirements. Thereafter, according to Lerman, he set about to enlarge and firm up his 911 slate of nominees. Matters remained uneventful until mid-July. Then they developed in rapid progression. On July 14, 1980 Teasdale set notice to DDI's directors that a meeting of the board was being called for August 1, 1980. On this same date, pursuant to 8 Del.C. § 220, Lerman executed a statement to DDI, coupled with a letter from Miller, his attorney, demanding an inspection of DDI's list of shareholders for the purpose of conducting a proxy fight for the election of directors at the next annual meeting. On the following day, July 15, Teasdale confirmed a reservation with the Fairmont Hotel in San Francisco reserving facilities for the purpose of an annual meeting of shareholders on October 3, 1980. By letter of July 23, 1980 Teasdale responded to Miller, Lerman's attorney, advising that Lerman's demand for a stocklist had been reviewed by Smith and that it would be subsequently discussed with the directors at the August 1 board meeting. Treating this as a rejection of his demand, Lerman went forward with summary proceedings in this Court pursuant to § 220 and eventually was granted the right to a stocklist as a result of a hearing held on August 11, 1980. By July 23, 1980, or shortly thereafter, Lerman and his committee had put together all the papers that they felt were required to be filed with the Securities and Exchange Commission by their nominees. During the interim, two of those who had made the March filings had withdrawn while the total number of nominees had been increased from four to thirteen. Along with a letter dated July 29, 1980, Miller enclosed a copy of the SEC filings made on behalf of the insurgent slate and address the envelope to DDI. In his accompanying letter, Miller advised that each nominee "proposes to be a nominee for election at the next Annual Meeting of Shareholders of DDI." He specifically advised that the materials were being supplied as a convenience to DDI, and that by so doing no concession or waiver was being made as to the validity of the amended by-laws. By a separate letter, also dated July 29, 1980, Miller replied to Teasdale's July 23, letter concerning Lerman's stocklist demand, advising that DDI's response contained therein was unsatisfactory. These two letters were mailed by Miller's law office in New York. From the evidence, I am now satisfied that although each envelope contained a certified mail sticker, both envelopes were deposited in the mails without having the benefit of any postage affixed to them. In due course they were returned to Miller's office, and were remailed, this time with postage. The missive containing the information as to Lerman's nominees was remailed on August 12, 1980 and was received by DDI in California on August 15, 1980. In the meantime, DDI's board had met on August 1, 1980 as scheduled and, not being aware of any filings made by Lerman by that time in purported compliance with Section 14 of the amended by-laws, the board fixed October 3, 1980 as the date for the annual meeting. That date is 63 days from the date of the board meeting at which it was established. The action taken by the board in fixing the date thus made it impossible for Lerman or any other shareholder to comply with the 70-day requirement of the by-laws subsequent to that time. In this suit that followed (the complaint being amended to bring it in line with the foregoing events, some of which developed after suit was filed) Lerman contends, first, that the 70-day requirement is unreasonable and invalid on its face, and, secondly, that the amendments to the by-laws so as to add the 70-day requirement and to permit the directors of DDI to fix the annual meeting date as they saw fit, when coupled with the events that have transpired, reveal inequitable conduct designed to perpetuate incumbent management in office even if the action taken was legally permissible, and that under the rationale of Schnell v. Chris-Craft it cannot be permitted to stand so as to defeat Lerman's right to have his slate of nominees voted upon by DDI's shareholders. DDI contends that Schnell is not applicable because, the board not being aware of Lerman's written submission of 912 nominees until some two weeks after the meeting date was already set, there is no evidence that its action in fixing the meeting date was intended to thwart or hinder Lerman's efforts. I analyze the problem in the following manner. IV. First of all, what are the differences between this case and the situation in Schnell v. Chris-Craft? In Schnell, the incumbent board amended the by-laws to do away with the established, annually-recurring meeting date in such a manner as to give the board the power to fix the date anywhere within a two-month span. Then the board advanced the date forward one month from the former by-law date so as to allow the insurgent shareholders only some six weeks, as opposed to more than two months, in which to wage a proxy battle. This was found to be inequitable conduct designed to thwart the efforts of the challenging shareholders. The supposed justifications for the action taken by the incumbent board were found unpersuasive. Here, the situation is somewhat different. Here, also with notice that certain shareholders were intending at the time to wage a proxy battle, the incumbent board amended the by-laws so as to do away with the established, annually-recurring meeting date in favor of a provision which permitted the board to fix the date as it saw fit. However, rather than advancing the date as was the case in Schnell, DDI's board utilized its newly bestowed power to extend the meeting date indefinitely. And its president so advised all shareholders. Later, however, and a considerable time beyond the formerly established annual meeting date, DDI's board proceeded to fix and announce an annual meeting date 63 days thereafter in the face of its other accompanying by-law amendment which required nominees other than those selected by management to submit their intention, together with supporting information, at least 70 days in advance of the annual meeting. By comparison, the inequitable action taken in Schnell had the effect of hindering the efforts of the challengers by severely curtailing the time in which they had to comply with Securities and Exchange Commission requirements, to contact shareholders, etc. It did not put the challengers out of business but, the Supreme Court found, it unfairly hindered their ability to present their position to the shareholders within the allotted time, and, because it was intended to do so, this was found to be wrong. Here, the action taken by DDI's board, whether designedly inequitable or not, has had a terminal effect on the aspirations of Lerman and his group. If the board's action is permitted to stand, they, along with any other DDI shareholder who secretly might have been harboring similar intentions, are completely out of business. From the date the board used the power of the amended by-law to fix the date of the annual meeting there was no way in which a DDI shareholder could possibly comply with the accompanying 70-day requirement of Section 14 of the amended by-laws. And this, I think, must clearly determine the issue. I realize that DDI's position has certain factors on its side. It points out that it initiated the by-law revisions before being aware of any challenge from Lerman and his associates; that it forwarded a copy of the new Section 14 to Lerman's attorney promptly; that it advised Lerman, through his attorney, that it would give him an opportunity to comply with Section 14, and thus the 70-day requirement, before fixing a meeting date; that it delayed from May through August 1 before deciding upon the October 3 date, all of which afforded Lerman more than ample opportunity to comply with the 70-day requirement and that as of the time that the date was fixed it was not aware that Lerman had attempted to mail written notice of his group's intention but had failed to place postage on the letter. It further argues that Section 14 has a justifiable purpose in that it feels 45 days to be an ideal time for the solicitation of proxies, with the remaining 25 days being available to allow management to screen the previously unknown nominees and to possibly 913 permit some accommodation between competing factions before the proxy materials are mailed, thus potentially reducing expense to all, and possibly avoiding a contest. DDI argues that this was its purpose in adopting Section 14, and it denies that it was specifically adopted to thwart the intentions of the challengers as was the case in Schnell, something it says is evident from the time and assistance it afforded Lerman. Also, as DDI contends, Lerman could have avoided the circumstance in which he finds himself. In addition to having three months in which to comply with Section 14 in advance of the establishment of the meeting date, he knew on or about July 14, through private market sources, that DDI was calling a directors' meeting some two weeks thereafter, and he knew that the fixing of an annual meeting date was something that was likely to occur at that meeting. He had the Securities and Exchange Commission materials of his nominees either in hand or available to him for several days prior to the abortive mailing attempt on July 29. He could have mailed them sooner. (Of course, with no postage it probably would have made little difference.) Moreover, by Teasdale's letter to his attorney of April 30, 1980 Lerman had been asked, in effect, to let DDI's board know whether or not he and his group intended to submit nominations in compliance with Section 14, but he never did so. On the other side of the matter, however, it cannot be denied that DDI adopted Section 14 as part of its by-laws with full knowledge of Lerman's intentions. And it was, as DDI's president acknowledged, adopted as one of the antitakeover precautions to be inserted in the revised by-laws. The revisions also removed the established annual meeting date against which Lerman was working when he made his initial Schedule 14B filings. Of even more significance, I cannot help but note that when DDI's board met on August 1, 1980 it was with knowledge that Lerman had filed a demand under 8 Del.C. § 220 some two weeks before, and had thereafter filed a suit in this Court, to obtain a stocklist for the express purpose of waging a proxy contest for the election of directors at DDI's forthcoming annual meeting. I think it also of some significance that on July 23, 1980, when Teasdale wrote to Miller to advise that Lerman's stocklist demand would be discussed at the August 1 board meeting, it was eight days after Teasdale had confirmed the October 3 reservation with the Fairmont Hotel for the purpose of holding the annual meeting. Yet no indication was given to Lerman that the clock might be running on the time which he had remaining to comply with Section 14. DDI concedes that under Schnell its action would be indefensible if DDI's board had knowledge as of August 1, 1980 that Lerman had mailed materials on July 29, 1980 in possible compliance with Section 14. It argues, however, that the 70-day requirement of the by-law is not unreasonable on its face, and that it is not a by-law which, per se, operates unreasonably. It argues that the by-law did not operate unreasonably here. To the extent that it may have thwarted Lerman, DDI contends, it was caused by Lerman's willingness to let matters slide until it was too late, and not as a result of deliberate action by the board to cut him off. As such, DDI argues that this is not a situation wherein the board took action through a by-law change so as to stop or hinder a proxy fight as was the case in Schnell. Be that as it may, however, I conclude that Schnell dictates a contrary result. Aside from the main holding that inequitable conduct by management cannot become permissible simply because it is legally possible, I read Schnell as containing two supporting propositions. And I make reference to the quotations from the Supreme Court decision set forth at the outset hereof. For one, as to the argument that Lerman had plenty of time to have acted so as to avoid the terminal effect of the establishment of the meeting date resulting from the by-law amendment, that was the consideration which prompted Chancellor Marvel 914 to rule against the challengers in this Court in Schnell, and it was also the basis for Chief Justice Wolcott's dissent in the Supreme Court on appeal. Having failed to prevail in that case, it cannot, as a legal concept, prevail here under similar circumstances. I read that result to mean even though one desiring to engage in a proxy contest had ample time to do so, and could have avoided the deleterious effect of a by-law amendment by management by acting sooner, it cannot serve to excuse the conduct of management if that conduct was both inequitable (in the sense of being unnecessary under the circumstances) and had the accompanying dual effect of thwarting shareholder opposition and perpetuating management in office. Secondly, as Lerman argues, to combine such a 70-day advance submission requirement with an indefinite annual meeting date to be fixed in the discretion of management has the effect of requiring those who would seek to wage a proxy challenge to remain in a constant state of readiness so as to have their materials and nominees available to go whenever management decides to drop the flag. "Shelf-readiness" is how Lerman refers to it, i.e., having all papers and filings prepared in advance and on the shelf so as to be able to pull them down and make the deadline once the meeting date is set. The quotation from Schnell set forth earlier states that when the by-laws designate the date of the annual meeting to stockholders, it is to be expected that those who intend to contest the reelection of incumbent management will gear their campaign to the by-law date, and that it is not to be expected that management will attempt to advance that date in order to obtain an inequitable advantage in the contest. I read this to mean that a by-law amendment authorizing a change in a fixed-annual meeting date to a date to be established by management cannot be put into operation in such a manner that those wishing to wage a proxy fight are required to be in a state of "shelf-readiness" in order to meet a sudden advancement of the date. If this be true, then how can the implementation of such a by-law change be upheld if the fixing of the date, when coupled with a by-law such as the 70-day requirement here, has the effect, not so much of giving management an inequitable advantage, but of removing the insurgents from the contest altogether even if they had been "shelf-ready"? I fail to see how this could be, even if management understandably lacked knowledge of all the facts and had no intention of thwarting a potential proxy contest in so doing. V. Accordingly, in summary, I do not address the question of whether the 70-day requirement is unreasonable, and thus invalid, on its face. I hold only that under the facts of this case the act of DDI's board, in fixing the date for the annual meeting at a time 63 days in the future, in the face of a by-law which required the plaintiff Lerman and his group to submit the names of their nominees, together with information concerning them, to the corporation at least 70 days in advance of the date of the annual meeting of shareholders, is invalid and cannot be permitted to stand so as to prevent the plaintiff and his group from placing the names of their candidates in nomination. Counsel are to be complimented on the vigorous and professional manner in which the case was presented on short notice. It was a good case. The next item of business is an immediate conference to discuss the form of order to be entered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310544/	89 Ga. App. 529 (1954) 80 S.E.2d 204 CUMMINGS v. CUMMINGS, Executor. 34951. Court of Appeals of Georgia. Decided January 20, 1954. 531 Erle M. Donalson, for plaintiff in error. Julian Webb, contra. GARDNER, P. J. 1. It is the cardinal and fundamental rule 532 that in construing contracts the entire writing is to be taken into consideration to ascertain the intent of the parties and, if the same can be ascertained, that intention should govern. Bridges v. Home Guano Co., 33 Ga. App. 305, 309 (125 S.E. 872), and cit. The court, in its decision of the law of this case, evidently followed and applied this principle, which is correct and was applicable. The court did not err in finding for the plaintiff because the court did not apply the principle that the exhibit attached to the contract dealt with was also the last portion thereof and should prevail. The defendant contends that this was the cardinal rule involved under the facts and the decision of Whitney v. Hagan, 65 Ga. App. 849 (16 S.E.2d 779), applied to the facts here. 2. After having executed a will, it is the right of the maker to cancel and revoke the same, and this may be done at any time prior to death. Code § 113-401. Section 113-402 provides that such revocation may be either express or implied. An express revocation is effected when the maker by writing annuls the instrument. An implied revocation results from the execution of a subsequent will inconsistent with the former. The former will is in effect and until the actual revocation by the subsequent will, and hence, if the revocation fails or is not effective, the former will prevails. Where the maker makes a different disposition of certain personal property bequeathed by the later will, this constitutes a revocation of the item as to this property in the former will. See Epps v. Dean, 28 Ga. 533; Worrill v. Gill, 46 Ga. 483, 484. If the alleged will of 1946 bequeathed the ring in dispute to the son of the testatrix, the defendant, and she subsequently otherwise disposed of the ring, this bequest was canceled and revoked. This is so because a will does not take effect and is not binding until the death of the maker. Code §§ 113-101, 113-102; Johnson v. Yancey, 20 Ga. 707 (65 Am. D. 646); Brewer v. Baxter, 41 Ga. 212 (5 Am. R. 530); Arnold v. Arnold, 62 Ga. 628, 629. A will shall take effect only upon the death of the maker, however long the probate. Code § 113-105. The maker may make any disposition of his property he may desire not inconsistent with or contrary to the laws and policy of the State. But there is a limitation on charitable bequests and devises and perpetuities, with which we are 533 not concerned. See Code §§ 113-107 and 85-707. If the testatrix gave this ring to her son by the will of 1946, she could revoke this bequest either by conveying the ring and giving it to another prior to her death, so that the ring did not remain a part of her estate when she died, or she could revoke this bequest in the will or revoke the entire will. This is elemental. If this testatrix in 1949, after the execution of the will of 1946, took a pen and obliterated the pertinent and material parts thereof, canceling the same and expressing her intention in this respect, naming the plaintiff as executor of this will of 1949, then the 1946 will was no longer effective, and when she died was just so much paper. It is not necessary that the executor have possession of this ring after the death of the testatrix in order to maintain an action in trover therefor. The executor is entitled to collect the assets of the estate he represents, to pay the legacies as well as to take care of the expenses of administration and the unpaid debts thereof. If the court was authorized to find that this existed and that the alleged stipulation agreement was not properly signed being signed by only four of the six heirs or legatees and not by the defendant himself it would not be an effective instrument. Besides, to give to this will of 1949 the proper construction, see the first division of this opinion. The defendant had no rights thereunder, and it was proper where the facts were undisputed and the law was in favor of the executor, to direct a verdict for the plaintiff executor in the trover action and to direct that the defendant deliver to him the personalty involved. 3. There is no merit in the contention that the court erred in refusing to reopen the case to permit the defendant's counsel to further cross-examine the plaintiff executor as to the expenses of administration and payment of the debts of the estate, it appearing that he had properly testified that the expenses of administration were unpaid, and that there were yet due debts by the estate, the motion to reopen being based on the ground that the defendant was hard of hearing and did not understand the testimony of the executor, even though he had so informed the judge at the institution of this trial. There being no issue of fact as to the controlling issues in the case, it was proper for the court to cut this litigation short and 534 direct a verdict for the plaintiff executor and to direct that the defendant deliver this emerald and diamond ring in his possession to such executor. The court did not err in denying the defendant's motion for new trial. Judgment affirmed. Townsend and Carlisle, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310548/	80 S.E.2d 472 (1954) 239 N.C. 481 NESBITT et ux. v. FAIRVIEW FARMS, Inc. No. 99. Supreme Court of North Carolina. February 24, 1954. 476 George Pennell, Harry C. Martin, Ashville, for plaintiff-appellant. Guy Weaver, Ashville, for defendant-appellee. WINBORNE, Justice. At the outset, it is appropriate to say that in this State it is provided by statute, G.S. § 38-1, that "The owner of land, any of whose boundary lines are in dispute, may establish any of such lines by special proceedings in the superior court of the county in which the land or any part thereof is situated." Petitioners have proceeded under this statute. The title to the land is not in issue unless made so by the pleadings. Cole v. Seawell, 152 N.C. 349, 67 S.E. 753. Here the petitioners allege in their petition that they are the owners of a certain tract of land, that defendant is the owner of certain lands adjoining the lands of petitioners, and that defendant disputes certain boundary lines of petitioners' land. On the other hand, while defendant, answering, does not deny the allegations of ownership set out in the petition "except with respect to lappages and infringements upon the lands owned by the defendant", it joins petitioners in a desire to have the lines between petitioners and defendant properly and correctly located. Thus the title is not really in dispute. See Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468; Clark v. Dill, 208 N.C. 421, 181 S.E. 281; Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501. Now, while appellants assign as error each of the matters to which the several exceptions shown relate, they state, in their brief filed here, these as the questions involved: Did the trial judge err (1) "in his findings of fact Nos. 1, 2 and 4?", and (2) "in overruling plaintiffs' motion to reject" the second survey?". Careful consideration of the record, and applicable principles of law, leads to negative answers. These questions are to be, and are considered in the light of the admitted fact that appellants, petitioners or plaintiffs, as they are interchangeably designated in the record on this appeal, acquired title to the land, to which they assert ownership, by a deed made to them as husband and wife. Such a deed, unless it be otherwise provided therein, vests in the husband and wife an estate by the entireties, or by the entirety, with right of survivorship, as at common law. And the doctrine of title by entireties between husband and wife as it existed at common law remains unchanged by statute in this State. Decisions of this Court so holding are too numerous to list. But see Davis v. Bass, 188 N.C. 200, 124 S.E. 566, where in opinion by Stacy, J., the Court treats of the incidents and properties of an estate by the entirety. See also Harrison v. Ray, 108 N.C. 215, 12 S.E. 993, 11 L.R.A. 722; 477 West v. Aberdeen & R. F. R. Co., 140 N.C. 620, 53 S.E. 477; Morton v. Blades Lbr. Co., 154 N.C. 278, 70 S.E. 467; First Nat. Bank v. Hall, 201 N.C. 787, 161 S.E. 484; Moore v. Shore, 208 N.C. 446, 181 S.E. 275. However, the husband is entitled during coverture to the full possession, control and use of the estate, and to the rents and profits arising therefrom to the exclusion of the wife. See West v. Aberdeen & R. F. R. Co., supra. In the West case it is stated: "`But while at common law neither the husband nor the wife can deal with the estate apart from the other, or has any interest which can be subjected by creditors so as to affect the right of the survivor, yet subject to this limitation the husband has the rights in it which are incident to his own property. * * * He is entitled during the coverture to the full control and usufruct of the land, to the exclusion of the wife.' 15 Am. & Eng.Enc. (2d Ed.) 849." And in the West case the Court referred to the ruling in the case of Topping v. Sadler, 50 N.C. 357, 358, that the husband may maintain an action in ejectment, and held that the husband, West, could maintain an action for damages to the land which had been conveyed to husband and wife, and which they held by entireties, and that the wife was not a necessary party. Compare Moore v. Shore, supra. Applying these rulings of the Court to the case in hand, it is clear that the husband, the petitioner, A. W. Nesbitt, being entitled to the possession and control of the estate by the entireties had the right to have the true boundary lines thereof ascertained, and could maintain this proceeding for the establishment of such boundary lines, even without the joinder of his wife. That is, that she is not a necessary party to such proceeding. Topping v. Sadler, supra; West v. Aberdeen & R. F. R. R., supra. It follows that, having the right to maintain the proceeding for such purpose, the husband had the right to stipulate as to method by which the true boundary line could be ascertained. Hence, in so far as he, the husband, is concerned, the trial judge did not err in the findings of fact and conclusions of law in respect to the stipulation of 21 October, 1952. The question then arises as to whether on this record the wife, the petitioner, Clara M. Nesbitt, is bound by the said stipulation. And though the record fails to show that she made any such contention in the court below, she contends in this Court that since their land is held as an estate by the entirety, she is not bound by the said stipulation because she did not sign it. This contention is without merit for these reasons: (1) Her interest in the estate by the entirety is not affected. (2) While she is not a necessary party to this proceeding, she is a proper party. And having joined her husband in the institution and prosecution of this proceeding to establish the true boundary lines between their lands and those of defendant, she will not be heard to say that she is not bound by the stipulation her husband made in the course of the proceeding toward accomplishing this end. The findings of fact made by the trial judge appear to be supported by sufficient evidence, and are binding on this Court. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351. For reasons stated, error is not made to appear in the judgment from which appeal is taken. Hence, in accordance with this opinion, the court below should put into effect the provisions of G.S. § 38-3(3) and retain the cause only for this purpose. The judgment below is Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310558/	210 Ga. 341 (1954) 80 S.E.2d 190 BREWER v. WILLIAMS et al. 18438. Supreme Court of Georgia. Argued January 11, 1954. Decided February 9, 1954. James E. Findley, for plaintiff in error. Sharpe & Layne, Charles L. Gowen, contra. 346 HAWKINS, Justice. 1. While it is a well-settled general rule that claims arising ex contractu can not be set off against claims arising ex delicto, except upon equitable grounds, such as insolvency or non-residence (Code § 3-113; Hecht v. Snook & Austin Furniture Co., 114 Ga. 921, 41 S.E. 74; Standhardt v. Hardin, 145 Ga. 147, 88 S.E. 565; Strickland v. Bank of Cartersville, 141 Ga. 565, 81 S.E. 886; Aetna Insurance Co. v. Lunsford, 179 Ga. 716, 177 S.E. 727), the plaintiff's petition in the instant case, seeking to enjoin the defendant from the commission of an alleged threatened tort in the cutting and removal of timber, was not an action in tort or ex delicto, but an equitable proceeding (Verginadis v. Atlanta Milling Co., 173 Ga. 626, 160 S.E. 800), in which the defendant was not only entitled but bound to set up all defenses that he had to the suit, either legal or equitable, and to pray for all relief needed in aid thereof, ordinary or extraordinary, since the purpose of the Uniform Procedure Act was to vest in the superior court the authority to settle in one suit the controversy between the parties. When a plaintiff sues a defendant in the superior court, the policy of the law requires the controversy growing out of the cause of action alleged by the plaintiff to be settled in that suit. McCall v. Fry, 120 Ga. 661, 663 (48 S.E. 200); Ray v. Home & Foreign Investment &c. Co., 106 Ga. 492 (32 S.E. 603); Code §§ 37-905, 81-106. 2. In the instant case the plaintiffs' petition and the intervention of the intervenor sought to enjoin the defendant from interfering with the plaintiffs, the intervenor, and their employees in the cutting and removing of timber from the described tract of land, the intervenor praying that its rights with respect to the timber be established by proper order and decree of the court. The defendant answered, denying their right to an injunction, and by way of cross-action as amended alleged that under his contracts with the plaintiffs, of which the intervenor had notice, he was entitled to the exclusive right to cut and remove the timber, and he asked for an injunction against the plaintiffs' cutting and removing the timber, and for judgment against the plaintiffs and the intervenor for damages because of their alleged breach of their contract in the cutting and the removing of the timber. The cause of action was, therefore, germane to the case made by the petition and the intervention, and was not a new and distinct matter entirely independent of that set out in the original petition and the intervention. The subject matter dealt with by the petition, the intervention, and the cross-action was one and the same. The issues raised in each involved the same timber and the same controversy, and the cross-action did not introduce new and distinct matters not embraced in the original suit and intervention. 3. While ordinarily a plaintiff or intervenor may dismiss his action, an entire cause cannot be properly dismissed over objection by the defendant when his affirmative rights under the pleadings would be prejudiced thereby. While the dismissal of a petition or intervention alone would carry with it an answer "to the extent of defensive matter," such a dismissal should not affect any counterclaims and must not preclude 342 the defendant's right to a hearing or trial of such claims. Fender v. Hendley, 196 Ga. 512 (26 S.E.2d 887); Moore v. Atlanta Joint Stock Land Bank, 176 Ga. 697, 698 (7) (168 S.E. 558). 4. "One who goes into the court of a county other than that of his residence, to assert a claim or set up an equity, must be content to allow that court to determine any counterclaim growing out of the original suit which the defendant sees fit to set up by a cross-action." Ray v. Home & Foreign Investment and Agency Co., 106 Ga. 492, 497 (5), supra. 5. A plea to the jurisdiction is a matter for trial before a jury, and the judge cannot finally pass upon the same at an interlocutory hearing. Dean v. Dean, 178 Ga. 712 (174 S.E. 339); Tribble v. Knight, 178 Ga. 804 (174 S.E. 626). 6. It was error for the trial judge to dismiss the cross-action of the defendant upon the theory that it sought to recover damages upon a cause of action arising ex contractu as against the plaintiffs' action as one ex delicto, and because the intervenor had voluntarily dismissed its intervention and this carried with it the cross-action of the defendant. It was also error for the trial judge, at an interlocutory hearing, to sustain the pleas to the jurisdiction filed by the plaintiffs and the intervenor and to thereafter dismiss the defendant's cross-action upon the theory that the court was without jurisdiction, the plaintiffs and the intervenor having come into the court of a county other than that of their residence to assert a claim against the defendant. Judgment reversed. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310557/	257 S.E.2d 871 (1979) Philip Thomas DUDLEY et al. v. ESTATE LIFE INSURANCE COMPANY OF AMERICA. Record No. 771792. Supreme Court of Virginia. August 30, 1979. 872 Tommy Joe Williams, Roanoke (James H. Fulghum, King, Fulghum, Renick & Bounds, Roanoke, on briefs), for appellants. David B. Hart, Roanoke (Smeltzer & Hart, P. C., Roanoke, on brief), for appellee. Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ. COMPTON, Justice. In this civil appeal, we examine a principal's liability to third persons for fraudulent conduct of an agent. Appellants Philip Thomas Dudley and Richard W. Walters filed separate actions at law in the court below seeking recovery in damages from appellee Estate Life Insurance Company of America and from George W. Blood. In identical amended motions for judgment, the respective plaintiffs alleged they were damaged by certain fraudulent, malicious and wanton acts of defendant Blood who was acting in the Roanoke area as a representative and agent of defendant Estate Life. Specifically, plaintiffs alleged that during the period of time in question, Blood made certain misrepresentations which induced Dudley and Walters to purchase "one unit" of a special type of life insurance policy and to pay large sums of money upon Blood's promise that plaintiffs would each receive one-fourth of one percent of all insurance premiums collected from other sales of the special policy in Virginia and elsewhere. Plaintiffs alleged that the representations were in fact part of a scheme by which Blood defrauded them. They sought compensatory and punitive damages against both defendants. Estate Life denied involvement in any fraudulent acts or that it was responsible for any such conduct on the part of anyone, including Blood. Blood denied that he acted in a fraudulent or malicious manner. The cases were consolidated for trial before a jury and, at the conclusion of plaintiffs' evidence in chief, the trial court sustained Estate Life's motion to strike and entered summary judgment in its favor in each case. Blood's motion to strike was overruled and, subsequently, a judgment was entered in favor of each plaintiff against Blood for compensatory damages only. We granted plaintiffs a writ of error to the September 1977 orders of summary judgment. Blood is not a party to this appeal and the validity of the judgments against him are not in issue here. As we view the plaintiffs' evidence, drawing all reasonable inferences in their favor, the following story develops. The evidence consisted of documentary exhibits and the testimony of Dudley, Walters, Dudley's sister, the treasurer of Estate Life and the chairman of the insurer's board of directors. At some unspecified time prior to the fall of 1972, the management of Estate Life, a life insurer with its home office in Roanoke, "brought" Blood to Roanoke to supervise the sale of a so-called "GP-800" policy. Although a specimen copy of the policy is not in the record on appeal, non-specific testimony showed that "one unit" of the GP-800 could be purchased by payment of a premium of $600 per year for a period of eight years. At the end of the period, the policy would be "paid up" and the insured would receive a "dividend" of $100 per month for life. Blood was given the title "Director-Special Marketing" by Estate Life. This title appeared on Blood's Estate Life business cards as well as on publicity brochures and a full-page newspaper advertisement, both listing him among the company officers. Blood individually had a general agency contract with Estate Life. In addition, a corporation organized by Blood to carry on his general agency business, First Estate Builders, Inc. (hereinafter First Builders), also held a general agent's contract with Estate Life. Blood was president of First Builders and told plaintiffs he had the exclusive right to sell, through First Builders as General Agent, all the GP-800 policies written by Estate Life. Plaintiff Walters, a Roanoke tire salesman, first met Blood in December of 1972. 873 Blood displayed his Estate Life business card, stated he represented the insurer, and asked Walters if he would "like to get into the insurance business on a part-time basis." Walters expressed interest and Blood outlined the requirements as follows. First, the prospect must purchase a GP-800 policy. Next, he must attend a "school" for insurance salesmen at a cost of $75. Upon completion of the training, the recruit would be a "Marketing Representative" of Estate Life entitled to a commission of 35 percent of the first year premiums on policies sold by him. The representative could advance to the position of "Marketing Director," entitled to a 55 percent commission, by selling ten GP-800 policies and by recruiting five other persons to be salesmen of the GP-800. Blood also outlined an alternative method, to be covered by an "Addendum" to a written Marketing Director Contract, which would permit a representative to be promoted immediately to Marketing Director. By the payment to First Builders of $10,000 in cash, the prospect would be designated a Marketing Director and also become entitled to one-fourth of one percent of all the premiums on GP-800 policies sold by Estate Life through First Builders. Blood advised Walters that within six years, Walters could earn $62,500 annually in commissions, emphasizing that Blood, through First Builders, owned all of the commissions earned on the GP-800. Walters purchased the policy, paid the additional $75, and attended a three-hour "school" conducted, in part, by Blood at a local motel. Walters subsequently received a six-months temporary license to sell insurance for Estate Life. During February of 1973, Walters attended several "sales meetings" in Roanoke at which the president and another officer of Estate Life as well as Blood all spoke emphasizing the need to promote the GP-800 policy. In February, Walters introduced Blood to plaintiff Dudley, who operated a country store in Bedford County. Blood made the same presentation to Dudley as he had made to Walters. Dudley, at first, was skeptical about accepting Blood's representations concerning the bonanza to be secured by the Addendum Contract. Blood assured Dudley that the president of Estate Life would execute both the Marketing Director Contract and the Addendum. Thereupon, after prodding by Blood over a period of several weeks, Dudley finally agreed to Blood's proposal and in March of 1973 handed Blood a check for $10,000 payable to First Builders. At the same time, Dudley executed two three-party documents, the printed "Marketing Director Contract" and "Addendum to Marketing Director Contract." These papers had already been signed on behalf of Estate Life by its president and by Blood as president of First Builders. These documents, introduced as exhibits at trial, provided for commissions to be paid on essentially the basis described by Blood to plaintiffs. They made no reference, however to any requirement for the payment of $10,000 in order for the salesman to be eligible to receive the commissions described in the "Addendum." Upon being told by Blood that Dudley had "signed up," Walters agreed to become a Marketing Director and to take advantage of the commissions set forth in the Addendum. Based on what Blood told him, Walters thought he was "buying into [Estate Life]" and would receive "one-quarter of 1% of all the GP 800 that were sold in Estate Life by all of the agents of Estate Life." Thus, in March of 1973, Walters gave Blood a note for $8,000 and paid the balance of $2,000 by check made to First Builders. In April, Dudley received a telephone call from Blood. According to Dudley, Blood "talked real excited" and "was real upset." Blood told Dudley that Blood no longer had the exclusive agency for sale of all the GP-800 policies and that Estate Life had "divided" the right to sell the policy among as many as seven other general agents. Dudley testified he then realized that he and Walters had "been took." Dudley, to that time in April, had received about $15 in commissions paid by checks drawn by Estate Life. Blood disappeared from Roanoke. 874 Plaintiffs' subsequent efforts to recover their cash payments from Blood and Estate Life were fruitless. At the threshold, the parties disagree upon the issue on appeal. Plaintiffs claim that the only question is whether Blood acted within the apparent scope of his authority as agent. They point out that Estate Life assigned two basic grounds in support of its motion to strike plaintiffs' evidence: first, that the evidence failed to establish that Blood was clothed with authority to act as an agent for Estate Life under the circumstances and, second, that the evidence failed to show that Blood made fraudulent misrepresentations of existing facts. Plaintiffs also note that Blood moved to strike the evidence on the sole ground that Blood individually was not guilty of fraud because First Builders, and not Blood, received the money paid by plaintiffs, and because plaintiffs entered into the speculative venture "with their eyes wide open." Consequently, plaintiffs argue, when the trial judge, who assigned no reasons for his rulings on the respective motions to strike, overruled Blood's motion, the court implicitly ruled that a prima facie case of fraud and deceit had been established. Thus, plaintiffs argue the court below must have ruled in Estate Life's favor solely upon the apparent authority issue; they have appealed the trial court's decision on that one question, plaintiffs contend. Estate Life argues, however, that both the issue of fraud and the issue of apparent authority properly are questions on appeal. Estate Life contends that because the trial judge failed to assign any reasons for his rulings on the motions to strike, it must be assumed that he agreed with each position taken by Estate Life in support of its motion, thereby making the fraud issue a proper subject for determination here. We disagree. The cases went to the jury as to Blood on the theory of fraud and deceit. We will not presume that the trial judge made inconsistent rulings on the fraud question when he considered the separate motions to strike. So it is manifest that the court ruled in Estate Life's favor, and, of course, against plaintiffs, solely on the apparent authority question. As a consequence of this adverse ruling in their claims against Estate Life, the plaintiffs assigned one error as follows: The trial court erred when it sustained the motion to strike of Estate Life Insurance Company of America at the conclusion of plaintiffs' case on the grounds there was no evidence at all upon which to find the defendant Blood acted within the scope of his authority so as to make Estate Life Insurance Company of America, his principal, liable for the perpetrated fraud. That assignment of error raised the sole issue of apparent authority.[] Elementary is the rule of appellate procedure that the scope of argument on appeal is limited by the assignments of error. Harlow v. Commonwealth, 195 Va. 269, 271, 77 S.E.2d 851, 853 (1953). Consequently, we hold that the only issue open to debate in this appeal is whether the plaintiffs' evidence established prima facie that Blood acted within the apparent scope of his authority thereby making Estate Life liable for the alleged fraud. On that issue, Estate Life argues that the evidence demonstrates the fraud was committed solely for Blood's personal gain. Thus, it contends, the fraud was committed outside the scope of the agent's authority and the principal is not liable. In the same vein, the insurer takes the position that in a case such as this in which the agent makes fraudulent misrepresentations to procure personal gain, the principal cannot be held liable for those misrepresentations absent proof of actual knowledge. We reject these contentions and hold that the plaintiffs proved a prima facie case of liability upon Estate Life. 875 We are guided in our decision by the following Restatement rules, which are in accord with principles already established in Virginia: Agent's Position Enables Him to Deceive A principal who puts a servant or other agent in a position which enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud. Restatement (Second) of Agency § 261. Comment a. to § 261 reads as follows: The principal is subject to liability under the rule stated in this Section although he is entirely innocent, has received no benefit from the transaction, and, as stated in Section 262, although the agent acted solely for his own purposes. Liability is based upon the fact that the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him. Section 262 of the same Restatement provides: Agent Acts for His Own Purposes A person who otherwise would be liable to another for the misrepresentations of one apparently acting for him is not relieved from liability by the fact that the servant or other agent acts entirely for his own purposes, unless the other has notice of this. The Comment gives the following rationale for the rule set forth in § 262. A person relying upon the appearance of agency knows that the apparent agent is not authorized to act except for the benefit of the principal. This is something, however, which he normally cannot ascertain and something, therefore, for which it is rational to require the principal, rather than the other party, to bear the risk. The underlying principle based upon business expediencythe desire that third persons should be given reasonable protection in dealing with agents[] finds expression in many rules, some in situations in which there is no apparent authority . . . and many in situations in which there is apparent authority.. . . In all of such cases the other party relies upon the honesty of the agent, and, if the principal is disclosed or partially disclosed, realizes that the agent is not authorized if fraudulent. It is, however, for the ultimate interest of persons employing agents, as well as for the benefit of the public, that persons dealing with agents should be able to rely upon apparently true statements by agents who are purporting to act and are apparently acting in the interests of the principal. Restatement (Second) of Agency § 262, comment a. The foregoing principles were applied in Jefferson Standard Life Insurance Co. v. Hedrick, 181 Va. 824, 27 S.E.2d 198 (1943). There, the wilful and culpable deception by the agent, authorized by his employer, an insurer, to solicit loans for the company, induced the plaintiff not to seek a loan elsewhere resulting in damage to plaintiff for which he sued the principal. This court in affirming a judgment against the insurer, held that a principal is liable for the fraudulent and deceitful acts of his agent "committed as an incident to and during the performance of an act which is within the scope of the agent's authority." 181 Va. at 834-35, 27 S.E.2d at 202. Review of several foreign cases will demonstrate the manner in which courts of other jurisdictions have applied the foregoing principles. In Bowman v. Home Life Insurance Company, 243 F.2d 331 (3d Cir. 1957), a male field underwriter for defendant life insurer, masquerading as the company's physician, conducted intimate physical examinations upon the female plaintiffs, who had applied for insurance. The insurer furnished the underwriter with the plaintiffs' original application cards, which entitled him to ask plaintiffs many questions. He was to determine whether the insurance applied for was an appropriate risk for the 876 company to assume. The underwriter was not a physician and he was not authorized to conduct physical examinations. He obtained a black bag, which looked like a physician's kit, called upon the plaintiffs at their home and made the examinations. Applying Pennsylvania law and the foregoing Restatement rules, the Third Circuit determined, in the plaintiffs' suit for damages against the insurer, that the underwriter's conduct could be attributed to his employer. The court noted that even though the agent went further than his instructions and committed a tort upon the plaintiffs, "this was a kind of deceit which was well within the insignia of office with which he had been clothed." 243 F.2d at 334. Likewise, in Lucas v. Liggett & Myers Tobacco Co., 50 Haw. 477, 442 P.2d 460 (1968), the owners of a supermarket sued a cigarette manufacturer for the value of cigarettes stolen by a cigarette sales representative. The evidence showed that in the course of servicing a large cigarette rack in the supermarket, the manufacturer's agent had stolen a quantity of the product over a period of time. The stolen cigarettes had been billed to the supermarket by the wholesale supplier, to which the supermarket owners had made payment. The Supreme Court of Hawaii rejected Liggett & Myers' argument that it was not liable because the agent was acting outside the scope of his employment when he committed the thefts. Relying on the foregoing Restatement rules, the court held the principal liable for the acts of its agent. It pointed out that Liggett & Myers put the agent in a position to commit the thefts and that from the plaintiff's point of view all of the agent's activities in connection with servicing the cigarette rack were apparently authorized by the principal. The court emphasized that Liggett & Myers' division manager frequently accompanied the agent and gave no indication that he disapproved of the agent's servicing activities at the supermarket. The same reasoning has been uniformly applied in other cases with facts similar to Lucas. E. g., Billups Petroleum Co. v. Hardin's Bakeries Corp., 217 Miss. 24, 63 So. 2d 543 (1953); Ripon Knitting Works v. Railway Express Agency, 207 Wis. 452, 240 N.W. 840 (1932). Applying the foregoing principles to these facts, we think plaintiffs' evidence was sufficient to raise a jury issue on the question whether Blood's conduct was attributable to his principal. Estate Life put Blood in a position which enabled him, while apparently acting within his authority, to perpetrate the frauds upon Dudley and Walters. And on this evidence, we cannot say as a matter of law that plaintiffs had notice that Blood was acting for his own purposes. From a third person's point of view, Blood was clothed with all the authority of Estate Life necessary to sell its product and to recruit others to become salesmen for the insurer. The principal armed Blood with an Estate Life business card which he used during his solicitation of plaintiffs. Blood was prominently presented in company brochures and in a newspaper advertisement as one of the insurer's officers. He advocated promotion of the GP-800 in sales meetings in the presence of other company officers, who, according to the evidence, never registered any disapproval of Blood's sales activities. He was allowed to display written contracts specifying compensation for salesmen which carried the signature of the president of Estate Life as one of the contracting parties. Blood's position, thus ornamented, facilitated the consummation of the fraud whereby he improperly extracted a total of $12,000 from the two plaintiffs. Under the circumstances, Dudley and Walters were entitled to rely on statements made by Blood, who was purporting to act and was apparently acting in the interests of Estate Life. Finally, Estate Life relies on the cases of Bank of Occoquan v. Davis, 155 Va. 642, 156 S.E. 367 (1931), and Peoples National Bank v. Morris, 152 Va. 814, 148 S.E. 828 (1929), neither of which is apposite and each of which is factually dissimilar. In Bank of 877 Occoquan, the defendant bank was held not liable for the fraudulent acts of one of its agents, a cashier. The dispositive holding was that the plaintiff had actually constituted the cashier as his own agent. Thus, the plaintiff, and not the bank, was bound by the agent's fraudulent conduct. Here, Blood was not plaintiffs' agent. In Peoples National Bank, one Davis was cashier of the predecessor to defendant bank and was also president of a mercantile company. On behalf of the mercantile company, Davis obtained advance payments of rent from the plaintiff Morris, lessee of a building owned by such company. This was done a few days before the bank foreclosed on the rental property, thus eradicating the lease. Davis paid the money obtained from the plaintiff to the mercantile company which, in turn, used it to pay a debt to the bank. The evidence showed that Davis acted for his own benefit solely in his capacity as president of the mercantile company. In that capacity, he made no representations on behalf of the bank. Accordingly, this court refused to hold the bank liable for the conduct of Davis "merely" because he happened to be cashier of the bank. 152 Va. at 823, 148 S.E. at 830. In the case under consideration, however, Blood was acting for himself and First Builders, but such conduct of Blood individually and on behalf of his own corporation was apparently within the scope of Estate Life's business of vending insurance and recruiting salesmen. In passing, we note broad language in Peoples National Bank, 152 Va. at 823-24, 148 S.E. at 830, a portion of which is quoted in Bank of Occoquan, 155 Va. at 648, 156 S.E. at 368, which states that when an agent, ostensibly acting in the principal's business, is really committing a fraud for his own benefit, he is acting outside the scope of his agency and the principal is not liable for such conduct. To the extent that this language means that when an agent is acting fraudulently for his own benefit, ipso facto he is acting outside the scope of his authority, we expressly disapprove it as being at odds with the views we have expressed in this opinion. For the foregoing reasons, we hold that the trial court erred in sustaining Estate Life's motion to strike the plaintiffs' evidence. Consequently, the judgments below will be reversed and the cases remanded for new trials. Reversed and remanded. NOTES [] The assignment of error contained in the petition for appeal was in the foregoing language. That original language was altered when the assignment was set forth in the appendix and plaintiffs' opening brief, but presented the same issue. Such an alteration is contrary to accepted practice and is improper.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310571/	89 Ga. App. 672 (1954) 80 S.E.2d 832 AMERICAN SECURITY LIFE INSURANCE CO. v. GRAY. 34992. Court of Appeals of Georgia. Decided February 4, 1954. Rehearing Denied February 17, 1954. 673 Guy Tyler, Marvin O'Neal, Jr., for plaintiff in error. Alex McLennan, Cullen M. Ward, contra. TOWNSEND, J. The amended motion for a new trial contains one special ground, complaining of the admissibility of certain evidence. The very splendid brief of able counsel for the plaintiff in error, however, is confined to a discussion of the general grounds and no reference is made to the special ground. The brief of counsel for the defendant in error sets up that the special ground has been abandoned by the plaintiff in error, to which assertion there is no reply. Accordingly, the special ground of the motion for a new trial is treated as abandoned. It is conceded by counsel for the plaintiff in error that the evidence is in conflict as to the proximate cause of the collision which resulted in the injury to the defendant in error, and that the jury by its verdict has settled the question to the effect that the negligence of Floyd Shelby was the proximate cause thereof. The contentions of the plaintiff in error are (1) that the evidence was insufficient to fix liability upon it, and (2) that the evidence affirmatively shows that the relation between it and Floyd Shelby was that Shelby was an independent contractor within the meaning of the law. In this connection, the brief further states: "Therefore, this case, as stated, depends for its determination upon the construction and applicability of Code § 105-501 and § 105-502 (5) to the evidence in the case." Code § 105-501 provides: "The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer." Code § 105-502 provides in part as follows: "The employer is liable for the negligence of the contractor. . . (5) If the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is 674 traceable to his interference." It follows, therefore, that if Shelby was an independent contractor as contended by the plaintiff in error, under the terms of Code § 105-501 the employer (plaintiff in error) is not liable unless there was such interference and assumption of control on its part as to make it liable under the provisions of Code § 105-502 (5). It is well recognized that merely taking steps to see that the contractor carries out his agreement, by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable. Atlanta & F. R. Co. v. Kimberly, 87 Ga. 161 (3) (13 S.E. 277); Louisville & Nashville R. Co. v. Hughes, 143 Ga. 75 (67 S.E. 542); Lee v. Atlanta, B. & A. R. Co., 9 Ga. App. 752 (72 S.E. 165). Where, however, an employer interferes to the extent that an injury results which is traceable to his interference, the employer is liable. Johnson v. Western & Atlantic R. Co., 4 Ga. App. 131 (2) (60 S.E. 1023). Also see International Agricultural Corp. v. Suber, 24 Ga. App. 445 (2) (101 S.E. 300), which holds: "An employer is liable if he so interferes with or assumes control over work being done by an independent contractor as to create the relation of master and servant." While the contract between the plaintiff in error and the solicitor for insurance, Shelby, provided in part that "The agent shall be free to exercise his own judgment as to the persons from whom he will solicit applications and the time and place of solicitation," a consideration of the evidence discloses that he was directed by Nabors, the State manager of the plaintiff in error, by whom he was employed and under whose supervision he worked, to operate in a certain territory allotted to him, to call on names furnished by lead cards, which names were in some instances forwarded by the home office and in others resulted from telephone or other inquiries, and to attend regular morning staff meetings. It further appeared that the plaintiff in error paid for Shelby's license, furnished him all literature and selling aids, required him to own an automobile as a condition of employment, and, particularly, that at the time of the collision Shelby was on his way to interview a prospective customer whose name had been given him at the office on a lead card. The testimony *675 of both Shelby and Nabors showed without dispute that, had Shelby without justifiable cause or excuse failed to comply with the above requirements, his services would have been terminated. In Gulf Life Insurance Co. v. McDaniel, 75 Ga. App. 549 (43 S.E.2d 784), it appeared that there, as here, the contract of employment stipulated that the insurance solicitor should receive as full compensation commissions on premiums paid by insureds, and that the contract might be terminated on notice. The solicitor there was assigned a regular debit area for the sale of health and accident insurance, and most of his time was confined to that area, that as to it he was a servant of the company, that it was not decided whether or not in the sale of ordinary life insurance he was equally a servant, but, where he left his debit area to make a sale of life insurance, and was returning to that area to resume duties connected with it, although he was not yet within the area, the relation of master and servant existed so as to make his employer liable for injuries resulting from his negligent operation of his automobile. It follows, therefore, that the evidence relating to interference and assumption of control on the part of the employer is stronger in the case at bar than in the McDaniel case, supra, for which reason the evidence here would also pose a jury question as to the relationship between the parties. The servant was acting within the scope of his employment at the time of the collision of the automobiles resulting in injuries to the defendant in error. See, in this connection, Hampton v. Macon News Printing Co., 64 Ga. App. 150 (12 S.E.2d 425); s. c. 192 Ga. 623 (15 S.E.2d 793). In contradistinction, the evidence in Morris v. Constitution Publishing Co., 84 Ga. App. 816 (67 S.E.2d 407), including the contract in that case, demanded a finding that the relationship of employer and independent contractor, rather than master and servant or principal and agent, existed between the parties. The trial court did not err in denying the motion for a new trial. Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310582/	89 Ga. App. 683 (1954) 80 S.E.2d 828 LEDFORD v. STATE. LEDFORD v. STATE. PATTON v. STATE. 35013, 35014, 35015. Court of Appeals of Georgia. Decided February 19, 1954. 684 Stafford R. Brooke, for plaintiffs in error. Erwin Mitchell, Solicitor-General, Beverly Langford, contra. TOWNSEND, J. 1. In special ground 4 of the amended motion for new trial, error is assigned on the exclusion of evidence as follows: a witness for the State, an investigator from the Army base at which the deceased had been stationed, testified as to the taking of certain photographs which were introduced in evidence by the State. On cross-examination the witness stated that he had taken other photographs which had not been introduced in evidence, and that some of these were photographs of the automobile in which the defendants were riding. It was the defendants' contention that after the deceased had ordered them off the premises and had fired a shotgun at their automobile, which damaged it by breaking the rear glass and in other particulars, they returned for the sole purpose of reaching an agreement as to payment by the soldier for the damage he had done to the borrowed car. The condition of the automobile, then, was relevant and material to the defense. The court ruled out the question, "Now what, if anything, did you find wrong with the rear end of the car?" and sustained an objection to that line of questioning on the ground that the defendant would not be entitled to cross-examine the witness as to photographs he had made of the automobile unless he stated that he would offer the photographs in evidence. Counsel for the defendants refused to do 685 this on the ground that he had not seen the photographs, and until the witness had been questioned concerning them he would have no means of knowing whether he wished to introduce them or not. Error is assigned on the court's ruling on the ground that it wrongfully abridged their right of cross-examination. Code § 38-1705 provides: "The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him. If several parties to the same case shall have distinct interests, each may exercise this right." The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of the witnesses, and it is better for cross-examination to be too free than too much restricted. Harris v. Central Railroad, 78 Ga. 525 (3) (3 S.E. 355). Even had the State's examination of the witness been limited to the formal question of identification of the photographs which it intended to use, the defendants still had the right to cross-examine the same witness as to every relevant and material aspect of the case which came within such witness's investigation. First Nat. Bank of Birmingham v. Carmichael, 198 Ga. 309, 314 (2b) (31 S.E.2d 811). Where the relevancy of documents which may be used as evidence appears, it is error to unduly restrict the cross-examination relating to such documents. See, in this regard, McGinty v. State, 59 Ga. App. 675 (1) (2 S.E.2d 134). The questions here related to a material defense, and it was error to exclude this line of testimony on the ground that counsel, who did not know the contents of the photographs which the State had not elected to use, had to first choose whether to offer and be bound by them before questioning the witness in their regard. This error, which cut off a substantial right, is such as to demand reversal of this case. 2. Special ground 1 of the amended motion for new trial complains of an excerpt from the charge relating to mutual combat as a defense which would reduce the crime of murder to one of manslaughter, because, it is contended, the trial court omitted to include therein the principles of Code § 26-1014 relating to mutual combat as applied to justifiable homicide. This section is as follows: "If a person shall kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the 686 other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given." This section does not qualify or limit the law of justifiable homicide as laid down in Code §§ 26-1011 and 26-1012. It applies exclusively to cases of self-defense from danger to life arising in the progress of a fight wherein both parties are at fault. Other sections apply when the homicide is committed in good faith to prevent the perpetration of the offenses mentioned in Code § 26-1011 or under the fears of a reasonable man that unless the person who is actually or apparently about to commit them be slain such offenses are about to be perpetrated. White v. State, 24 Ga. App. 122 (100 S.E. 9). There was evidence in the record to authorize the jury to find that all parties had, shortly before the homicide, been at fault. The deceased had fired on the defendants. The defendants did not offer a defense against the assault at that time, but came back shortly thereafter armed with guns. They contended that the purpose of their return was not to commit an assault or engage in mutual combat, but merely to discuss payment for the damages inflicted by the defendant on their automobile. The jury would nevertheless have been authorized to find against this contention and attribute a more militant purpose to their return, such as revenge or mutual combat. Thereafter, when they entered the house and the deceased stepped from behind the door, two of these defendants dropped their guns on command, and must be held at that moment to have "really and in good faith endeavored to decline any further struggle." As to the third defendant, Herman Ledford, the jury might have found from the evidence (a) that he fired first, or (b) that he did not intend to give further struggle, and fired only after the deceased had fired at him. Even had the deceased fired first, the evidence would not be conclusive that this defendant had declined further combat. However, under this conflicting evidence, all the facts and circumstances were such as to require the court to charge on Code § 26-1014, and to leave the defense of justifiable homicide, in cases where both parties are at fault but the defendant thereafter declines further struggle and kills under the absolute necessity of saving his own life, for the jury's 687 consideration along with the other elements of the case. The distinction between the law relating to mutual combat in reducing the crime from murder to manslaughter, and justifiable homicide following cases of mutual combat and under actual necessity as set forth in Code § 26-1014, should be clearly pointed out where the evidence so authorizes, and where the court undertakes to charge upon justification it is incumbent upon it to do so correctly. McKibben v. State, 88 Ga. App. 466 (77 S.E.2d 86). It follows, therefore, that Code § 26-1014 should have been charged. However, the complaint should be that the court failed to charge the principles of law embodied therein, and not that some other excerpt from the charge was error because this Code section was not charged in conjunction therewith, the charge complained of being a correct charge on the law of mutual combat in relation to reducing the crime of murder to manslaughter. An admittedly correct excerpt from the charge can not be assigned as error on the ground that additional instructions are not presented therewith. Payne v. Young, 27 Ga. App. 370 (4) (108 S.E. 312); Lumpkin v. State, 152 Ga. 229 (3) (109 S.E. 664). Since, therefore, the assignment of error here is insufficient to raise the question, this ground of the amended motion for new trial shows no cause for reversal. 3. The remaining special grounds assign error on excerpts from the charge on the ground that they are argumentative and constitute expressions of opinion. As the case is being reversed on other grounds, it is unnecessary to consider these grounds, except to say that it does not appear that the court charged the contentions of the State in such manner as to disparage the defendants' contentions. The trial court erred in denying the motion for a new trial for the reasons set forth in the first division of this opinion. Judgment reversed. Carlisle, J., concurs. Gardner, P. J., concurs in the judgment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310588/	89 Ga. App. 599 (1954) 80 S.E.2d 725 ROSE v. MAYOR &c. of THUNDERBOLT. 34953. Court of Appeals of Georgia. Decided February 4, 1954. 600 Sullivan & Maner, for plaintiff in error. Julius S. Fine, contra. CARLISLE, J. Money paid out by way of taxes or fines is voluntary, and may not be recovered back unless payment is made involuntarily and under duress, under an urgent and immediate necessity therefor, or to release or prevent immediate seizure of person or property. Code § 20-1007. Where, however, one is convicted in a recorder's court, which has power to convict only under valid city ordinances, and no valid ordinance authorizes such conviction, payment of a fine to prevent immediate seizure of the person is not a voluntary payment, and may be recovered back. Clay v. Drake, 66 Ga. App. 544 (18 S.E.2d 516). This case turns upon whether the petition sufficiently alleges the payment of the fine to prevent immediate imprisonment 601 under a sentence in the Mayor's Court of Thunderbolt for a conviction not under any valid ordinance of such town. The petition alleges affirmatively that the defendant was convicted of a violation of a State law, i.e., the legislative act establishing the town charter, and that the threatened imprisonment was illegal, the judgment void, and the conviction a nullity, for the reason that the statute under which the defendant was convicted was not an ordinance or criminal law, and that it provided no authority upon anyone to impose such conviction or sentence. We consider these allegations sufficient to set forth affirmatively that the defendant was convicted, as alleged directly, under the charter statute, and not under some unpleaded ordinance other than the statute in question. It is therefore necessary only to decide whether such a conviction would be absolutely void, for, if not, it cannot be the subject of a collateral attack such as this; but, if so, the payment under such void judgment for the sole purpose of preventing imprisonment of the person was made under duress, and might therefore be recovered. As stated in Hall v. City of Macon, 147 Ga. 704, 709 (95 S.E. 248): "A valid municipal ordinance is the foundation of its jurisdiction. The charter confers the power to acquire jurisdiction . . . but jurisdiction, in the proper sense of the term, is not vested in the mayor and council by the provisions of the charter itself. The charter is not and was not intended to be self-operating." In Stembridge v. Wright, 32 Ga. App. 587 (2) (124 S.E. 115), it is held, "In no event has a municipal magistrate jurisdiction to assess a fine against a person for the violation of a State statute." See also Daniel v. City of Claxton, 35 Ga. App. 107 (6) (132 S.E. 411). It follows, therefore, that the mayor, sitting in court in a judicial capacity, had no jurisdiction to assess a fine against the plaintiff here for a violation of the charter of the town, which existed as a State statute and which was not self-operating, since the mayor had no jurisdiction of the subject matter involved. Under these circumstances, a collateral attack on the judgment is permissible. Code § 110-701. Whether or not there was a valid ordinance of the Town of Thunderbolt covering the misconduct of the defendant is immaterial, since the allegations of the petition show affirmatively that the defendant was tried for the violation of the charter and accordingly *602 was not tried for the violation of any ordinance. Also, the judgment of the trial judge sustaining the demurrer discloses that the petition was considered by him on the basis of charging that the defendant was tried for the violation of the State statute or charter, and not for the violation of any ordinance of the town. This case differs from White v. Tifton, 1 Ga. App. 569 (57 S.E. 1038), in that there it was contended merely that the judgment was erroneous, not that it was absolutely void for lack of jurisdiction. There is nothing in the decision in Rose v. Mayor &c. of Thunderbolt, 86 Ga. App. 867 (72 S.E.2d 823), which would require a different decision, since the judgment of affirmance of this court was based merely upon the fact that the petition for certiorari appealing the original conviction was properly dismissed where it was too defective for consideration. If in fact the plaintiff in error actually was tried for the violation of an ordinance enacted pursuant to the charter provisions, this defense, of course, may be set forth in the answer; but, as pointed out, if the conviction was based on the charter itself, in accordance with the allegations of this petition, the petition sets forth a cause of action, and the trial court erred in sustaining the demurrer thereto and dismissing the petition. Judgment reversed. Gardner, P. J., and Townsend, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310585/	195 Va. 714 (1954) IRENE D. CONRAD v. SADIE THOMPSON, ADMINISTRATRIX OF THE ESTATE OF WILLIE OWENS, DECEASED. Record No. 4174. Supreme Court of Virginia. March 15, 1954. E. L. Ryan, Jr. and White, Ryan & Holland, for the plaintiff in error. Kanter & Kanter, H. Lee Kanter and W. H. Starkey, for the defendant in error. Present, Eggleston, Spratley, Miller, Smith and Whittle, JJ. 1. Plaintiff's evidence showed that her decedent was killed in the middle lane of a three lane highway when struck by defendant's automobile traveling at the legal limit of fifty miles per hour. He had proceeded to cross the highway after looking to left and right at a time when defendant's car was 400 feet distant, and was looking the other way when hit. The road was straight and defendant had had an unobstructed view for 1,500 yards. In action for wrongful death, defendant's evidence generally contradicting that of plaintiff, the issues of negligence and contributory negligence were for the jury. A pedestrian is guilty of negligence as a matter of law, however, if he undertakes to cross a highway without looking or fails to see or heed traffic in plain view and dangerously close. 2. It was prejudicial error, requiring the setting aside of the verdict for plaintiff, to give the jury an instruction based on Code 1950, section 46-244, that plaintiff's decedent had the right of way over defendant's car if he started to cross the highway at its intersection with a dead-end dirt road. The statute is by its terms limited in application to business and residence districts, and there was no evidence to show the accident occurred within any such district. 3. Since the evidence showed and defendant admitted that she saw deceased in a position of imminent danger of which he was unaware, and had time to avoid striking him, there was no error in instructing the jury on the doctrine of last clear chance. Error to a judgment of the Circuit Court of Princess Anne county. Hon. F. E. Kellam, judge presiding. The opinion states the case. SMITH SMITH, J., delivered the opinion of the court. In an action for wrongful death arising out of an automobile accident in which Willie Owens was killed, the administratrix of his estate has recovered a verdict and judgment of $7,500 against Mrs. Irene D. Conrad, hereafter referred to as defendant, who is here seeking to have that judgment reversed on the grounds that: (1) the evidence was insufficient to show primary negligence on her part, (2) deceased was guilty of contributory negligence as a matter of law, (3) the evidence did not justify an instruction based on the pedestrian right-of-way statute, Code, \| 46-244, (4) there was no evidence to support an instruction on last clear chance. The facts, stated in the light most favorable to the plaintiff and as they appear from the testimony of a State Trooper and seven eye-witnesses, and from certain exhibits, show that on February 1, 1952, at approximately 4:15 p.m., the defendant, accompanied by her two small children, was driving her automobile at 50 miles per hour eastwardly on U.S. Highway No. 58, referred to locally as the Virginia Beach Boulevard, approximately one mile west of Virginia Beach in Princess Anne county. At this point the speed limit is 50 miles per hour, and the highway is 27 feet wide 716 and divided into three clearly marked lanes. The deceased had crossed the road from the north to the south side where there is an intersecting dead-end dirt road and several mail boxes. After taking a letter from one of the mail boxes he looked both to his right and left before proceeding back across the highway, at which time the defendant's automobile was about 400 feet away. Upon entering the middle lane of the highway he was struck by the right side of defendant's front bumper and received serious injuries which resulted in his death on June 19, 1952. There was no evidence of skid marks and the car travelled approximately 75 yards beyond the point of collision before stopping. The day was warm and clear and the road from the point of impact west toward Norfolk, from which direction defendant was coming, was straight and the view unobstructed for at least 1,500 yards. The defendant testified that, "All I ever saw [of the deceased] was the back of his head. He was looking at Mr. Weaver [driver of a car approaching from the east] I guess, down from the other way." Then in response to a question as to what she did when she first saw him, she said: "Well, my first impulse was that if I put on my brakes I would just run right over him. My senses didn't tell me to put on my brakes and turn at the same time; so I figured if I turned around him, I would miss him. And I sat on my horn. And he just didn't even -- he never -- didn't even look; he didn't do anything. So I turned, and hit him." The administratrix, who was corroborated by another witness, testified that while she was sitting in the hospital two days after the accident the defendant entered into a conversation with her, in the course of which the defendant said: "'Well, I have been dreaming about him [deceased] all night * * I could see him all in my sleep. * * * When I saw your daddy, I saw your daddy long before I got to him and he was far distance enough away that I could have stopped, I could have avoided the wreck.'" Then in response to a question as to whether the defendant gave any 717 reason for not stopping, the administratrix said: "No, she didn't say. The only reason she say, she was distant far enough away from my father, she thought my father was going to turn around and go back." Because of our decision to remand the case on another ground it is unnecessary to discuss at length defendant's two contentions that the evidence is insufficient to show primary negligence on her part and that the deceased was guilty of contributory negligence as a matter of law. A pedestrian on entering a highway is not required to await the passage of all automobiles that may be in sight. His duty is to await the passage of those which are so near or approaching at such rate of speed that a person exercising reasonable care for his own safety would not attempt to cross. If he undertakes to cross without looking, or, if he looks and fails to see or to heed traffic that is in plain view and dangerously close, he is guilty of negligence as a matter of law. Rhoades Meadows, 189 Va. 558, 54 S.E.(2d) 123. But if reasonable men may honestly differ on the conclusions to be drawn from the evidence as to all kinds of negligence, the question is not one of law, but one of fact for the jury under proper instructions. Pioneer Construction Co. Hambrick, 193 Va. 685, 70 S.E.(2d) 302; Steele Crocker, 191 Va. 873, 62 S.E.(2d) 850. Suffice it to point out that in the instant case the evidence is conflicting as to: whether the defendant made certain admissions; whether the deceased was struck in the middle or south lane of the highway, or stepped in front of the defendant's automobile; whether the deceased looked both to his left and right before entering the highway; and as to what was the position of defendant's automobile when deceased entered the road, its distance being variously estimated to be from two or three car lengths to 600 feet. Clearly, on evidence so conflicting, the questions of negligence and contributory negligence were questions upon which reasonable men might differ, and were therefore questions of fact for the jury. 718 This brings us to defendant's contention that the court erred in granting over her objection and exception Instruction P. 1. which reads as follows: "The court instructs the jury that if you believe from the evidence that Willie Owens started across U.S. Highway No. 58 at its intersection with the dirt road at Atlantic Park before Mrs. Conrad's automobile reached that intersection, then Willie Owens had the right of way over the said automobile and it was the duty of the driver to change her course, slow down, or come to a complete stop, if necessary, to permit Willie Owens to safely make the crossing, and if you believe that on the occasion in question Willie Owens was exercising due care for his own safety and that the defendant disregarded her duty, as has been stated, and that her disregard was the proximate cause of his death, you must find for the plaintiff." This instruction is based on Code, \| 46-244, [1] which deals with a driver upon a highway, (1) within a business, or (2) residence district; and provides that in such districts he shall yield the right-of-way to a pedestrian crossing the highway, (a) within any clearly marked crosswalk, or (b) any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block. "No pedestrian shall enter or cross an intersection regardless of approaching traffic." "The drivers of vehicles entering, crossing or turning at intersections shall change their course, slow down or come to a complete stop if necessary to permit pedestrians to safely and expeditiously cross such intersection." The purpose of this statute is to afford pedestrians crossing highways at the places designated therein a right-of-way 719 over vehicular traffic and to that extent give them some degree of protection from its dangers. Reese Snelson, 192 Va. 479, 65 S.E.(2d) 547. Except in places where favored positions are assigned by law, the rights of pedestrians and motorists to use the highways are equal and their duties are mutual and reciprocal. Rhoades Meadows, supra; South Hill Motor Co. Gordon, 172 Va. 193, 200 S.E. 637. Plaintiff, in support of Instruction P. 1, has placed great reliance on Nelson Dayton, 184 Va. 754, 36 S.E.(2d) 535, which construes section 2154(126) of the Code of 1942. However, this section did not include the limitation with reference to "a highway within a business or residence district." To enjoy the privileges of the right-of-way under Code, \| 46-244, a pedestrian must prove that the scene of the accident was within a business or residence district as defined by Code, \|\| 46-185, [2] and 46-186. [3] This cannot be left to speculation and surmise but must be clearly established. In our search of the testimony and examination of the pictorial exhibits, we are unable to find any evidence that the scene of the accident was within a business or residence district. Moreover, there is no evidence that the accident occurred at a "clearly marked crosswalk or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block." There being no evidence to show that this accident occurred within either a business or residence district, the giving of Instruction P. 1 was prejudicial error. 720 We next come to defendant's contention that it was error to grant an instruction on last clear chance because "there is no evidence of a last clear chance and the evidence is incredible." The instruction on that doctrine is P. 8, which reads as follows: "The Court instructs the jury that even though they may believe from the evidence that the plaintiff's intestate was guilty of contributory negligence, yet if they further believe from the evidence that Mrs. Conrad knew of Willie Owens' danger or by the exercise of ordinary care should have known of his danger in time to have stopped her car and avoided striking him, it was her duty to do so, and if they believe from the evidence that she failed to exercise this duty, then she is liable and your verdict should be for the plaintiff." Objection was made to the form of the instruction, but this we do not consider because it was not saved as required by Rule 1:8. Whether the doctrine of last clear chance applies is to be determined by the facts of the particular case. It does not supersede the law of contributory or concurring negligence. Hardiman Dyson, 194 Va. 116, 72 S.E.(2d) 361; Keatts Shelton, 191 Va. 758, 63 S.E.(2d) 10. Mr. Chief Justice Hudgins said in Umberger Koop, 194 Va. 123, 131, 72 S.E.(2d) 370: "In order for a defendant to be held liable under this doctrine [last clear chance], it must appear from the evidence that the plaintiff has negligently placed himself in a position of imminent peril and he is either unaware of his perilous situation, or unable to escape therefrom, or both, and defendant was apprised of his presence and realized, or, in the exercise of reasonable care, should have realized his danger in time to avoid the accident, and failed to do so. Anderson Payne, 189 Va. 712, 54 S.E.(2d) 82; Lanier Johnson, 190 Va. 1, 55 S.E.(2d) 442; Burton Oldfield, 194 Va. 43, 72 S.E.(2d) 357." Since there is evidence that the defendant admitted in statements to two of the witnesses that she saw the deceased *721 in danger and unaware of pending calamity in time to avoid striking him, a proper instruction on last clear chance was warranted. However, on a retrial Instruction P. 8 in its present form should not be given. If deceased was guilty of contributory negligence plaintiff could not recover in any event. Also, if the defendant saw that deceased was in a situation of helpless or unconscious peril, she must have had time to avoid the accident by exercising ordinary care. We note that during the trial of the case counsel stipulated that the hospital, medical and funeral expenses amounted to $2,506.86. The verdict of the jury was as follows: "We the jury find for plaintiff -- in sum of $7500.00, Seven Thousand five Hundred and 00/100, this amt. included all expense, Hospital Bill, Doctor's Bills and Burial expenses totaling $2506.86." Since the jury failed to direct to whom and in what proportion the verdict should be distributed, the court in its final judgment directed that the sum of $7,500 "be paid to the children of the decedent, in equal shares, after the payment of costs and attorneys fees." The court's judgment follows Code, \| 8-638, which requires that the recovery be distributed to the beneficiaries "after the payment of costs and reasonable attorney's fees." This statute also provides that an award "shall be free from all debts and liabilities of the deceased," therefore the hospital, medical and funeral expenses are not recoverable and are not proper elements of damages. We have frequently held that an action for wrongful death is not for the benefit of the decedent's estate, but for certain near relatives. Patterson Anderson, 194 Va. 557, 74 S.E.(2d) 195; Porter Va. Elec. & Power Co., 183 Va. 108, 31 S.E.(2d) 337. See also, Wolfe Lockhart, 195 Va. 479, 78 S.E.(2d) 654. We are of opinion that Instruction P. 1 was erroneous and prejudicial and for that reason the judgment is reversed and a new trial awarded. Reversed and remanded. NOTES [1] "The driver of any vehicle upon a highway within a business or residence district shall yield the right of way to a pedestrian crossing such highway within any clearly marked crosswalk or any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, except at intersections where the movement of traffic is being regulated by traffic officers or traffic direction devices. [2] "'Business district' defined. -- The territory contiguous to a highway where seventy-five per centum or more of the total frontage, on both sides of the highway, for a distance of three hundred feet or more is occupied by buildings actually in use and operation for business purposes shall constitute a business district for purposes of this title." [3] "'Residence district' defined. -- The territory contiguous to a highway not comprising a business district where seventy-five per centum or more of the total frontage, on both sides of the highway, is mainly occupied by dwellings or by dwellings and buildings in use for business purposes shall constitute a residence district for purposes of this title."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260240/	549 A.2d 744 (1988) Glenn LARRIVEE et al. v. Roger E. TIMMONS et al. Supreme Judicial Court of Maine. Argued September 6, 1988. Decided November 1, 1988. Michael D. Cooper (orally), Desmond, Cooper, Manderson & Millett, Westbrook, for plaintiff. John A. Graustein (orally), Drummond, Woodsum, Plimpton & MacMahon, Portland, for Arcadia Co. Charles A. Lane (orally), Portland, for Roger E. Timmons. Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and HORNBY, JJ. McKUSICK, Chief Justice. This case raises the question, novel to us, whether the steps for obtaining multiple land use approvals from different administrative agencies operating under different ordinances or statutes are all part of a single "proceeding" for purposes of the 745 grandfathering provision of 1 M.R.S.A. § 302 (1979). In this Rule 80B action brought by certain resident landowners in Windham (hereinafter "the opponents"), the Superior Court (Cumberland County; Brodrick, J.) affirmed the decision of the Windham Zoning Board of Appeals giving conditional use approval to defendant Arcadia Company for its proposed 105-unit mobile home park on the Land of Nod Road. On appeal by the opponents, we vacate that affirmance on the ground that the Board of Appeals committed an error of law by applying section 302 to relieve Arcadia from complying with the conditional use standards of the amended Windham ordinance that, enacted in September 1984, went into effect before the Board of Appeals received and acted upon Arcadia's application for a conditional use permit. We also reject the alternative ground urged by defendants for affirming the Board of Appeals; namely, that the Board is by principles of collateral estoppel compelled to find that Arcadia has already complied with all the amended conditional use standards because of the approvals already given Arcadia by the Maine Department of Environmental Protection (DEP) and the Windham Planning Board. We direct the case to be remanded to the Windham Zoning Board of Appeals for it to reconsider Arcadia's conditional use application under the expanded standards of the amended ordinance. In 1984 Arcadia began the process of obtaining the numerous land use approvals necessary for developing its proposed mobile home park. Pursuant to Windham's subdivision ordinance Arcadia first applied for preliminary subdivision approval from the Windham Planning Board and the Planning Board granted that preliminary approval on August 27, 1984. Arcadia in May 1985 got site plan approval from the DEP and then returned to the Planning Board for final subdivision approval pursuant to the subdivision ordinance. After getting final subdivision approval from the Planning Board in July 1985,[1] Arcadia proceeded on the application it late in 1984 had filed with the Windham Zoning Board of Appeals for conditional use approval as required for all mobile home parks in the zone of the proposed project. At all times the controlling Windham ordinance provided that the Board of Appeals could not act on a conditional use application until the Planning Board has granted final subdivision approval to the proposed development. On September 11, 1984, shortly after the Planning Board had granted preliminary subdivision approval but before it had granted final subdivision approval or Arcadia had filed a conditional use application with the Board of Appeals, the Town of Windham amended its land use ordinance to clarify and perhaps strengthen the standards to be applied by the Board of Appeals on conditional use applications. The Town amended those standards in response to this court's decision in Cope v. Town of Brunswick, 464 A.2d 223, 225 (Me.1983), which held certain ordinance provisions to be an unconstitutionally vague delegation of legislative authority. The Board of Appeals undertook review of Arcadia's conditional use application in August 1985. The Board of Appeals determined that the grandfathering provisions of 1 M.R.S.A. § 302 protected Arcadia from having to comply with the amended conditional use standards because Arcadia had "started [the] ball rolling" by filing its subdivision application with the Planning Board prior to the time the Town amended the conditional use standards. The Board of Appeals ultimately granted Arcadia's application. This Rule 80B action, brought by the opponents against the Town's code enforcement officer (Roger Timmons) and Arcadia, followed. 746 The Superior Court affirmed the decision of the Board of Appeals. On appeal to this court the opponents join issue with Timmons and Arcadia over which conditional use standards control Arcadia's application to the Board of Appeals. On construing 1 M.R.S.A. § 302, we find the amended standards control. Against the possibility this court might come to that conclusion, Timmons and Arcadia contend that the result on this appeal should be the same even so. This is true, they argue, because both the Planning Board and the DEP, in the process of giving approval to Arcadia's mobile home park, have made conclusive findings of compliance by Arcadia with the substantive requirements of the amended standards. In other words, they urge us to apply a collateral estoppel principle between administrative agencies. We reject defendants' alternative argument as well. I. Application of Section 302 1 M.R.S.A. § 302 provides in relevant part: "Actions and proceedings pending at the time of the passage or repeal of an Act or ordinance are not affected thereby." The opponents submit that each permit application is a separate "proceeding" for the purpose of applying the grandfathering provision of section 302 and that the Board of Appeals and the Superior Court erred in treating the multi-step municipal approval process as a single "proceeding." We agree. The meaning of the term "proceeding" in section 302 is a matter of statutory interpretation and as such is a question of law for this court. See George D. Ballard, Builder, Inc. v. City of Westbrook, 502 A.2d 476, 480 (Me.1985). No Maine case is directly on point. The cases relied on by defendants deal primarily with the meaning of the term "pending" in section 302. See Maine Isle Corp. v. Town of St. George, 499 A.2d 149, 152 (Me.1985) (where town board acts on the substance of a proposal, that proposal is pending for purposes of section 302); Littlefield v. Town of Lyman, 447 A.2d 1231, 1235 (Me.1982) (same). In the case at bar, however, we are not concerned with the meaning of the term "pending" but rather with what is meant by the term "proceeding." We conclude that the Planning Board's subdivision approval and the Board of Appeals' later conditional use approval did not result from a single "proceeding." Rather, each was a separate proceeding initiated by a separate application before a separate tribunal and governed by a different set of standards. The fourth sentence of section 302[2] defines a proceeding to include an application for a license or permit; by that definition, there was a proceeding pending before the Planning Board as soon as the application was filed with it and a second proceeding became pending when the later application was filed with the Board of Appeals. Thus, for purposes of section 302, the hearing and approval steps before the Planning Board on a subdivision application constitute one proceeding, and the hearing and approval steps before the Board of Appeals on a conditional use application constitute another, separate proceeding. The fact that by the Windham ordinance the Board of Appeals may not act upon Arcadia's conditional use application until after the Planning Board has approved Arcadia's subdivision application does not transmute those two separate municipal proceedings into one. The ordinance does not put any front-end time limitation on when the developer may commence the proceeding before the Board of Appeals by filing its application for the conditional use. The ordinance merely prescribes the sequence in which the two separate municipal agencies may take their separate final actions in giving two separate approvals required for the proposed project. The Board of Appeals, despite its name, exercises in this case no function of appellate review over the Planning Board's subdivision decision. It independently hears and acts upon an application for a different 747 type of approval as a matter of first instance. On September 11, 1984, when the Town of Windham amended its ordinance specifying the conditional use standards to be applied by its Board of Appeals to proposals for mobile home parks, Arcadia had no proceeding then pending before the Windham Board of Appeals. Therefore, section 302 has no operative effect on the conditional use application Arcadia subsequently filed with the Board of Appeals. That later application to the Board of Appeals is not grandfathered by section 302; it is controlled by the amended ordinance in effect on the date the application was filed.[3] To prevail on its Board of Appeals application, Arcadia must show its proposal complies with the conditional use standards as amended on September 11, 1984. II. Collateral Estoppel We now turn to defendants' fallback argument that in any event the Zoning Board of Appeals is collaterally estopped from finding noncompliance with the amended conditional use standards by the administrative adjudications already made by the Planning Board on Arcadia's subdivision application and by the DEP on Arcadia's site location application.[4] We have long since taken the same view as the Restatement that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Restatement (Second) of Judgments § 27 (1982) (quoted in Sevigny v. Home Builders Ass'n of Maine, Inc., 429 A.2d 197, 201-02 (Me.1981)). In Town of North Berwick v. Jones, 534 A.2d 667, 670 (Me.1987), we further held, in accordance with section 83 of the Restatement (Second), that provided certain conditions are met, "a final adjudication in an administrative proceeding before a quasi-judicial municipal body has the same preclusive effect as a final adjudication in a former court proceeding." The case at bar, however, does not present an appropriate occasion for the application of the principles of collateral estoppel between administrative proceedings. Even though the standards governing the proceedings before the Planning Board and the DEP raised issues involving many of the same general subject matters as the conditional use standards of the Windham Board of Appeals (as, for example, traffic conditions), the specific standards differ significantly in language and it would appear also in substantive content. The previously adjudicated issues are not irrefutably the same as those before the Board of Appeals. In any event, when the Town of Windham has legislatively created the Zoning Board of Appeals and has directed it to consider conditional use applications under a set of standards differing significantly in language if not in substance from those of its Planning Board and DEP and has required the successive approval of both of its own boards for the construction of a mobile home park, we are unwilling to find an intent on the part of the Town that the decision of the first board or the DEP on an issue such as traffic conditions is conclusive on the second board as to the same general subject matter. Subsection (4) of section 83 of the Restatement (Second) recognizes an exception to administrative collateral estoppel if according preclusive effect to determination of the issue [by the first board] would be incompatible with a legislative policy that: . . . . . 748 (b) The tribunal in which the issue subsequently arises be free to make an independent determination of the issue in question. We see exactly such a legislative policy in the structure and requirements of the Windham ordinances. Arcadia's application to the Windham Zoning Board of Appeals for conditional use approval of its proposed mobile home park must go back to the Board of Appeals for its independent determination whether the project complies with the standards that became effective on September 11, 1984. The entry is: Judgment vacated. Remanded to the Superior Court with instructions to vacate the decision of the Windham Zoning Board of Appeals and to remand to that Board to reconsider Arcadia Company's conditional use application under the amended ordinance in effect on the date it was filed. All concurring. NOTES [1] Plaintiffs challenged the Planning Board's decision to grant final subdivision approval, but this court upheld the Planning Board's action in Larrivee v. Timmons, 525 A.2d 1037 (Me.1987) (mem.). Plaintiffs also appealed the Planning Board's determination that Arcadia's proposed septic system was a "central sewerage system," but that appeal was dismissed by stipulation before oral argument in this court. Larrivee v. Timmons, Law Court Docket No. CUM-87-53 (dismissed Aug. 31, 1987). [2] The fourth sentence of 1 M.R.S.A. § 302 reads as follows: For the purposes of this section, a proceeding shall include but not be limited to petitions or applications for licenses or permits required by law at the time of their filing. [3] The 1988 amendment of 1 M.R.S.A. § 302, providing that an application for a license or permit is not "pending" until the reviewing authority has made at least one substantive review of the application (P.L.1987, ch. 766, § 1), is not applicable to this case. [4] As an affirmative defense, collateral estoppel must ordinarily be raised by the pleadings or it will be considered waived. See Conary v. Perkins, 464 A.2d 972, 975-76 (Me.1983). Under Rule 80B, however, no responsive pleading is required. Therefore, by raising the collateral estoppel defense in its Superior Court brief, Arcadia preserved the issue for review in this court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310630/	80 S.E.2d 605 (1954) 195 Va. 844 ALLEN v. CITY OF NORFOLK. Supreme Court of Appeals of Virginia. March 15, 1954. Rehearing Granted May 4, 1954. Stant & Mirman, Herbert L. Kramer, Norfolk, for plaintiff in error. Jonathan W. Old, Jr., Vernon D. Hitchings, Norfolk, Joseph E. Baker, for defendant in error. Devany & Redfern, amicus curiae. Before HUDGINS, C. J., and EGGLESTON, SPRATLEY, BUCHANAN, MILLER, SMITH, and WHITTLE, JJ. MILLER, Justice. John Henry Allen was convicted of violating section 29-23, Code of the city of Norfolk, Virginia, 1950, commonly called the Norfolk lottery or numbers ordinance. It reads as follows: "It shall be unlawful for any person in the city to conduct, operate, manage or promote, or be concerned in or take any part in conducting, operating, managing or promoting, any lottery, raffle, numbers game or any scheme or device whereby for a valuable consideration, money, prize or other thing of value is distributed, or is to be distributed, by the element of chance. The possession of any book, ticket, token, certificate or writing indicating any such lottery, raffle, numbers game, scheme or device shall be prima facie evidence of a violation of this section. "Any person violating any of the provisions of this section, for a first offense, shall be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars, or by confinement in jail not exceeding six months, either or both; and for a second or other subsequent offense committed within two years from the date of a prior conviction under this section, 606 as in effect prior to or subsequent to the effective date of this section, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by confinement in jail not exceeding six months, or both." (Emphasis added.) Accused contended in the trial court and now insists that the city of Norfolk did not have the power under its charter to enact the ordinance, and that the ordinance is also invalid because it is inconsistent with and conflicts with section 18-301, Code of Virginia, 1950[1], a general state law which forbids the operation of lotteries and other offenses of similar character and provides the punishment therefor. Our conclusion as to the status of the ordinance renders it unnecessary that we consider other assignments of error taken by accused. Norfolk asserts that it has authority to enact the ordinance under the powers granted in its charter, Acts 1918, Ch. 34, p. 31, the pertinent provisions of which follow: " * * generally to define, prohibit, abate, suppress and prevent all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the city." Subsection (16) of Section 2 of the Norfolk Charter. "To exercise full police powers * ." Subsection (25) of Section 2 of the Norfolk Charter. "To do all things whatsoever necessary or expedient for promoting or maintaining the general welfare, comfort, education, morals, peace, government, health, trade, commerce or industries of the city or its inhabitants." Subsection (26) of Section 2 of the Norfolk Charter. "To make and enforce all ordinances, rules and regulations necessary or expedient for the purpose of carrying into effect the powers conferred by this charter or by any general law, and to provide and impose suitable penalties for the violation of such ordinances, rules and regulations, or any of them, by fine not exceeding five hundred dollars or imprisonment not exceeding six months, or both." Subsection (27) of Section 2 of the Norfolk Charter. Under section 15-5, Code of 1950, the councils of cities and towns are expressly authorized to enact ordinances and by-laws to make effective the enumerated powers conferred upon their respective cities and towns. Yet the exercise of the powers conferred upon a city or town is limited by and must conform to section 1-13.17, 1952 Supplement, Code of 1950, amended by Acts 1950, Ch. 18, p. 22, the pertinent provisions of which are: "When the council or authorities of any city or town, * * are authorized to make ordinances, by-laws, rules, regulations or orders, it shall be understood that the same must not be inconsistent with the Constitution and laws of the United States or of this State." Applied in Muscoe v. Commonwealth, 86 Va. 443, 10 S.E. 534. 607 Section 60 of the Constitution of Virginia provides that: "No lottery shall hereafter be authorized by law; and the buying, selling, or transferring of tickets or chances in any lottery shall be prohibited." By mandatory language of the organic law, the legislature of Virginia is required to enact general legislation to suppress the operation of lotteries and prevent the purchase, sale or transfer of lottery tickets. To do so, it must adequately state, identify and describe the offense or offenses sought to be prevented and prescribe the punishment, which in its wisdom it deems adequate to suppress the evil thus legislated against. The mandate of section 60 has been fully complied with by enactment of the general law embodied in section 18-301 and cognate sections found in Title 18, Chapter 9, Articles 1 and 2, Code of 1950. Section 18-301 is comprehensive and inclusive, and as supplemented by other sections found in Title 18, supra, it is sufficient to suppress the practice and evils directed to be outlawed by the Constitution. In Shaw v. City of Norfolk, 167 Va. 346, 189 S.E. 335, we concluded that under state statutes and under the general welfare clause and grant of general police power in its charter, it was made evident that the legislature authorized and intended that the city of Norfolk be empowered to enact an ordinance to forbid and punish the offense of operating a motor vehicle while under the influence of intoxicants, though that offense was forbidden and made punishable by general state law when the ordinance was enacted. It was there said: "The conclusion is inevitable, from the statutes cited, that it was and is the intention of the General Assembly to permit the municipality to legislate on the subject of drunken drivers of vehicles." At page 351 of 167 Va., at page 337 of 189 S.E. Section 1-13.17, supra, section 5, Fifteenth, Code of 1919, is not referred to in that opinion nor does an examination of the record and briefs in the Shaw case disclose that it was cited or relied upon. Though more punishment could have been imposed under the state law in force when the ordinance was enacted than could be imposed under the ordinance, yet the court did not deem the variance in that respect between the state and the local law sufficient to invalidate the latter because of its being in conflict with the former. And as section 5, Fifteenth, Code of 1919, section 1-13.17, Code of 1950, was not cited, it it apparent that the court did not undertake to decide whether or not the variance in the punishment provided for under the two laws rendered the ordinance inconsistent with the state law and thus invalid. The charter of the city limits the maximum punishment that may be imposed for violation of ordinances of this character to six months imprisonment in jail and a $500 fine. Thus it is clear that the city cannot enact an ordinance in which the punishment prescribed would be the same as that fixed in section 18-301, providing one year as the maximum term of imprisonment. We need not and do not undertake to decide the scope of the city's authority under the provisions of its charter cited and relied upon. It is sufficient to say that section 18-301 is a comprehensive general law that describes the forbidden offense and prescribes the punishment deemed proper in case of conviction. The ordinance of the city of Norfolk is similar in some respects to the state act, yet it undertakes to add a material provision not found in section 18-301, which is that certain indicia of a lottery shall be prima facie evidence of guilt. Other provisions of the ordinance alter the punishment prescribed by the legislature to be imposed in case of conviction, also provide for the admission in evidence of proof of a prior conviction, and fix the punishment for such subsequent offense. It is obvious that the provisions of this ordinance that declare that possession of certain indicia of the offense shall be prima facie evidence of guilt and permit proof of a former conviction, are inconsistent with section 18-301. Thus it is rendered invalid 608 by section 1-13.17 which expressly prohibits legislation by a city that is inconsistent with state law. For these reasons section 29-23 of the Code of the city of Norfolk, Virginia, is adjudged to be invalid, the judgment appealed from reversed, and accused discharged from custody. Reversed and final judgment. NOTES [1] "If any person: "(1) Set up, promote or be concerned in managing or drawing a lottery or raffle for money or other thing of value, "(2) Knowingly permit such lottery in any house under his control, "(3) Knowingly permit money or other property to be raffled for in such house, or to be won therein, by throwing or using dice, or by any other game of chance, "(4) Knowingly permit the sale in such house of any chance or ticket in, or share of a ticket in, a lottery, or any writing, certificate, bill, token or other device purporting or intended to guarantee or assure to any person, or entitle him to a prize or share of, or interest in a prize to be drawn in a lottery, or, "(5) For himself or another person buy, sell or transfer, or have in his possession for the purpose of sale or with intent to exchange, negotiate or transfer, or aid in selling, exchanging, negotiating or transferring, a chance or ticket in or share of a ticket in a lottery, or any such writing, certificate, bill, token or device, "He shall be confined in jail not exceeding one year, and fined not exceeding five hundred dollars."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310635/	600 N.W.2d 469 (1999) STATE of Minnesota, Respondent, v. Patrick Richard HANEY, Appellant, Jennifer Leah Kantor, Appellant. Nos. C2-99-126, C6-99-128. Court of Appeals of Minnesota. August 31, 1999. 470 Mike Hatch, Attorney General, St. Paul; and David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, Fergus Falls, for respondent. Samuel A. McCloud, Kelly Vince Griffitts, Shakopee, for appellants. Considered and decided by KLAPHAKE, Presiding Judge, ANDERSON, Judge, and NORTON, Judge.[] OPINION KLAPHAKE, Judge. In these consolidated appeals, Patrick Haney and Jennifer Kantor claim the trial court erred in convicting them of petty misdemeanor speeding without a trial after they failed to appear for trial. Because we conclude that their appearances were unnecessary for purposes of driver's license administration, we uphold their convictions for that limited purpose. Because imposition of a fine may occur only after a trial or a guilty plea, we reverse appellants' petty misdemeanor convictions. FACTS Appellants Patrick Haney and Jennifer Kantor appeal from their convictions for speeding in violation of Minn.Stat. § 169.14 (1998). On August 15, 1998, Haney was issued a citation for driving 78 m.p.h. in a 55 m.p.h. zone. On August 24, 1998, Kantor was issued a citation for driving 78 m.p.h. in a 65 m.p.h. zone. They pleaded not guilty and requested court trials. On January 11, 1999, about one-and-one-half hours before appellants' scheduled trials in Fergus Falls, their attorney, Samuel McCloud, informed the Otter Tail County Court Administrator's office by telephone that he was having car problems in St. Cloud and that he would be unable to appear for trial. According to the state, McCloud was told to move the court for a continuance, which he did not do. When neither appellants nor McCloud appeared for trial, the court entered convictions, concluding that McCloud's basis for requesting a continuance was not credible. The Otter Tail Assistant County Attorney stated on the record that in the four months prior to trial, McCloud had rescheduled the trial date through the court administrator's office on three separate occasions. Appellants now claim that the trial court erred in entering convictions without trials. ISSUE Did the trial court err in convicting appellants of petty misdemeanor speeding where appellants failed to appear for trial? 471 ANALYSIS Minn.Stat. §§ 171.01-.322 (1998) enumerate the requirements for obtaining a Minnesota driver's license and the limitations on the use of such a license. Under its definitional section, "conviction" is defined as a final conviction either after trial or upon a plea of guilty. Also, a forfeiture of cash or collateral deposited to guarantee a defendant's appearance in court, which forfeiture has not been vacated; the failure to comply with a written notice to appear in court; or a breach of a condition of release without bail, is equivalent to a conviction. Minn.Stat. § 171.01, subd. 13. (emphasis added). This court has upheld a speeding conviction "for purposes of driver's license administration," where a pro se defendant, without proper excuse, failed to appear for trial after receiving written notice of the trial date. State v. Whitcomb, 413 N.W.2d 839, 841 (Minn.App.1987), review denied (Minn. Dec. 22, 1987). In Whitcomb, the defendant had returned to the court the two envelopes containing the trial date notices and had written on the envelopes, "Return to sender" and "Notice of Cancellation." Id. Here, appellants received proper notice of their trial date. Because they failed to comply with the written notice to appear in court, the trial court properly entered an order for conviction consistent with Minn.Stat. § 171.01, subd. 13. See Whitcomb, 413 N.W.2d at 841. This does not end our inquiry, however. A speeding conviction derives from a violation of a traffic regulation. As such, the offense may come within the authority of the commissioner of public safety to issue, revoke, or cancel driver's licenses. See, e.g., Minn.Stat. § 169.92, subd. 4 (1998) (allowing suspension of driver's license for driver's nonappearance in court following any motor vehicle violation). The offense may also be subject to statutory penalties. Although the charge here is a petty misdemeanor, it is governed by the Minnesota Rules of Criminal Procedure. In order to be convicted, there must be a guilty plea or guilty verdict and the defendant is presumed innocent until proven guilty beyond a reasonable doubt. Minn. R.Crim. P. 23.05, subd. 3; see Minn.Stat. § 609.02, subd. 5 (1998).[1] As appellants did not plead guilty or receive a trial, their convictions and fines were improper, except for the limited purpose of driver's license administration. We thus reverse appellants' petty misdemeanor convictions and fines. DECISION The trial court erred in entering a petty misdemeanor conviction on appellants' citations for speeding without holding a trial or obtaining guilty pleas. Affirmed in part and reversed in part. NOTES [] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. [1] A trial court may try a defendant in absentia if the defendant constructively waives the right to be present. See State v. Worthy, 583 N.W.2d 270, 277-78 (Minn.1998). But here there was no evidence presented and no finding of guilt made.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310586/	150 Ga. App. 315 (1979) 257 S.E.2d 383 KAUFMAN v. ATLANTA LAWN TENNIS ASSOCIATION, INC. 57918. Court of Appeals of Georgia. Argued May 29, 1979. Decided June 13, 1979. 316 Peek & Whaley, James G. Peek, for appellant. Parker, Johnson & Cook, G. Ronald Johnson, Kirk W. Watkins, G. William Long, III, for appellee. DEEN, Chief Judge. Briefly, the appellant and another member of a local tennis club were engaged in a tennis match. There is some indication that they knew one another of old. The appellant indicated he felt his opponent was calling balls out when they were actually in. The opponent suggested new balls, which appellant refused under specified rules, regulations, conventions and traditions of this ancient and respected game. One word led to another. The air seems to have been green with accusations, the last of appellant's witty rejoinders being "Eat me," although it is not obvious whether he was referring to an experience of Alice in Wonderland or (as contended by appellee) to certain perversions of sexual origin. The opponent asked him to repeat, and eventually invaded the appellant's side of the court. Fisticuffs ensued. No particular damage was done and spectators separated the heroic protagonists. The appellant then, as he stated, requested a hearing on the incident and "was adamant about my request with regard to the meeting being held before the next match." A hearing was in fact eventually held before the board of directors; both fearless jousters were temporarily suspended from the courts, and the indignant member severed his connections with the club and filed this action for damages. Asked on deposition why he thought he was suspended he said that there was a vague reference to improper conduct, adding that "neither the ALTA not the STA has any rule about improper conduct." (a) The trial judge in granting the motion summarily disposed of a suit which finds little support for existing in the courts. No case was made for "wrongful suspension from membership privileges and benefits," which, as pointed out in the annotation, "Suspension or expulsion from social club," etc., 20 ALR2d 344, 348, "may have taken the place of the then obsolescent duel as a 317 means of disciplining club members." It was early held that it takes a very strong case to induce a court to interfere with the expulsion proceedings of such a club. (Id., p. 350). The brief of the appellant seems to urge inadequacies and illegal activities on the part of the board of directors in holding the meeting without observing certain requirements as to notice, etc. However, it was the appellant who requested the hearing, and he failed to raise any questions as to the manner of conducting it until this action was filed. There seem to exist no corporate by-laws regulating such events, and the appellant fails to point out any area in which he was unfairly treated; he must therefore be held to have waived objections to the manner of holding the board of directors' meeting. Objections not raised at the first opportunity are deemed to have been abandoned. Taylor v. Taylor, 195 Ga. 711, 721 (25 SE2d 506) (1943). (b) Secondly, the appellant contends his reputation has been besmirched. When questioned closely on deposition as to who might have been told of the action of the board of directors he named one person on the board who had told his wife. On the issue of damages he stated that he was no longer invited to engage in competitive matches. He establishes no loss of income from this fact, nor does he claim to play tennis other than for recreation. Under Code § 105-702 slander may consist in falsely and maliciously imputing to another a crime, charging him with having some contagious disorder, ascribing to him guilt of some debasing act which may exclude him from society (in all of which general damages may be forthcoming) or making charges against him calculated to injure him in his trade, office or profession, in which case special damages must be proved. The defendant claims he was charged with an assault, but he admits both a verbal assault and a physical exchange of blows. We do not judicially know whether this conduct would tend to exclude him from the society of contestants in tennis matches, but if so the appellant cannot complain since he admits the fracas occurred. We must accordingly conclude that no action for slander requiring jury determination was presented. Judgment affirmed. Birdsong and Carley, JJ., *318 concur in the judgment only. Shulman, J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310599/	257 S.E.2d 691 (1979) George P. RHONEY, Jr. v. Deborah Whitener Rhoney SIGMON. No. 7825DC1099. Court of Appeals of North Carolina. September 18, 1979. 693 Sigmon, Clark & Mackie by Jeffrey T. Mackie, Hickory, for plaintiff appellee. Harris & Bumgardner by Don H. Bumgardner, Gastonia, for defendant appellant. PARKER, Judge. On this appeal defendant contends that, since the district court in the Burke County divorce action had awarded custody of the child to her, the district court in Catawba County thereafter lacked jurisdiction to inquire into the matter. We do not agree either with her major premise that the district court in the Burke County divorce action had actually made a judicial determination as to custody of the child or with her conclusion that the Catawba County court lacked jurisdiction to make such a determination in this action. The procedure in actions for custody or support of minor children is governed by G.S. 50-13.5. Subsection (b) of G.S. 50-13.5 prescribes the types of actions which may be maintained to obtain custody or support, and subdivision (1) of that subsection provides that such an action may be maintained "[a]s a civil action." Subsection (f) of G.S. 50-13.5 provides for the proper venue for the actions allowed under G.S. 50-13.5(b). Insofar as pertinent to the question presented by this appeal, G.S. 50-13.5(f) provides: (f) Venue. An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided. If an action for annulment, for divorce, either absolute or from bed and board, or for alimony without divorce has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be 694 joined with such action or be by motion in the cause in such action. In the present case, both parties and their child reside in Catawba County. Speaking of G.S. 50-13.5, Professor Lee in his authoritative treatise on North Carolina Family Law said: Except for the limited instances set forth in the second sentence of N.C.Gen. Stat. § 50-13.5(f), the jurisdiction over custody and support of a minor child does not, as formerly, automatically become a concomitant of a divorce action and vest in that court a continuing and an exclusive jurisdiction to determine matters of custody and support of minor children . . . . This provision [referring to the second sentence of G.S. 50-13.5(f)] merely prohibits the bringing of any action or proceeding for the custody and the support of a minor child while a previously instituted action for annulment, divorce, or alimony without divorce is pending. 3 Lee, North Carolina Family Law, 3d ed., 1976 Cumulative Supplement, p. 8. In a case arising soon after the enactment of G.S. 50-13.5, this Court, analyzing the effect of the provision made by the second sentence of subsection (f), said: The foregoing proviso, when read in conjunction with the first sentence of this subsection (f) and in conjunction with subsection (b), makes it clear that after final judgment in a previously instituted action between the parents, where custody and support has not been brought to issue or determined, the custody and support issue may be determined in an independent action in another court. . . . Of course, if the custody and support has been brought to issue or determined in the previously instituted action between the parents, there could be no final judgment in that case, because the issue of custody and support remains in fieri until the children have become emancipated. In re Holt, 1 N.C.App. 108, 112, 160 S.E.2d 90, 93 (1968); accord, Wilson v. Wilson, 11 N.C.App. 397, 181 S.E.2d 190 (1971). The question initially presented by this appeal thus becomes whether the matters of custody and support of the child were actually brought to issue and determined in the previously instituted Burke County divorce action. In this connection, the opinion of this Court in Wilson v. Wilson, supra, is particularly instructive. In that case the plaintiff had obtained an absolute divorce from the defendant in Wake County. In addition to granting the divorce, the judgment in the divorce action, after reciting that the parties had "disposed of all matters at issue by a separation agreement," provided "that the plaintiff shall have the custody of the minor children in accordance with the amended separation agreement heretofore mentioned." Thereafter the plaintiff instituted an action against the defendant in the district court in New Hanover County to obtain increased support for the minor children of the marriage. Defendant moved to dismiss the New Hanover County action, contending that the proper venue was in Wake County where the divorce had been granted. The district court in New Hanover County allowed the motion and dismissed plaintiff's action. On appeal, this Court reversed. In an opinion written by Morris, Judge (now Chief Judge), the Court said: The record before us does not disclose the contents of the pleadings in the Wake County action. The judgment recites that complaint was filed and in due time answer was filed "raising certain issues." We do not know what those issues were. The judgment further recites that all issues except the divorce had been settled by the parties and disposed of by separation agreement including the custody of the children of the parties, the agreement providing that custody of the children be in the wife, plaintiff in that action, and plaintiff in this action. The judgment is completely silent as to support of the children and does not even refer to any such provision in the separation agreement. Nor was the consent portion of the judgment signed by either of the parties or counsel for either. The judgment refers to a separation agreement and an amended separation agreement, 695 but contains nothing by which any separation agreement could be identified as to date or content. Certainly, the separation agreements referred to are not incorporated in the divorce judgment. It appears clear to us that the custody and support of the children had not been brought to issue or determined in the previous action between the parties, within the meaning of the statute. Wilson v. Wilson, supra, 11 N.C.App. at pp. 399-400, 181 S.E.2d at pp. 191-192. In the case now before us, as was true in Wilson v. Wilson, supra, the record does not disclose the contents of the pleadings in the prior divorce action. The judgment in that action recites that complaint was filed therein and that defendant accepted service of summons but did not file answer. It does not appear, therefore, that any issue concerning the custody or support of the minor child of the parties was presented for the determination by the court by the pleadings in that action. It is true that the court in that action included in its divorce decree, just as the divorce court had done in the Wilson case, a provision relating to the custody of the child. However, the manner in which the provisions relating to child custody, visitation, and support in the Burke County judgment followed so exactly but in abbreviated form the more elaborate provisions of the prior separation agreement clearly indicates that these provisions were contractual rather than decretal in nature. In any event, it appears clear to us in this case, just as it did to this Court in the Wilson case, that the custody and support of the child "had not been brought to issue or determined in the previous action between the parties, within the meaning of the statute." Therefore, under the holdings in In re Holt, supra, and Wilson v. Wilson, supra, it was proper to determine the issues as to child custody and support in an independent action in another county. For an additional reason defendant's attack upon the jurisdiction of the district court in Catawba County must fail. Even had the matter of custody and support of the child been brought to issue and judicially determined in the Burke County divorce action, when this action was subsequently instituted in Catawba County defendant made no objection to it. On the contrary, she admitted all allegations in plaintiff's complaint relative to the jurisdiction of the court in Catawba County, and she thereafter participated in several days of hearings before the court without once objecting to the jurisdiction of the court. Indeed, it does not appear that she in any way even brought to the attention of the court the fact that the Burke County divorce decree may have contained some language relating to the custody and support of the child. Instead, she waited until twenty days after judgment against her had been signed and her appeal had been noted before making any objection to the Catawba County proceedings. Under these circumstances, defendant's objection came too late. Her contention that the question presented involves the court's jurisdiction over the subject matter, which can neither be granted by consent of the parties nor waived by their failure to make timely objection, has already been decided by this Court against her position. In Snyder v. Snyder, 18 N.C. App. 658, 197 S.E.2d 802 (1973), the parties had been divorced in Mecklenburg County. By order in that action custody of the oldest child was awarded to his father and the father was directed to make monthly payments for the support of three younger children then residing with their mother pursuant to terms of a separation agreement. Thereafter, the three younger children came to be under the control of their father in Wake County, and the mother instituted an action in the district court in Wake County to obtain their custody. Orders were entered awarding custody of the three younger children to the father. On appeal, the mother contended that the district court in Wake County lacked jurisdiction to hear evidence and enter orders relating to the custody of the three younger children, since the district court in Mecklenburg County had entered an order relating to their custody and support. This Court rejected this contention, the opinion of the Court stating: 696 Having made an order of support, the District Court held in Mecklenburg County had undertaken jurisdiction and thus became the proper venue of the case. Tate v. Tate, 9 N.C.App. 681, 177 S.E.2d 455 (1970). Despite this, however, when the plaintiff instituted this action in Wake County and the defendant made no objection to it, the action was subject to determination in Wake County. It is not a question of jurisdiction, which cannot be waived or conferred by consent, but it is a question of a prior pending action and this can be waived by failure to raise it. Hawkins v. Hughes, 87 N.C. 115 (1882). Under the statute, the District Court held in Wake County had jurisdiction and the prior acquired jurisdiction in Mecklenburg County was waived by the parties. Snyder v. Snyder, supra, 18 N.C.App. at p. 660, 197 S.E.2d at p. 804. We hold in the present case that under the statute, G.S. 50-13.5, the district court in Catawba County had jurisdiction and the prior acquired jurisdiction of the Court in Burke County was waived by the parties. Defendant also assigns error to certain of the court's findings of fact and conclusions of law on the basis of which custody was awarded to the plaintiff. A review of the record reveals ample evidence to support the court's crucial findings of fact and these in turn support the court's finding and conclusion that it is in the best interest of the child that he now be placed in the custody of the plaintiff. The order appealed from is Affirmed. MORRIS, C. J., and HARRY C. MARTIN, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310596/	600 N.W.2d 362 (1999) 236 Mich. App. 96 MICHIGAN COALITION OF STATE EMPLOYEE UNIONS, Plaintiff-Appellee, and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), and Lynda Taylor-Lewis, Intervening Plaintiffs-Appellees, v. CIVIL SERVICE COMMISSION, Defendant-Appellant. Docket No. 212236. Court of Appeals of Michigan. Submitted May 6, 1999, at Lansing. Decided June 8, 1999, at 9:00 a.m. Released for Publication October 1, 1999. 364 Sachs, Waldman, O'Hare, Helveston, Bogas & McIntosh, P.C. (by Mary Ellen Gurewitz), Detroit, for Michigan Coalition of State Employee Unions. William A. Wertheimer, Jr., for International Union, United Automobile, Aerospace & Agricultural Implement Workers of American (UAW), Southfield, and Lynda Taylor-Lewis. 365 Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Susan Przekop-Shaw, Assistant Attorney General, for the Civil Service Commission. Before: GRIBBS, P.J., and MICHAEL J. KELLY and HOOD, JJ. 363 HOOD, J. The trial court entered a preliminary injunction that enjoined defendant from "implementing, executing, enforcing, or in any way giving effect to Revised Civil Service Rule 4-6" and preserved the status quo that existed before the effective date of the revised rule. The trial court later issued an order denying defendant's motion for a protective order relative to plaintiffs' request for production of documents. Defendant appeals the injunction and order by leave granted, and we affirm in part, reverse in part, and remand.[1] I. Facts and Procedural History The facts of this case can be stated simply. Defendant amended Civil Service Rule 4-6 on May 8, 1997, which rule was to be effective on June 1, 1997. The rule addresses the procedures by which state agencies are to contract and pay for services from persons other than classified state employees. The revised rule retained a preauthorization provision and added language and rules to it. That procedure allows an appointing agency to authorize its own disbursements for any preauthorized services without submitting requests to defendant or obtaining defendant's approval. Amended Rule 4-6 also added a new subrule, which established a procedure for "decentralized approval without prior civil service review." Under that subrule, an appointing authority may, under certain circumstances, authorize disbursements for the personal services of person who are not classified employees of the state without the approval of the Department of Civil Service.[2] The revised rule also included a new standard for "mixed contracts" and clarification of defendant's appeal rules and procedures. Plaintiff Michigan Coalition of State Employees is an alliance of collective bargaining unions representing various groups of classified state employees. The coalition filed an action to enjoin implementation of the revised rule, claiming that several portions of it were unconstitutional and specifically violated Const. 1963, art. 11, § 5. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), and Lynda Taylor-Lewis intervened as plaintiff. Const. 1963, art. 11, § 5 provides in part: The Commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service. * * * * * No payment for personal services shall be made or authorized until the 366 provisions of this constitution pertaining to civil service have been complied with in every particular. Violation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state. [Emphasis added.] At the hearing regarding the preliminary injunction, the trial court determined that plaintiffs were likely to succeed on the merits of their claims that the "preauthorization" and "decentralized approval" provisions of the rule violate defendant's constitutional responsibility to approve or disapprove disbursements for personal services. The trial court entered the following preliminary injunction: NOW THEREFORE IT IS HEREBY ORDERED that Defendant Michigan Civil, Service Commission, its officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, be and are hereby enjoined from implementing, executing, enforcing, or in any way giving effect to Revised Civil Service Rule 4-6, adopted on May 8, 1997 and effective on June 1, 1997 and that the status quo which existed prior to the effective date of this revised rule is preserved pending further order of this Court. Plaintiffs thereafter filed an amended complaint adding several constitutional challenges to the 1993 version of Rule 4-6. Plaintiffs then served defendant with a request for production of documents, seeking virtually all of defendant's documents regarding decisions on disbursements for personal services rendered since October 1, 1993. Defendant moved for a protective order, which was subsequently denied by the trial court. This Court granted leave to appeal from both the preliminary injunction and the order denying defendant's request for a protective order. II. Preliminary Injunction Defendant first argues that the circuit court erred in granting the preliminary injunction to enjoin it from implementing the 1997 revisions to Rule 4-6. We review a trial court's decision to grant injunctive relief for an abuse of discretion. Michigan State AFL-CIO v. Secretary of State, 230 Mich.App. 1, 14, 583 N.W.2d 701 (1998). In determining whether to issue a preliminary injunction, a court must consider four factors: (1) harm to the public interest if the injunction issues; (2) whether harm to the applicant in the absence of temporary relief outweighs the harm to the opposing party if relief is granted; (3) the likelihood that the applicant will prevail on the merits; and (4) a demonstration that the applicant will suffer irreparable injury if the relief is not granted. Other considerations surrounding the issuance of a preliminary injunction are whether it will preserve the status quo so that a final hearing can be held without either party having been injured and whether it will grant one of the parties final relief before a hearing on the merits. The trial court's decision must not be arbitrary and must be based on the facts of the particular case. [Id., quoting Thermatool Corp. v. Borzym, 227 Mich.App. 366, 376, 575 N.W.2d 334 (1998).] Defendant argues that the "decentralized approval" and the "preauthorization" procedures are constitutional. By making this argument, it is essentially disputing whether there was a sufficient showing by plaintiffs that they were likely to prevail on the merits of their constitutional challenge to those procedures as outlined in revised Rule 4-6.[3] 367 With regard to the "decentralized approval" subrule, we find that it is facially unconstitutional and that the trial court did not abuse its discretion by finding that plaintiffs are likely to prevail on the merits of their claim regarding this provision. Under the decentralized approval procedure, an appointing authority may authorize its own disbursements for the services of outside workers without prior approval by the Department of Civil Service. This conflicts with Const. 1963, art. 11, § 5, which requires the commission to approve or disapprove all disbursements. We cite with approval the reasoning of the Attorney General in OAG, 1979-1980, No. 5,663, p. 615 (February 14, 1980). There, the Civil Service Commission proposed a rule establishing a classified executive service composed of higher level management positions. Under the regulations accompanying the rule, changes in compensation for the positions would be determined by the appointing authorities. The Attorney General determined that allowing the appointing authorities to fix the compensation of the managers was an unconstitutional delegation of the commission's duties: It is a basic principle of law that duties, responsibility or power given by constitution or statute to one public body or officer cannot be delegated to another public body or officer. "A power definitely assigned by the constitution to one department cannot be surrendered or delegated by that department or vested by statute in another department or agency." 16 CJS Constitutional Law § 105, p. 489. [Id. at 618-619.] Because the new decentralized approval procedure allows for self-approval of disbursements to outside contractors, it is unconstitutional on its face. It shifts the constitutional duty to approve disbursements from defendant to the appointing authorities directly. With regard to the "preauthorization" procedure, however, we conclude the opposite, that it was an abuse of discretion for the trial court to determine that plaintiffs were likely to prevail on the merits. The "preauthorization" procedure is not facially unconstitutional. Pursuant to that procedure, defendant, through the Civil Service Department, establishes a list of personal services that are automatically deemed appropriate for contract with outside providers. The appointing authority does not have to obtain permission from the department to obtain the services of outside workers when the services are included on the preapproved list. On its face, this procedure does not transfer defendant's constitutional duty to approve or disapprove disbursements for personal services to the appointing agencies. Rather, the duty to approve or disapprove certain services is exercised by defendant when it formulates the list of preauthorized services. And, while plaintiffs may not agree with defendant's determination that a certain service should be automatically approved in accordance with the list, this disagreement is relevant to the correctness of defendant's decision to approve the service for outside persons, and not the improper delegation of approval by defendant. Thus, we believe that plaintiffs are not likely to succeed on the merits of the claim that the "preauthorization" procedures as set forth in revised Rule 4-6 violate Const. 1963, art. 11, § 5. For purposes of reviewing the preliminary injunction only, we determine that the trial court properly concluded that plaintiffs were likely to prevail on their constitutional challenge to the "decentralized approval" procedure, although it incorrectly determined that they will likely prevail in their constitutional challenge to the preapproval provision. The trial court did not abuse its discretion in issuing a preliminary injunction to preclude the effect of the "decentralized approval" procedure. 368 However, to the extent that the preliminary injunction blocked the implementation of the revised preapproval procedure, the trial court abused its discretion in issuing the injunction. We stress, however, that our analysis of these issues is for the purpose of ruling on the propriety of the preliminary injunction only. When the matters are tried, the actual determinations of all of plaintiffs' claims must initially be made by the trier of fact in the trial court. In addition to arguing that there was not a sufficient showing that plaintiffs were likely to prevail on the merits, defendant also claims that the injunctive relief caused egregious harm to the public interest. We disagree. Const. 1963, art. 11, § 5 expressly provides for injunctive relief to restrain violations of and enforce its provisions. See Reed v. Civil Service Comm., 301 Mich. 137, 151-152, 3 N.W.2d 41 (1942); Dudkin v. Civil Service Comm., 127 Mich.App. 397, 404-405, 339 N.W.2d 190 (1983). In this case the trial court preserved the status quo when it issued the injunction. Therefore, we cannot accept an argument that the temporary injunctive relief disrupted the provision of personal services by those outside the classified service or had "a devastating impact on the operation and administration of services that benefit this State." Disbursements for personal services could continue to be made pursuant to the 1993 version of Rule 4-6. Moreover, we also find defendant's claim that the injunction usurped defendant's rule-making power to be without merit. The injunction does not prevent defendant from promulgating any rules. Rather, it merely halted the effect of the 1997 revision of Rule 4-6 pending a determination whether the rule was contrary to Const. 1963, art. 11, § 5. Defendant next argues that no injunction should have been ordered where plaintiffs failed to demonstrate that they would suffer irreparable injury if the injunction was not issued. It argues that "[a] bare allegation of a constitutional violation fails to demonstrate irreparable harm." We disagree because Const. 1963, art. 11, § 5 specifically provides that "[v]iolation of any of the provisions hereof may be restrained or observance compelled by injunctive or mandamus proceedings brought by any citizen of the state." As a matter of first impression, we believe that this language is a constitutional declaration that a violation of Const. 1963, art. 11, § 5, in itself, amounts to irreparable harm supporting injunctive relief. We find support for this ruling by adopting the reasoning of the court in CSX Transportation, Inc. v. Tennessee State Bd. of Equalization, 964 F.2d 548, 551-552 (C.A.6, 1992), which involved a federal railroad taxation statute: Under traditional equitable principles for granting a preliminary injunction in this Circuit, a court must consider (1) whether the moving party has a substantial probability of success on the merits; (2) whether irreparable injury will occur if the injunction is not issued; (3) whether the injunction will have a harmful effect on third parties; and (4) whether the public interest would be served by the injunction. In addition, an injunction generally should not issue if there is an adequate remedy at law. However, since Congress has expressly authorized the granting of injunctive relief to halt or prevent a violation of [the statute], traditional equitable criteria do not govern the issue of injunctions under [the statute]. In order to issue a preliminary injunction under [the statute], a court must determine only whether there is "reasonable cause" to believe that a violation of [the statute] has occurred or is about to occur. [Citations omitted.] Because the constitutional provision itself allows for the issuance of an injunction to restrain violations, an additional showing of irreparable harm is not necessary. We also address defendant's arguments that plaintiffs lacked standing to 369 even bring their action. Const. 1963, art. 11, § 5 authorizes "any citizen of the state" to bring injunctive proceedings to restrain violations of the amendment. Defendant argues that plaintiff coalition does not qualify because it is not a "citizen". We disagree with defendant's conclusion. Traditionally, private citizens have no standing to vindicate a public wrong or enforce a public right if they are not hurt in any manner differently than the citizenry at large. Detroit Fire Fighters Ass'n. v. Detroit, 449 Mich. 629, 634, 537 N.W.2d 436 (1995) (Weaver, J.), quoting Waterford School Dist. v. State Bd. of Ed., 98 Mich. App. 658, 662, 296 N.W.2d 328 (1980). The civil service amendment, Const. 1963, art. 11, § 5, does not enforce traditional standing principles because by its very language, it allows any citizen to enjoin a violation of the amendment. Thus, any citizen could have brought this action. Logic dictates that an organization made up of members who would have standing to sue in their individual capacities should have standing to sue for its members. See, e.g., Trout Unlimited, Muskegon White River Chapter v. White Cloud, 195 Mich.App. 343, 348, 489 N.W.2d 188 (1992). Finally, we would be remiss if we did not note that while the trial court initially questioned whether Const. 1963, art. 11, § 5 ever allows any subcontracting of jobs by defendant for the purpose of saving money, it did not rule or issue the injunction on that basis and thus reversal on that basis is not necessary.[4] The trial court's implication that subcontracting may be unconstitutional and inappropriate, however, is clearly not supported by law. This Court has held that the Civil Service Commission is authorized to approve disbursements for services performed by persons outside the classified service for the purposes of efficiency and economy. Int'l. Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Civil Service Comm., 223 Mich.App. 403, 406, 566 N.W.2d 57 (1997); Michigan State Employees Ass'n. v. Civil Service Comm., 141 Mich.App. 288, 292-293, 367 N.W.2d 850 (1985). III. Protective Order Plaintiffs' amended complaint challenged the constitutionality of portions of the 1993 version of Rule 4-6. Plaintiffs served defendant with a request for production of documents related to those allegations. Defendant argues that the trial court did not have subject-matter jurisdiction over the issues in the amended complaint and, therefore, it improperly ordered it to comply with the request for production of documents. We disagree that the trial court abused its discretion by failing to grant defendant's motion for a protective order, and we find that the trial court had subject-matter jurisdiction over the case. Defendant's argument that res judicata applies to bar the trial court from asserting subject-matter jurisdiction is basically flawed. The principles of res judicata do not divest a court of subject-matter jurisdiction. "[J]urisdiction over the subject matter is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action...." [Bowie v. Arder, 441 Mich. 23, 39, 490 N.W.2d 568 (1992), quoting Joy v. Two-Bit Corp., 287 Mich. 244, 253-254, 283 N.W. 45 (1938) ]. The purpose of res judicata on the other hand "is to avoid relitigation of claims." In re Hill, 221 Mich.App. 683, 689, 562 N.W.2d 254 (1997). It operates to bar subsequent actions between the same parties when the facts or evidence essential to the maintenance of the two lawsuits *370 are identical and the issues and parties or privies are identical. Id. at 689-690, 562 N.W.2d 254. It is a principle of finality, see Topps-Toeller, Inc. v. Lansing, 47 Mich.App. 720, 727, 209 N.W.2d 843 (1973), not of a court's abstract power to hear a case. We emphasize that Int'l. Union, supra, Michigan State Employees Ass'n., supra, and this Court's order in United Technical Employees Ass'n. v. Civil Service Comm., unpublished order of the Court of Appeals, entered May 20, 1998 (Docket No. 207074) have no res judicata effect on this case. The parties in those cases are not identical to the parties in this case, and the issues addressed in those cases are not the same as the issues in these cases, specifically none of those cases addressed the constitutionality of the "decentralized approval" and preauthorization procedures. We also disagree with defendant's argument that the trial court lacked subject-matter jurisdiction because plaintiffs had failed to exhaust their administrative remedies. Defendant's claim that plaintiffs had to exhaust all administrative remedies in order to challenge the decisions made under the 1993 version of Rule 4-6[5] fundamentally misses the point. Plaintiffs are not attempting to challenge any particular decisions regarding approval of disbursements for outside services, but are challenging the constitutionality of the procedures themselves. The administrative remedies are not in place for that purpose, but are in place to allow for challenges to the decisions themselves. Thus, defendant's argument in this regard is disingenuous. Finally, we note that even if we agreed with defendant's argument that plaintiffs lacked standing, which we do not, a lack of standing does not deprive a trial court of subject-matter jurisdiction. Bowie, supra at 49, 490 N.W.2d 568; Altman v. Nelson, 197 Mich.App. 467, 476, 495 N.W.2d 826 (1992). The trial court had subject-matter jurisdiction in this case and, therefore, it had authority to order discovery. Defendant does not challenge the terms of the discovery order. Accordingly, we affirm the trial court's refusal to grant a protective order and its accompanying order that discovery should proceed. IV. Conclusion The trial court did not abuse its discretion in entering a preliminary injunction and preserving the status quo with regard to revised Rule 4-6, specifically with regard to the decentralized approval procedure. However, to the extent that the preliminary injunction blocked the implementation of the revised preapproval procedure, we find an abuse of discretion and remand to the trial court to vacate the injunction as it pertains to that portion of the rule. We also conclude that the trial court had subject-matter jurisdiction of plaintiffs' claims as alleged in their amended complaint and, thus, the trial court properly ordered that discovery take place. Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. NOTES [1] We note that after we granted leave to appeal, plaintiffs filed an application for leave with the Supreme Court, which application was denied. The Supreme Court, however, ordered this Court to hear and decide this case on an expedited basis. 459 Mich. 865, 584 N.W.2d 735 (1998). [2] Under the "decentralized approval" subrule, an appointing authority is still required to obtain defendant's approval for disbursements if its actions in authorizing a disbursement would result in the layoff of a classified employee, or if the disbursements would exceed $500,000 in one year or $2,000,000 over the life of the contract, or if the appointing authority "has or will enter into six (6) or more separate contracts for substantially the same personal services in one fiscal year." [3] It appears that defendant is challenging the injunction only as it pertains to the "decentralized approval" and "preauthorization" procedures, and not any other procedures in revised Rule 4-6. Defendant does not specifically address the revised rule as regards the new standard for "mixed contracts" or the clarified appeal rules and procedures. [4] The trial court also did not issue the preliminary injunction on the basis of any due process violations, and thus we find it unnecessary to address defendant's arguments that because no due process rights have been violated, no injunction should have been issued. [5] According to defendant, there were approximately eleven thousand decisions made under the 1993 version of Rule 4-6 before the time of this suit.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310617/	80 S.E.2d 619 (1954) 239 N.C. 619 CALLAHAM et ux. v. ARENSON et al. No. 522. Supreme Court of North Carolina. March 17, 1954. 623 B. F. Wellons and J. A. McRae, Charlotte, for defendants, appellants. Brock Barkley, Charlotte, for plaintiffs, appellees. JOHNSON, Justice. Decision here turns on whether or not the plaintiffs' proposed plan for resubdividing their four lots into smaller units violates the restrictive covenant contract made by the original developers of this property, the defendants Boldridge. The applicable rules of interpretation require that the meaning of the contract 624 be gathered from a study and a consideration of all the covenants contained in the instrument and not from detached portions. Lewis v. May, 173 N.C. 100, 91 S.E. 691. See also Strigas v. Durham Life Insurance Co., 236 N.C. 734, 73 S.E.2d 788; Hartford Acc. & Indem. Co. v. Hood, 226 N.C. 706, 40 S.E.2d 198. It is necessary that every essential part of the contract be consideredeach in its proper relation to the othersin order to determine the meaning of each part as well as of the whole, and each part must be given effect according to the natural meaning of the words used. Westinghouse Electric Supply Co. v. Burgess, 223 N.C. 97, 25 S.E.2d 390. Another fundamental rule of construction applicable here requires that each part of the contract must be given effect, if that can be done by fair and reasonable intendment, before one clause may be construed as repugnant to or irreconcilable with another clause. Westinghouse Electric Supply Co. v. Burgess, supra. Further, it is to be noted that we adhere to the rule that since these restrictive servitudes are in derogation of the free and unfettered use of land, covenants and agreements imposing them are to be strictly construed against limitation on use. Craven County v. First Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620. Therefore, restrictive covenants clearly expressed may not be enlarged by implication or extended by construction. They must be given effect and enforced as written. 14 Am.Jur., Covenants, Conditions and Restrictions, §§ 211 and 212; Annotation: 175 A.L.R. 1191; 26 C.J.S., Deeds, § 163. Moreover, the rule is that the mere sale of lots by reference to a recorded map raises no implied covenant as to size or against further subdivision. Sedberry v. Parsons, 232 N.C. 707, 62 S.E.2d 88; Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197; Stephens Co. v. Binder, 198 N.C. 295, 151 S.E. 639; 14 Am.Jur., Covenants, Conditions and Restrictions, § 201; Annotation: 57 A.L.R. 764. And ordinarily the opening and maintenance of a street or a right of way for the better enjoyment of residential property as such does not violate a covenant restricting the property to residential purposes. Raleigh Court Corp. v. Faucett, 140 Va. 126, 124 S.E. 433; Mairs v. Stevens, 268 A.D. 922, 51 N.Y.S.2d 286, Id., 294 N.Y. 806, 62 N.E.2d 238; Annotations: 25 A.L.R. 2d 904; 175 A.L.R. 1191, 1207; 14 Am.Jur., Covenants, Conditions and Restrictions, § 255. The covenants that control decision here are contained in three paragraphs of the contract. Paragraph "A" restricts the use of the property to residential purposes, and provides that not more than one dwelling unit shall be placed on "any residential building plot." Paragraph "B" establishes the minimum building set-back lines, both front and side. Whereas paragraph "C" fixes the minimum size of the building lots. The minimum requirements as to size are governed by two prescribed standardsone as to width, the other as to total area. The minimum width is 100 feet at the front building set-back line; whereas the minimum area is 20,000 square feet. Therefore a lot 100 feet wide and 200 feet deep meets minimum standards fixed by paragraph "C" as to size. It is noted that all the lots from 1 to 10, inclusive, shown on the map of the original subdivision contain areas largely in excess of 20,000 square feet, yet none of these lots is less than the minimum width of 100 feet. Necessarily, then, the covenant fixing minimum standards as to width and area authorizes resubdivision of the original lots into units as small as 200 feet in, depth. The plaintiffs' proposed plan of dividing their lots into smaller units comes within the terms of the convenant which prescribes minimum lot areas. Each of the proposed nine lots has an area of at least 20,000 square feet. Each is at least 100 feet wide at the front. Plaintiffs' proposed plan also meets the requirements as to building set-back distances, both front and *625 side. In short, the plaintiffs' plan conforms with all requirements set out in the Boldridge restrictive covenant contract. The three controlling paragraphs of the contract, when considered each in its proper relation to the others, harmonize and reflect an over-all meaning which is free of inconsistency or repugnancy. See Hickson v. Noroton Manor, 118 Conn. 180, 171 A. 31. The plaintiffs' proposed plan of resubdivision when interpreted in the light of the applicable rules of law comes within the terms of the restrictive covenants under review. As parties bind themselves so must the courts leave them bound. The case of Starmount Co. v. Greensboro Memorial Park, Inc., 233 N.C. 613, 65 S.E.2d 134, 25 A.L.R. 2d 898, cited and relied on by the defendants, is factually distinguishable. The defendants' exceptions relating to the exclusion of evidence proffered in support of the plea of estoppel are without merit. A building restriction is a negative easement in land and cannot be created by parol. Turner v. Glenn, supra, 220 N.C. 620, 18 S.E.2d 197; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697. True, in proper cases an estoppel predicated upon grounds of silence or fraud may override the statute of frauds. 19 Am.Jur., Estoppel, § 92; Annotation: 50 A.L.R. 668, 685. But in the instant case the defendants' proffered evidence is wholly insufficient to justify relief on the ground of estoppel. Therefore, if the evidence proffered and refused had been received, the conclusion here reached would not have been changed. So, in law no harm has come to the defendants from the exclusion of the evidence. Pate v. Duke University, 215 N.C. 57, 1 S.E.2d 127. Other exceptions not discussed are overruled. The verdict and judgment will be upheld. No error. BOBBITT, J., took no part in the consideration or decision of this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/381834/	629 F.2d 480 INDIANA MUNICIPAL ELECTRIC ASSOCIATION et al., Petitioners,v.FEDERAL ENERGY REGULATION COMMISSION, Respondent.Public Service Company of Indiana, Inc., Intervenor. No. 79-1997. United States Court of Appeals,Seventh Circuit. Argued May 28, 1980.Decided Aug. 22, 1980. Peter K. Matt, Washington, D. C., for petitioners. Stephen R. Melton, Federal Energy Regulatory Comm., George F. Bruder, Washington, D. C., for respondent. Before CUMMINGS and PELL, Circuit Judges, and CAMPBELL, Senior District Judge.* CUMMINGS, Circuit Judge. 1 The Indiana Municipal Electric Association and its 24 municipal electric system members (Association)1 have asked us to review two orders of the Federal Energy Regulatory Commission.2 The Public Service Company of Indiana, Inc. (the Company) became an intervenor in these proceedings on September 19, 1979. The Association has asked us to reverse two of the Commission's orders and remand the cause for further consideration, whereas the Company has asked us to affirm the orders. We affirm. 2 In September 1975, the Company applied to the Commission for an increase in its wholesale electric rates from February 24, 1976,3 to January 27, 1979. Pursuant to the applicable regulations,4 the Company filed actual cost of service data for Period I and projected cost of service data for Period II.5 3 To understand the problem presented by this case, it should be remembered that during periods of high demand, a utility may have to purchase short-term power from other utilities to meet additional demands of its own customers. This cost is treated as an operating expense for which the Company is entitled to compensation. At other times, a utility may have generated more power than its own customers need and consequently will sell the excess power to other utilities. The revenues from these sales are used to reduce the overall operating costs of the Company by crediting the amount of revenues received to purchased power expense. Of course, as the Administrative Law Judge (ALJ) realized, a utility may be a net importer of power in one year and a net exporter in the next year. Therefore it is rather tricky for a utility to project the exact position in which it is likely to be in terms of necessary net purchases. But to be successful in securing an adjustment, the party challenging the proposed utility rates has the burden of proving the projections "substantially in error." As the ALJ put it, the "substantiality" requirement has been imposed because "a certain degree of latitude is required in deference to the fact that unanticipated subsequent events normally cut both ways, i. e., overstated estimates will (as here) almost certainly be balanced by other offsetting understatements by the company" (Joint App. 30, quoting from Commission Opinion No. 783, Ass'n App. B-2 at 13). 4 In its September 1975 rate application, the Company projected revenue from wholesale short-term sales of power for Period II at approximately $11.5 million (Joint App. 3 n. 6). This figure was used to offset the $11,475,697 costs that the Company expected to incur in making short-term power purchases during high demand intervals (Joint App. 95). When this administrative hearing commenced in October 1976, the actual data for part of Period II was available. At that time, the Association intervened to show that during the first nine months of Period II, the Company already received $13,755,064 from utilities to which it made short-term sales of power. Therefore, the Association sought an adjustment of $3,273,406 in the Company's short-term purchased power expense estimate (see infra ). 5 The Company introduced rebuttal evidence on this subject. Its comptroller testified that these larger than projected revenues resulted from the sale of short-term power to the Tennessee Valley Authority (TVA) for $2,896,000 (Joint App. 3). Because two of TVA's generating units had been damaged by fire, as he noted, such sales were atypical and not a true reflection of normal operations. The Company also introduced actual overall wholesale cost of service data for Period II. This material showed that on the basis of the Company's rates which were in effect subject to refund,6 estimated overall wholesale operating revenues for Period II had been $48,303,000 and actual operating revenues were $44,263,000. The actual adjusted revenues for that period were therefore about $4,040,000 less than estimated, while actual pre-tax expenses were about $4,400,000 less than estimated (Joint App. 97). 6 In his decision of June 27, 1978, the ALJ found that the Company's projected purchased power expense should be used as a basis for determining its rate of return for the period beginning February 24, 1976, to January 27, 1979. He concluded that the Company had proved that its purchased power expense estimate was a reasonable projection upon which to base rates for the time period they would be in effect, and that this estimate was not substantially in error because the Company "attempted to balance the fluctuation(s) and reflect costs that are typical of the Company's operating costs over a span of time longer than the (Period II) test year" (Joint App. 30). 7 Before the Commission, the Association excepted to the ALJ's decision on the ground that the disparity between the actual and projected purchased power expense required an adjustment. On June 28, 1979, the Commission handed down Opinion No. 44 rejecting the Association's claim (Joint App. 42-71). In that opinion, the Commission indicated that valid test period projections would not be considered substantially in error unless the use of such projections would yield unreasonable results (Joint App. 46). It found that the Company had established that its estimated purchased power expense for Period II was reasonable when made (Joint App. 4-5) and that the Company had presented evidence of actual total Period II expenses which supported the use of its projections as yielding a reasonable rate result (Joint App. 49). The Association's petition for rehearing was denied by order of August 27, 1979 (Joint App. 88-99). The Association has asked us to reverse the Commission's June 28, 1979, order accompanying Opinion No. 44 and to reverse the Commission's order of August 27, 1979, denying a rehearing of Opinion No. 44. We hold that the Commission's order of June 1979 resulted in just and reasonable rates and therefore rehearing was properly denied. 8 I. The Commission's Determination of Wholesale Electric Rates on Projected Cost of Service Data for a One-Year Test Period Was Proper. 9 The opinion under attack was based on test year rate-making concepts. Under the applicable regulations (n. 4 supra ), a utility wishing to raise its wholesale electric rates must file cost of service data for two time periods. Period I is to contain actual data for the most recent 12 months available. Period II, the test year, is to contain estimated cost of service data for any 12 consecutive months beginning after the end of Period I but no later than the proposed effective date of the rate filing, here February 24, 1976 (Ass'n App. A 12). The test year rule embodied in Period II was initiated by a December 14, 1972, notice from the Commission and was incorporated in the regulations in July 1973 because the historic test period exclusively used in the past was too rigid to result in the truly just and reasonable rates mandated by Section 205(a) of the Federal Power Act (16 U.S.C. § 824d(a)). 10 As noted, the Association has challenged the projected Period II rates submitted by the Company regarding its short-term purchased power expense because the actual figures for that period differed from the projections. In effect it contends that the Federal Power Act requires available actual cost ratemaking, but this argument was rejected in American Public Power Association v. Federal Power Commission, 522 F.2d 142 (D.C.Cir.1975), upholding these regulations. We agree with that decision that Congress did not compel the Commission to set rates solely on the basis of historic test period costs but gave the Commission "broad discretion in regard to the methodology of testing the reasonableness of rates." 522 F.2d at 146. To require a reworking of a utility's estimated costs in light of subsequent actual costs not only would result in interminable delays in already lengthy rate proceedings but would encourage dilatoriness in challengers in the hope that history would spoil the utility's estimated cost of service. 11 Since rate proceedings often are unfortunately of long duration, actual Period II data sometimes becomes available during the administrative hearings. However, as the Commission properly noted, actual costs are not really more reliable than projected costs because, as here, the actual costs for Period II may reflect a unique situation. Therefore the Commission requires a utility to "substantiate the Period II figure in terms of its typicality not only for the test period but also for the projected effective term of the tendered rates."7 However, if a utility always had to adjust its Period II projections because of actual experience as the Association contends, the Commission would be forced to return to historic cost even though Congress did not so intend. American Public Power Association v. Federal Power Commission, supra, 522 F.2d at 146. In accord with the D.C. Circuit, we hold that public utilities may file for wholesale electric power rates "based on estimates of future costs as well as past actual costs, rather than upon past actual costs alone" (522 F.2d at 143) and that the test year method employed here was reasonable as a rate-fixing device. 12 II. The Company's Protected Short-Term Public Power Costs Were Typical and Its Actual Purchased Power Costs Were Atypical. 13 The Association submits that during the first nine months of Period II the Commission must consider the Company's $13,755,064 gain from sales of power to other electric utilities instead of its projected $6,475,000 gain.8 The Association, after certain adjustments, therefore proposed that the Company's projected minus $6,475,000 purchased power 9-month expense be decreased by $3,273,406, thus decreasing the Company's proposed rate increase by $614,690 (Br. 4-5; Joint App. 46).9 Nevertheless, the Association has not shown that the Company's short-term purchased power expense projection was unreasonable when made or that the Company did not prove it was a reasonable basis upon which to base rates. 14 In rejecting the proffered adjustment, the Commission used two tests. First, it concluded that the challenged estimates were not clearly unreasonable when made. It noted that the Company's purchased power expense for Period I (the year ending June 30, 1975) was $3,542,060 whereas its projected purchased power expense for the following year was minus $6,475,000. The Commission stated that it was reasonable for the Company to predict a Period II expense figure $10 million lower than its actual expense in Period I because its two huge generating plants had been put into operation, changing the Company from a net importer of purchased power to a net exporter. Because the Company's Period II minus $6,475,000 expense estimate therefore did not "deviate unaccountably from a typical pattern of experience" (Joint App. 47), it was sustained as not clearly unreasonable when made. We cannot fault this conclusion, particularly since the actual purchased power expense for the full Period II was atypical in that it included almost $3,000,000 short-term power sales to TVA because of fire damage to two of its units (Joint App. 3). Therefore the Commission properly took the position that "sound estimates * * * may well comprise a far more reliable * * * basis for rational ratemaking" when actual date for a year, as here, would "present a mere aberration from the norm" (Joint App. 49). 15 Second, the Commission concluded that this estimate was acceptable because subsequent events did not "indicate that to use the challenged estimate as a basis for future projections would yield unreasonable results" (Joint App. 46). It noted that the placing of the two new generating units in operation exacerbated the Company's difficulty in estimating future sales of excess power. The Commission also noted that, as shown by the Company's actual costs and expenses, its $4,040,000 underestimate in wholesale revenues for the entire Period II was almost totally offset by an underestimate of wholesale operating expenses of $4,400,000. These were both wholesale revenue and expense figures, so that the Commission did not offset unrelated accounts or use retail and wholesale figures as the Association has contended. This offset was considered corroborative evidence of the reasonableness of the Company's proffered estimates, so that their use as a basis for future projections would "evidently yield reasonable ratemaking results" (Joint App. 49). 16 The Company's projected Period II net operating income was $9,850,000 and the actual was $10,021,000. The fact that there was only a spread of $168,000 attests to the reasonableness of the estimates. If we were to accept the Association's view, its members would benefit both from the estimated data in the Company's underestimated categories and the actual data in its overestimated categories! As the Company has capsulated it, such a method would produce "one-way streets both running in their direction" (Company Br. 5), a result surely not intended by Congress and producing a wholesale rate at a level lower than projected to be needed and, as time proved, lower than actually needed. 17 III. Because of the Differing Records the Commission's Opinion No. 44 Is Consistent with Its Opinion No. 783-A. 18 In Opinion No. 783-A, which we affirmed in large measure in 1978 (575 F.2d 1204), the Commission had rejected the Company's projection of $15,113,000 purchased power costs for the first nine months of 1974, whereas the actual experience for early 1974 showed that net purchased power expense would probably be zero. The Commission rejected the $15,113,000 estimate because at the time it was made "there was no reasonable expectancy that the company would have substantial off-system resales" (Association App. B-2 at 14). Nevertheless, at the same time, the Commission recognized that actual cost data would not be dispositive where, as in the present case, there were short-lived abnormal conditions (ibid. at 15) such as the unexpected TVA purchases. 19 Also in Opinion No. 783-A, the Association sought an adjustment of $1,051,000 because the Company's estimated operating expenses, exclusive of fuel and purchased power expense, were assertedly greater than actual operating expenses, also exclusive of fuel and purchased power expense. However, the Commission refused to make such an adjustment because although "other operations" expense was below estimates, "maintenance expense" was above estimates so that the Association had not shown that "the estimated cost of service as a whole would become substantially excessive" (ibid. at 16). Similarly, the Commission considered offsets in the present case (see p. 484 supra ). 20 Consistently with the theory of Opinion No. 783-A, in the present proceeding the Company's estimate was not rejected because here the Association has not shown that "subsequent events indicate that to use the challenged estimate as a basis for future projections would yield unreasonable results" (Joint App. 46) and because the Company's rebuttal comprehensive updated study (completely absent at the close of the record in the No. 783-A rate case) employing actual figures for Period II (Joint App. 97) showed that the Company's forecasts did not yield unreasonable results. If there had been such rebuttal testimony in the earlier case, the Commission and this Court would not have disturbed the Company's estimated purchase power costs for 1974. 21 IV. The Commission's Use of the Company's Projections Does Not Result in Unjust and Unreasonable Rates. 22 The Commission does not make hindsight adjustments in test year cost of service data based only on actual test year variance as the Association would like it to do here. Indeed the Commission has permissibly "indicated its preference to rely exclusively on the test year data unless it can be demonstrated that the estimates were either unreasonable when made, or if reasonable when made, subsequent events indicate that to use them as a basis for future projections would yield unreasonable results." Commission Opinion No. 55 (August 1, 1979) at 7, reproduced in Commission App. A; see also Opinion No. 783-A supra refusing an adjustment unless the estimated cost of service as a whole would be excessive (Ass'n App. B-2 at 12, 13, 14, 15). Therefore, to secure an adjustment, the Association had to show that the use of the Company's projections would yield an unreasonable result, but the Commission correctly found that use of the projections would not yield unreasonable rates here partly because the actual Period II figures submitted by the Company on rebuttal showed that total operating expenses for the wholesale class revenues were $4,400,000 less than projected while revenues from wholesale customers were lower by $4,040,000 (Joint App. 46, 48 n. 16, 49). 23 In reaching the conclusion that use of the projections would not yield unreasonable rates, the Commission applied its expertise to the various components of the cost of service data contained in the evidence of record. The Commission consequently granted the Company a 12.5% return on common equity instead of the requested 13.2%, so that the Company's overall rate of return became 9.14% instead of 9.75% requested by the Company. 24 The Commission did not operate only on a "balancing of errors" approach despite such characterization by the Association (Br. 22-25). The Commission used the Company's overall cost of service projections, simply noting that any errors in the Company's Period II expense estimates were almost totally offset by errors in its revenue estimates (Joint App. 49). The Commission did not solely balance the purchased power projection against any other account but merely stated that the Company's schedule of overall actual expenses and revenues was relevant to show the reasonableness of the Company's proffered estimates (idem ). Such nonconclusive use of offsets is in tune with the "end result" test established in Federal Power Commission v. Hope Natural Gas,10 320 U.S. 591, 602, 64 S. Ct. 281, 288, 88 L. Ed. 333, where the Supreme Court set forth the following precepts to govern ratemaking: 25 "Under the statutory standard of 'just and reasonable' it is the result reached not the method employed which is controlling. * * * It is not theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end. The fact that the method employed to reach that result may contain infirmities is not then important. Moreover, the Commission's order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity." (Citations omitted.) 26 Instead of balancing wholesale against retail costs as the Association suggests it did (Br. 23, 25), the Commission considered the Company's actual Period II figures for wholesale revenues and wholesale expenses in determining whether the use of the estimates would result in unreasonable rates. Consistently with Opinion No. 783-A (Ass'n App. B-2) the Commission adhered to the standard that "particular items of expense, if challenged as excessive, must be demonstrated to have been substantially in error because of subsequent events which were not reasonably foreseeable at the time such estimate(s) were developed" (Ass'n App. B-2 at 13). As noted previously, the reason for requiring substantiality is that a certain degree of latitude has to be permitted since overstated estimates would almost certainly be balanced by other offsetting understatements. Idem. In sum, the Association has been unable to satisfy the Commission or us that the Company's Period II projections are "self-serving misprojections" (Ass'n Br. 36) indicative of mala fides. 27 Since the Association has not shown that the rates being established by the Commission in this proceeding are unjust and unreasonable and since the Commission properly allocated burdens of proof, the Commission's rate increase order of June 28, 1979, and its order of August 27, 1979, denying rehearing are affirmed. * The Honorable William J. Campbell, Senior District Judge of the Northern District of Illinois, is sitting by designation 1 Although the Hoosier Energy Division of the Indiana Statewide Rural Electric Cooperative, the Wabash Valley Power Association and the cities of Crawfordsville, Logansport, Peru, Washington and Frankfort, Indiana, appealed from Commission Opinions Nos. 783 and 783-A allowing earlier wholesale rate increases of this same utility for the period from October 15, 1974, to March 31, 1976 (see Public Service Co. of Indiana v. Federal Energy Regulatory Commission, 575 F.2d 1204, 1208, 1209 (7th Cir. 1978)), they have not joined the Association in seeking review of the present two orders. Similarly 15 rural electric membership corporations (REMC), also parties below (Joint App. 45), have not sought review 2 The Federal Energy Regulatory Commission succeeded the Federal Power Commission on October 1, 1977. "Commission" as used herein will refer to the new Commission except when referring to matters prior to October 1, 1977, when "Commission" in this opinion will refer to the Federal Power Commission 3 This is the date given in the Commission's brief, p. 10. The Commission's opinion states that the opening date is March 31, 1976 (Joint App. 44), but the order denying rehearing changed the date to February 24, 1976 (Joint App. 91) 4 See 18 C.F.R. § 35.13 and in particular § 35.13(b)(4)(iii) (Ass'n App. A) 5 Period I was the 12-month period ending June 30, 1974, and Period II was the 12-month period ending June 30, 1976 6 Refunds have been required by the Commission's order of August 27, 1979 (Joint App. 88-92), erroneously termed August 27, 1978, in the Commission's brief (at p. 5 n. 7) 7 The quotation is taken from Commission Opinion No. 783-A at 12 (February 25, 1977), affirmed with an immaterial exception in Public Service Company of Indiana v. Federal Energy Regulatory Commission, 575 F.2d 1204, 1222 (7th Cir. 1978) 8 The Commission has taken this figure from the record (see Joint App. 47 n. 9) although the Association uses a $6.3 million figure throughout its brief. The discrepancy has not been termed erroneous and therefore need not be considered here 9 According to the Association the same result would be achieved by alternatively adding $3,273,406 to the estimated 9-month revenue (Ass'n Br. 5, 7) 10 The end result test was soon reapplied in Colorado Interstate Gas Co. v. Federal Power Co., 324 U.S. 581, 605, 65 S. Ct. 829, 840-841, 89 L. Ed. 1206	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1310727/	150 Ga. App. 240 (1979) 257 S.E.2d 205 GOOD HOUSEKEEPING SHOPS v. HINES; and vice versa. 57542, 57543. Court of Appeals of Georgia. Argued April 4, 1979. Decided May 8, 1979. Rehearing Denied June 7, 1979. John R. Genins, for appellant. Ralph Goldberg, Frank Derrickson, for appellee. BIRDSONG, Judge. This is the second appearance of this case. See Good Housekeeping Shops v. Hines, 146 Ga. App. 713 (247 SE2d 142). A summary of the proceedings is necessary for a proper consideration of the issues presented. This requires us to take judicial notice of the record in the prior appearance as the notice of appeal in this case directed the omission of that material. Roberts v. Roberts, 201 Ga. 357, 359 (39 SE2d 749). Plaintiff filed a petition for a writ of possession of personalty purchased via four title retention contracts under Code § 67-702. The defendant was served. She answered and counterclaimed within the seven days allowed by Code § 67-703. As a defense to the four contracts, defendant alleged in the answer that the contracts, which were executed in Michigan, were in violation of the Michigan Retail Installment Sales Act which Act prevented the collection of any finance charge and that defendant was entitled to offset the finance charge against any amount owed; and that defendant was entitled to "reasonable attorney fees for defending the action." The counterclaims alleged violations of the Truth in Lending Act, 15 USCA § 1601 et seq., thereby entitling defendant to the civil remedies afforded by 15 USCA § 1640. Plaintiff thereafter amended its petition by which a money judgment for the principle due on the contract was sought plus attorney fees for bad faith and stubborn litigiousness. The trial court denied plaintiff's motion for summary judgment and granted defendant's motion for summary judgment on the four counterclaims for respective amounts as to each Truth in Lending violation but reserved for jury determination the issue of reasonable attorney fees as authorized under 15 USCA § 241 1640 (a) (3). These judgments were reviewed in the prior appearance. We affirmed the denial of plaintiff's summary judgment; the grant of defendant's motion for summary judgment for the Truth in Lending violations, but we also reversed that part of the judgment reserving the attorney fees issue for jury determination holding that under the statute the court determines the attorney fees question. We also held that the trial court did not err in failing to grant the writ of possession as it was premature as defendant was then not "in default." Good Housekeeping Shops v. Hines, supra. After the return of the case to the trial court, defendant moved for summary judgment on her claim under the "Michigan Retail Installment Act as plaintiff charged usurious interest as a matter of law"; and moved for summary judgment on plaintiff's breach of contract "cause of action charging bad faith, etc...." Defendant also moved to dismiss the petition for writ of possession and to dismiss plaintiff's "cause of action regarding breach of contract ..." Lastly, defendant moved for a hearing on reasonable attorney fees. A hearing was held by the court in which evidence on the issue of attorney fees was received. On the day of the hearing, plaintiff filed another amendment alleging fraud. The court entered an order dismissing the petition for writ of possession and plaintiff's amended claims. The court further granted summary judgment to defendant preventing recovery of a finance charge in the amount of $422 on the four installment contracts. The court lastly ordered plaintiff to pay $1,755 attorney fees for "all time spent in this action pursuant to 15 USCA § 1640 (a) ..." Plaintiff has appealed and defendant has cross appealed. Held: The Main Appeal Case No. 57541 1. The plaintiff contends that the trial court erred in dismissing the petition for writ of possession. In our earlier decision, we held that at the time plaintiff sought to foreclose defendant was not in default for the reason that the amount due on the contracts was offset by the amount of the recovery for the Truth in Lending violations, and therefore, the petition for writ of possession was premature. We did not direct that the petition be dismissed. The petition was filed in August, 242 1976. The first order was entered in October, 1977. Our judgment was entered June 20, 1978. The instant judgment was entered on November 2, 1978. All of the payments due on contracts were to have been completely paid by March or April, 1978. Plaintiff contended at the second hearing that defendant had made no payments on the contract since "leaving Detroit, Michigan." There are admissions of fact by defendant contained in the record showing that she was in default. There is no evidence that at the time of the second judgment the defendant was not in default. The Truth in Lending offset on which we based our prior decision would not offset any amounts since accrued and past due. See Code § 67-705 (1). While the petition for writ of possession was premature at the time of the first judgment in this case, the evidence and the inferences show that at the time of the rendition of the second order, defendant was in default. The petition at the time of the second hearing and order still had viability and was not subject to dismissal for being premature. 2. The original petition for writ of possession was filed in August, 1976, and the summons was personally served in accordance with Code § 67-703. Plaintiff, on October 10, 1977, filed the first amendment to its pleading and made claim for recovery of the alleged principal amount due, to wit, $1,826.40 plus attorney fees and expenses of litigation for defendant's bad faith and stubborn litigiousness. On October 28, 1978, plaintiff filed another amendment alleging that defendant had committed fraud on plaintiff by entering into the contracts with no intention of making the payments thereon. The trial court dismissed both amendments on the authority of Porter v. Midland-Guardian Co., 242 Ga. 1 (247 SE2d 743), a case decided since our first judgment. Porter held that "a claim for the indebtedness, whether filed in a separate action or in the same action as a foreclosure proceeding under Code Ann. Ch. 67-7, must stand or fall upon the principles set forth in the Civil Practice Act, including, but not limited to, process and service of process, and may not be `piggy backed' into court using the special rules applicable to foreclosure actions under Code Ann. Ch. 67-7." Plaintiff's independent claims for indebtedness entered this foreclosure 243 proceeding via amended pleadings. A pleading may be amended as a matter of course at any time prior to the entry of pre-trial order. CPA § 15 (Code Ann. § 81A-115). A pre-trial order has not been entered. The first amendment was served on defendant's attorney by mail and the second by hand delivery to the attorney. This service complied with CPA § 5 (b) (Code Ann. § 81A-105 (b)). Therefore, under the Porter holding, the injection of the claims into this foreclosure proceeding was in accord with the Civil Practice Act and the court erred in dismissing them on this ground. 3. Defendant pleaded as a defense to the petition for writ of possession that the four contracts were violative of the Michigan Retail Installment Act and as a result, precluded plaintiff from recovering any finance charge, and that defendant was entitled to offset that amount against any amount owed and was further entitled to reasonable attorney fees for defending the action. The trial court in its order held that plaintiff had violated the Michigan Act and could not recover $422.20 interest or finance charge on these contracts. The Michigan Act provides in part: "Any seller who enters into any contract or agreement which does not comply with the provisions of this act or who violates any provision of this act except as a result of accidental or bona fide error is barred from the recovery of any time price differential, any official fees, delinquency or collection charge, attorney fees or court costs and the buyer shall be entitled to recover his reasonable attorney fees and court costs from the seller or his assigns..." Mich. Statutes Ann. § 19.416 (118). This provision as applicable to these contracts is a matter of defense which by its plain terms bars recovery only for time price differential, etc., but not the principal balance due. The defendant moved for summary judgment on her "cause of action" under the Michigan Act and thus had the burden of proof. There is no evidence of any violations of the Michigan Act with reference to these contracts. We also point out that the Michigan statute states that accidental or bona fide error resulting in a violation of the statute is excepted on the question of barring recovery of a time price differential. The trial court stated in its order that the "Plaintiff offered no affidavit or evidence to show 244 that the overcharge was accidental or resulting from bona fide error." The defendant as the movant not only had the burden to show the violations but to show the lack of accident or bona fide error. As she did not sustain this burden, plaintiff was not required to come forth with anything to the contrary showing accident or bona fide error. The grant of summary judgment to defendant on this aspect of the case was erroneous. 4. The trial court awarded attorney fees under 15 USCA § 1640 (a) (3) for all time spent which included the Truth in Lending counterclaims, "Plaintiff's action, and the Michigan Retail Installment Act. "Plaintiff states that defendant was only entitled to recover for attorney fees for the time spent on the counterclaims for the Truth in Lending violations. We agree. The Truth in Lending Act authorizes separate remedies for violations of the Act and purported violations of this statute do not constitute a viable defense to a petition for writ of possession nor does it affect the validity or enforceability of valid legal obligations. Smith v. Society Nat. Bank, 141 Ga. App. 19 (232 SE2d 367). The recovery of attorney fees must be restricted to counsel for defendant's efforts in prosecuting the Truth in Lending counterclaims. While attorney fees are recoverable for defending the claims on the four contracts under the Michigan statute, no recovery can be had here as that phase of this suit has not been reached. See Division 3, supra. The Cross Appeal Case No. 57542 5. Evidence was received on the question of attorney fees. Defendant's attorney testified that he spent 58.5 hours on this case to include the first appeal and the attorney fees hearing. He also testified that he had contracted with defendant on a contingent fee basis; that if plaintiff prevailed his only fee would be court-awarded fees under 15 USCA § 1640 (a) (3). There was evidence showing that the customary billing fee per hour for Truth in Lending cases by attorneys in the Atlanta area was in the range of $50 to $65. The trial court awarded $1,755, or $30 per hour. The trial court, in assessing the amount, considered the guidelines or standards for determining assessment of reasonable attorney fees set forth in Johnson v. Ga. Highway Express, 488 F2d 714 (5th Cir. *245 1974). One of those guidelines was the customary fee for similar work in the community. The trial court in its order stated: "(5) Customary Fee. Johnson discusses minimum fee schedules which the Supreme Court has since ruled illegal. Accordingly, this factor was not considered." There was no evidence of any minimum fee schedules in this case. Apparently, the trial court was referring to the case of Goldfarb v. Va. State Bar, 421 U. S. 773 (95 SC 2004, 44 LE2d 572) wherein the Supreme Court held that the minimum fee schedules of a county bar association as enforced by the State Bar of Virginia to be in violation of the Sherman Act (15 USC 1). The evidence of the customary hourly billing rate which was not a minimum fee schedule would not fall within the Goldfarb holding. The guidelines in Johnson are not binding on us. Roberts v. Allied Fin. Co., 129 Ga. App. 10, 13 (198 SE2d 416). Nonetheless, we adopt and hold that the customary fee in assessing attorney fees is a proper standard and the trial court erred in not considering the evidence of the hourly rate. There is no evidentiary basis in the record for the trial court to assess attorney fees in this case at $30 per hour. Judgment reversed as to the main appeal and cross appeal. Quillian, P. J., and Smith, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310886/	915 P.2d 1121 (1996) 81 Wash.App. 640 The STATE of Washington, Appellant/Cross-Respondent, v. George Lewis CORRADO, Respondent/Cross-Appellant. In re the Personal Restraint Petition of George Lewis CORRADO, Petitioner. Nos. 19792-8-II, 19804-5-II. Court of Appeals of Washington, Division 2. May 10, 1996. 1123 Michael Edward Schwartz (Court-appointed), Harrison Ladenburg & Schwartz, Tacoma, for respondent. W. Stephen Gregorich, Pierce County Deputy Pros. Atty., Barbara L. Corey-Boulet, Pierce County Deputy Pros. Atty., Tacoma, for appellant. 1122 MORGAN, Judge. George Lewis Corrado was tried without a charge. The jury found him not guilty of attempted first degree murder, but guilty of the lesser included offense of attempted second degree murder. The primary issue is whether he can be retried for one or both crimes. We hold he can be retried for attempted second degree murder, but not for attempted first degree murder. On July 30, 1993, Corrado was jailed for shooting Dorothy Gardner. On August 2, 1993, the State charged him with attempted murder in the first degree. On September 24, 1993, the State moved to dismiss without prejudice, saying it had been unable to locate Gardner. The trial court granted the motion and dismissed without prejudice. Corrado remained in jail on other matters, and Gardner was soon found. On October 25, 1993, Corrado was brought back to court. Although the State had not filed a new charge, the arraignment judge ordered that trial commence on November 1. On November 1, at the beginning of trial, the trial judge advised counsel in open court that the court file did not contain a charge. The prosecutor said he would file one, but he never did. After both parties had presented their evidence, the judge instructed the jury on attempted first degree murder and the lesser included offense of attempted second degree murder. The judge also instructed the jury that it could convict of attempted first degree murder; acquit of attempted first degree murder but convict of attempted second degree murder; or acquit entirely. The jury acquitted of attempted first degree murder, but convicted of attempted second degree murder. Corrado appealed the conviction for attempted second degree murder. He claimed the State's failure to file a charge "deprived the [trial] court of jurisdiction" and rendered the conviction "void."[1] In July 1995, in Corrado I,[2] we ruled that because the State had failed to file a charge, the superior court had acted without jurisdiction and its acts were "void." We ordered Corrado's release unless, forthwith, he was properly charged and detained. We were not concerned with the acquittal for attempted first degree murder, because it had not been cross-appealed by the State. A week after our ruling, the State filed an information charging attempted second degree 1124 murder. Shortly thereafter, it filed an amended information charging attempted first degree murder. Corrado moved to dismiss the amended information, arguing (1) double jeopardy, (2) violation of his constitutional right to speedy trial, and (3) governmental misconduct in violation of CrR 8.3(b). Agreeing with the first argument, but rejecting the other two, the trial court dismissed the action. The State appealed, and Corrado cross-appealed. I. The State argues that Corrado was not in jeopardy during the previous trial because we held, in Corrado I, that the trial court "lacked jurisdiction"[3] for purposes of state procedural law. Thus, it says, it is entitled to retry him for attempted first degree murder. Corrado argues that he cannot be retried at all, even for attempted second degree murder. We begin by analyzing and applying the usual elements of double jeopardy. Then, we discuss whether the State's jurisdictional argument alters our analysis. A. The double jeopardy clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb".[4] Generally, it bars trial if three elements are met: (a) jeopardy previously attached,[5] (b) jeopardy previously terminated,[6] and (c) the defendant is again in jeopardy "for the same offense."[7] The first two elements determine "former" jeopardy, which is a prerequisite to "double" jeopardy.[8] When "former" jeopardy is assumed or established, the third element determines "double" jeopardy. Each element furthers a different policy or idea. The attachment element arises from the idea that a defendant is not in jeopardy until he or she is actually at risk of conviction; in other words, jeopardy should "attach" when an accused is at risk, but not otherwise.[9] The termination element arises from the idea that the State should have one complete opportunity to convict; in other words, jeopardy should "terminate" when the State has hadbut not before the State has hadone full and fair opportunity to prosecute.[10] The same offense element arises from the idea that a defendant should not have to run the same "gauntlet" more than once,[11] and, correspondingly, that the State should not have more than one opportunity 1125 to convict a defendant for the same crime.[12] As a general rule, jeopardy attaches in a jury trial when the jury is sworn, and in a bench trial when the first witness is sworn.[13] This may not be true, however, when the trial court "lacks jurisdiction." We consider this jurisdictional exception more fully below. As a general rule, jeopardy terminates with a verdict of acquittal.[14] Thus, "a verdict of acquittal ... is a bar to a subsequent prosecution for the same offense,"[15] and an acquitted defendant may not be retried even when "the acquittal was based upon an egregiously erroneous foundation."[16] Insufficient evidence is equivalent to an acquittal,[17] because no rational trier could find all essential elements of the crime charged.[18] As a general rule, jeopardy terminates with a conviction that becomes unconditionally final,[19] but not with a conviction that the defendant successfully appeals.[20] The United States Supreme Court has "expressly rejected the view that the double jeopardy provision prevent[s] a second trial when a conviction ha[s] been set aside;" instead, it has "effectively formulated a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course."[21] The result is that the double jeopardy clause "`imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside,'"[22] and that a defendant's "successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence ... poses no bar to further 1126 prosecution on the same charge."[23] "[T]o require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect,"[24] and "society would pay too high a price `were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.'"[25] Incidentally, jeopardy may or may not terminate when a trial ends without a verdict.[26] For example, it will terminate when a mistrial is declared without reason,[27] but not generally when a mistrial is due to the defendant[28] or a hung jury.[29] Once jeopardy has attached and terminated, the "same elements test," also known as the Blockburger test,[30] determines whether a defendant presently faces jeopardy "for the same offense" as before. According to that test, two offenses are not the same if each contains an element not contained in the other.[31] Applying these principles to this case, we hold that Corrado can be retried at least for attempted second degree murder. In his prior appeal, he succeeded in having his conviction set aside. Thus, his original jeopardy did not terminate; it is "continuing" rather than "former," and in the absence of "former" jeopardy he cannot show "double" jeopardy.[32] Although Corrado can be retried for attempted second degree murder, it would appear, at first glance, that he cannot be retried for attempted first degree murder. Jeopardy attached when the jury was sworn; jeopardy terminated when the jury acquitted; and the State now seeks to prosecute for the same offense as before. Thus, all three elements of double jeopardy are met, and the double jeopardy clause bars retrial for the higher crime[33]unless the State's jurisdictional argument leads to a different result. B. The United States Supreme Court first pronounced a jurisdictional exception in 1127 United States v. Ball.[34] It said: An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Com. v. Peters, 12 Metc. (Mass.) 387; 2 Hawk. P.C. c. 35, § 3; 1 Bish. Cr. Law, § 1028. The Court made similar statements in at least three turn-of-the-century cases[35] and one more modern case.[36] As far as we are aware, however, the Court has never decided a case in which it actually used "lack of jurisdiction" as its reason for denying double jeopardy protection. Clearly, the exception does not apply every time a court chooses to intone "lack of jurisdiction" for state procedural law purposes. The phrase "lack of jurisdiction" has many meanings,[37] including but not limited to the following: that a court is not duly constituted;[38] that a court lacks power to hear the type of case then before it;[39] that a court lacks territorial jurisdiction (i.e., power over the place where the crime was committed);[40] that a court lacks power to deal with the type of person then before it;[41] that a court has no charge before it;[42] that a court has a defective charge before it;[43] that a court has failed to honor a timely affidavit of prejudice;[44] that a court has erroneously failed to determine whether an accused is competent to stand trial;[45] that a court has erroneously failed to appoint counsel;[46] that a court has made a finding of probable cause without sufficient evidence;[47] that a court has convened trial in the wrong county;[48] or even that a court has violated one of its own court rules.[49] If double jeopardy protection were obviated in each of these situations, and in 1128 any other in which a court opts to chant "lack of jurisdiction," the double jeopardy clause would be gutted. As the Second Circuit has rightly noted, "`jurisdiction' in a double jeopardy context is a jurisprudential greased pig,"[50] and double jeopardy protection "cannot turn on the vagaries of state procedural definitions."[51] Three cases illustrate these vagaries. In Boyd v. Meachum,[52] the defendant was charged with burglary and felony murder committed during the burglary. Connecticut law required a probable cause determination on the murder charge, but not on the burglary charge. Before trial, the trial court found probable cause on the murder charge, but its finding was based on insufficient evidence. At trial, the defendant was convicted. After trial, the defendant appealed only the murder conviction to the Connecticut Supreme Court. That court reversed the murder conviction on grounds that "insufficiency of the evidence presented at the probable cause hearing will deprive the trial court of jurisdiction over the person of the defendant." The State then sought to retry the defendant for felony murder. The defendant claimed double jeopardy, and the matter worked its way to the Second Circuit on a writ of habeas corpus. The defendant's problem, of course, was that he had succeeded in overturning his felony murder conviction during his first appeal; thus, under normal double jeopardy principles his original jeopardy was "continuing" rather than "former." To counter this problem, the defendant concocted a three-step argument: First, he claimed that jeopardy had not attached to the felony murder count at his first trial because, under state law, the trial court had "lacked jurisdiction" on that count. Second, he claimed that jeopardy had attached to the burglary count at his first trial because, under state law, the trial court had had jurisdiction on that count. Third, he claimed that the burglary was a lesser offense included within felony murder (which was true under state law), and that under the same-elements test of Blockburger v. United States he could not be tried for greater and lesser offenses in two successive prosecutions. The Second Circuit rightly rejected this argument, saying that "Connecticut's decision to characterize a lack of probable cause as a lack of `personal jurisdiction' is purely semantic, and has no real or practical consequence."[53] Noting that the trial court had had jurisdiction over the type of offense, over the person, and over the place where the offense allegedly occurred, it essentially concluded that the trial court had had "jurisdiction" of both charges in the first proceeding; that jeopardy had attached to both charges at the beginning of the first trial; that jeopardy had not terminated as to the felony murder charge because the defendant had overturned his conviction on appeal; and that the defendant could be retried for felony murder. In Block v. State,[54] the defendant was charged with shoplifting. A bench trial was held on March 16, and the judge rendered a verdict of guilty. According to assumptions made later on appeal, Court Rule 770 allowed the defendant to move for a new trial within three days. It did not, however, allow the trial judge to reconsider or change his verdict. The defendant moved for a new trial, but not within the three days allowed by the rule. He also moved for reconsideration, and the trial judge responded by changing the verdict to not guilty. The State then moved to reinstate the original verdict, and the judge responded by ordering a new trial. On appeal, the defendant argued double jeopardy. The State argued "that because the verdict of acquittal was in violation of Rule 770, the District Court lacked jurisdiction, and the acquittal did not result in a favorable termination of the defendant's jeopardy."[55] The high court of Maryland ruled "that before a person can be said to have been put in jeopardy of life or limb the 1129 court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged."[56] It held, however, "that the `jurisdiction' of the court for purposes of this principle of double jeopardy law means jurisdiction in the most basic sense. It does not mean that an error in the exercise of jurisdiction permits judicial proceedings to be treated as a nullity."[57] The court concluded: [T]he fact that the court may not have been authorized under the rules to render the verdict does not make it void for double jeopardy purposes. The cases make it clear that an improper or defective exercise of jurisdiction does not deprive an acquittal of its finality. Instead, as long as the court rendering a non-guilty verdict has jurisdiction over the offense, the verdict is a bar to further criminal proceedings on the same charge.[58] In People v. Superior Court (Marks),[59] the defendant was charged with aggravated first degree murder. The superior court was required by law to hold a competency hearing, but it failed to do so. Ultimately, a jury convicted of second degree murder but acquitted of first degree and aggravated first degree murder. When the defendant appealed the second degree murder conviction, the California Supreme Court reversed and remanded for further proceedings. It said that when a trial is in doubt concerning competency, it "lacks jurisdiction" to conduct further proceedings until after it has found the defendant competent.[60] It also said that the trial court's failure to determine competency "rendered the subsequent trial proceedings void because the court had been divested of jurisdiction to proceed pending express determination of the competency issue."[61] On remand, the State sought to retry the defendant on the original charge of aggravated first degree murder. The defendant claimed double jeopardy due to the jury's acquittal. The State responded that the trial court's ... error rendered it without jurisdiction ... and that all other proceedings were a nullity. Since jeopardy never attached, the proffered pleas were unavailable.[62] The California Court of Appeals adopted the State's position, and the matter again found its way to the California Supreme Court. That court ruled, in effect, that jeopardy had attached when the jury was sworn at the first trial; that jeopardy had terminated on the greater charges as to which the jury had acquitted, but not on the lesser charge as to which the jury had convicted; and that the defendant could be retried only for the lesser charge of second degree murder. It also altered the nomenclature it had used in the earlier appeal, saying: [T]he trial court does not lose subject matter jurisdiction when it fails to hold a competency hearing, but rather acts in excess of jurisdiction by depriving the defendant of a fair trial. Although the judgment may be a nullity, for double jeopardy purposes the proceedings are not. [Citation omitted.][63] Having established that the jurisdictional exception does not apply every time a court intones "lack of jurisdiction," we must determine when it applies and when it does not. At the root of the exception is the following hypothesis: Lack of jurisdiction for purposes of state procedural law equals lack of jeopardy for purposes of double jeopardy law. The underlying assumptions are (1) that a defendant is not at risk when tried by a court that "lacks jurisdiction," and (2) that a defendant not at risk is a defendant not in 1130 jeopardy. Thus, it is our view that the test for whether the exception applies is whether a trial court's "lack of jurisdiction" causes the defendant not to be at risk of conviction and punishment.[64] We derive this lack-of-risk test not only from the assumptions underlying the exception, but also from the seminal case of Ball v. United States.[65] There, one of the defendants had been acquitted after trial on a defective indictment for murder. The question was whether he could be retried. The United States Supreme Court's opinion is not entirely clear, but the Court's main approach seems to have involved three essential steps. First, the Court rejected any presumption that the trial court would have recognized the defect in the charge in time to avoid entering a judgment of conviction; although "ingenuity has suggested that [the defendant] never was in jeopardy, because it is to be presumed that the court will discover the defect in time to prevent judgment,"[66] this suggestion "is bottomed upon an assumed infallibility of the courts, which is not admitted in any other case."[67] Second, the Court noted that the defendant had actually been at risk, even though the indictment had been defective. "If a conviction take place, whether an indictment be good or otherwise, it is ten to one that judgment passes;"[68] and "[i]f the judgment is upon a verdict of guilty, and unreversed, it stands good, and warrants the punishment of the defendant accordingly."[69] Indeed, as the Court noted, "Many hundreds, perhaps, are now in the state prison on erroneous indictments, who, however, have been fairly tried on the merits."[70] Finally, in light of the fact that the defendant had actually been at risk of conviction and commitment to prison, the Court concluded he could not be retried. Illinois v. Somerville[71] tends to confirm this reading of Ball, though not expressly. There, the trial court discovered, mid-trial, that the charge failed to state an essential element of the crime. Because this caused a "lack of jurisdiction" under Illinois state law, the trial court declared a mistrial. When the State sought to retry the defendant, he asserted double jeopardy. On appeal, the United States Supreme Court focused on whether the mistrial was justified by "manifest necessity."[72] Necessarily, then, it seems to have held or assumed that jeopardy had attached when the jury was sworn. The reason, in light of Ball, would appear to be that the defendant was actually at risk of conviction and commitment to prison, notwithstanding the defective nature of the charge and the trial court's resultant "lack of jurisdiction" for state law purposes. Benton v. Maryland[73] may also tend to confirm our reading of Ball. There, the Court said that jeopardy attached during trial on a defective charge, regardless of whether the charge was "void" or "voidable" under state law.[74] Thus, the Court seems to have been concerned less with the trial court's "lack of jurisdiction" than with the defendant's risk (i.e., with whether the defendant had run the entire "gauntlet" from indictment to acquittal). In light of this analysis, the question here is this: When a trial court "lacks jurisdiction" due to the complete absence of a charging document, is the defendant at risk of conviction and punishment? If so, the trial court's "lack of jurisdiction" for purposes of state procedural law does not equate with a lack of jeopardy for purposes of double jeopardy 1131 law, and the jurisdictional exception should not be applied. In answering this question, we must assume that a trial court judgment is entered and becomes final immediately after trial. We may not assume that the trial court would have discovered the defect in its proceedings in time to forestall judgment; that either party would have appealed after judgment; or that the defect in the trial court's proceedings would have been discovered on appeal. As the Ball Court noted, "the infallibility of the courts" is not to be assumed or admitted when dealing with double jeopardy,[75] as some defendants are likely to be convicted and imprisoned despite defects in the trial court's proceedings. In answering the question at hand, at least two factors are key. The first, exemplified by State v. Haye,[76] is whether the trial court's lack of jurisdiction will appear on the face of its judgment, or otherwise be apparent to those asked to enforce the judgment.[77] If so, the judgment is unlikely to be honored, and the defendant is not substantially at risk. The second, exemplified by Parsons v. State,[78] is whether the state raised the trial court's "lack of jurisdiction" and objected to the entry of judgment.[79] If so, the State is unlikely to enforce the judgment, and again the defendant is not substantially at risk.[80] Certainly, other factors may be important under particular circumstances; but at least for purposes of this case, we think that a defendant is generally at risk when (a) the State is seeking, rather than objecting to, the entry of a judgment of conviction, and (b) the trial court's lack of jurisdiction will not be apparent from the face of its judgment. Under those circumstances, at least generally, a judgment of conviction will be enforced if not appealed, and the defendant faces jeopardy in reality, whether or not the trial court "lacks jurisdiction" for purposes of state procedural law. In this case, the State never objected to the trial court's lack of jurisdiction; on the contrary, it actively sought to obtain and enforce a judgment of conviction. Nor did the judgment show on its face the trial court's lack of jurisdiction; the superior court had power to hear and determine felonies, and its judgment gave no indication that 1132 its power had not properly been invoked. As explained in Ball, Corrado would have served out the judgment had he not appealed, and in fact he was imprisoned on the judgment from the time it was entered to the time his first appeal succeeded. Under these circumstances, we think Corrado was at risk of conviction and punishment during his previous trial, despite the trial court's "lack of jurisdiction" for purposes of state procedural law. Thus, we also think Corrado was in jeopardy for purposes of double jeopardy law, and that the jurisdictional exception to attachment does not apply. Before closing this part of our opinion, we make several additional observations. First, this case was fully tried, up to and including verdicts on the merits. Thus, the State had a full and complete opportunity to prosecute for attempted first degree murder, even though it hampered that opportunity by not filing a charge. And, correspondingly, Corrado "ran the gauntlet" one complete time. Second, the result we reach is supported by a line of reasoning used by the Ball Court, but not yet mentioned by us. The Ball Court said: This case, in short, presents the novel and unheard-of spectacle of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect, as a reason for a second trial, when it is not pretended that the merits were not fairly in issue on the first. That a party shall be deprived of the benefit of an acquittal by a jury, on a suggestion of this kind, coming, too, from the officer who drew the indictment, seems not to comport with that universal and humane principle of criminal law, `that no man shall be brought into danger more than once for the same offense.' It is very like permitting a party to take advantage of his own wrong.[81] Although the case at bar involves the failure to file a charge, as opposed to a defectively drafted charge, the same considerations apply here. Third, the result we reach is consistent with cases like State v. Vangerpen,[82]City of Auburn v. Brooke,[83]State v. Markle,[84] and State v. Irizarry.[85] In each of those cases, the defendant had been convicted, albeit on an improper charge.[86] He or she then appealed and had the conviction overturned. Thus, retrial was permissible "for any convicted offense, or of a lesser included crime of the convicted offense."[87] By implication, however, retrial would not have been permissible if, as here, the defendant had been acquitted. In a situation involving a conviction later set aside on appeal, jeopardy does not terminate, but in a situation involving acquittal, jeopardy both attaches and terminates. Fourth, the result we reach is consistent with the result in State v. Cockrell,[88] but not with the language found therein. In Cockrell, a case not cited by either party, the trial court erroneously refused to honor the defendant's timely pre-trial affidavit of prejudice. After conviction, the defendant appealed and the Supreme Court reversed, ruling the affidavit should have been honored. Then, in a discussion taking less than one page, the court opined that retrial would not constitute double jeopardy "[b]ecause appellants here were never tried by a court of competent jurisdiction."[89] As a result, the court implied that jeopardy had never attached, and that the defendant could have been retried 1133 even if acquitted on the merits. After comparing this implication to the language in cases such as Markle, and to the basic law of double jeopardy, we think the implication was inadvertent, and that the real reasons for the result in Cockrell were (1) that the defendant had upset his conviction on appeal and (2) that jeopardy thus had not terminated.[90] Fifth, we are unpersuaded by Hamilton v. State,[91] the only case cited by either party in which an acquittal did not bar retrial for the same offense. In Hamilton, the defendant was charged with aggravated assault in Count I and battery in Count II. The trial court erroneously denied him his right to counsel at a preliminary hearing. Under New Mexico's procedural nomenclature, the trial court thereafter "lacked jurisdiction to conduct the preliminary hearing."[92] After a jury acquitted on Count I but convicted on Count II, the defendant appealed only the conviction on Count II, which he succeeded in overturning. The State then sought retrial on both counts, and the defendant claimed double jeopardy as to Count I. Rejecting this claim, the New Mexico Court of Appeals asserted that the trial court had lacked jurisdiction, and that "jurisdiction is essential before jeopardy attaches."[93] We think Hamilton is wrong. Without analysis, it assumes that procedural nomenclature controls the applicability of the double jeopardy clause; in effect, it holds that an acquitted accused may be subjected to retrial whenever a court arbitrarily affixes the label "jurisdictional" to mere trial error. It is contrary to Marks, Boyd, Block, and, more importantly, to cases like Fong Foo v. United States,[94] in which the United States Supreme Court said that an acquittal is final even when "based upon an egregiously erroneous foundation."[95] Finally, it is illogical, for it uses the improper denial of one right, the right to counsel, as a basis for denying a second right, the right against double jeopardy. Concluding this part of our discussion, we hold that jeopardy attached and terminated with respect to attempted first degree murder, and that the defendant cannot be retried for that offense. We also hold, however, that jeopardy has not terminated with respect to attempted second degree murder, and that the defendant can be retried for that offense. II. By cross-appeal, Corrado argues his constitutional right to speedy trial has been violated because he was imprisoned without trial for more than two years. The essence of his argument is that he was not tried in November 1993, because the trial court lacked jurisdiction at that time. In our view, however, the 1993 trial was just as effective for purposes of the constitutional right to speedy trial, as it was for purposes of the right against double jeopardy. We hold that Corrado was tried within 100 days of the offense, and that his constitutional right to speedy trial was not violated. III. Also by cross appeal, Corrado argues the case must be dismissed due to governmental misconduct. He relies on CrR 8.3(b), which provides: The court on its own motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order. Here, the only evidence of "misconduct" is the State's omission to file a charge. Obviously, the omission was not intentional; *1134 rather, it was a single instance of negligence. The trial court believed it was not the type of prejudicial mismanagement that necessitates dismissal, and we review the trial court's decision only for abuse of discretion.[96] We see no abuse here, and Corrado's argument fails. The parties' remaining arguments lack merit or need not be discussed. The order of dismissal is affirmed as to the charge of attempted first degree murder. The order of dismissal is reversed as to the charge of attempted second degree murder. The case is remanded for further proceedings consistent with this opinion. HOUGHTON, Acting C.J., and FLEISHER, J. Pro Tem., concur. NOTES [1] Br. of Appellant at 14. [2] State v. Corrado, 78 Wash.App. 612, 898 P.2d 860 (1995). [3] Br. of Appellant at 2. [4] U.S. Const. amend. V. The double jeopardy clause applies to the states through the due process clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969), and is coextensive with Article I, § 9 of the Washington Constitution. State v. Gocken, 127 Wash.2d 95, 896 P.2d 1267 (1995). [5] Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975); State v. Higley, 78 Wash.App. 172, 902 P.2d 659, review denied, 128 Wash.2d 1003, 907 P.2d 296 (1995). [6] Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984); Higley, 78 Wash.App. 172, 902 P.2d 659. [7] United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). [8] See Serfass, 420 U.S. at 393, 95 S.Ct. at 1065 ("an accused must suffer jeopardy before he can suffer double jeopardy"); People v. Superior Court (Marks), 1 Cal.4th 56, 2 Cal.Rptr.2d 389, 820 P.2d 613 (1991)(same). [9] Serfass, 420 U.S. at 391, 95 S.Ct. at 1064; Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 1761, 26 L.Ed.2d 300 (1970); Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904). [10] Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978); United States v. Scott, 437 U.S. 82, 100, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978). [11] Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957); Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977); Smalis v. Pennsylvania, 476 U.S. 140, 144 n. 4, 106 S.Ct. 1745, 1748 n. 4, 90 L.Ed.2d 116 (1986). "At the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potent instrument of oppression." United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). [12] Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 829. [13] Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978); Martin Linen Supply Co., 430 U.S. at 569, 97 S.Ct. at 1353; Serfass, 420 U.S. at 388, 95 S.Ct. at 1062; Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973). [14] Smalis, 476 U.S. at 145, 106 S.Ct. at 1749; Richardson, 468 U.S. at 325, 104 S.Ct. at 3086; Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984); Sanabria v. United States, 437 U.S. 54, 64, 69, 78, 98 S.Ct. 2170, 2178, 2181, 2186, 57 L.Ed.2d 43 (1978); Martin Linen Supply Co., 430 U.S. at 571-72, 576, 97 S.Ct. at 1354-55, 1357; Price v. Georgia, 398 U.S. at 329, 90 S.Ct. at 1761 ("this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal"); Green, 355 U.S. at 188, 78 S.Ct. at 223-24 ("a verdict of acquittal is final, ending a defendant's jeopardy"); Kepner, 195 U.S. at 133, 24 S.Ct. at 806; United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896); State v. Ridgley, 70 Wash.2d 555, 424 P.2d 632 (1967). [15] Ball, 163 U.S. at 671, 16 S.Ct. at 1195; see also United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980); Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978); Serfass, 420 U.S. at 392, 95 S.Ct. at 1064. [16] Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962); see also Sanabria, 437 U.S. at 64, 98 S.Ct. at 2178; DiFrancesco, 449 U.S. at 129, 101 S.Ct. at 433. [17] Smalis, 476 U.S. at 144, 106 S.Ct. at 1748; Richardson, 468 U.S. at 325, 104 S.Ct. at 3086; Burks, 437 U.S. at 10-11, 98 S.Ct. at 2146-47; Scott, 437 U.S. at 91, 98 S.Ct. at 2193. [18] Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982); Jackson v. Virginia, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). [19] Swisher v. Brady, 438 U.S. 204, 218, 98 S.Ct. 2699, 2707, 57 L.Ed.2d 705 (1978); Brown v. Ohio, 432 U.S. at 165-66, 97 S.Ct. at 2225-26; United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975)("[w]hen a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense"). [20] Justices of Boston Mun. Court, 466 U.S. at 308, 104 S.Ct. at 1813; Tibbs v. Florida, 457 U.S. at 39-40, 102 S.Ct. at 2216-17; Ludwig v. Massachusetts, 427 U.S. 618, 631-32, 96 S.Ct. 2781, 2788-89, 49 L.Ed.2d 732 (1976); United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1588, 12 L.Ed.2d 448 (1964); Ball, 163 U.S. at 671-72, 16 S.Ct. at 1195-96. [21] Price v. Georgia, 398 U.S. at 326, 90 S.Ct. at 1759; see also Justices of Boston Mun. Court, 466 U.S. at 308, 104 S.Ct. at 1813; Jeffers v. United States, 432 U.S. 137, 152, 97 S.Ct. 2207, 2217, 53 L.Ed.2d 168 (1977). [22] Tibbs v. Florida, 457 U.S. at 40, 102 S.Ct. at 2217 (quoting North Carolina v. Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969)). [23] Scott, 437 U.S. at 90-91, 98 S.Ct. at 2193-94; see also Tibbs v. Florida, 457 U.S. 31, 40, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982); DiFrancesco, 449 U.S. at 131, 101 S.Ct. at 434 (same); Ball, 163 U.S. at 671-72, 16 S.Ct. at 1195-96. [24] Scott, 437 U.S. at 91, 98 S.Ct. at 2194; see also Justices of Boston Mun. Court, 466 U.S. at 310, 104 S.Ct. at 1814; Tibbs v. Florida, 457 U.S. at 40, 102 S.Ct. at 2217. [25] Tibbs v. Florida, 457 U.S. at 40, 102 S.Ct. at 2217 (citing Tateo, 377 U.S. at 466, 84 S.Ct. at 1589). [26] Crist v. Bretz, 437 U.S. at 34-35, 98 S.Ct. at 2160-61; Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830; Wade v. Hunter, 336 U.S. 684, 688-90, 69 S.Ct. 834, 836-38, 93 L.Ed. 974 (1949). [27] Swisher v. Brady, 438 U.S. at 218, 98 S.Ct. at 2707; Wilson, 420 U.S. at 344, 95 S.Ct. at 1022; United States v. Jorn, 400 U.S. 470, 487, 91 S.Ct. 547, 558, 27 L.Ed.2d 543 (1971); Green, 355 U.S. at 191, 78 S.Ct. at 225. [28] Scott, 437 U.S. at 93-94, 98 S.Ct. at 2195-96, Lee v. United States, 432 U.S. 23, 32-33, 97 S.Ct. 2141, 2146-47, 53 L.Ed.2d 80 (1977); Jeffers, 432 U.S. at 152, 97 S.Ct. at 2216; United States v. Dinitz, 424 U.S. 600, 607-08, 96 S.Ct. 1075, 1079-80, 47 L.Ed.2d 267 (1976). [29] Richardson, 468 U.S. at 324, 104 S.Ct. at 3085; Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832; United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824). [30] Rutledge v. United States, ___ U.S. ___, ___, 116 S.Ct. 1241, 1244, 134 L.Ed.2d 419 (1996); Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556; Brown v. Ohio, 432 U.S. at 166, 97 S.Ct. at 2225; Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. at 182. [31] Rutledge v. United States, ___ U.S. at ___, 116 S.Ct. at 1244; Witte v. United States, ___ U.S. ___, ___, 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351 (1995); Dixon, 509 U.S. at ___, 113 S.Ct. at 2856; State v. Maxfield, 125 Wash.2d 378, 400-01, 886 P.2d 123 (1994); Higley, 78 Wash.App. at 178, 902 P.2d 659. [32] See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300; Green, 355 U.S. 184, 78 S.Ct. 221. [33] See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300; Green, 355 U.S. 184, 78 S.Ct. 221. [34] 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896). Ball was the first case "in which the [United States Supreme] Court considered in any detail the double jeopardy implications of an appellate reversal." Burks, 437 U.S. at 13, 98 S.Ct. at 2148. [35] Grafton v. United States, 206 U.S. 333, 345, 27 S.Ct. 749, 751, 51 L.Ed. 1084 (1907); Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912); Kepner, 195 U.S. at 129, 24 S.Ct. at 804. [36] Serfass, 420 U.S. at 391, 95 S.Ct. at 1064. [37] Mead School Dist. No. 354 v. Mead Educ. Ass'n., 85 Wash.2d 278, 282-83, 534 P.2d 561 (1975) (quoting Carter v. United States, 135 F.2d 858, 861 (5th Cir.1943). [38] State v. Canady, 116 Wash.2d 853, 858, 809 P.2d 203 (1991); In re Eng, 113 Wash.2d 178, 180, 181, 191, 195, 776 P.2d 1336 (1989). [39] State v. Haye, 72 Wash.2d 461, 464, 433 P.2d 884 (1967); Ridgley, 70 Wash.2d at 557, 424 P.2d 632; United States v. Dunbar, 591 F.2d 1190, 1194 (5th Cir.1979), aff'd in part, 611 F.2d 985 (5th Cir.1980); BLACK'S LAW DICTIONARY 854 (6th ed.1990). [40] Commonwealth v. Peters, 53 Mass. (1 Met.) 387 (1847). [41] In re Shanea J., 150 Cal.App.3d 831, 198 Cal.Rptr. 228 (Cal.App.1984). [42] Corrado, 78 Wash.App. 612, 898 P.2d 860. [43] People v. Pitts, 223 Cal.App.3d 606, 273 Cal. Rptr. 757 (Cal.App.1990); Rogers v. State, 336 So.2d 1233 (Fla.App.1976), cert. dismissed, 348 So.2d 952 (Fla.1977); State v. Love, 5 Kan. App.2d 768, 625 P.2d 7 (1981); State v. Nicholson, 839 S.W.2d 593, 595 (Mo.App.1992); People v. Hartmann, 123 Misc.2d 553, 473 N.Y.S.2d 935 (1984); see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; but see State v. Kjorsvik, 117 Wash.2d 93, 107, 812 P.2d 86 (1991). [44] Harbor Enterprises, Inc. v. Gudjonsson, 116 Wash.2d 283, 285, 803 P.2d 798 (1991); State v. Cockrell, 102 Wash.2d 561, 567, 689 P.2d 32 (1984). [45] People v. Superior Court (Marks), 1 Cal.4th 56, 2 Cal.Rptr.2d 389, 820 P.2d 613 (1991). [46] State v. Hamilton, 107 N.M. 186, 754 P.2d 857 (App.), cert. denied, 107 N.M. 132, 753 P.2d 1320 (1988). [47] State v. Boyd, 214 Conn. 132, 570 A.2d 1125, 1129 (1990). [48] Daniel v. Warden, 794 F.2d 880 (3rd Cir. 1986); but see State v. McCorkell, 63 Wash.App. 798, 800, 822 P.2d 795 (citing State v. Hardamon, 29 Wash.2d 182, 188, 186 P.2d 634 (1947) and State v. Escue, 6 Wash.App. 607, 607-09, 495 P.2d 351 (1972)), review denied, 119 Wash.2d 1004, 832 P.2d 487 (1992). [49] Block v. State, 286 Md. 266, 407 A.2d 320 (1979) (prosecutor's argument). For additional meanings of "jurisdiction," see BLACK'S LAW DICTIONARY 853-54 (6th ed.1990). [50] Boyd v. Meachum, 77 F.3d 60, 64 (2d Cir. 1996). [51] Boyd v. Meachum, 77 F.3d at 65 (citing Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.1991)). [52] 77 F.3d 60 (2d Cir. 1996). [53] 77 F.3d at 65. [54] 286 Md. 266, 407 A.2d 320 (1979). [55] 407 A.2d at 322. [56] 407 A.2d at 322 (quoting Grafton, 206 U.S. at 345, 27 S.Ct. at 751). [57] 407 A.2d at 322. [58] 407 A.2d at 324. [59] 1 Cal.4th 56, 2 Cal.Rptr.2d 389, 820 P.2d 613 (1991). Two earlier opinions in the same case can be found at People v. Superior Court (Marks), 268 Cal.Rptr. 283, 788 P.2d 1155 (1990) and People v. Superior Court (Marks), 264 Cal.Rptr. 910 (Cal.App.1989). [60] 2 Cal.Rptr.2d at 391, 820 P.2d at 615. [61] 2 Cal.Rptr.2d at 392, 820 P.2d at 616. [62] 2 Cal.Rptr.2d at 391, 820 P.2d at 615. [63] 2 Cal.Rptr.2d at 396, 820 P.2d at 620. [64] For a peculiar case in which a defendant was at risk of conviction but not punishment, see United States v. Sabella, 272 F.2d 206 (2d Cir. 1959). We have no occasion to consider that type of case here. [65] 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. [66] 163 U.S. at 668, 16 S.Ct. at 1194. [67] 163 U.S. at 668, 16 S.Ct. at 1194. [68] 163 U.S. at 668, 16 S.Ct. at 1194. [69] 163 U.S. at 670, 16 S.Ct. at 1195. [70] 163 U.S. at 668, 16 S.Ct. at 1194. [71] 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425. [72] 410 U.S. at 465, 93 S.Ct. at 1071. [73] 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). [74] 395 U.S. at 796-97, 89 S.Ct. at 2063-64. [75] 163 U.S. at 668, 16 S.Ct. at 1194. [76] 72 Wash.2d 461, 433 P.2d 884 (1967). [77] In Haye, according to assumptions made by the Washington Supreme Court, the district court convicted the defendant for a felony, even though it "lacked jurisdiction" to hear and determine felonies. Because the face of the judgment would have shown both the issuing court and the subject crime, the face of the judgment also would have shown the district court's lack of jurisdiction. Thus, it seems unlikely that prison or jail officials would have accepted the defendant for incarceration, even if the district court had purported to commit him. Possible variations on the same idea include Dunbar, 591 F.2d 1190, in which a trial court lacked power to hear and determine a case that was pending on appeal, and In re Shanea J., 150 Cal.App.3d 831, 198 Cal.Rptr. 228, in which a juvenile court lacked power to hear and determine a case brought against a person who had previously been remanded to adult court. [78] 110 Nev. 1239, 885 P.2d 1316 (1994). [79] In Parsons, the State filed a complaint in justice court in which it alleged that the defendant had committed felony driving under the influence of alcohol. The defendant asked to plead guilty to a misdemeanor. "The State objected, arguing that the justice court had no jurisdiction to accept a plea to a felony charge, and could only determine whether or not to bind Parsons over to [the trial court of general jurisdiction]." 885 P.2d at 1318. The justice court overruled the objection, accepted a plea to a misdemeanor, and imposed sentence. The State appealed, and the defendant argued that further proceedings would violate double jeopardy. The Nevada Supreme Court vacated the plea and allowed a new trial. Holding that "the justice court had no jurisdiction," it said that "[a]n acquittal or a conviction by a court having no jurisdiction is void; therefore it is not a bar to subsequent indictment and trial by a court which has jurisdiction over the offense." 885 P.2d at 1321. [80] A third possible factor, lack of territorial jurisdiction, was held to defeat jeopardy in Commonwealth v. Peters, 53 Mass. (1 Met.) 387 (1847), cited in Ball v. United States. Modernly, however, that factor may be better explained by stating that different sovereigns can prosecute for the same act without creating double jeopardy. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). Thus, when different sovereigns are involved, whether jeopardy attaches is immaterial. [81] 163 U.S. at 667-68, 16 S.Ct. at 1193-94. [82] 125 Wash.2d 782, 888 P.2d 1177 (1995). [83] 119 Wash.2d 623, 836 P.2d 212 (1992). [84] 118 Wash.2d 424, 439-41, 823 P.2d 1101 (1992). [85] 111 Wash.2d 591, 595-96, 763 P.2d 432 (1988). [86] In the first two cases, the charge was improper because it failed to state an essential element. In the third and fourth cases, the charge was improper because it was first advanced in the middle of trial. [87] Markle, 118 Wash.2d at 440, 823 P.2d 1101 (emphasis in original). [88] 102 Wash.2d 561, 567, 689 P.2d 32 (1984); see also Gudjonsson, 116 Wash.2d at 285, 803 P.2d 798. [89] 102 Wash.2d at 567, 689 P.2d 32. [90] Two cases cited by the State confuse attachment with termination in the same way. They are Parks v. State, 41 Md.App. 381, 397 A.2d 212 (1979), aff'd, 287 Md. 11, 410 A.2d 597 (1980), and Palm v. State, 656 S.W.2d 429 (Tex.Crim. App.1981). [91] 107 N.M. 186, 754 P.2d 857 (App.), cert. denied, 107 N.M. 132, 753 P.2d 1320 (1988). [92] 754 P.2d at 858. [93] 754 P.2d at 859. [94] 369 U.S. at 143, 82 S.Ct. at 672. [95] Fong Foo, 369 U.S. at 143, 82 S.Ct. at 672; see also DiFrancesco, 449 U.S. at 129, 101 S.Ct. at 433; Sanabria, 437 U.S. at 64, 98 S.Ct. at 2178. [96] State v. Warner, 125 Wash.2d 876, 882, 889 P.2d 479 (1995); State v. Dailey, 93 Wash.2d 454, 459, 610 P.2d 357 (1980); State v. Martinez, 78 Wash.App. 870, 875, 899 P.2d 1302 (1995), review denied, 128 Wash.2d 1017, 911 P.2d 1342 (1996).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310729/	915 P.2d 1166 (1996) 81 Wash.App. 664 Theresa R. CULP, a single woman, Appellant, v. ALLSTATE INSURANCE COMPANY, an Ohio Corporation, Respondent. No. 14593-0-III. Court of Appeals of Washington, Division 3, Panel Four. May 14, 1996. 1167 Thomas M. Roberts, Spokane, for appellant. Judith A. Corbin and Brad E. Smith, Huppin, Ewing, Anderson & Paul, Spokane, for respondent. THOMPSON, Judge. Theresa R. Culp appeals the superior court's summary judgment order, which held Allstate Insurance Company's policy on her parents' vehicle did not cover her injuries from an accidental shooting. We affirm. On September 25, 1990, Theresa R. Culp was a passenger in a Toyota pickup truck driven by Craig Jurs. Ms. Culp was sitting in the passenger seat; two friends, Charity Sperry and Kraig Brumbaugh, were seated on pillows in the bed of the truck. The four teenagers had just returned to Spokane from the Tri-Cities and were going to Mr. Jurs' parents' home on 18th Street. Ms. Sperry was seated in the left side of the pickup bed behind the driver; Mr. Brumbaugh was seated on the passenger side. As the pickup approached the Jurs residence, Mr. Brumbaugh picked up a pillow and threw it out of the truck. He did this to tease Mr. Jurs, because the pillow belonged to Mr. Jurs' mother. Mr. Jurs stopped the pickup in his parents' driveway and told Mr. Brumbaugh to get out of the truck and pick up the pillow. When the truck stopped, Ms. Culp got out and walked to the area of the right rear wheel and stood next to Mr. Brumbaugh. Mr. Brumbaugh continued to tease Mr. Jurs and refused to pick up the pillow. Mr. Jurs got out of the driver's side, arming himself with a shotgun that he regularly carried behind the driver's seat. He stepped to the passenger side, raised the gun to shoulder level and pointed it at Mr. Brumbaugh in a teasing manner, still demanding that he get out of the truck and pick up the pillow. Mr. Brumbaugh responded playfully and said something to the effect of "a gun, cool, huh." The gun then discharged. Mr. Brumbaugh was killed, and numerous shotgun pellets struck Ms. Culp's head, face, neck and shoulder.[1] According to Ms. Sperry, Mr. Jurs was holding the shotgun in a steady position, aimed at Mr. Brumbaugh, when it discharged. There was no reason to believe the gun discharged while being unloaded from the pickup, or that it discharged due to coming in contact with the pickup. Ms. Culp made a claim for underinsured motorist (UIM) benefits under her parents' policy with Allstate, pursuant to the following coverage provision: We will pay damages for bodily injury or property damage which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. Injury must be caused by accident and arise out of the ownership, maintenance 1168 or use of an underinsured motor vehicle. Allstate denied coverage. Ms. Culp filed this action for payment of insurance benefits. The superior court granted Allstate's motion for summary judgment, and Ms. Culp appeals. On review of a summary judgment order, this court engages in the same inquiry as the trial court. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wash.2d 439, 451, 842 P.2d 956 (1993). Summary judgment is proper only when the pleadings, affidavits, depositions, and admissions on file, viewed in a light most favorable to the nonmoving party, demonstrate no issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). We must resolve all reasonable inferences from the evidence against the moving party; summary judgment will be granted if reasonable people could reach only one conclusion. Detweiler v. J.C. Penney Casualty Ins. Co., 110 Wash.2d 99, 108, 751 P.2d 282 (1988). Interpretation of insurance contracts is a question of law, which the court reviews de novo. Public Util. Dist. No. 1 v. International Ins. Co., 124 Wash.2d 789, 797, 881 P.2d 1020 (1994); Mutual of Enumclaw Ins. Co. v. Jerome, 122 Wash.2d 157, 160, 856 P.2d 1095 (1993). Insurance policies are "given a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance." Sears v. Grange Ins. Ass'n, 111 Wash.2d 636, 638, 762 P.2d 1141 (1988). Ambiguities are resolved in favor of the insured. Jerome, 122 Wash.2d at 161, 856 P.2d 1095. The sole issue in this appeal is whether Allstate is required under its policy to provide UIM coverage for Ms. Culp's injuries. Allstate concedes Ms. Culp is an "insured person" as defined in its policy. The question, then, is whether Ms. Culp's injury "ar[o]se out of the ownership, maintenance or use of an underinsured motor vehicle," as required by Allstate's policy. Washington courts have not found the phrase "arising out of" to be ambiguous: In Washington, an accident "arises out of" the use of a vehicle if "the vehicle itself or permanent attachments to the vehicle causally contributed in some way to produce the injury." Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 26, 593 P.2d 156 (1979). See McDonald Indus., Inc. v. Rollins Leasing Corp., 95 Wash.2d 909, 631 P.2d 947 (1981). See also Fiscus Motor Freight, Inc. v. Universal Sec. Ins. Co., 53 Wash.App. 777, 770 P.2d 679, review denied, 113 Wash.2d 1003, 777 P.2d 1052 (1989). See generally 7 Am.Jur.2d Automobile Insurance § 194, at 703 (1980 & Supp.1993). Jerome, 122 Wash.2d at 162, 856 P.2d 1095. It is not necessary that the use be the proximate cause of the accident, Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 26, 593 P.2d 156 (1979), but the fact that the vehicle is the "mere situs" of the accident is not enough to establish the required causal connection, Jerome, 122 Wash.2d at 163, 856 P.2d 1095.[2] Several Washington cases have addressed the phrase "arising out of" in the context of firearms accidents. In State Farm Mut. Auto. Ins. Co. v. Centennial Ins. Co., 14 Wash.App. 541, 543 P.2d 645 (1975), review denied, 87 Wash.2d 1003 (1976), a gun accidentally discharged as a passenger was attempting to unload it. The Supreme Court later characterized the denial of coverage in Centennial: There is nothing to show that the movement of the vehicle had any causal connection with the gun's discharge; that the gun touched any part of the vehicle; or that *1169 any factor contributed to the discharge other than the passenger's abortive attempt to empty the weapon. Transamerica, 92 Wash.2d at 26-27, 593 P.2d 156. In Transamerica, by contrast, the trigger of a loaded rifle brushed against the gun rack of the vehicle, discharging the weapon and injuring the driver. The court held the accident arose out of the vehicle's use. Transamerica, 92 Wash.2d at 27-28, 593 P.2d 156. In Detweiler, 110 Wash.2d 99, 751 P.2d 282, the claimant fired a pistol at the vehicle; the bullets fragmented when they struck the vehicle, and struck the claimant. The court held the accident arose out of the vehicle's use, because the vehicle "causally contributed to the claimant's injuries when the bullets struck the pickup, ... then fragmented and injured him." Detweiler, 110 Wash.2d at 109, 751 P.2d 282. Ms. Culp argues first that she, Mr. Jurs, and Mr. Brumbaugh were using the vehicle at the time of the accident. She urges the court to apply the so-called Rau factors, adopted in Rau v. Liberty Mut. Ins. Co., 21 Wash.App. 326, 334, 585 P.2d 157 (1978) and applied in Roller v. Stonewall Ins. Co., 115 Wash.2d 679, 687, 801 P.2d 207 (1990). See Cherry v. Truck Ins. Exch, 77 Wash.App. 557, 892 P.2d 768, review denied, 127 Wash.2d 1012, 902 P.2d 164 (1995). However, the question whether a person is "using" a vehicle is different from the question whether the accident "arose out of" the use. See Heringlake v. State Farm Fire & Casualty Co., 74 Wash.App. 179, 189, 872 P.2d 539, review denied, 125 Wash.2d 1003, 886 P.2d 1134, 1135 (1994). Regardless of whose "use" is involved, there must be a causal connection between the use and the injury. This case is closely analogous to Centennial, and is distinguishable from Transamerica and Detweiler. Unlike the accident in Transamerica, there is no evidence the discharge of Mr. Jurs' shotgun was due to contact with any portion of the vehicle or was causally connected to the use of the vehicle. Unlike the injury in Detweiler, none of the pellets ricocheted off the vehicle. There is no evidence either Mr. Brumbaugh's presence in the bed of the pickup or Ms. Culp's proximity to the vehicle causally contributed in any way to Mr. Jurs' discharge of the shotgun. Under the circumstances, as in Centennial, the vehicle was the mere situs of the accident. Ms. Culp relies heavily on Fiscus Motor Freight, Inc. v. Universal Sec. Ins. Co., 53 Wash.App. 777, 770 P.2d 679, review denied, 113 Wash.2d 1003, 777 P.2d 1052 (1989). In that case, the policy covered occurrences "arising out of the ownership, maintenance or use, including loading and unloading." The accident was covered because it occurred during the normal process of unloading a fertilizer truck. The unloading was a cause of the accident and contributed to produce the injury. Thus, the vehicle was not merely the situs of the injury. Id. at 783-84, 770 P.2d 679. Fiscus does not apply here, because Allstate's policy language did not include the phrase "loading and unloading." Moreover, there is no evidence loading or unloading of the vehicle in any way caused the accident. Finally, Ms. Culp argues her injuries arose out of Mr. Jurs' ownership of the vehicle. She reasons Mr. Jurs was asserting his ownership of the truck by demanding that Mr. Brumbaugh get out and pick up the pillow. Even if this manner of "asserting ownership" were within the policy language, there is no factual support in the record for Ms. Culp's argument. The record indicates Mr. Jurs was not asserting his ownership in the pickup, but rather was demanding that Mr. Brumbaugh pick up a pillow. Under these facts, Ms. Culp's injuries did not arise out of Mr. Jurs' ownership of the vehicle, which was the mere situs of the accident. The superior court correctly dismissed Ms. Culp's claim. The order of dismissal is affirmed. SWEENEY, C.J., and SCHULTHEIS, J., concur. NOTES [1] Mr. Brumbaugh's death was deemed accidental and no charges were filed. [2] A Division Two panel of this court recently stated the test differently. Beckman v. Connolly, 79 Wash.App. 265, 273, 898 P.2d 357 (1995) ("[T]he claimed injury must have originated from, had its origin in, grown out of, or flowed from, the use of the vehicle."). The Beckman court curiously distinguished Jerome on the basis that Jerome was "construing somewhat different policy language." Beckman, 79 Wash.App. at 273, 898 P.2d 357. In Jerome, the policy used the phrase "resulting from," but the court treated that phrase as equivalent to the phrase "arising out of." Jerome clearly interpreted the phrase "arising out of," and we treat its holding as binding in this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259948/	167 Cal.App.4th 1215 (2008) DOUG WILLIAMS, Plaintiff and Appellant, v. LARRY RUSS et al., Defendants and Respondents. No. B194598. Court of Appeals of California, Second District, Division Eight. October 27, 2008. 1217 Law Offices of Martin Stanley, Martin Stanley; Esner, Chang & Ellis and Stuart B. Esner for Plaintiff and Appellant. Morris Polich & Purdy and Charles E. Slyngstad for Defendants and Respondents. 1218 OPINION RUBIN, J. Plaintiff Doug Williams appeals from the judgment entered after his legal malpractice complaint against Larry Russ and Russ's law firm was dismissed as a discovery sanction because Williams allowed the destruction of most of his client files after obtaining them from Russ. We affirm. FACTS AND PROCEDURAL HISTORY Doug Williams was the administrator and trustee of an employee benefits and retirement plan known as EPA. Williams and EPA initiated what evolved into a series of lawsuits and cross-complaints in federal court (the EPA actions) that were eventually settled but which led to Williams's removal as the head of EPA in 1997. In 1998, Williams sued his former lawyer, Bruce Ashton, for legal malpractice, contending that Ashton's poor advice led to his removal as EPA's trustee. Ashton was later granted summary judgment because the statute of limitations had run on Williams's causes of action. In May 2000, Williams sued Larry Russ and the law firm of Russ, August & Kabat for legal malpractice based solely on their representation of Williams in connection with the EPA and Ashton malpractice actions.[1] In February 2001, Williams demanded that Russ turn over the entire Williams client file. That demand was not made through any formal discovery process, however. Instead, the documents were requested pursuant to the state bar rule requiring lawyers to turn over client files upon demand. (Rules Prof. Conduct, rule 3-700(D).) In March 2001, Russ turned over to Williams's lawyer 36 file boxes that Russ said contained the entire file from his representation of Williams. Before doing so, Russ's lawyer, Charles E. Slyngstad, copied any correspondence between Russ and Williams, but did not copy any other portions of the file. Williams put the 36 file boxes in a storage space he rented for just that purpose. Williams's lawyer, Martin Stanley, reviewed the contents of the file and copied about 11 boxes worth that he deemed relevant to the action. In April 2001, he wrote Slyngstad and reported that based on his review, he would amend the complaint to include a breach of fiduciary duty claim because Russ had allegedly concealed from Williams that the EPA settlement included a release of Russ from malpractice liability as to Williams. In June 2001, Williams filed a first amended complaint that added such a cause of action. 1219 Between March and December 2001, Williams fell behind on his rental payments to the storage facility where he kept his client file. The facility's operators repeatedly notified Williams that his default could lead to the sale of the items he was storing. Williams made partial payments and promised to bring his account current, but never did so. On December 21, 2001, the boxes containing his client file were destroyed when no one made a bid to purchase them. Williams did not tell Russ the files had been destroyed. In April 2002, Russ was granted summary judgment. We reversed that judgment in April 2004, and remanded the case to the trial court because triable issues of fact existed concerning whether Russ caused Williams's removal as EPA trustee and whether Williams suffered emotional distress damages from Russ's alleged breach of fiduciary duty. (Williams v. Russ (Apr. 21, 2004, B160819) [nonpub. opn.].) In October 2004, Williams filed a second amended complaint that expanded the malpractice cause of action to include faulty transactional advice in connection with the operation of EPA, including various "fiduciary matters," compliance with federal laws governing retirement plans, "insurance issues," and "transactional and litigation matters." The breach of fiduciary duty claim was also expanded to include an allegation that Russ, in conflict with Williams's best interests, had also signed an agreement tolling the limitations period for potential malpractice claims against him. In December 2004, Russ made a discovery request that included the 36 boxes of documents he turned over to Williams in March 2001. Williams objected that he had no obligation to produce the documents because they had once been in Russ's possession. On January 19, 2005, Stanley told Slyngstad that except for the 11 boxes of documents he had copied, the client file had been destroyed. Russ moved to dismiss the action as a discovery sanction for Williams's conduct in allowing a large portion of the client file to be destroyed, thereby precluding Russ from reconstructing the file and obtaining documents relevant to his defense. The motion was supported by a declaration from Russ that his entire client file, which included correspondence, notes, research, pleadings, and other materials, had been turned over to Williams in March 2001. Slyngstad submitted a declaration stating that the 36 boxes turned over to Williams at his rented storage facility constituted Russ's entire client file. Before delivering the documents, Slyngstad said he reviewed them and saw that they contained all of Russ's correspondence, notes, pleadings, and other 1220 materials relating to Russ's representation of Williams from the early 1990's until Russ's representation ended. According to Slyngstad, he copied only the correspondence that had been sent to or received by Russ and assumed Williams would preserve the boxes as evidence. Slyngstad's declaration pointed out that the first and second amended complaints were filed after the client files were produced, with the second amended complaint coming after they were destroyed. Documents relevant to the new allegations and claims of those two amended pleadings had been in the client files when they were turned over to Williams, Slyngstad said. According to him, these included: documents relating to EPA's receipt of certain controversial insurance commissions, along with the legal advice Williams and EPA received on those commissions from lawyers who preceded Russ; documents relating to formal and informal complaints by employers and individual participants in EPA's retirement plans; all the communications with the special master in the EPA actions; documents relating to those actions; documents that were covered by the attorney-client privilege or that constituted attorney work product; and documents relating to the disputed tolling agreement alleged in the second amended complaint. If the original stipulation of settlement that Williams complained of had ever existed, Slyngstad said it too would have been in one of the 36 boxes. According to Slyngstad, it was no longer possible to determine what was kept or what had been destroyed. Finally, Slyngstad's declaration recounted Williams's evasive responses to various discovery requests that either directly or by necessary implication covered all or part of the contents of the client file, culminating in Stanley's reluctant admission in January 2005 that the file had been destroyed, except for the portion that Stanley retained. The motion also included the deposition testimony of the managers of the storage facility where Williams kept the documents, along with records from that facility documenting Williams's history of late and partial payments and the numerous written and telephonic notices that warned him the contents of his storage facility would be sold if he did not pay his past due rent. In opposition to the motion, Williams submitted a declaration stating that he missed a few rental payments to the storage facility because he was in financial trouble and because he was recovering from back surgery in the months before the files were destroyed. According to Williams, a tall, thin paralegal working for Russ told him that Russ had copied the file and he 1221 therefore believed Russ had a copy of the entire file. No one at the storage facility told him the documents might be destroyed. Had he known, he would have immediately paid his past due bill. He also declared that he had previously seen his entire file at Russ's office and that the 36 boxes Russ delivered to him did not appear the same as what he had seen before. Williams's lawyer, Stanley, declared that the person who replaced Williams as EPA administrator secured 51 boxes of EPA plan files from Russ, as per court orders in the EPA actions. Stanley said that the 36 boxes Russ delivered to Williams were mostly pleadings and that he pulled out any documents relevant to this action. Based on this, Williams argued that he had at most been negligent in letting the files be destroyed and that Russ was equally at fault for not having copied the files. He also argued that Russ bore the burden of showing prejudice from the lost files, that comparable evidence could be found elsewhere, and that, at most, lesser sanctions than dismissal were warranted, particularly jury instructions that an adverse inference to Williams could be drawn from the loss of the files.[2] In his reply, Russ had a declaration from Slyngstad stating that the documents turned over to the new EPA administrator were mostly EPA's operational business documents. Because the trial court could not determine what files had been destroyed or their effect on the first and second amended complaints, and because the issues were complex and time consuming, the court appointed a retired judge as discovery referee to resolve those issues. The referee found that Williams had been negligent in allowing the files to be lost and recommended that the jury be instructed that it could, if it wished, draw an inference adverse to Williams about the contents of the missing files. Russ objected to the referee's report on three grounds: (1) the jury instruction permitting an adverse inference was an insufficient remedy and the referee's recommendation was based on insufficient evidence because he did not review the remaining portions of the file retained by Williams; (2) the referee's finding that Russ was provided other documentary evidence before the files were destroyed was not supported by the evidence; and (3) the finding of negligent spoliation by Williams was wrong because the evidence showed it was intentional. After permitting supplemental briefing by the parties, followed by lengthy oral argument, the trial court sustained all of Russ's objections to the referee's findings and recommendations. The court did not blame the referee, 1222 whom it held in "high esteem," but believed the trial court's underlying reference order had not been sufficiently specific. Because the trial court was far more familiar with the case, including its review of "voluminous documents," the trial court found that it was more knowledgeable than the referee and was therefore in a better position to resolve the issue. In a detailed minute order, the court made several findings that led it to conclude that a terminating sanction was proper: (1) Williams was knowledgeable about litigation, particularly about the facts of this case, was very involved in and integral to this litigation, and had inventoried the contents of his client file more than once; (2) he demanded the file under the Rules of Professional Conduct and was on notice that nonpayment of his storage rental fee would result in destruction of the file; and (3) after filing this action and demanding the file, he caused it to be destroyed by allowing the destruction to happen, then concealed the fact for two years. Based on that, the court found that the destruction of the files was intentional and inferred that this was done to destroy evidence potentially favorable to Russ. The court found this spoliation was highly prejudicial to Russ's defense of the case. "It is stunning to this Court that [Williams] would file a malpractice case, use the professional rules and demand his entire client file and then have it destroyed. It is not enough that [Williams's] counsel took what he thought was important and that [Russ] copied some of the client file. The client file is a collection of documents. Destruction of part of it destroys the integrity of the entire file. How do we know what was destroyed? How do you prove a negative? Could there be a note or something written on something in the file that would be exculpatory? We will never know its true value due to the conduct of [Williams]." Although aware that sanctions should ordinarily be progressive and that lesser sanctions should be considered before dismissal, the court found dismissal was warranted. This was based on the findings made above, and findings that Williams had a duty to maintain the client file and had the burden of proving no prejudice occurred, and that intentional spoliation raised an inference of extreme prejudice. Based on the unique facts of this case, and after weighing Williams's culpability against the harm to Russ, the court concluded dismissal was the appropriate sanction because lesser sanctions would not cure the harm done. The court then ordered the case dismissed. On appeal, Williams contends the court erred because: (1) he was merely negligent, he believed Russ had copied the files, Russ copied more than just the correspondence, and there was no evidence that significant portions of the file could not be retrieved from Russ's computer files or other sources; and (2) the court erred by placing the burden to disprove prejudice on Williams. 1223 DISCUSSION 1. Dismissal of the Action Was Not An Abuse of Discretion (1) Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907 [48 Cal.Rptr.2d 607], overruled on other grounds in Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 18, fn. 4 [74 Cal.Rptr.2d 248, 954 P.2d 511] (Cedars-Sinai).) Such conduct is condemned because it "can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both." (Cedars-Sinai, supra, at p. 8.) While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subds. (a)-(d); Cedars-Sinai, at p. 12.) A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497 [89 Cal.Rptr.2d 353].) (2) Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party's misconduct. (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210-212 [31 Cal.Rptr.2d 292].) Williams contends the trial court's ruling violated these principles. This contention rests on a four-part evidentiary challenge to the court's finding that he intentionally destroyed the file. According to Williams, the evidence shows he was merely negligent because: (1) he had been told Russ had copied the entire file; (2) Russ copied more of the file than he claimed; (3) significant portions of the file could be found elsewhere; and (4) he did no more than make late payments to the storage facility. As a result, Williams contends lesser sanctions were warranted, such as instructing the jury it could draw an adverse inference from the loss of the file. (See Cedars-Sinai, supra, 18 Cal.4th at pp. 11-12.) 1224 In support of his appellate contentions, Williams relies on the facts most favorable to him and the referee's finding that he acted negligently, not intentionally. This is contrary to the applicable standard of review, however. We review the trial court's order under the abuse of discretion standard and resolve all evidentiary conflicts most favorably to the trial court's ruling. We will reverse only if the trial court's order was arbitrary, capricious, or whimsical. It is appellant's burden to affirmatively demonstrate error and where the evidence is in conflict, we will affirm the trial court's findings. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401 [55 Cal.Rptr.3d 751].) We presume the trial court's order was correct and indulge all presumptions and intendments in its favor on matters as to which it is silent. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217 [45 Cal.Rptr.3d 265].) When the conflicting evidence is viewed through this standard, it is more than sufficient to affirm the trial court's findings. Within weeks of obtaining the file from Russ, Williams's lawyer warned Slyngstad that he found evidence in the file to support new claims and soon after amended the complaint accordingly. During the next few months, Williams fell into a pattern of either late or partial payments on the rental space where he chose to store the file. Despite numerous and repeated warnings from the storage facility that the contents of his storage space would be sold, Williams did nothing to prevent their sale and concomitant destruction. We agree with the trial court that this is tantamount to intentionally destroying those files.[3] Then, instead of promptly informing Russ, Williams kept it secret and the truth was not revealed for more than three years until Russ demanded production of the entire file during discovery. This at least raises an inference that, after cherry-picking favorable new information from the file, Williams chose to stand by and allow the rest of the files to be destroyed. We also agree with the trial court that at least one reason for having done so would be to prevent Russ from obtaining other documents from the file that were unfavorable to Williams. Williams contends he was bedridden from back surgery during that time and was also in financial trouble. Not only was the trial court free to disregard that assertion, it was not supported by the evidence. Although Williams supplied medical records showing he had been diagnosed with degenerative disc disease, there were no records to show that surgery was performed. He also produced no evidence to support his claimed financial difficulties. 1225 The evidence is similarly in conflict in regard to Williams's other contentions. Although Williams claimed that a tall, thin paralegal working for Slyngstad told him the entire filed had been copied, Slyngstad denied that any such person worked for him and denied ever telling Williams or Stanley that the entire filed had been copied. Likewise, Slyngstad said in his declaration that he had copied only the correspondence in the file, creating yet another evidentiary conflict. Finally, Williams's assertion that some of the missing documents could be found elsewhere is faulty for two reasons: First, it is based on the existence of documents in the possession of EPA's subsequent administrator that Slyngstad says were not part of Russ's client file and were instead nothing more than the ordinary business records of EPA; and second, it has nothing to do with whether Williams acted intentionally. Accordingly, we reject Williams's contention and affirm the trial court's finding that he acted intentionally. 2. The Trial Court Properly Shifted the Burden of Proof (3) Except as otherwise required by law, a party has the burden of proof as to the existence or nonexistence of each fact that is essential to his claim for relief. (Evid. Code, § 500.) Williams contends the trial court erred by placing the burden of proof on him to show that Russ was not prejudiced by the loss of the documents.[4] To support this contention, Williams cites two decisions that did not concern Code of Civil Procedure discovery sanctions or the spoliation of evidence: Mir v. Charter Suburban Hospital (1994) 27 Cal.App.4th 1471 [33 Cal.Rptr.2d 243] (reversing order awarding attorney fees as sanctions to physician who successfully overturned hospital's disciplinary action against him, noting solely as an aside that upon remand the physician bore the burden of proving the disciplinary action was without merit under the applicable statutory fee provision); and Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915 [14 Cal.Rptr.3d 741] (prevailing defendant in Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) action has burden to prove plaintiff acted in bad faith in order to recover statutory attorney fees). In his reply brief, Williams cites Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669-670 [157 Cal.Rptr. 212], which held that dismissal of a plaintiff's action based on his failure to answer interrogatories was improper without a showing of resulting prejudice. As with the other two decisions cited by Williams, however, Morgan did not concern spoliation of evidence. 1226 As Russ points out, however, under Evidence Code section 500 (section 500) the burden of proof may sometimes be shifted to a defendant or other responding party. Such a shift "rests on a policy judgment that there is a substantial probability the defendant has engaged in wrongdoing and the defendant's wrongdoing makes it practically impossible for the plaintiff to prove the wrongdoing." (National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1346 [133 Cal.Rptr.2d 207].) This reasoning was applied in Galanek v. Wismar (1999) 68 Cal.App.4th 1417 [81 Cal.Rptr.2d 236] (Galanek), where a legal malpractice plaintiff was nonsuited because the trial court found she could not meet her burden of proving that the defendant's failure to preserve her car as evidence in the underlying products liability action against the car's manufacturer led to the entry of summary judgment for the car maker. The appellate court reversed, holding that the defendant lawyer's spoliation of the critical piece of evidence made it impossible for the plaintiff to prove she would have prevailed on the causation issue in the underlying case. Because the lawyer's negligent failure to preserve the car made it impossible for the plaintiff to prove causation, "as a matter of public policy it [is] more appropriate to hold [the lawyer] liable than to deny [the plaintiff] recovery, unless [the lawyer] can prove his negligence did not damage [the plaintiff]. [Citation.]" (Id. at p. 1426.) We agree with Williams that Galanek is not directly applicable because it concerned the burden of proof at trial, and not the allocation of the burden of proving prejudice for purposes of discovery sanctions. However, its analysis of section 500's applicability to the spoliation of evidence issue does point the way to a similar result in this case. As noted above, Williams relies in part on the nonanalagous decision in Mir v. Charter Suburban Hospital, supra, 27 Cal.App.4th 1471, for the proposition that the moving party generally bears the burden of proof. And, as noted by us, that citation by the Mir court was merely an observational aside for the guidance of the trial court upon remand. The lone authority cited by the Mir court for this proposition was Corns v. Miller (1986) 181 Cal.App.3d 195, 200-201 [226 Cal.Rptr. 247] (Corns), which was a civil discovery sanctions case. The Corns court held that shifting the burden of proof was proper under section 500 where the issue was whether a party's lawyer advised his client to refuse to answer interrogatories. The Corns court reasoned that burden shifting was warranted because the facts at issuewhat advice the lawyer gavewere peculiarly within the responding party's knowledge. (Corns, at p. 201.) Therefore, under Corns, it may be proper to apply section 500 and shift the burden of proof in discovery sanctions motions. Under that section, burden shifting is proper when one's party wrongdoing makes it practically impossible for the plaintiff to prove its case. (National Council Against Health 1227 Fraud, Inc. v. King Bio Pharmaceuticals, Inc., supra, 107 Cal.App.4th at p. 1346; Galanek, supra, 68 Cal.App.4th at p. 1426.) (4) The burden does not shift automatically. Instead, by analogy to decisions concerning the burden of proof at trial, we hold that a party moving for discovery sanctions based on the spoliation of evidence must make an initial, prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense. (See National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., supra, 107 Cal.App.4th at pp. 1346-1347, and cases cited therein.) We conclude that Russ met this initial burden. (5) As discussed above, there was ample evidence to support a finding that Williams intentionally destroyed the file. Slyngstad's declarations that he copied only the correspondence and that the file included materials such as notes, research, and other work product arising from Russ's representation of Williams, especially in regard to new claims made after the file was turned over to Williams, is sufficient to establish a prima facie showing of prejudice from the loss of the file. The burden was therefore properly shifted to Williams. Although Williams claims there was no showing of prejudice sufficient to warrant a terminating sanction, this contention is merely a rehash of his earlier evidentiary contentions. As with those, the evidence is in conflict, requiring us to accept as true the statements by Russ and Slyngstad that the file contained his notes, pleadings, research, and other materials, and that Slyngstad copied only the correspondence. Because Williams bore the burden of disproving prejudice, he was required to show that any other documents from the file that he claimed existed would in fact have allowed Russ to adequately reconstruct the client file. He did not.[5] As the Cedars-Sinai court noted, "[w]ithout knowing the content and weight of the spoliated evidence, it would be impossible for the jury to meaningfully assess what role the missing evidence would have played in the determination of the underlying action. The jury could only speculate...." (Cedars-Sinai, supra, 18 Cal.4th at p. 14.) That is precisely what happened here when Williams permitted the destruction of his client file. That Russ at one time had that file and passed on the chance to copy its entire contents in no way mitigates Williams's intentional wrongdoing and the prejudice it caused. On this record, we hold that the trial court did not abuse its discretion when it imposed a terminating sanction for that misconduct. 1228 DISPOSITION For the reasons set forth above, the judgment dismissing Williams's complaint is affirmed. Respondents shall recover their appellate costs. Cooper, P. J., and Bigelow, J., concurred. NOTES [1] Except as otherwise noted, when we refer to Russ, we include the law firm, which is now known as Russ, August, Kabat & Kent. [2] We have omitted from our description of Williams's opposition arguments or issues not raised on appeal. [3] Williams also contended that the storage facility never told him the documents might be destroyed, just that they might be sold. That is a distinction without a difference. [4] Although the parties refer to this as the burden of proving prejudice, it is more accurately defined as the burden of proving that a requested discovery sanction is appropriate and proportionate under the standards we discussed above. For ease of reference, however, we will use the parties' nomenclature and refer to this as the burden of showing prejudice. [5] In fact, the record does not show that Williams ever supplied the trial court with, or has ever described the contents of the 11 file boxes he did copy. Without those documents as a starting point, it seems impossible to determine whether those documents might have been sufficient for Russ to mount an adequate defense.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/896419/	600 N.W.2d 861 (1999) 1999 ND 198 NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Petitioner and Appellee, v. CENTRAL PERSONNEL DIVISION, Office of Management and Budget, Office of Administrative Hearings, Respondents and Anthony J. Schumacher, Respondent and Appellant. No. 990085. Supreme Court of North Dakota. October 20, 1999. 863 Steven L. Latham, Wheeler Wolf, Bismarck, ND, for respondent and appellant. Tag C. Anderson, Assistant Attorney General, Bismarck, ND, for petitioner and appellee. KAPSNER, Justice. [¶ 1] Anthony J. Schumacher appealed from a district court judgment which reversed an Administrative Law Judge's order requiring reinstatement of Schumacher's employment with the Department of Transportation. Because the Administrative Law Judge had no authority to order reinstatement, we affirm the district court's judgment. I. [¶ 2] Anthony Schumacher was employed by the Department of Transportation ("DOT") as an equipment operator and supervisor in Edgeley, North Dakota. On December 6, 1995, Schumacher sold some DOT scrap metal and received a check from the recycling center for $57.55 payable to him. The next day, he deposited those proceeds in his personal bank account. [¶ 3] Early in 1998, the DOT learned of allegations of misuse and misappropriation of property at the Edgeley site. The DOT requested the Bureau of Criminal Investigation investigate the allegations. On February 17, 1998, Schumacher told an investigator for the Bureau of Criminal Investigation he had deposited the scrap metal proceeds in his personal account, intending to purchase tools and equipment for the DOT. Schumacher further asserted he had bought a jack for the DOT. Investigators later discovered Schumacher had purchased the jack on February 17, 1998. The Bureau of Criminal Investigation gave its report to the LaMoure County State's Attorney; the State's Attorney determined there was insufficient evidence to charge Schumacher with a crime. [¶ 4] On April 7, 1998, the DOT sent a pre-termination letter to Schumacher. In the letter, the DOT alleged the following: Schumacher had sold DOT scrap metal and placed the proceeds in his personal account; Schumacher told an investigator for the Bureau of Criminal Investigation he had not commingled the proceeds with his personal funds and had used the proceeds, as he initially intended, to purchase a jack for the DOT; Schumacher had commingled the proceeds with his personal funds and had purchased a jack for the DOT on the same day he had talked with the investigator from the Bureau of Criminal Investigation. The DOT stated the record indicated Schumacher committed a theft of department property and thus cause existed to terminate his employment. The DOT indicated Schumacher had an opportunity to respond to the allegations before a final decision was made to terminate his employment. Schumacher was given until April 13 to submit any written statements or other documentation which would explain or disprove the allegations. The letter notified Schumacher he could review his personnel file and provided a copy of the DOT's grievance and complaint policy and a guide for administrative appeals to the Central Personnel Division. [¶ 5] Three days later, Schumacher responded by letter. He asserted he had deposited the proceeds in a separate account for the purpose of buying tools for the DOT. He also asserted he never intended to keep the proceeds for himself and he was willing to pay back the scrap metal proceeds plus interest. In addition, Schumacher alleged the scrap metal incident was not the only reason for his termination. He asserted he was "being railroaded" by two DOT employees because one of the two employees wanted Schumacher's supervisory position. Finally, Schumacher emphasized the conclusion of the LaMoure County State's Attorney regarding 864 the insufficiency of evidence for prosecution. [¶ 6] On April 15, the DOT terminated Schumacher's employment. In the termination letter, the DOT noted it had reviewed Schumacher's letter, the evidence, and Schumacher's personnel file. The DOT explained there was no reason to change its proposed termination based on Schumacher's theft of department property. The letter explained Schumacher had a right to an internal DOT grievance procedure and a right to appeal his termination to the Central Personnel Division and instructed Schumacher on the way to start the appeal process. [¶ 7] Schumacher waived the internal grievance procedure and appealed to the Central Personnel Division, and on July 8, 1998, a hearing was held before an Administrative Law Judge (ALJ). The ALJ found Schumacher's explanation that the proceeds were intended to buy tools for the DOT was "disingenuous" and his act "amount[ed] to theft." However, the ALJ emphasized it was "a one-time theft of a small amount of money" and Schumacher's performance otherwise had been exemplary for fifteen years. The ALJ accordingly concluded there was no cause for Schumacher's termination and progressive discipline must be used. The ALJ ordered Schumacher's reinstatement. [¶ 8] The DOT appealed the ALJ's decision, and the district court reversed. Reasoning the theft of over fifty dollars in government property by an employee is a serious offense which is detrimental to the discipline and efficiency of the DOT, the district court found the ALJ's decision was not in accordance with the law and the ALJ's findings of fact did not support the ALJ's conclusions of law. Schumacher appealed. II. [¶ 9] This appeal is governed by N.D.C.C. § 54-44.3-12.2 (1995). Under N.D.C.C. § 54-44.3-12.2 (1995), a nonprobationary employee in the classified service[1] may appeal to the Central Personnel Division from certain decisions of an employer, including an employer's decision to dismiss the employee. The Central Personnel Division must certify an employee's appeal and request that the Director of the Office of Administrative Hearings designate an administrative hearing officer to "conduct the hearing and related proceedings, including receiving evidence and preparing findings of fact, conclusions of law, and issuing a final decision."[2] The decision of the designated hearing officer is a final decision. See Blanchard v. North Dakota Workers Compensation Bureau, 1997 ND 118, ¶¶ 14, 16, 565 N.W.2d 485 (N.D.1997) (reasoning an ALJ was authorized to issue a final decision because the statutory scheme "manifests a legislative intent that an ALJ's decision is a final order" and noting in a hearing under N.D.C.C. § 54-44.3-12.2 the hearing officer issues a final decision). Section 54-44.3-12.2, N.D.C.C. (1995), indicates 865 N.D.C.C. ch. 28-32 governs the appeal to the district court. Under N.D.C.C. § 28-32-21, an employee may appeal from the district court decision to this Court. III. [¶ 10] In Jacobs v. North Dakota State Personnel Bd., 551 N.W.2d 779, 781 (N.D.1996), we interpreted the proper standard of review prescribed by N.D.C.C. ch. 28-32 for employment cases brought under N.D.C.C. § 54-44.3-12.2.[3] Accordingly, our review is limited to whether the findings of the designated administrative hearing officer are supported by a preponderance of the evidence, the officer's conclusions of law are supported by the findings of fact, and the decision is in accordance with the law. Id. In reviewing the decision, we do not make independent findings or substitute our judgment for that of the hearing officer; instead, we determine whether a reasoning mind could have reasonably determined the factual conclusions were supported by the weight of the evidence. Id. IV. [¶ 11] The arguments raised by the parties in this case create two issues appropriate for review. The first is whether the preponderance of the evidence supports the ALJ's finding Schumacher committed a theft. If that finding is supported by the preponderance of the evidence, the second issue is whether that finding supports the conclusion Schumacher should not have been dismissed. A. [¶ 12] Schumacher suggests the preponderance of the evidence does not support the finding he committed a theft which would allow the DOT to terminate his employment without engaging in progressive discipline. Because the ALJ ruled in his favor, Schumacher does not expressly argue the evidence does not support the ALJ's finding he committed a theft. However, Schumacher asserts the ALJ did not find he "committed a criminal act of theft and indeed, if such finding of fact had been made it would have been clearly erroneous based upon the conclusion of the States Attorneys Office that there is insufficient evidence to justify a criminal charge." Schumacher's argument misstates the required finding. [¶ 13] Chapter 4-07-19 of the North Dakota Administrative Code governs disciplinary actions for state employees in classified positions. A regular employee may be disciplined only for cause. N.D. Admin. Code § 4-07-19-03. Schumacher was a regular employee under this chapter. "Cause" is "conduct related to a regular employee's job duties, job performance, or working relationships that is detrimental to the discipline and efficiency of the service in which the employee is or was engaged." N.D. Admin. Code § 4-07-19-02(1).[4] 866 [¶ 14] In addition, chapter 4-07-19 requires the use of progressive discipline for regular employees in most instances. "`Progressive discipline' means the disciplinary actions imposed to correct a regular employee's behavior, beginning with a less severe appropriate action and progressing to a more severe appropriate action, for repeated instances of poor job performance or for repeated violations of the same or similar rules or standards." N.D. Admin. Code § 4-07-19-02(4). However, progressive discipline is not required in all cases. Section 4-07-19-04, N.D. Admin. Code, provides as follows: Progressive discipline must be used to correct a regular employee's job performance problems or for a violation of rules or standards, except when an infraction or a violation of a serious nature is committed including insubordination, theft, falsification of pay records, assaulting a supervisor or coworker, patient or client, and for which the imposition of less severe disciplinary action would be inappropriate. [¶ 15] Here, the ALJ properly found Schumacher's actions amounted to a theft. At the hearing before the ALJ, Schumacher admitted he sold the DOT scrap metal and placed the proceeds in his personal account. Approximately two years after the scrap metal sale, he purchased a jack for the DOT. Schumacher purchased the jack on the same day an investigator from the Bureau of Criminal Investigation interviewed him regarding allegations of misuse and theft of DOT property. Accordingly, the evidence before the ALJ was such that a reasoning mind could have reasonably determined Schumacher committed a theft of DOT property. See Jacobs v. North Dakota State Personnel Bd., 551 N.W.2d 779, 782 (N.D.1996). [¶ 16] Schumacher contends a finding he committed a criminal act is necessary to apply the theft exception to progressive discipline under N.D. Admin. Code § 4-07-19-04. In support, he emphasizes there was no finding he committed a criminal act and the conclusion of the LaMoure County State's Attorney there was insufficient evidence to pursue criminal action against him. [¶ 17] Section 1-02-02, N.D.C.C., provides "[w]ords used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained." Here, the plain language of N.D. Admin. Code § 4-07-19-04 indicates only a finding of theft is required; the statute does not refer to a criminal prosecution or a conviction or a finding of a criminal act.[5] Rather the statute merely refers to "an infraction or a violation of a serious nature." The additional requirement of a conviction cannot be added to the plain language of N.D. Admin. Code § 4-07-19-04. See Peterson v. Heitkamp, 442 N.W.2d 219, 221 (N.D.1989) (providing "[w]hen a statute is unambiguous, it is improper for the court to attempt to construe the provisions so as to legislate that which the words of the statute do not themselves provide"); Haggard v. Meier, 368 N.W.2d 539, 541 (N.D. 1985) (reasoning "it is improper for the courts to attempt to construe the provisions 867 so as to legislate additional requirements or proscriptions which the words of the provisions do not themselves provide"). If a criminal conviction was required for the theft exception to apply, one could logically assume a criminal conviction for the other exceptions under N.D. Admin. Code § 4-07-19-04 would be required. However, no crime exists for insubordination. Thus it is clear from the statute that the stated exceptions are themselves violations of a serious nature which are detrimental to the employer's interest. The theft exception under N.D. Admin. Code § 4-07-19-04 does not require a criminal conviction in order to terminate employment for cause. [¶ 18] Further, although the ALJ characterized Schumacher's actions as "a one-time theft of a small amount of money in nearly fifteen years of otherwise apparent good service," we conclude N.D. Admin. Code § 4-07-19-04, by its plain meaning, does not require repeated thefts or embezzlement. Section 4-07-19-04, N.D. Admin. Code, recognizes that an employee's theft of employer property is highly detrimental to employer discipline regardless of whether it is a one time theft or part of an embezzling scheme. [¶ 19] We accordingly hold the preponderance of the evidence supports the ALJ's finding Schumacher committed a theft of department property. B. [¶ 20] Schumacher also argues even if the ALJ properly found he committed a theft, her conclusion he should not be dismissed is supported by the findings. He alleges the Administrative Code allows the Central Personnel Division, through a designated ALJ, to determine whether an employee's dismissal was appropriate. [¶ 21] A designated ALJ does have authority to determine whether an employee's dismissal was justified under the Administrative Code. See Jacobs v. North Dakota State Personnel Bd., 551 N.W.2d 779, 781 (N.D.1996) (upholding a State Personnel Board's decision where the Board had applied the cause provisions of the Administrative Code and had determined there was cause for the employment action); Hammond v. North Dakota State Personnel Bd., 345 N.W.2d 359, 362 (N.D. 1984) (noting "[i]t was the responsibility of the [State Personnel] Board to make findings as to whether or not the reasons for dismissal given by [the employer] were supported by the evidence and to enter a conclusion as to whether or not the reasons supported by the evidence constituted just cause"); N.D.C.C. § 54-44.3-12.2 (1995) (authorizing a properly designated administrative hearing officer "to conduct the hearing and related proceedings, including receiving evidence and preparing findings of fact, conclusions of law, and issuing a final decision" where a regular employee has appealed the employer's decision to dismiss the employee). However, here the ALJ improperly applied the Administrative Code's provisions regarding "cause." Specifically, she indicated no cause for termination existed under N.D. Admin. Code § 4-07-19-03. She stated "[p]ursuant to N.D. Admin. Code § 4-07-19-03, Mr. Schumacher's employment could only be terminated for cause." After referring to the definition of "cause" under N.D. Admin. Code § 4-07-19-02(1), she noted "[t]heft of state property is conduct which certainly can be detrimental to an employer's operations." The ALJ then indicated "[t]he circumstances do not show that Mr. Schumacher's actions disrupted agency operations" and "this one incident does not rise to the level of destroying Mr. Schumacher's integrity." Reasoning "the Department failed to establish cause for terminating [] Schumacher's employment," she concluded a less severe form of discipline than dismissal was necessary. Whether cause exists is a question of law fully reviewable by this Court. See Olson v. Job Service North Dakota, 379 N.W.2d 285, 287 (N.D.1985) (providing a question of law is fully reviewable on appeal). It is clear that the ALJ misinterpreted the 868 question of cause by inserting a requirement that the employee's action disrupt an agency's operations. No such requirement exists. [¶ 22] Cause is required for any form of discipline, not just dismissal. If there were no cause under N.D. Admin. Code § 4-07-19-03, Schumacher should not have been disciplined in any way. However, the ALJ conceded Schumacher committed a theft and should be disciplined. Further, N.D. Admin. Code § 4-07-19-04 recognizes employee theft is detrimental to the employer's interest and indicates theft is a serious infraction for which dismissal is appropriate. Thus cause for discipline necessarily exists when an employee commits a theft. [¶ 23] In support of the ALJ's conclusion he should not be dismissed, Schumacher points to his exemplary employee record and contends it should be considered in the determination of whether his termination was justified. Although the ALJ also emphasized Schumacher's good record, such emphasis was improper. [¶ 24] An employee's past performance is irrelevant in determining whether the employee committed a theft. Once it is determined an employee committed a theft, N.D. Admin. Code § 4-07-19-04 allows the employer to dismiss the employee. The employer, in its discretion, may choose to consider the employee's past performance in deciding whether to dismiss the employee. But having found that a theft occurred, an ALJ reviewing a termination decision has no authority to overrule an agency's determination to dismiss the employee. [¶ 25] In finding Schumacher committed a theft of department property and concluding the DOT could not dismiss Schumacher, the ALJ improperly interpreted the progressive discipline requirement of the Administrative Code. In reaching her conclusion, the ALJ reasoned progressive discipline requires a case-by-case analysis and thus all employees who commit a particular type of infraction should not be dealt "a preordained outcome." Then analyzing Schumacher's case, the ALJ determined dismissal of Schumacher was inappropriate. The ALJ emphasized Schumacher's good record, the minimal damage his act apparently caused the DOT, and his "amenab[ility] to remediation." [¶ 26] However, as noted N.D. Admin. Code § 4-07-19-04 allows an employer to dismiss an employee who commits a theft. Section 4-07-19-04, N.D. Admin. Code, does not require a case-by-case analysis in instances of theft; rather, the statute expressly provides progressive discipline is not required when a theft has occurred. The employer therefore does not have to "begin[] with a less severe appropriate action and progress[] to a more severe appropriate action, for repeated instances of poor job performance or for repeated violations of the same or similar rules or standards." N.D. Admin. Code § 4-07-19-02(4). The ALJ had no authority under the express provisions of the governing rule to impose progressive discipline or to order reinstatement. V. [¶ 27] Because the ALJ properly found Schumacher's actions amounted to a theft but concluded his termination was not justified, we hold the ALJ's findings of fact do not support her conclusions of law and the ALJ's decision is not in accordance with the law. Under N.D. Admin. Code § 4-07-19-04, Schumacher's theft clearly allowed the DOT to dismiss Schumacher. We therefore affirm the district court's reversal of the ALJ's decision. [¶ 28] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., concur. NOTES [1] Under N.D.C.C. § 54-44.3-20, all positions in the state service are included in the classified service except certain listed positions, none of which are applicable here. [2] Prior to 1995, N.D.C.C. § 54-44.3-12.2 did not expressly provide for the Central Personnel Division's receipt and certification of employee appeals or for its request for an administrative hearing officer from the Office of Administrative Hearings. Rather, the statute merely indicated the Central Personnel Division "shall cooperate with and assist the various departments, agencies, and institutions of the state in the development and implementation of basic agency grievance procedures and a statewide appeal mechanism." We thus construed N.D.C.C. § 54-44.3-12.2 as "authorizing the Central Personnel Division to include, as part of the statewide appeal mechanism, a review of personnel actions by the State Personnel Board under the Board's general authority [under N.D.C.C. § 54-44.3-07] `to foster and assure a system of personnel administration in the classified service of state government' and to `hold such hearings' as are necessary to perform the functions vested in the Board by law." Little v. Spaeth, 394 N.W.2d 700, 702 (N.D.1986) (citation omitted). [3] Jacobs involved the pre-1995 version of N.D.C.C § 54-44.3-12.2 and thus, the employee appealed to the State Personnel Board, rather than the Central Personnel Division. However, our standard of review of a Central Personnel Division disciplinary decision is the same as our review of a similar State Personnel Board decision. N.D.C.C. ch. 28-32 governs the review of decisions by both entities. The State Personnel Board is an agency and therefore is necessarily subject to N.D.C.C. ch. 28-32. See Hammond v. North Dakota State Personnel Bd., 332 N.W.2d 244, 247 (N.D.1983) (noting the State Personnel Board is separate and distinct from the Central Personnel Division and concluding the State Personnel Board is an administrative agency). N.D.C.C. § 54-44.3-12.2 (1995) indicates N.D.C.C. ch. 28-32 governs review of cases appealed from the Central Personnel Division. [4] Our caselaw provides some examples of conduct constituting "cause" for discipline. See Jacobs v. North Dakota State Personnel Bd., 551 N.W.2d 779, 782 (N.D.1996) (upholding a demotion for cause where the employee failed to complete work in a timely manner); Berdahl v. North Dakota State Personnel Bd., 447 N.W.2d 300, 303-04 (N.D. 1989) (upholding an employee's dismissal that was based on the employee's personal use of State vehicles, his conducting personal business during Department hours, his creation of an unacceptable public image, and his abuse of sick leave benefits); Choukalos v. North Dakota State Personnel Bd., 429 N.W.2d 441, 443-44 (N.D.1988) (upholding the State Personnel Board's determination cause existed where an employee of the North Dakota Insurance Commissioner's Office failed to consistently apply department policies, failed to communicate department policies to insurance companies, and failed to alert superiors of important regulatory concerns). [5] Findings of theft without criminal prosecutions or convictions occur in other civil proceedings. For instance, theft is often found without a criminal conviction or evidence satisfying the burden of proof required in criminal cases in proceedings involving insurance coverage for the theft of property. See Hoff v. Minnesota Mut. Fire and Cas., 398 N.W.2d 123 (N.D.1986); Lovas v. St. Paul Ins. Cos., 240 N.W.2d 53 (N.D.1976); Conlin v. Dakota Fire Ins. Co., 126 N.W.2d 421(N.D.1964).	01-03-2023	06-08-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260066/	167 Cal. App. 4th 983 (2008) THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALAN WILLIAMS, Defendant and Appellant. No. F052218. Court of Appeals of California, Fifth District. October 22, 2008. CERTIFIED FOR PARTIAL PUBLICATION[] 984 Sharon Giannetta Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent. 985 OPINION ARDAIZ, P. J. On the evening of March 1, 2004, Rose Johnston was stabbed to death because she ostensibly caused a conflict between two members of a group of young men calling themselves the Small Town Peckerwoods. Her body was then placed inside her car and burned beyond recognition. As a result of these events, appellant Michael Alan Williams now stands convicted, following a jury trial, of murder involving the personal use of a deadly weapon and committed by an active participant in a criminal street gang to further the activities of that gang (Pen. Code,[1] §§ 187, subd. (a), 190.2, subd. (a)(22), 12022, subd. (b)(1); count 1) and active participation in a criminal street gang (§ 186.22, subd. (a); count 2).[2] His motion for a new trial was denied, and he was sentenced to life in prison without the possibility of parole plus one year. In the published portion of this opinion, we will address the relationship that must exist before a smaller group can be considered part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang. In the unpublished portion, we will reject appellant's various claims of error affecting the murder conviction. We will also reject his claims of evidentiary insufficiency with respect to the special circumstance finding and conviction on count 2. Because we conclude the evidence was sufficient to establish the Small Town Peckerwoods were a criminal street gang, but we cannot determine whether jurors based their determination in this regard solely on evidence concerning that group or also erroneously considered evidence related to some larger Peckerwood organization, however, we will reverse the special circumstance finding on count 1 and the conviction on count 2. FACTS[] ........................................................... 986 DISCUSSION[14] I NON-GANG-RELATED ISSUES[] II GANG-RELATED ISSUES Appellant challenges the sufficiency of the evidence to support the jury's findings on the gang-activity special circumstance and count 2. As to both, he contends there was insufficient evidence of the primary activities element that had to be proven in order to establish the Small Town Peckerwoods (STP) constituted a criminal street gang, and that appellant knew the group engaged in a pattern of criminal gang activity. As to the special circumstance, he further contends the evidence was insufficient to show Rose Johnston was killed to further the activities of a criminal street gang.[24] A., B.[] C. The Relevant Group As an initial matter, we must address appellant's argument that the group relevant to our determination is the Small Town Peckerwoods, not other groups calling themselves Peckerwoods or some overall Peckerwoods gang. He says there was no evidence he was an active participant in any group other than the Small Town Peckerwoods, and there was insufficient evidence of a connection between members of the Small Town Peckerwoods and anyone else.[26] 987 (1) Evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization. (See, e.g., People v. Hawthorne (1992) 4 Cal. 4th 43, 53 [14 Cal. Rptr. 2d 133, 841 P.2d 118]; People v. Ortega (2006) 145 Cal. App. 4th 1344, 1356-1357 [52 Cal. Rptr. 3d 535]; In re Jose P., supra, 106 Cal.App.4th at pp. 467-468; In re Elodio O. (1997) 56 Cal. App. 4th 1175, 1178, 1180 [66 Cal. Rptr. 2d 95], disapproved on other grounds in People v. Sengpadychith (2001) 26 Cal. 4th 316, 323 [109 Cal. Rptr. 2d 851, 27 P.3d 739].) This does not mean, however, that having a similar name is, of itself, sufficient to permit the status or deeds of the larger group to be ascribed to the smaller group. Thus, in People v. Ortega, supra, 145 Cal.App.4th at pages 1356-1357, the Court of Appeal rejected the assertion that the prosecution had to prove precisely which Norteno subset was involved in the case before it, noting that there was sufficient evidence Norteno was a criminal street gang, while "[n]o evidence indicated the goals and activities of a particular subset were not shared by the others." (Italics added.) The court stated: "In this case there was testimony that it was not uncommon for members of different gangs to work in concert to commit a crime. In light of the nature of gang structure and the apparent willingness of members to work with other gangs to commit crimes, requiring the prosecution to prove the specific subset of a larger gang in which a defendant operated would be an impossible, and ultimately meaningless task." (Id. at p. 1357.) In In re Jose P., supra, 106 Cal.App.4th at page 463, the gang expert testified that the Norteno street gang was an ongoing organization having around 600 members or associates in Salinas; that there were separate cliques or factions within the larger Norteno gang; that the two gangs at issue in the case were such subgroups; that the two subgroups were loyal to one another and to the larger Norteno gang; and that all Norteno gangs followed the same bylaws as the Norteno prison gangs. Here, by contrast, Agent Dilbeck of the Madera Police Department testified that the Peckerwoods are a criminal street gang, as defined by the Penal Code, and that smaller groups, such as the Small Town Peckerwoods, are all factions of the Peckerwood organization. Insofar as is shown by the record before us, his conclusion appears to have been based on commonality of name and ideology, rather than concerted activity or organizational structure. He testified that Peckerwood groups share a White pride or White supremacist ideology, and there is a hierarchy, with "shot callers" who answer to a higher authority inside the prison system. It was Dilbeck's further testimony that Peckerwoods are not typically organized like other criminal street gangs, however: for the most part, they have no constitution, and are a looser organization with a less well-defined rank structure. Peckerwood groups get 988 together more for bragging than for strategizing, and one group of Peckerwoods will not necessarily know what another group is doing. (2) In our view, something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization. There was no such showing here. Dilbeck's general references to "shot callers" answering to a higher authority within the prison system were insufficient, absent any testimony that the group calling themselves the Small Town Peckerwoods contained such a person, or that such a person was a liaison between, or authority figure within, both groups. There was testimony that appellant had a "Peckerwood" tattoo, and that Elisarraras identified himself to Dilbeck as a Peckerwood. There was also evidence that Rhyse Parsons believed being a member of the Small Town Peckerwoods would be relevant in a prison setting, and that a poem titled "Peckerwood Soldiers," which referred to Peckerwoods in prison, was found in what inferentially was Elisarraras's bedroom.[27] On the record before us, however, it would be speculative to infer that the Small Town Peckerwoods and the greater Peckerwood gang shared more than an ideology, especially where the term "Peckerwood" has such an ideological or racial connotation in everyday parlance. (See, e.g., A Visual Database of Extremist Symbols, Logos and Tattoos [as of Oct. 22, 2008].) Elisarraras's apparent reference to getting a letter and having to kill Johnston because she was a snitch in a high-profile case does not alter this; we can only speculate as to the source of the letter or whether it was Peckerwood-related. "`[S]peculation is not evidence....' [Citations.]" (People v. Waidla (2000) 22 Cal. 4th 690, 735 [94 Cal. Rptr. 2d 396, 996 P.2d 46].) In light of the foregoing, only the Small Town Peckerwoods, and not some larger Peckerwood group, may be considered in assessing appellant's claims of evidentiary insufficiency. 989 D.-F.[] DISPOSITION The judgment of conviction and the deadly weapon use finding on count 1 are affirmed. The special circumstance finding on count 1 and conviction on count 2 are reversed. Cornell, J., and Kane, J., concurred. NOTES [] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of the Facts and parts I, IIA., IIB., IID., IIE., and IIF. of the Discussion. [1] All statutory references are to the Penal Code unless otherwise stated. [2] Raymond Allen Elisarraras was jointly charged with appellant. Prior to trial, he committed suicide in jail. [] See footnote, ante, page 983. [14] For organizational purposes, we have divided appellant's claims into what might roughly be termed gang-related and non-gang-related issues. [] See footnote, ante, page 983. [24] Appellant raises several additional gang-related issues. In light of our conclusion that the special circumstance allegation and count 2 must be reversed, we do not address them. [] See footnote, ante, page 983. [26] In making this argument, appellant refers, in passing, to the testimony of a gang expert in People v. Schmaus (2003) 109 Cal. App. 4th 846 [135 Cal. Rptr. 2d 521]. As noted in In re Jose P. (2003) 106 Cal. App. 4th 458, 467 [130 Cal. Rptr. 2d 810], "the expert testimony in [Schmaus] was evidence in that case, not this one. It is irrelevant to our determination of whether there is substantial evidence to support the gang findings here." [27] The writing read (as nearly as we can discern from the handwritten copy contained in the clerk's transcript): "We're Peckerwood Soldiers down/for a cause, California convicts/and solid outlaws. The rules/we live by are written in/stone, awesome an fearless we're/bad to the bone. [¶] We live in California Prisons/all long the way, the man tries/to down us with each passing day./Our bodies are solid an blazen/with in, warbirds on SS lightning/bolts the way that we think. [¶] When we go into battle our/hands are held high, some/may get hurt yet others may/die. It's a small price we/pay to survive in the yard, we're/Peckerwood Soldiers down for a/cause, California convicts and/solid outlaws." [] See footnote, ante, page 983.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259916/	167 Cal.App.4th 944 (2008) THOMAS MANGANO, Plaintiff and Appellant, v. VERITY, INC., et al., Defendants and Respondents. THOMAS MANGANO, Plaintiff and Appellant, v. VERITY, INC., et al., Defendants and Appellants. Nos. H030999, H031234. Court of Appeals of California, Sixth District. October 22, 2008. CERTIFIED FOR PARTIAL PUBLICATION[] 946 Stephen R. Jaffe and Daniel U. Smith for Plaintiff and Appellant. Cooley Godward Kronish, Steven L. Friedlander, Lori R.E. Ploeger and Joshua O. Mates for Defendants and Respondents and for Defendants and Appellants. 947 OPINION MIHARA, Acting P. J. Plaintiff and appellant Thomas Mangano appeals from a judgment entered after the trial court granted summary judgment in favor of his employer, defendant and appellant Verity, Inc. (Verity), and his former supervisor, defendant and appellant Steven R. Springsteel. Mangano claimed discrimination and verbal harassment based on a perceived disability in violation of the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq. We concur with the trial court's conclusion that defendants are entitled to summary judgment on the FEHA claim and affirm the judgment. In a separate appeal, both parties challenge the trial court's postjudgment order granting defendants' motion for expert witness fees and denying defendants' motion for attorney's fees, filed February 13, 2007. Mangano appeals from the award of expert witness fees, and Verity and Springsteel cross-appeal the denial of their request for attorney's fees. We find no error and affirm the order. I., II.[] .......................................................................... III. Expert Witness Fees and Attorney's Fees A. Postjudgment Order After the entry of judgment, on November 17, 2006, defendants moved for an award of attorney's fees and expert witness fees. On May 1, 2006, approximately five weeks prior to filing their summary judgment motion, defendants offered to pay Mangano $2,500 in exchange for dismissal of the lawsuit with prejudice. Under the terms of the settlement offer, each party would bear its own costs and attorney's fees. Mangano did not accept the offer of settlement. Because the judgment ultimately awarded Mangano less than $2,500, defendants sought an award of their expert witness fees and their postoffer attorney's fees pursuant to Code of Civil Procedure section 998.[5] On February 9, 2007, the trial court granted the motion for expert witness fees and, pursuant to the stipulation of counsel at the hearing on the motion, fixed the amount of fees at $20,000. At the same time, the court denied defendants' motion for attorney's fees. Both parties timely appealed. This 948 court previously determined that the appeals from the postjudgment order would be considered with Mangano's appeal from the judgment. B. Section 998 "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (§ 1032, subd. (b).) Although expert witness fees are not ordinarily recoverable as costs (§ 1033.5, subd. (b)), section 998 covers costs and fees in those cases in which there has been a settlement offer by a defendant. The statute provides, in relevant part: "(c)(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, . . . the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial . . . or during trial . . . of the case by the defendant." (§ 998.) The purpose of section 998 is to "encourage settlement by providing a strong financial disincentive to a partywhether it be a plaintiff or a defendantwho fails to achieve a better result than that party could have achieved by accepting his or her opponent's settlement offer." (Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 804 [12 Cal.Rptr.2d 696, 838 P.2d 218].) C. Expert Witness Fees[] ......................................................................... D. Attorney's Fees Defendants contest the trial court's denial of attorney's fees as part of their award of costs pursuant to section 998. We again find no error and affirm the trial court's order. (1) In addition to expert fees, the costs awarded to a prevailing party pursuant to section 998 may include attorney's fees "when authorized by" statute. (§ 1033.5, subd. (a)(10)(B); see also §§ 998, 1032.) In regard to attorney's fees, FEHA provides, in relevant part: "In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs . . . ." (Gov. Code, § 12965, subd. (b).) (2) Despite its discretionary language, however, the statute applies only if 949 the plaintiff's lawsuit is deemed unreasonable, frivolous, meritless, or vexatious. (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387-1388 [15 Cal.Rptr.2d 53] (Cummings).) The United States Supreme Court set forth this standard in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 [54 L.Ed.2d 648, 98 S.Ct. 694] (Christiansburg), a federal discrimination action.[7] The court affirmed that although a prevailing plaintiff in a discrimination case is entitled to attorney's fees "`unless special circumstances would render such an award unjust,'" a prevailing defendant cannot obtain attorney's fees unless the court finds the claim "frivolous, unreasonable, or groundless." (Christiansburg, at pp. 416-417, 422.) The court explained that "while Congress wanted to clear the way for suits to be brought under the Act" by making it easier for plaintiffs with limited means to bring a meritorious suit, Congress "also wanted to protect defendants from burdensome litigation having no legal or factual basis." (Christiansburg, at p. 420.) Thus, "`meritless' is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case . . . ." (Christiansburg, at p. 421.) The trial court's written order in this case denies the motion for attorney's fees summarily, but the court's comments at oral argument suggest that it believed the Christiansburg standard must be applied in a FEHA action regardless of the application of section 998.[8] Defendants argue that the court erred in applying the limitations set forth in Christiansburg to determine their eligibility for attorney's fees. Defendants contend that because they are the prevailing parties pursuant to section 998, and FEHA authorizes the award of attorney's fees to the prevailing party, they are entitled to attorney's fees as part of their section 998 costs despite the restrictions generally imposed in awarding a prevailing defendant fees in a FEHA action. This argument is unpersuasive. Our high court's decision in Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103 [86 Cal.Rptr.2d 614, 979 P.2d 974] (Scott) provides the blueprint for our analysis in this case. The plaintiff in Scott rejected the defendant's $900,000 section 998 settlement offer prior to trial. (Scott, at p. 1107.) At trial, the 950 plaintiff was awarded approximately $442,000 in damages. (Ibid.) Both sides sought attorney's fees based on a provision in their contract and on the application of Civil Code section 1717 which governs the mutuality of attorney's fees provisions in contracts. (See Scott, at pp. 1107-1108.) Because the plaintiff's recovery failed to exceed the amount of the settlement offer, the defendant relied on the application of section 998 to argue that it was a prevailing party for purposes of its postoffer attorney's fees. (Scott, at p. 1107.) The trial court awarded the plaintiff its preoffer costs and attorney's fees as the prevailing party under the contract, and awarded the defendant its postoffer fees under section 998. (Scott, at pp. 1107-1108.) (3) The Scott court affirmed the award of the plaintiff's attorney's fees, finding that section 998 did not limit the preoffer fees.[9] (Scott, supra, 20 Cal.4th at p. 1112.) The court further held that section 998 required the trial court to treat the defendant as the prevailing party for purposes of its postoffer costs. (Scott, at p. 1114.) In so concluding, the court stressed that the "very essence of section 998" is its encouragement of the acceptance of reasonable settlement offers through the treatment of those losing parties whose settlement offers exceeded the final judgment as prevailing parties. (Scott, at p. 1114.) Thus, pursuant to section 998, "the defendant may recover all those postoffer costs to which it would have been entitled had it been a prevailing party, including attorney fees." (Scott, at p. 1115.) Because the contract between the parties (combined with the application of Civ. Code, § 1717) awarded attorney's fees to the prevailing party in the contract action, the defendant was entitled to his postoffer fees. (See Scott, at pp. 1114-1116.) The Scott court did not end its discussion there, however. The court acknowledged the asymmetry that may result even under section 998's apparently evenhanded treatment of preoffer and postoffer costs. (See Scott, supra, 20 Cal.4th at p. 1115 & fn. 3.) Because the discussion in this footnote bears directly on the issue before this court, we quote it in full: "Ordinarily, the categories of postoffer costs to which a defendant is entitled under section 998 will be the same as the categories of preoffer costs to which the [prevailing] plaintiff is entitled. This will not always be true, however, because the Legislature has in certain limited instances made a policy decision to treat prevailing plaintiffs and prevailing defendants differently for purposes of attorney fees and other costs. Section 998 takes these differences as it finds them, applying them for purposes of postoffer costs as if the defendant were the prevailing party but neither expanding nor contracting the categories of costs to which a prevailing defendant in the circumstances would be entitled. Thus, if the case is governed by a statute under which a prevailing plaintiff but not a prevailing defendant is entitled to attorney fees, then a defendant who does not prevail but is nonetheless entitled to its postoffer costs under 951 section 998 is not entitled to its postoffer attorney fees as part of those costs, even though the prevailing plaintiff may obtain its preoffer attorney fees as part of its preoffer costs. [Citation.]" (Scott, at p. 1115, fn. 3, italics added.) (4) In other words, section 998 does not grant greater rights to attorney's fees than those provided by the underlying statute. Section 998 instead merely expands the group of those who are treated as prevailing parties and who therefore may be entitled to attorney's fees as prevailing parties under the relevant statute. Under FEHA, a prevailing defendant is entitled to attorney's fees only if the action is deemed unreasonable, frivolous, or meritless. A prevailing plaintiff, in contrast, ordinarily is entitled to fees. A FEHA action therefore presents the very situation contemplated by the California Supreme Court in its footnote: the Legislature has determined that prevailing plaintiffs and prevailing defendants in FEHA actions be treated differently. (5) Following the court's observations in Scott, we therefore find that section 998 does not eliminate the substantive requirements for awarding attorney's fees to a prevailing FEHA defendant. We further conclude the trial court was correct to apply the Christiansburg standard and, thus, to deny defendants' request for attorney's fees on the basis that the action was not without any legal or factual foundation.[10] This result is in keeping with the policy set forth in Christiansburg regarding the unequal treatment of prevailing defendants and prevailing plaintiffs in a discrimination suit. (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1562 [47 Cal.Rptr.3d 206] (Seever) [noting that Christiansburg and related California cases demonstrate judicial "sensitivity to the imbalance inherent in allowing equal cost-shifting between unequal parties"].) Defendants present no persuasive argument for allowing the application of section 998 to supplant the established standard that seeks to deter frivolous suits while providing adequate support and incentive for meritorious actions.[11] We thus concur with the trial court's denial of defendants' motion for postoffer attorney's fees. 952 IV. Disposition In appeal No. H030999, the judgment is affirmed. In appeal No. H031234, the trial court's February 13, 2007 postjudgment order awarding defendants $20,000 in expert witness fees and denying defendants' motion for attorney's fees is affirmed. Each party is to bear its own costs on appeal. McAdams, J., and Duffy, J., concurred. NOTES [] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I.A.-D., II.A.-C. and III.C. [] See footnote, ante, page 944. [5] All further statutory references are to the Code of Civil Procedure unless otherwise noted. [*] See footnote, ante, page 944. [7] "`The language, purpose and intent of California and federal antidiscrimination acts are virtually identical. Thus, in interpreting FEHA, California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under title VII of the federal Civil Rights Act . . .,'" including the principles governing the award of attorney's fees. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 865 [110 Cal.Rptr.2d 903], quoting Cummings, supra, 11 Cal.App.4th at pp. 1386-1387.) [8] In considering whether the Christiansburg standard was met, the court observed at the hearing that "it's a really close" case. On appeal, defendants contend only that the court should not have used the Christiansburg standard. Defendants do not challenge the trial court's implicit finding that the case does not meet that standard. [9] The court applied an earlier version of section 998, but the revisions have no impact on our analysis. [10] As noted above, defendants object only to the application of the Christiansburg standard and do not argue on appeal that the claim was "frivolous, unreasonable, or groundless." [11] We note briefly that the issues presented in defendants' primary authorities are materially different from the issue presented in this case. (See Seever, supra, 141 Cal.App.4th 1550 [the plaintiff appealed award of § 998 postoffer costs, which did not include attorney's fees, to the prevailing defendant in FEHA action]; Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326 [69 Cal.Rptr.2d 135] [court reviewed trial court's denial of attorney's fees to the prevailing plaintiff in FEHA action in which the plaintiff rejected settlement offer that exceeded final judgment].)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259941/	167 Cal.App.4th 769 (2008) MONTE L. WIDDERS, as City Attorney, etc., Plaintiff and Appellant, v. JEFF B. FURCHTENICHT, Defendant and Appellant. No. B196583. Court of Appeals of California, Second District, Division Six. October 20, 2008. 772 Myers, Widders, Gibson, Jones & Schneider, Katherine E. Stone, J. Roger Myers and Nancy D. Hartzler for Plaintiff and Appellant Widders. ACLU Foundation of Southern California, Peter J. Eliasberg; Mitchell Silberberg & Knupp and Michael E. Chait for Defendant and Appellant. Kirkland & Ellis, Robyn Bladow, Pantea Yashar, Shaun Paisley for Initiative & Referendum Institute as Amici Curiae on behalf of Appellant Furchtenicht. OPINION PERREN, J. Jeff B. Furchtenicht, an attorney who resides in Ojai, submits two ballot initiative measures that direct the city council to exercise its "informed judgment" to craft and adopt laws relating to chain stores and affordable housing. Monte L. Widders, Ojai's city attorney, informs Furchtenicht that the measures are an improper exercise of the initiative power conferred by the California Constitution because they do not propose actual legislation. After Furchtenicht declines to withdraw the measures, Widders seeks a judicial declaration relieving him of his statutory duty to prepare ballot titles and summaries.[1] The trial court sustains Furchtenicht's demurrer on the ground that the action was not filed within the 15-day period for Widders's compliance with the applicable law, yet also finds that Widders had no duty to comply with that law. We conclude that the action was timely filed. While we recognize the strong public policy in favor of putting initiative measures before the electorate, that policy is not advanced where, as here, the proposed measures are plainly unconstitutional on their face. We further conclude that the action 773 does not qualify as a SLAPP[2] suit because Widders demonstrated that he is entitled to judgment in his favor as a matter of law. Accordingly, we shall reverse the sustaining of the demurrer, affirm denial of Furchtenicht's anti-SLAPP motion, and direct the trial court to enter judgment in favor of Widders. FACTS AND PROCEDURAL HISTORY On August 21, 2006, Furchtenicht submitted two ballot initiative measures to the city clerk along with notices of intent to circulate petitions and requests for ballot titles and summaries.[3] One of the proposed measures directs the city council to "urgently consider and take measures to," among other things, "prohibit or deter, to the extent possible, further encroachment of national chains and franchise operations within the City limits . . . ." The other essentially orders the council to "urgently consider and take measures to address affordability of housing within the City of Ojai." Instead of proposing actual legislation, the measures merely direct the council to exercise its "informed judgment" to enact laws that will accomplish the stated goals. Both measures provide that "[i]f this ordinance is not adopted by the City Council, the undersigned request that this ordinance be submitted immediately to a vote of the people at the general election scheduled for November 7, 2006, or, failing that, at a special election." The measures, however, were submitted too late to qualify for the general election.[4] In accordance with section 9203, the materials were forwarded to Widders.[5] On September 1, 2006, Widders informed Furchtenicht by letter that he would not be preparing ballot titles and summaries because the measures "constitute an invalid attempt to exercise the initiative power 774 pursuant to California Constitution, Article [II], Section 8 because they do not directly enact an ordinance or a statute." Widders explained that the measures were an invalid attempt to enact "indirect" legislation, as contemplated by Marblehead v. City of San Clemente (1991) 226 Cal.App.3d 1504 [277 Cal.Rptr. 550] (Marblehead). Widders suggested that Furchtenicht withdraw the measures and resubmit them in proper substantive form. Widders also stated that he would "be forced to seek declaratory relief" from his duty to comply with section 9203 if the measures were not withdrawn by September 15, 2006. On September 4, Furchtenicht sent an e-mail asking Widders to "provide some authority supporting a city attorney refusing to timely prepare [a] ballot title and summary on the basis . . . [Widders] ha[s] asserted . . . ." On September 6, Widders responded by letter and attached a copy of the opinion in Jahr v. Casebeer (1999) 70 Cal.App.4th 1250 [83 Cal.Rptr.2d 172] (Jahr). In a September 11 e-mail, Furchtenicht rejected Widders's proffered authority and suggested: "Instead of litigating, why don't we have the affordability and chains vs. independents issues put on successive City Council agendas, with a presentation by [city manager] Mr. Kersnar outlining options and making recommendations?" In a subsequent e-mail, Furchtenicht stated that he would withdraw the measures only if the city council complied with this demand. There was no further correspondence between the parties, and the measures were never withdrawn. On September 25, 2006, Widders filed an action for declaratory relief under Code of Civil Procedure section 1060, seeking declarations (1) that the proposed initiative measures are facially unconstitutional; (2) that ballot titles and summaries "would be misleading to the electorate"; (3) "that no additional public funds should be expended to process the proposed measures"; and (4) that he be relieved of any duty to comply with section 9203. Widders also moved for a temporary stay of his duty to comply with the statute, and asserted that the 15-day period for his compliance had passed due to his "attempts to avoid involving judicial resources by attempting to meet and confer with defendant. . . ." Furchtenicht was served with a copy of the first amended complaint and the motion for a temporary stay on October 10, 2006. On October 12, he filed a combined demurrer, anti-SLAPP motion, and opposition to the stay. The demurrer contended that the complaint failed to state a cause of action as a matter of law because (1) Furchtenicht did not bring or threaten to bring an action to compel Widders to comply with section 9203; (2) the relief sought was not necessary or proper; (3) the court lacked jurisdiction to grant the requested relief because Widders failed to file his action within the 15-day period for his compliance with section 9203; and (4) courts have not recognized any right to "prepetition" review of ballot initiatives. The anti-SLAPP 775 motion argued that the grounds for sustaining the demurrer precluded Widders from establishing a probability of succeeding on the merits of his claim. Furchtenicht opposed the motion for a temporary stay of Widders's duty to comply with section 9203 solely on the ground that "Plaintiff has already completed all the acts constituting a breach of his duty under the Elections Code. The fifteen day period has passed. This court cannot retroactively through the alchemy of a stay resurrect it." The trial court granted Widders's motion for a temporary stay on October 26, 2006. On November 29, the court issued its order sustaining the demurrer without leave to amend and denying the anti-SLAPP motion. The court sustained the demurrer on the ground that Widders did not file suit within 15 days of his receipt of the request for ballot titles and summaries and Furchtenicht had not brought an action to compel Widders's compliance with the request. The court also found, however, that "Mr. Widders was well within his official duties to deny Mr. Furchtenicht's request to title and summarize the two initiatives." In denying the anti-SLAPP motion, the court reasoned in part that if "Mr. Widders had brought this action within 15 days the court might be compelled under Jahr to deny the Demurrer and proceed with the lawsuit. . . . The narrowness of this ruling is that the action was not brought within the 15 days and Mr. Widders has no legal action pending asking him to do anything else." DISCUSSION I. Requests for Judicial Notice; Mootness While the appeal and cross-appeal were pending, Widders requested judicial notice of documents purporting to reflect that the city has enacted measures to implement the matters addressed in Furchtenicht's proposed initiative measures. Widders asserts that this information might render the case moot. We conclude otherwise. As we shall explain, Widders has an ongoing duty to comply with section 9203 until either Furchtenicht withdraws the initiative measures or the court issues a declaration relieving Widders of his duty. Accordingly, Widders's requests for judicial notice filed on September 21, 2007, and December 20, 2007, are denied. 776 II. Demurrer A. Standard of Review The sustaining of a demurrer on a claim for declaratory relief is generally reviewed for an abuse of discretion. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433 [121 Cal.Rptr.2d 844, 49 P.3d 194] (Filarsky).) Our review is de novo where the relevant facts are essentially undisputed and the issue involves statutory interpretation. (AICCO, Inc. v. Insurance Co. of North America (2001) 90 Cal.App.4th 579, 590 [109 Cal.Rptr.2d 359].) In ruling on a demurrer to a complaint for declaratory relief, doubts regarding the propriety of a declaratory judgment are generally resolved in favor of the plaintiff. (Filarsky, supra, at p. 433.) B. Section 9203 Section 9203 provides that a city attorney must prepare a ballot title and summary for an initiative measure within 15 days of receipt. In undertaking to prepare ballot titles and summaries for Furchtenicht's proposed measures, Widders concluded that they were beyond the scope of the initiative power conferred by article II, section 8 of the California Constitution because they do not propose legislation. Accordingly, he filed an action seeking declarations that the measures were unconstitutional and relieving him of his duty to prepare ballot titles and summaries pursuant to section 9203. He also moved for a temporary stay of his duty to comply with the statute. The same procedure was employed in Jahr, although the plaintiff in that case apparently filed her action within 15 days of receiving the request to prepare a ballot title and summary. (Jahr, supra, 70 Cal.App.4th at p. 1253.)[6] While Widders filed suit 20 days after the statutory time for his compliance had passed, he explained that the delay was attributed to his efforts to avoid litigation. 777 The trial court nevertheless sustained Furchtenicht's demurrer on the ground that Widders had filed suit too late. We agree with Widders that this ruling was erroneous. There is simply no authority for the proposition that the 15-day time period referred to in section 9203 was intended to act as a statute of limitations on a city attorney's right to seek judicial relief from his or her duty to comply with the statute. Furchtenicht's argument to the contrary is based on a misreading of Schmitz v. Younger (1978) 21 Cal.3d 90 [145 Cal.Rptr. 517, 577 P.2d 652] (Schmitz). In Schmitz, the proponent of a ballot initiative petitioned for a writ of mandate compelling the Attorney General to prepare a ballot title and summary in accordance with his duties under former sections 3502 and 3503 (now § 9004). The Attorney General had refused to act on the ground that the proposed measure violated the "one subject" rule of the California Constitution.[7] The court held that "[t]he duty of the Attorney General to prepare title and summary for a proposed initiative measure is a ministerial one and mandate will lie to compel him to act when the proposal is in proper form and complies with statutory and constitutional procedural requirements. [Citation.]" (Schmitz, supra, at pp. 92-93.) The court reasoned: "The single subject requirement of article II, section 8, subdivision (d), involves difficult legal questions that only a court may resolve. [Citation.] We are satisfied that a claim of violation of subdivision (d) is not merely a formal one, but is based on the effects of the contents of the proposed measure. Absent judicial authorization, the Attorney General may not urge violation of the single subject requirement to justify refusal to title and prepare summary of a proposed measure. [¶] This does not mean that the Attorney General may not challenge the validity of the proposed measure by timely and appropriate legal action. We hold only that without prior judicial authorization he may not delay or impede the initiative process while claims of the measure's invalidity are determined. Petitioner is entitled to have his proposal titled and summarized so that he may commence seeking signatures to qualify it for the ballot." (Id. at p. 93, italics added.) In so holding, the court "express[ed] no view as to the merits of the claim that the proposed measure concerns more than one subject." (Ibid.) According to Furchtenicht, the reference in Schmitz to "prior judicial authorization" and the court's refusal to consider the merits of the Attorney General's constitutional claim compels the conclusion that any action seeking relief from the duty to prepare ballot titles and summaries cannot be brought after the statutory time period to comply with the duty has passed. In other words, Furchtenicht essentially asserts that Widders's claim would have been 778 justiciable only if, instead of attempting to explain the invalidity of the proposed initiatives and giving Furchtenicht the opportunity to withdraw them, Widders had simply gone to court and filed suit immediately. (1) Nothing in Schmitz can be construed to compel such a result. Furchtenicht overlooks the line of cases recognizing that government entities and officials charged with failing to perform ministerial duties under the Elections Code may assert invalidity of the initiative measure as a defense in actions brought to compel performance of the duty after the statutory period for compliance has passed. (See Farley v. Healey (1967) 67 Cal.2d 325, 327-328 [62 Cal.Rptr. 26, 431 P.2d 650]; Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 149 [16 Cal.Rptr.2d 408]; Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1021 [2 Cal.Rptr.2d 648]; deBottari v. City Council (1985) 171 Cal.App.3d 1204, 1209 [217 Cal.Rptr. 790]; Citizens Against a New Jail v. Board of Supervisors (1976) 63 Cal.App.3d 559, 561 [134 Cal.Rptr. 36]; Gayle v. Hamm (1972) 25 Cal.App.3d 250, 254-257 [101 Cal.Rptr. 628].) In those circumstances, the refusal to act "may be retroactively validated by a judicial declaration that the measure should not be submitted to the voters." (Citizens for Responsible Behavior, supra, at p. 1021.) "[E]ven if the local entity usurps the judicial power in this respect, it remains appropriate for the courts to determine whether the result was correct." (Ibid.) There is no legal distinction where, as here, the official charged with the ministerial duty comes to court of his own accord seeking judicial authorization for his decision, and the claim is brought within a reasonable period of time after it became clear that attempts to avoid litigation had failed. (See City of San Diego v. Dunkl (2001) 86 Cal.App.4th 384, 398 [103 Cal.Rptr.2d 269] (Dunkl) [city's statutory 20-day period preceding signature-gathering process was not a deadline for filing declaratory relief action; plaintiffs acted "with reasonable promptness" in filing suit six weeks after process of collecting signatures began].)[8] Widders also sought "prior judicial authorization" for his decision, as contemplated by Schmitz. Notwithstanding Furchtenicht's repeated insistence that Widders "unilaterally" refused to comply with section 9203, Widders never purported to have the authority to refuse to act without judicial authorization. Rather, he made it clear from the outset that he would have no choice but to seek such authorization if Furchtenicht did not withdraw his request for ballot titles and summaries. Widders also sought and was granted 779 a stay of his duty to comply with the statute after Furchtenicht essentially failed to oppose the request. Accordingly, Schmitz offers no support for Furchtenicht's assertion that Widders waited too long to file suit. C. Ripeness In sustaining the demurrer, the trial court also concluded that the declaratory relief Widders sought was not "necessary or proper" as contemplated by Code of Civil Procedure section 1061, because his claim was not ripe for adjudication. The court reasoned that the 15-day period for Widders's compliance with section 9203 had passed and "Mr. Furchtenicht brought no action requesting Mr. Widders do anything more." Widders contends that his claim was ripe notwithstanding these circumstances. We agree. (2) For obvious reasons, the obligation to perform a ministerial duty under the Elections Code remains "`. . . even where performance is beyond the statutory time frame.' . . ." (MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1383-1384 [23 Cal.Rptr.3d 622] (MHC Financing); see Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961, 966-967 [16 Cal.Rptr.3d 146].) Widders therefore has an ongoing duty to address Furchtenicht's request for ballot titles and summaries. Moreover, Widders did not have to wait for Furchtenicht to sue him in order to obtain judicial relief from that duty. Furchtenicht's argument to the contrary is based on two cases involving the special statutory procedures for judicial review of requests for the disclosure of documents under the California Public Records Act (CPRA) (Gov. Code, §§ 6258, 6259). (Filarsky, supra, 28 Cal.4th at pp. 432-433; City of Santa Rosa v. Press Democrat (1986) 187 Cal.App.3d 1315, 1321-1323 [232 Cal.Rptr. 445].) Unlike the CPRA, there is no special statutory review procedure at issue here. Widders cannot forego his duty to comply with section 9203 without judicial authorization (Schmitz, supra, 21 Cal.3d at pp. 92-93), and that duty remains until the court declares otherwise or Furchtenicht withdraws his request. Moreover, Furchtenicht as the proponent of the initiative is properly named as a defendant in the action. (See Dunkl, supra, 86 Cal.App.4th at p. 397.) Because the case for declaratory relief was plainly made, the court erred in sustaining the demurrer on the ground that Furchtenicht did not file his own lawsuit. 780 D. "Prepetition" Review Furchtenicht, joined by amicus curiae Initiative & Referendum Institute, also challenges the propriety of allowing judicial review at what he labels the "prepetition" stage of the initiative process, i.e., before an initiative petition has been circulated for signatures. Because the trial court did not address this argument in its order sustaining the demurrer, and emphasized that its ruling was based on the "narrow time grounds" that Widders filed his action too late, the court implicitly considered and rejected the claim that the action was filed too soon. (3) In any event, Furchtenicht fails to establish that "prepetition" review of his initiative measures is constitutionally proscribed. As he acknowledges, our Supreme Court has recognized that the governmental official responsible for the duty of preparing ballot titles and summaries may seek judicial relief from that duty. (Schmitz, supra, 21 Cal.3d at p. 93.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) Moreover, Furchtenicht had no constitutionally protected right to place his initiatives on the ballot if they were invalid. (See, e.g., Dunkl, supra, 86 Cal.App.4th at p. 389.) While he asserts that he had a constitutionally protected right to circulate petitions for those initiatives, our Supreme Court has recognized there is no value "in putting before the people a measure which they have no power to enact." (American Federation of Labor v. Eu (1984) 36 Cal.3d 687, 697 [206 Cal.Rptr. 89, 686 P.2d 609].) (4) An initiative is "put[] before the people" (ibid.) when they are asked to sign a petition to place it on the ballot, and the people who sign the petition reasonably presume that the measure will be on the ballot if enough signatures are gathered. "[W]hile the right of free speech is one of the most precious rights to citizens of a free and open society, it is not without limit when the state Constitution provides it with a special forum for an initiative process in which voters are asked to sign a petition which ultimately may impact the community." (San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, 647 [89 Cal.Rptr.2d 388]; see also City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582, 1592 [66 Cal.Rptr.3d 862] [rejecting initiative proponent's contention that he had "an unfettered right to circulate a petition and to present it to the sovereign" because "there is no constitutional right to place an invalid initiative on the ballot"].)[9] 781 (5) Furchtenicht also complains that Widders's suit was filed "at the very beginning of the initiative process, when the possibility of the initiative qualifying and being filed with the city was speculative at best, and long before the city would even possibly face any affirmative duty to take anything more than de minimis action." He also asserts that "[t]he only fiscal cost at the early stages of the statutory framework is the de minimis cost associated with the actual preparation of a ballot title and summary." We are not persuaded. Fiscal costs are not the only relevant consideration. "Frequently, the heated rhetoric of an election campaign may open permanent rifts in a community. . . . That the people's right to directly legislate through the initiative process is to be respected and cherished does not require the useless expenditure of money and creation of emotional community divisions concerning a measure which is for any reason legally invalid." (Citizens for Responsible Behavior v. Superior Court, supra, 1 Cal.App.4th at p. 1023, fn. omitted.) The circulation of a petition, particularly in a small town, can invoke the same level of "heated rhetoric" capable of creating "permanent rifts in a community" that a full-blown election campaign can. (Ibid.) (6) The presentation of invalid ballot measures for circulation and collection of signatures may also serve to undermine public confidence in the process. One of the fundamental purposes of the ballot title and summary is "to reduce the risk that voters were misled when [they signed] the petition. . . ." (MHC Financing, supra, 125 Cal.App.4th at p. 1389.) "The ballot title and summary `must reasonably inform the voter of the character and real purpose of the proposed measure.' [Citation.]" (Lungren v. Superior Court (1996) 48 Cal.App.4th 435, 440 [55 Cal.Rptr.2d 690].) In moving for a temporary stay of his duty to comply with section 9203, Widders asserted that "[g]iven the defective nature of these two proposed initiatives, there exists a genuine concern that the mere availability of a ballot title and summary for the petitiona petition bearing the imprimatur of the City Attorneywould effectively conceal the fatal flaws of the proposed measures, thus misleading the electors." This statement illustrates the reality that the duty to prepare ballot titles and summaries, although characterized as merely ministerial, requires the exercise of professional skills and judgment. Widders asserted that he could not conceive of a ballot title and summary that would not be misleading to the voters. In light of this concern, it was appropriate for him to seek judicial guidance on how to proceed. 782 (7) While Furchtenicht acknowledges that his measures were submitted too late to qualify for the general election held on November 7, 2006, he argued that if Widders had prepared the ballot titles and summaries in a timely fashion "the initiatives would have been presented to the City Council for adoption or rejection prior to the November 7 election, and the voters of the City of Ojai could have had the opportunity to consider their elected representatives' votes on adoption or rejection in the upcoming election." Furchtenicht fails to identify any constitutionally protected right to exploit the initiative process for such a purpose. The statutory and constitutional right to petition contemplates the direct enactment of laws. It is not designed to compel candidates to take a position on a particular matter so that the electorate may determine whom it wishes to favor with its vote. As our Supreme Court has observed, "an initiative which seeks to do something other than enact a statutewhich seeks to render an administrative decision, adjudicate a dispute, or declare by resolution the views of the resolving bodyis not within the initiative power reserved by the people." (American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 714.) The initiative process "is not a public opinion poll. It is a method of enacting legislation, and if the proposed measure does not enact legislation, or if it seeks to compel legislative action which the electorate has no power to compel, it should not be on the ballot." (Id. at p. 695.) Furchtenicht also complains that Widders's refusal to prepare ballot titles and summaries prevented him from engaging in the good faith bargaining process contemplated by section 9604, subdivision (a).[10] Nothing in that section, however, identifies any right to utilize the initiative process for a ballot measure that the voters cannot enact. Moreover, Furchtenicht made no meaningful effort to oppose Widders's request for a stay of his duty to comply with section 9203. Had he done so, the court may have denied the stay and ordered Widders to comply with the statute while the underlying issues were being litigated. Instead, Furchtenicht simply argued that "[t]here is nothing to be stayed" because "[t]his court cannot retroactively through the alchemy of a stay resurrect" the 15-day period within which Widders was supposed to have complied with the statute. Furchtenicht therefore cannot be heard to complain that Widders prevented him from proceeding. Furchtenicht also laments that "even the mere threat of costly litigation resulting from the act of filing a request for the city to prepare ballot title and summary will deter people from engaging in their protected right to initiative. 783 Bringing lawsuits against petitioners at such an early stage, when they are testing the waters of public support, would certainly cause the average person significant concern, and discourage them from exercising their constitutional rights." He then refers us to declarations from three Ojai residents who claim that, as a result of this lawsuit, they and others are afraid to speak out for fear of being sued. These arguments and assertions fail to acknowledge the particular context in which this case arose. Widders gave an objective assessment of Furchtenicht's initiatives pursuant to his role as city attorney. He did not express any views regarding the subject matter, and gave no indication whether he personally or professionally disagreed with the stated objectives. He merely conveyed his informed conclusion that the measures were invalid. Instead of accepting Widders's suggestion that he attempt to correct the deficiencies, Furchtenicht chose to view Widders as an adversary and challenged his legal conclusions. When given the option of withdrawing the initiatives or facing litigation, Furchtenicht effectively chose the latter. Nothing about this scenario conveys the impression that citizens will be sued for merely speaking out on an issue or otherwise participating in the local political process. Simply put, none of Furchtenicht's contentions undermine the conclusion that judicial intervention in this case was necessary, proper, and timely. III. The Anti-SLAPP Motion and Merits of Widders's Claim (8) The anti-SLAPP statute, as codified in Code of Civil Procedure section 425.16, "provides a mechanism for quickly identifying and eliminating civil actions filed for the purpose of chilling the exercise of free speech." (City of Riverside v. Stansbury, supra, 155 Cal.App.4th at p. 1588.) "Analysis of an anti-SLAPP motion requires a two-step process. `First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036 [73 Cal.Rptr.3d 268], quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685].) Our review of these legal determinations is de novo. (California Back Specialists, at p. 1036.) Furchtenicht contends the trial court erred in denying his anti-SLAPP motion on the ground that he had failed to meet his burden of proving that 784 Widders's lawsuit arose from acts undertaken in furtherance of his constitutionally protected petitioning activity, as contemplated by Code of Civil Procedure section 425.16, subdivision (b)(1). We need not address this argument because the trial court correctly found that Widders met his burden of showing a probability of prevailing on the merits of his claim. Indeed, the trial court's finding on this issue of law is sufficient to warrant judgment in Widders's favor. In opposing Furchtenicht's anti-SLAPP motion on the second prong, Widders argued that Furchtenicht's proposed initiatives were facially unconstitutional because they do not propose actual legislation or purport to enact a statute, as required by article II, section 8, subdivision (a) of the California Constitution. Furchtenicht made no effort to challenge this showing. Instead, he merely asserted that Widders could not prevail on the merits of his claim because he filed his action either too late or too early. In issuing its ruling, the trial court found that Widders had acted "well within his official duties" in refusing to comply with section 9203. In so holding, the court did not merely find that Widders had demonstrated a probability of prevailing on his claim: the court essentially found that Widders would have prevailed on his claim as a matter of law had the demurrer not been sustained "on narrow time grounds." Furchtenicht does not challenge this finding on appeal. Instead, he simply reiterates his assertions that Widders's action was untimely. We agree with the trial court's implicit finding that Furchtenicht's proposed initiative measures were an improper exercise of the electorate's initiative power. "The initiative and referendum are powers reserved by the people and liberally construed in favor of their exercise. [Citations.] But the electorate's use of these powers is not unlimited. `Even under the most liberal interpretation, however, the reserved powers of initiative and referendum do not encompass all possible actions of a legislative body. Those powers are limited . . . to the adoption or rejection of "statutes." . . .' [Citations.]" (Marblehead, supra, 226 Cal.App.3d at p. 1509; see also American Federation of Labor v. Eu, supra, 36 Cal.3d at p. 708.) (9) The initiative measures at issue here do not contain actual statutes or ordinances. Rather, they are in the nature of resolutions that declare policies without providing the specific laws to be enacted. As worthy as these policies may be, the measures are an improper exercise of the initiative power conferred by the California Constitution because they do not contain any actual legislation. Marblehead, supra, 226 Cal.App.3d 1504, is instructive. In that case, the Court of Appeal invalidated a measure (Measure E) that directed the City 785 Counsel of San Clemente to amend the city's general plan to contain the "`concepts'" addressed in the measure. (Id. at p. 1510, italics omitted.) The court reasoned: "Contrary to appellant's argument, Measure E does not directly amend San Clemente's general plan. In effect, it constitutes a resolution by the voters declaring that the city's general plan should be revised to reflect the `concepts' expressed in the measure. The actual amendment of the general plan is left to the city council." (Ibid.) The court added: "While it might be argued the electorate could amend a general plan and direct the city council to revise the city's zoning ordinances to comply with it, Measure E goes beyond that. It directs the city council to amend both the general plan and the zoning ordinances. This type of measure is not within the electorate's initiative power." (Ibid.) Furchtenicht's initiative measures suffer the same infirmity. Instead of proposing actual legislation to be enacted, the measures merely state policies and direct the city council to enact unspecified laws pursuant to those policies. Neither measure purports to amend or revise any element of the city's general plan or municipal code. Because the initiative power is limited to the adoption or rejection of actual legislation, and Furchtenicht's proposed measures do not contain any such legislation, it was proper for Widders to seek and be granted relief from his duty to prepare ballot titles and summaries for those measures. CONCLUSION (10) In reaching our conclusion, we are mindful of "our solemn duty `"to jealously guard"' the initiative power, it being `"one of the most precious rights of our democratic process."' [Citation.]" (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248 [149 Cal.Rptr. 239, 583 P.2d 1281].) But we guard this power with both sword and shield. We must not only protect against interference with its proper exercise, but must also strike down efforts to exploit the power for an improper purpose. Here, the government official entrusted to present the people with a clear and unbiased statement of two proposed initiatives, has asked the court to relieve him of his duty to prepare ballot titles and summaries on the ground that the proposals are unconstitutional on their face. The proponent of those initiatives has made no effort to disavow the court of this apparent truism. Moreover, he essentially declined to oppose the official's request to temporarily stay his duty while the constitutionality of the initiatives was being litigated, and made no effort to challenge the merits of the claim. Under the circumstances, it was proper for the court to proceed. 786 DISPOSITION The order sustaining Furchtenicht's demurrer to the complaint is reversed, and the order denying his anti-SLAPP motion is affirmed. On remand, the trial court shall enter judgment in favor of Widders. Costs on appeal are awarded to Widders. Gilbert, P. J., and Coffee, J., concurred. 787 APPENDIX 788 789 *790 NOTES [1] (Elec. Code, § 9203, subd. (a).) All further statutory references are to the Elections Code unless stated otherwise. [2] (Code Civ. Proc., § 425.16.) SLAPP is an acronym for strategic lawsuit against public participation. [3] Copies of the measures are attached as an appendix to this opinion. [4] Furchtenicht submitted his measures to the city clerk 78 days before the general election. Pursuant to section 1405, an initiative measure cannot be submitted to the voters less than 88 days after the legislative body declines to adopt it, which occurs up to 30 days after the petitions have been circulated and returned with the requisite number of signatures. (See also §§ 9208, 9211, 9212, 9214, 9215.) [5] Section 9203 provides in pertinent part: "(a) Any person who is interested in any proposed measure shall file a copy of the proposed measure with the elections official with a request that a ballot title and summary be prepared. . . . The elections official shall immediately transmit a copy of the proposed measure to the city attorney. Within 15 days after the proposed measure is filed, the city attorney shall provide and return to the city elections official a ballot title for and summary of the proposed measure. The ballot title may differ from any other title of the proposed measure and shall express in 500 words or less the purpose of the proposed measure. In providing the ballot title, the city attorney shall give a true and impartial statement of the purpose of the proposed measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure." [6] The plaintiff sought relief from her duty as county counsel to prepare a ballot title and summary for a proposed countywide measure. The corresponding statute that relates to county counsel's duty in this regard (§ 9105, subd. (a)) is essentially identical to section 9203, subdivision (a). The opinion states that "County Counsel immediately filed an action in the superior court seeking a declaration that the proposed initiative was unconstitutional. She also sought relief from the duty to prepare a title and summary. The court granted County Counsel's request for a stay pending hearing on the merits." (Jahr, supra, 70 Cal.App.4th at p. 1253.) [7] Article II, section 8, subdivision (d) of the California Constitution provides that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect." [8] For the first time in his reply brief, Furchtenicht cites Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 [17 Cal.Rptr.3d 225, 95 P.3d 459], for the proposition that the trial court had no power to issue a declaration relieving Widders of his duty to comply with section 9203. Because Furchtenicht did not raise this argument in his opening brief, it is waived. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [60 Cal.Rptr.2d 770].) In any event, the case is inapposite. [9] Furchtenicht claims that "[i]t is only in the rarest of cases, where there is the threat of immediate and severe financial ramifications and the possibility of personal liability that courts have found sufficient hardship to justify judicial review prior to gathering the requisite number of signatures required to qualify an initiative for the ballot." The single case he cites for that proposition does not so hold. Rather, the court in that case "reiterate[d] the well-established nature of the rule that it is proper to conduct preelection review of a claim that a proposed measure may not properly be submitted to the voters because, for example, the measure is not appropriately legislative in character. [Citation.]" (Dunkl, supra, 86 Cal.App.4th at p. 394.) While Furchtenicht subsequently refers to the petitioners' contention below that "the existence of the proposed initiative was jeopardizing funding for the ballpark project . . ." (id. at p. 392), nothing in the opinion indicates that this purported consequence played any part in the court's conclusion that preelection review was appropriate. [10] Section 9604 provides: "(a) Notwithstanding any other provision of law, any person may engage in good faith bargaining between competing interests to secure legislative approval of matters embraced in a state or local initiative or referendum measure, and the proponents may, as a result of these negotiations, withdraw the measure at any time before filing the petition with the appropriate elections official."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259944/	167 Cal.App.4th 1401 (2008) ANDRES TURNER et al., Plaintiffs and Respondents, v. ASSOCIATION OF AMERICAN MEDICAL COLLEGES, Defendant and Appellant. No. A117071. Court of Appeals of California, First District, Division Five. October 30, 2008. 1403 Fulbright & Jaworski, Robert E. Darby, Robert A. Burgoyne and Caroline M. Mew for Defendant and Appellant. Disability Rights Advocates, Sid Wolkinsky, Roger Heller; Goldstein, Demchak, Baller, Bogen & Dardarian, Linda Dardarian; Schneider & Wallace and Joshua Konecky for Plaintiffs and Respondents. OPINION NEEDHAM, J. Individuals with learning disabilities and other conditions affecting their ability to read may, when taking a standardized test, seek 1404 reasonable testing accommodations under the Americans with Disabilities Act of 1990 (ADA). (42 U.S.C. §§ 12101 et seq., 12189.) This case presents the question of whether persons taking such tests in California are entitled to additional accommodations under the state's Unruh Civil Rights Act and Disabled Persons Act (DPA). (Civ. Code, §§ 51, 54-55.) We conclude these state law provisions do not require testing accommodations for readingrelated disabilities. I. Background The Association of American Medical Colleges (AAMC) is a nonprofit organization whose members include medical schools and teaching hospitals throughout the country. Its mission is to improve public health by enhancing the effectiveness of academic medicine. Among other things, AAMC develops and administers the Medical College Admission Test (MCAT), a nationwide standardized test designed to assess a medical school applicant's knowledge of basic science concepts, writing skills and facility in problem solving and critical thinking.[1] The MCAT is designed to predict success during medical school. It consists of multiple-choice questions and a writing section and is assigned a scaled score when it is graded. The MCAT is useful to medical schools because it allows them to compare an applicant's performance to that of others under standardized conditions. Admissions departments consider the MCAT along with other factors such as a student's grades in undergraduate school when evaluating a medical school applicant. The spaces in medical schools are limited and the application process is highly competitive. Although it is a timed examination, the MCAT is not designed to measure reading speed per se. The time limits on the MCAT have not been correlated with the reading or problem solving speed necessary for success in medical school or the practice of medicine. Applicants with reading-related learning disabilities such as dyslexia or conditions such as attention deficit hyperactivity disorder (ADHD) may have difficulty completing the test in the allotted time. In such cases, AAMC entertains requests for accommodations such as additional time to complete the examination or a separate room to minimize distractions. AAMC puts a notation or "flag" on any test taken under nonstandard conditions to alert medical schools that the score should carry less weight relative to other factors in the admissions process. Individuals who have difficulty reading as a result of their disability may, nonetheless, possess superior intelligence and reasoning skills. The accommodation of applicants with learning and reading-related disabilities on a 1405 standardized test is designed to level the playing field, not to give those individuals an advantage. Nonetheless, accommodating such disabilities creates an inherent tension between the various interests at stake. On the one hand, when a test is not designed to measure reading speed, time limits can compromise its ability to accurately measure the skills and knowledge of applicants with such disabilities. In such cases, applicants may possess the ability to solve a particular problem, but be unable to do so because the time constraint placed by the testing agency does not allow them sufficient time to decode the question asked. On the other hand, the value of standardized tests lies in the ability to compare the relative scores of different applicants. If accommodations alter what is being tested, the comparability of scores may be compromised and the person receiving the accommodations may receive a benefit not given to a person taking the test under standard conditions. When AAMC is presented with a request for accommodations on the MCAT, it reviews that request under the standards set by the ADA. Under the ADA, a person claiming a right to reasonable accommodations for a disability must demonstrate "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." (42 U.S.C. § 12102(2)(A), italics added.) Thus, an MCAT applicant with a readingrelated learning disability or ADHD would have to demonstrate that the disability or condition substantially limits the major life activities of reading or test taking. Plaintiffs Andres Turner, Anne Cashmore, Brendan Pierce and David Lebovitz are California residents with reading-related learning disabilities and/or ADHD who applied to take the MCAT in California in 2004. They each requested more time and/or a private room in which to take the test. AAMC denied plaintiffs' requests, after which they filed this class action lawsuit alleging state law violations of the Unruh Civil Rights Act and DPA. (Civ. Code, §§ 51, 54-55.)[2] The complaint alleged that plaintiffs' requests for accommodations should have been considered under these state laws, which define "disability" more broadly than the ADA to include a mental, psychological or physical condition that "limits a major life activity," i.e., that "makes the achievement of the major life activity difficult." (Civ. Code, §§ 51, subd. (e)(1), 54, subd. (b)(1); Gov. Code, § 12926, subds. (i)(1)(B), (k)(1)(B)(ii).) AAMC did not dispute that the California definition of disability as one that "limits" a major life activity by making it "difficult" is more inclusive 1406 than the ADA's "substantially limits" standard. (See Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1026 [130 Cal.Rptr.2d 662, 63 P.3d 220].) Instead, AAMC took the position that application of the California standard was not appropriate because the MCAT was a nationwide test and accommodation requests had to be evaluated under the same standard throughout the country. As an affirmative defense, AAMC claimed the Unruh Civil Rights Act and DPA did not apply because the use of the state law standard of disability for California residents taking the MCAT in California would violate the commerce clause of the federal Constitution. AAMC also took the position that AAMC was not a "business establishment" within the meaning of the Unruh Civil Rights Act, that an Unruh Civil Rights Act claim could not succeed absent a showing of intentional discrimination, that the DPA only guaranteed access to physical facilities, and that neither the Unruh Civil Rights Act nor the DPA required reasonable accommodations on a standardized test. The trial court granted plaintiffs' motion for summary judgment on the commerce clause defense, concluding the application of the California standard of disability to MCAT applicants would not unduly burden interstate commerce relative to the important public interest served by the state civil rights statutes. It denied a motion for judgment on the pleadings brought by AAMC, ruling that the Unruh Civil Rights Act and DPA applied to the administration of the MCAT and required AAMC to provide reasonable accommodations to individuals who were disabled under their provisions. The court also granted plaintiffs' motion for class certification "for the limited purpose of determining whether AAMC must apply California law to the members of the defined class." The court declined to resolve the individual claims of any class member or to specify the accommodations necessary on a classwide basis.[3] Following a five-day bench trial to determine appropriate injunctive and declaratory relief, the court issued a detailed statement of decision including the following orders: (1) AAMC must apply the Unruh Civil Rights Act and DPA to California residents applying for testing accommodations on the MCAT; (2) AAMC must provide reasonable accommodations that do not otherwise fundamentally alter the MCAT to persons with established disabilities as defined under the Unruh Civil Rights Act and DPA; and (3) AAMC must submit to the court within 60 days a report reflecting its development of internal procedures for considering accommodation requests under the Unruh 1407 Civil Rights Act and DPA. Plaintiffs were designated the prevailing parties under Civil Code section 55 and Code of Civil Procedure section 1021.5 for the purpose of seeking attorney fees and costs. The court later awarded plaintiffs approximately $1,969,000 in attorneys fees and costs under Civil Code section 55: $1,884,247 in prejudgment legal fees (based on a lodestar award of $1,449,421 times a multiplier of 1.3), $60,000 in fees for their work preparing the motion for legal fees, and $25,489.05 in costs. AAMC appeals. II. Discussion A. Introduction and Standard of Review AAMC argues that neither the Unruh Civil Rights Act nor the DPA require it to provide testing accommodations to disabled individuals taking a standardized test such as the MCAT. The trial court's ruling that the Unruh Civil Rights Act and DPA applied to the MCAT was made in the context of an order denying AAMC's motion for judgment on the pleadings. Such an order would not, typically, amount to a final resolution of this issue, but it was reiterated in the statement of decision following the court trial and was treated by the court and the parties as dispositive. In any event, because the relevant facts are not in dispute and because the interpretation of the Unruh Civil Rights Act and DPA is an issue of law, we review de novo the court's ruling that those statutes apply to the administration of the MCAT in California. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [35 Cal.Rptr.2d 418, 883 P.2d 960].)[4] As explained below, we conclude that neither statute applies to AAMC's consideration of accommodation requests for learning and reading-related disabilities. B. The Unruh Civil Rights Act Does Not Require the Alteration of Standardized Testing Conditions to Accommodate Applicants with Learning and Reading-related Disabilities (1) The Unruh Civil Rights Act prohibits discrimination based on a person's membership in a particular group: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) "Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to [the 1408 act]" is liable for damages and penalties. (Civ. Code, § 52, subd. (a).) (2) Injunctive relief is also available and may extend to all persons similarly situated to plaintiff. (Vargas v. Hampson (1962) 57 Cal.2d 479, 481 [20 Cal.Rptr. 618, 370 P.2d 322]; Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 471-472 [20 Cal.Rptr. 609, 370 P.2d 313].) (3) Despite its broad application, the Unruh Civil Rights Act does not extend to practices and policies that apply equally to all persons: "This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation." (Civ. Code, § 51, subd. (c); Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1172 [278 Cal.Rptr. 614, 805 P.2d 873] (Harris).) A policy that is neutral on its face is not actionable under the act, even when it has a disproportionate impact on a protected class. (Harris, at pp. 1172-1173; Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1238 [60 Cal.Rptr.3d 631] (Belton).) In Harris, the plaintiffs were prospective tenants who brought an action under the Unruh Civil Rights Act against a landlord who required that they have a minimum income of three times the amount of rent. (Harris, supra, 52 Cal.3d at p. 1148.) After rejecting the argument that economic discrimination was cognizable under the act, our Supreme Court considered the alternative claim of gender discrimination based on a theory that the minimum income requirement had a disproportionate effect on women, who made less money on average than did men. (Harris, at pp. 1170-1175.) It noted that the language of the damages provision of Civil Code section 52which referred to denying, aiding and inciting the denial of access to public accommodations"point[ed] to an emphasis on intentional discrimination" and implied the need for "willful, affirmative misconduct on the part of those who violate the Act." (Harris, at p. 1172.) Moreover, "the Act explicitly exempts standards that are `applicable alike to persons of every sex, color, race . . . .' (§ 51.) By its nature, an adverse impact claim challenges a standard that is applicable alike to all such persons based on the premise that, notwithstanding its universal applicability, its actual impact demands scrutiny. If the Legislature had intended to include adverse impact claims, it would have omitted or at least qualified this language in section 51." (Harris, at pp. 1172-1173.) In Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824 [31 Cal.Rptr.3d 565, 115 P.3d 1212] (Koebke), the lesbian partner of a woman who belonged to a private country club was denied club privileges available to members' spouses. (Id. at p. 831.) She filed a lawsuit claiming that this policy amounted to discrimination based on sexual orientation because same 1409 sex couples could not legally marry at that time. (Id. at p. 854.) The court reaffirmed that an Unruh Civil Rights Act violation requires more than a disparate impact on a particular group and concluded the plaintiff could not state a claim under this theory when the policy extended to all unmarried couples, regardless of their sexual orientation.[5] A disparate impact claim predicated on disability was rejected in Belton, in which plaintiffs who were blind complained that a cable company's policy of packaging its music services with television programming was discriminatory because sighted persons could fully use the television whereas blind persons could not. (Belton, supra, 151 Cal.App.4th at pp. 1237-1238.) Citing Harris and Koebke, the court concluded the challenged policy did not violate the Unruh Civil Rights Act because it applied equally to all customers and did not target those with visual disabilities, even if it had a disparate effect on the latter group. (Belton, at pp. 1237-1238.) In this case, AAMC has established certain standards for the administration of the MCAT, including a time limit for each section of the test. These standards are neutral and extend to all applicants regardless of their membership in a particular group. Plaintiffs' claim under the Unruh Civil Rights Act is effectively an argument that these general policies are discriminatory because they have a disparate impact on those with learning and readingrelated disabilities, who have a more difficult time taking tests under standard conditions. Under Harris, Koebke and Belton, this disparate impact analysis cannot be the basis for an Unruh Civil Rights Act claim. Whatever entitlements plaintiffs may have to testing accommodations under other civil rights statutes, the trial court erred in concluding that AAMC's standardized procedures implicate the act, at least as applied to individuals with learning and reading-related disabilities seeking additional time or similar performancerelated accommodations when taking the MCAT. Plaintiffs attempt to distinguish Harris, Koebke and Belton on the ground that their claim is based on AAMC's failure to provide reasonable accommodations, rather than on the disparate impact of its policies. They rely primarily on two federal decisions holding that a claim based on failure to provide reasonable accommodations as required by the ADA did not additionally require proof of disparate treatment or disparate impact. (McGary v. City of Portland (9th Cir. 2004) 386 F.3d 1259, 1265-1266; Henrietta D. v. Bloomberg (2d Cir. 2003) 331 F.3d 261, 276-277.) These cases are inapposite because they were decided under the ADA, which "not only protects against disparate treatment, [but] also creates an 1410 affirmative duty in some circumstances to provide special, preferred treatment, or `reasonable accommodation.'" (Dunlap v. Association of Bay Area Governments (N.D.Cal. 1998) 996 F.Supp. 962, 965.) While it is true that plaintiffs are seeking reasonable accommodations for their learning and reading-related disabilities, it does not follow that such preferred treatment or accommodations are required under the Unruh Civil Rights Act in the face of the language in Civil Code section 51, subdivision (c). (4) This does not mean that disabled persons in California may not seek reasonable accommodations for their learning and reading-related disabilities when taking a standardized test. The Unruh Civil Rights Act does indirectly penalize a failure to grant reasonable accommodations in Civil Code section 51, subdivision (f), which incorporates otherwise relevant ADA standards as a "floor" under state law: "A violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section." (See Bass v. County of Butte (9th Cir. 2006) 458 F.3d 978, 982.) The ADA requires reasonable accommodations on standardized tests for those with qualifying disabilities: "Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals." (42 U.S.C. § 12189; see Agranoff v. Law School Admission Council, Inc. (D.Mass. 1999) 97 F.Supp.2d 86, 87-88.) Any violation of this ADA requirement would also be a violation of the Unruh Civil Rights Act by virtue of Civil Code section 51, subdivision (f). (5) In the context of this case, Civil Code section 51, subdivision (c) and the cases construing it can be readily harmonized with section 51, subdivision (f) and the ADA provisions it incorporates. Simply put, in addressing a claim that a facially neutral testing policy has a disparate impact on persons with learning and reading-related disabilities, accommodations are required to the extent they are required under the ADA. In this case, there is no allegation that AAMC has failed to comply with the ADA in considering requests for accommodations on the MCAT, and plaintiffs have therefore failed to establish their entitlement to relief under the Unruh Civil Rights Act. (Contrast Cloutier v. Prudential Ins. Co. of America (N.D.Cal. 1997) 964 F.Supp. 299, 303-304, 307 [though insurer did not directly violate the act in denying coverage to HIV-negative persons having a current sexual relationship with an HIV-positive partner, plaintiff could state a claim under Civ. Code, § 51, subd. (f) based on potential violation of ADA].) As this case demonstrates, some individuals who would be considered disabled under California's more inclusive definition of disability will not be 1411 deemed disabled for purposes of the ADA and will not be entitled to relief under Civil Code section 51, subdivision (f). If the Legislature wishes to amend the Unruh Civil Rights Act to require reasonable accommodations for all persons meeting the California standard of disability it may do so, but it is not within our province to rewrite the statute. (People v. Burgio (1993) 16 Cal.App.4th 769, 778 [20 Cal.Rptr.2d 397].) Finally, we note that this is not a case in which there was any allegation or evidence that AAMC applied its facially neutral policy in an intentionally discriminatory manner. In Koebke, the court recognized that an Unruh Civil Rights Act violation might arise from a situation in which a neutral policy was used as a pretext to discriminate against a protected class of individuals. (Koebke, supra, 36 Cal.4th at pp. 854-855.) Though the complaint in this case alleged that AAMC has relied on "discriminatory and arbitrary criteria to deny requests for accommodations," plaintiffs have neither alleged nor proven that AAMC was motivated by an animus toward those with learning and reading-related disabilities or granted accommodation to other groups or disabled individuals that it did not grant to those with learning and readingrelated disabilities. C. The DPA Guarantees Access to Public Places but Does Not Require a Modification of Standardized Testing Procedures to Accommodate Learning and Reading-related Disabilities (6) Whereas the Unruh Civil Rights Act bars discrimination against several classes of individuals, the DPA more narrowly protects those who suffer from disabilities. Contained in part 2.5 of division 1 of the Civil Code, entitled "Blind and Other Physically Disabled Persons" and originally limited to persons with physical disabilities (see Civ. Code, § 54 (added by Stats. 1968, ch. 461, § 1, p. 1092; amended by Stats. 1992, ch. 913, § 4, p. 4286)), the DPA now extends more broadly to persons with "any mental or physical disability as defined in Section 12926 of the Government Code." (Civ. Code, § 54, subd. (b)(1).) Under the DPA, "Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians' offices, public facilities, and other public places." (Civ. Code, § 54, subd. (a).) Additionally, "Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians' offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation . . . 1412 telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons." (Civ. Code, § 54.1, subd. (a)(1).) (7) The DPA is "intended to secure to disabled persons the `same right as the general public to the full and free use' of facilities open to the public." (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 261 [65 Cal.Rptr.3d 838].) Its focus is upon physical access to public places, though the statute may also be construed as requiring equal physical access to a nontangible location such as an Internet site. (Compare Wilson v. Haria and Gogri Corp. (E.D.Cal. 2007) 479 F.Supp.2d 1127, 1140, fn. 16, with National Federation of Blind v. Target Corp. (N.D.Cal., Oct. 2, 2007, No. C06-1802 MHP) 2007 U.S.Dist. Lexis 73547.) Although the DPA now protects persons with mental disabilities, the published cases have involved challenges of physically disabled individuals denied access to some public site or service due to their disability. (E.g., Californians for Disability Rights v. Mervyn's LLC (2008) 165 Cal.App.4th 571, 580-581 [81 Cal.Rptr.3d 144] [claim that store did not provide adequate pathways, making merchandise inaccessible to persons using wheelchairs or other mobility devices]; Madden v. Del Taco, Inc. (2007) 150 Cal.App.4th 294, 296 [58 Cal.Rptr.3d 313] [concrete trash container that blocked restaurant entrance and caused wheelchair-bound plaintiff to fall]; Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 515 [74 Cal.Rptr.2d 684] [patron on crutches denied permission to use the only bathroom on first floor, which was reserved for employees]; Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1186-1187 [260 Cal.Rptr. 49] [quadriplegic could not access bank's automatic teller machine from wheelchair due to the steps in front of it].) AAMC argues that the DPA cannot be read to require accommodations for learning and reading-related disabilities on a standardized test. We agree. Civil Code section 54, subdivision (a) entitles disabled persons to "full and free use" of "public places." (Italics added.) Although there is no question the testing facilities used by AAMC to administer the MCAT constitute "public places" to which access is required, plaintiffs made no allegation or showing that AAMC has denied any person with a disability access to those facilities. Nothing in the language of section 54 can be reasonably construed to require a modification of the test procedures themselves, except to the extent necessary to guarantee physical access to the place in which the test is administered. Civil Code section 54.1, subdivision (a)(1) restates the DPA's access requirement as one of "full and equal access, as other members of the general 1413 public, to accommodations, advantages, [and] facilities . . . ." (Italics added.) The reference to "advantages" might be broadly interpreted to require equal access in the taking of the MCAT itself, in addition to the facility in which it is administered. But, the statute qualifies the requirement of "full and equal access" by describing it as that available to "other members of the general public." (Civ. Code, § 54.1, subd. (a)(1).) It does not entitle a disabled individual to greater access than the public at large. Other members of the general public are not entitled to the performance-related accommodations sought by plaintiffs in this case, and there is nothing in the DPA requiring a testing entity to alter the conditions of a standardized test. Like the Unruh Civil Rights Act, the DPA incorporates the ADA to the extent that "A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section." (Civ. Code, § 54, subd. (c).) Because plaintiffs made no allegation or showing that AAMC violated the ADA, this provision does not support a judgment under the DPA. D. Conclusion (8) Individuals with learning and reading-related disabilities affecting their ability to rapidly process written information are entitled to reasonable accommodations when taking the MCAT, assuming they suffer from an impairment that "substantially limits" the major life activities of reading and/or test taking within the meaning of the ADA. (42 U.S.C. § 12102(2)(A).) AAMC is not required to utilize the more inclusive standard for assessing disabilities under the Unruh Civil Rights Act and DPA. The judgment granting injunctive relief must be reversed, as must the award of attorney fees and costs to plaintiffs as prevailing parties. (See Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1437, fn. 75 [131 Cal.Rptr.2d 684].) (9) We emphasize that our holding today is a narrow onethat the Unruh Civil Rights Act and DPA do not, by their own terms, require performance-related accommodations (additional time, private rooms) for MCAT applicants with learning or reading-related disabilities. There was no allegation by plaintiffs that MCAT applicants with purely physical disabilities had been denied reasonable accommodations for those disabilities, and we have no occasion to consider whether the act or DPA would apply in such a situation. We also emphasize that plaintiffs asserted no cause of action based on a violation of the ADA, and that the issue of whether AAMC has properly applied ADA standards to accommodation requests is not before us. Our conclusion that the Unruh Civil Rights Act and DPA do not require accommodations for learning and reading-related disabilities on standardized 1414 tests obviates the need to consider AAMC's alternative claims concerning the commerce clause, the status of AAMC as a "business establishment" for purposes of the Unruh Civil Rights Act, the scope of the injunctive relief granted, or the trial court's determination that plaintiffs were prevailing parties for the purpose of awarding attorney fees and costs. AAMC's motion for judicial notice of various documents, including those pertaining to standards used by other organizations when evaluating requests for disability accommodations, is denied as moot. III. Disposition The judgment is reversed, as is the order awarding plaintiffs attorney fees and costs. Costs on appeal are awarded to appellant AAMC. Jones, P. J., and Simons, J., concurred. NOTES [1] AAMC administers the MCAT through a third party test vendor, American College Testing (ACT). [2] The complaint also named two organizational plaintiffs, the National Disabled Students Union and the International Dyslexia Association, and included a cause of action for violation of Business and Professions Code section 17200. In its final judgment, the court dismissed the organizational plaintiffs based on their lack of standing to seek injunctive relief and rejected the cause of action under the Business and Professions Code. [3] After this lawsuit was filed, AAMC allowed plaintiffs Turner and Pierce to take the MCAT with the accommodations they requested following their submission of additional information documenting their disabilities. Plaintiffs Lebovitz and Cashmore took the MCAT without accommodations, with Lebovitz scoring in the 90th-92d percentile and Cashmore scoring in the 69th-74th percentile. [4] The parties do not suggest otherwise. [5] The plaintiff was entitled to pursue a cause of action for discrimination based on marital status for the period of time following the passage of the California Domestic Partner Rights and Responsibilities Act of 2003. (Koebke, supra, 36 Cal.4th at p. 850.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259950/	777 F.Supp. 276 (1991) Sarah COHEN and Leopold Cohen, individually and on behalf of all others similarly situated, Plaintiffs, v. PRUDENTIAL-BACHE SECURITIES, INC., et al., Defendants. No. 90 Civ. 4234 (PKL). United States District Court, S.D. New York. November 1, 1991. Aguirre & Meyer, San Diego, Cal. (Michael J. Aguirre and Patricia A. Meyer, of counsel), for plaintiffs. Skadden, Arps, Slate, Meagher & Flom, New York City (William P. Frank, Jay B. Kasner, and Richard M. Breslow, of counsel), for defendants Prudential-Bache Securities, 277 Inc. and Prudential-Bache Properties, Inc. Parker Chapin Flattau & Klimpl, New York City (Elliot Cohen and Joel A. Chernov, of counsel), for defendant Laventhol & Horwath. Colton, Hartnick, Yamin & Sheresky, New York City (David Aronson, of counsel), for defendants Sybedon Corp. Rivkin, Radler, Bayh, Hart & Kremer, Uniondale, N.Y. (Peter C. Contino and Janice J. DiGennaro, of counsel), for defendant Wilrock Appraisal & Consulting, Inc. OPINION AND ORDER LEISURE, District Judge. The instant action arises out of the sale of limited partnership units in Jefferson Hotel Associates Limited Partnership ("Jefferson Hotel Partnership" or "Partnership"), a Connecticut limited partnership. The plaintiffs, Sarah Cohen and Leopold Cohen, investors in the Jefferson Hotel Partnership, bring this suit individually and on behalf of all others similarly situated. The defendants are Prudential-Bache Securities, Inc. ("Prudential Securities") and Prudential-Bache Properties, Inc. ("Prudential Properties"), both Delaware corporations; Sybedon Corporation ("Sybedon") and Wilrock Appraisal & Consulting, Inc. ("Wilrock"), both New York corporations; Laventhol & Horwath ("Laventhol"), a California partnership; National Union Insurance Company of Pittsburgh ("National Union"), a Pennsylvania corporation; and Edwin J. Glickman, Mitchell Davis and Betram Lewis, individual defendants. Plaintiffs assert federal claims under sections 12(2) of the Securities Act of 1933 ("Securities Act"), 15 U.S.C. § 771, Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. They also assert pendent state law claims of common law fraud, negligent misrepresentation, breach of fiduciary duty and violation of the California Corporations Code. Based on the Supreme Court's recent holdings in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, ___ U.S. ___, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), and James B. Beam Distilling Co. v. Georgia, ___ U.S. ___, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), and subsequent cases applying these precedents, this Court is compelled to dismiss plaintiffs' securities fraud claims. Since this dismissal eliminates the federal jurisdictional basis, plaintiffs' pendent state law claims are also dismissed. BACKGROUND For the purposes of this motion, the Court assumes the truth of the facts alleged by plaintiffs in their Complaint. See O'Brien v. National Property Analysts Partners, 936 F.2d 674, 677 (2d Cir.1991); DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.1987). Between September 1983 and March 1984, Prudential Securities sold 140 limited partnership units in the Jefferson Hotel Partnership to investors in 28 states. Complaint ¶ 106. Information about the partnership offering was disseminated, beginning in September 1983, via the Jefferson Hotel Partnership Private Placement Memorandum ("Placement Memo"), which stated that the goal of the Partnership was to raise $14 million, to "acquire, substantially rehabilitate and refurbish, own and lease a 275-room hotel located in Richmond, Virginia, to be known as the Jefferson Sheraton Hotel ("Jefferson Sheraton")." Placement Memo, at i.[1] The offering was exempt from SEC registration requirements under Regulation D, 17 C.F.R. §§ 230.501-.508, which is a safe harbor provision that applies 278 to securities offerings to "accredited investors," having substantial net worth or income. Complaint ¶ 2. After opening in March 1986, the Jefferson Sheraton suffered losses for 43 consecutive months, and went into bankruptcy in October 1989. Complaint ¶ 111. The purchasers of partnership units appear to have suffered a total loss, leading to this action. Complaint ¶ 98. Plaintiffs claim that the sale of the Partnership securities was characterized by fraudulent conduct, alleging that: Through material omissions defendants fraudulently overstated the prospects for the Hotel's economic success and at the same time failed to disclose the severe financial straits into which the restoration project was falling. In so doing, defendants acted with the full knowledge of contemporaneous projections on the hotel and problems incurred by the developer which pointed toward the inevitable doom of the JHA investors [sic] interests. Unbeknownst to plaintiffs, the projections contained in the PPM were inflated; drafted to obscure the economics of the investment; and unreasonable under the circumstances. Complaint ¶ 100. Specifically, defendants allege that the following material facts were omitted from the offering memorandum: That the Hotel, when acquired by [the Partnership], was substantially deteriorated and that prior attempts to raise funds for the Hotel were unsuccessful due to the excessive cost of such renovation; Laventhol tailored the amount of the [offering memo] Jefferson Hotel income projections to meet [Prudential Securities'] and Sybedon's [Partnership] Unit marketing objectives. These projections were prepared to obscure the economics of the investment and not with an eye toward protecting investors; The Jefferson Hotel appraised value of $37 million included in the [offering memo] did not reflect the non-recourse nature of the Jefferson Hotel lease. Reflecting the non-recourse nature of the lease would have materially lowered the appraised value of the lease by substantially raising the discount rate by which the net present value of the Jefferson Hotel was determined; The Jefferson Hotel's renovation "cost per room" was approximately $116 thousand, which substantially exceeded the renovation costs of similar hotels in the area; and The [offering memo] was drafted to obscure the economics of the investment; to disguise the primary wrong as described herein; and to deprive investors of the historical and current financial information concerning the expenses of the rehabilitation. It was not drafted for the ordinary investor or the sophisticated investor; it was drafted to confuse the terms and to give the appearance but not the reality of disclosure. Complaint ¶ 114. In response, defendants argue persuasively that these claims should be dismissed pursuant to Fed. R.Civ.P. 9(b) for failure to plead fraud with particularity, and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. See, e.g., The Prudential Bache Defendants' Memorandum of Law in Support of their Motion to Dismiss the First Amended Complaint ("Prudential Motion") at 20-42. In addition to alleging that the Jefferson Hotel Partnership offering was marred by misrepresentations and omissions, plaintiffs also seek to set the transaction in a larger context. The first 25 pages and 75 paragraphs of the instant Complaint are devoted to allegations that Prudential Securities and its co-defendants perpetrated a fraudulent nationwide real estate securities scheme. According to plaintiffs, they: are members of the class of the 15,000 victims of Defendant [Prudential Securities'] course of business fraud, carried out in a [Prudential Securities] maintained national market ... wherein it sold over $1 billion of worthless real estate limited partnership units. Complaint ¶ 1. Plaintiffs allege a far-reaching fraudulent scheme to sell unregistered, over-valued, over-encumbered real 279 estate securities, based on misleading and false projections (labeled "PBS RELP Fraud"). Complaint ¶ 17. They assert that the scheme was carried out by Prudential Securities, its subsidiaries and affiliates, between 1982 and 1986, with the goal of getting rich off of "Other People's Money." Complaint ¶ 45. Defendants argue persuasively that references to "PBS RELP Fraud" in the Complaint should be stricken under Fed. R.Civ.P. 12(f) as "redundant, immaterial, impertinent, or scandalous matter." They point out that virtually identical allegations were struck in Lubin v. Prudential-Bache Securities, No. 87-1844, MDL No. 783 (S.D.Cal. May 8, 1990), and assert that prior acts of fraud (if such could be proven) would be inadmissible to show propensity under Fed.R.Evid. 404. More importantly, defendants contend that the alleged scheme is unrelated to the case at bar: Plaintiffs do not allege that they invested in any of these other partnerships, or that any of the other partnerships had anything whatsoever to do with this partnership, or this PPM, or the losses allegedly incurred here.... [T]hat alleged fraud was not "in connection with" the sale of units in the Partnership, and is therefore irrelevant to plaintiffs' claims in this action. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 [95 S.Ct. 1917, 44 L.Ed.2d 539] (1975). Prudential Motion, at 71-72. The foregoing arguments are representative of the myriad of arguments and counter-arguments raised by the parties, in almost 350 pages of memoranda of law, in support of and in opposition to the motions to dismiss or significantly to redact plaintiffs' first amended Complaint. Were it necessary to address all of these arguments point by point, the Court would not shy away from the task. However, the Court is bound by recent Supreme Court and Second Circuit precedent, and must dismiss the action in its entirety based on the statute of limitations established in Lampf. The Court therefore does not reach the merits of these arguments. DISCUSSION A. Federal Securities Law Claims On June 20, 1991, the Supreme Court decided Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, ___ U.S. ___, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). Lampf followed the decision of the Second Circuit in Ceres Partners v. GEL Assoc., 918 F.2d 349 (2d Cir.1990), and reached the same result as the Second Circuit, imposing "a uniform federal statute of limitations for actions brought under section 10b of the Securities and Exchange Act [sic] of 1934." Welch v. Cadre Capital, 946 F.2d 185, 186 (2d Cir.1991). Thus, the statute of limitations for section 10(b) and Rule 10b-5 actions now provides that: No action shall be maintained to enforce any liability created under this section, unless brought within one year after the discovery of the facts constituting the violation and within three years after such violation ("one year/three year period"). See Lampf, 111 S.Ct. at 2782 n. 9 (adopting standard in § 9(e) of the Exchange Act as limitations period for actions under § 10(b)). Lampf interpreted this limitations period as establishing an absolute three year time-bar for actions under section 10(b). Whereas equitable tolling generally applies in fraud cases, the doctrine does not apply to claims for securities fraud under section 10(b). "The three year limit is a period of repose inconsistent with tolling.... Because the purpose of a 3-year limitation is clearly to serve as a cut-off, we hold that tolling principles do not apply to that period." Lampf, 111 S.Ct. at 2782. The primary issue left unresolved by Lampf was whether the decision should be applied retroactively. However, the issue appears to have been resolved by James B. Beam Distilling Co. v. Georgia, ___ U.S. ___, 111 S.Ct. 2439, 2448, 115 L.Ed.2d 481 (1991), which held that "when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata." In Lampf, the 280 time-bar was applied to the plaintiff, thus extinguishing an action that he had timely filed ab initio. Therefore, in accordance with Beam Distilling, the Second Circuit held in Welch v. Cadre Capital that Lampf must be applied retroactively. See Welch, supra, at 186. This Court recognizes that the instant action was filed in April 1990, and that applying a decision rendered by the Supreme Court in June 1991[2] as the basis for a holding that this action is time barred may seem inequitable. In fact, the analogous result in Lampf led Justice O'Connor to comment that: In holding that respondent's suit is time-barred under a limitations period that did not exist before today, the Court ... inflicts an injustice on the respondents. ... Quite simply, the Court shuts the courthouse door on respondents because they were unable to predict the future. Lampf, 111 S.Ct. at 2785-86 (O'Connor, J., dissenting). However, Lampf and Welch are controlling law, and this Court is compelled to apply them.[3] Thus, the only remaining inquiry is whether the violation of section 10(b) occurred within three years of the original filing of this action. Section 10(b) and Rule 10b-5 prohibit fraud "in connection with the purchase or sale of any security." It is well established that a cause of action under this statute: requires proof that the defendant's alleged fraud was "integral to the purchase and sale of the security in question...." Section 10(b) is not violated by a fraudulent scheme ... some time after a purchase of securities ... Rather, the fraud must have been integral to the plaintiff's purchase or sale of the security. Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 598 (2d Cir.1991) (citations omitted); see also Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975) (finding requirement of status as seller or purchaser of securities for standing to sue under section 10(b)). In Flickinger the sale of securities occurred in June 1983, but the fraudulent conduct occurred on September 19, when the seller falsely informed the purchaser that the shares had been delivered. The Second Circuit found that the plaintiff could not show fraud in connection with the purchase, since it was complete before the fraud occurred. However, the Court found that the 10(b) claim was colorable, because it related to delivery of the stock, which was an aspect of the purchase. Thus, although a claim under section 10(b) may rest on events occurring after the purchase, the fraud must have been an integral part of the sale: subsequent statements that merely address the performance of the security do not state a claim under section 10(b). In the case at bar, the Court, upon close scrutiny of the Complaint, finds the following dates to be relevant to the section 10(b) claim. There are extensive allegations in the Complaint of activity that occurred in the early 1980's. However, the earliest dates relating to the sale and offer of Jefferson Hotel Partnership securities are 281 June 1982 September 1983, when Laventhol is alleged to have prepared economic feasibility projections for the Jefferson Sheraton. Complaint ¶ 87. It is alleged that the offering of Partnership securities began in September 1983. Complaint ¶ 106. The purchase of the securities on which the Complaint focuses occurred between September 1983 and March 1984. Complaint ¶ 90. These are the only dates alleged to be related to the purchase or sale of the Partnership securities. There is no allegation of delivery subsequent to this date, see Flickinger, supra, and any fraudulent scheme subsequent and unrelated to the purchase of the securities is not a violation of section 10(b). There are certain allegations in the Complaint concerning dates subsequent to March 1984, and the Court now turns to examine these events. It is alleged that the Jefferson Sheraton suffered losses from March 1986 until its declaration of bankruptcy in October 1989. Complaint ¶ 75. The Complaint next turns to allegations concerning the activities of defendant Prudential Securities. The Complaint alleges in ¶ 57 that there were personnel changes within Prudential Securities' subsidiaries until March 1990, and also alleges in ¶ 34 that "from 1982 through in or about 1987" Prudential Securities employed an extensive advertising campaign to enhance its image. Further, the President of Prudential Securities, George F. Ball ("Ball") is alleged to have consented to a finding that he violated stock exchange rules in April 1988. Complaint ¶ 42. Finally, the most recent allegation is that, in February 1990, Ball made "statements designed to rationalize and misrepresent the financially distressed condition of the RELP's." Complaint ¶ 64. In this paragraph plaintiffs point to statements by Ball indicating that the alleged fraudulent scheme, as a whole, involved "some winners and some losers," and that the overall investment had a "good batting average." It is clear to the Court that none of these post-1984 allegations state facts that were an integral part of the purchase or sale of the Jefferson Hotel Partnership securities. At best, they were "a fraudulent scheme ... some time after a purchase of securities." Flickinger, supra, at 598. The Court therefore holds that plaintiffs' section 10(b) action accrued between September 1983 and March 1984, and that the action is time barred under Lampf. This claim is therefore dismissed. The Court also dismisses plaintiffs' claim under section 12(2) of the Securities Act. Plaintiffs did not oppose defendants' motions to dismiss this claim. Further, Section 13 of the Securities Act imposes an absolute time bar for actions under section 12(2) of "three years after the sale." See 15 U.S.C. § 77m. For the foregoing reasons, plaintiffs' federal securities fraud claims are dismissed for failure to meet the one year/ three year statute of limitations. B. Pendent State Law Claims Under United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), "if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." In the instant case, federal jurisdiction is founded solely on the Securities Act, the Exchange Act and principles of pendent jurisdiction. Complaint ¶ 76. Since the federal claims have been dismissed, there is no federal claim upon which to base jurisdiction, and plaintiffs' state law claims are dismissed. See Town of West Hartford v. Operation Rescue, 915 F.2d 92, 104 (2d Cir.1990). However, the Complaint does not allege the plaintiffs' residence, leaving this Court unable to determine whether there exists an independent jurisdictional basis. See Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 124 (2d Cir.1991). The Court therefore grants plaintiffs leave to amend their Complaint, to assist the Court in determining if there exists an independent jurisdictional basis for the state law claims. See id. at 123, 124 (permission to file amended Complaint should routinely be granted); Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987) (same). 282 CONCLUSION For the foregoing reasons, plaintiffs' first amended Complaint is dismissed. Plaintiffs may file and serve an amended Complaint within sixty (60) days from the effective date of this opinion. Plaintiffs' section 10(b) and 12(2) claims are dismissed with prejudice. SO ORDERED NOTES [1] On a motion to dismiss, the record is "limit[ed] ... to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). In the instant case, the placement memo is incorporated by reference into the Complaint "[b]ecause the Complaint repeatedly refers to the [placement memo] as the source[] of the alleged misrepresentations." O'Brien v. National Property Analysts Partners, 719 F.Supp. 222, 224 n. 4 (S.D.N.Y.1989) (Leisure, J.); see also Ruff v. Genesis Holding Corp., 728 F.Supp. 225, 226 n. 2 (S.D.N.Y.1990) (incorporating extensively quoted placement memo into Complaint by reference). [2] The Second Circuit opinion in Ceres Partners was handed down on Nov. 8, 1990, only days after the instant motion was fully submitted, and would have controlled had the instant motion been decided between November 1990 and June 1991. [3] Plaintiffs argue that choice of law principles require the Court to adopt California precedent in this matter, since the action was transferred here from the Southern District of California. After a 28 U.S.C. § 1404(a) transfer, the transferee court must apply the transferor state's law, including its choice of law rules. See Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). Thus, the Court must apply California's governmental interest analysis test. See, e.g., Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484-85 (9th Cir.1987). The plaintiffs have not alleged that any conduct occurred in California, and thus California law cannot apply to this case. In fact, the Complaint does not allege the plaintiffs' address. The Court therefore applies New York law, since it appears that the securities were offered for sale in New York. Further, the Court notes that virtually all cases that have considered the issue have ruled that Lampf must be applied retroactively. See Hastie v. American Agri-Corp., 774 F.Supp. 1251, 1252 (C.D.Cal.1991) (citing cases applying Lampf retroactively).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259961/	289 Md. 7 (1980) 421 A.2d 966 ROBERT UHLER ET UX. v. REAL PROPERTIES, INC. ET AL. [No. 165, September Term, 1979.] Court of Appeals of Maryland. Decided November 7, 1980. The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON, and RODOWSKY, JJ. Charles O. Fisher, Sr., with whom were Walsh & Fisher on the brief, for appellants. Mark I. Cantor, with whom was Harold I. Glaser on the brief, for appellees. RODOWSKY, J., delivered the opinion of the Court. Appellants suffered the dismissal of their appeal to the Court of Special Appeals on the ground that the record had not been transmitted to the intermediate appellate court from the Circuit Court for Carroll County within the time 9 required by Maryland Rule 1025. Because appellants have shown that the failure timely to transmit the record was occasioned by the inability of the court stenographer to complete the transcript of testimony, we reverse the dismissal. The issue with which we are presently concerned is collateral to litigation which commenced on October 12, 1971. Appellee, Real Properties, Inc., which was later joined by other plaintiffs (collectively herein called "RPI") sued appellants, Robert Uhler and Clara Uhler (the "Uhlers") in a dispute concerning an alleged right of way over RPI's land. Following trial on October 28 and November 1, 1974, RPI on January 23, 1975 obtained a decree which, inter alia, enjoined the Uhlers from certain use of the easement. By April 2 of that year RPI moved in the original action to have the Uhlers found in contempt. That issue was tried September 23, 1975 and resulted in an order of October 24, 1975 finding the Uhlers in contempt. RPI again moved on July 24, 1978 in the same action for a determination that the Uhlers were in contempt. Following trial on October 16, 1978, a decree of March 6, 1979 adjudged the Uhlers to be in contempt. The subject appeal is from the March 1979 decree. Preparation of the transcript was requested in writing by the appellants of the court reporter contemporaneously with the timely noting of the appeal. See Rule 1026 a 2. The amount paid as deposit toward cost of the transcript slightly exceeded, as it ultimately developed, the actual cost of the transcript. Two extensions of time for transmitting the record were granted by the Court of Special Appeals on application of the Uhlers. The first application was filed within 60 days after the order for appeal and the second extension application was filed before the expiration of the first extension. The second extension carried to and including Friday, October 26, 1979. On Wednesday, October 17, 1979 the court reporter wrote to counsel for the appellants and requested that he obtain an additional 30 day extension. The reporter explained: [T]his is the most difficult case I have ever had to transcribe and much of the testimony in the 1974 10 hearing is defective. Therefore, I need additional time in order to complete this transcript. Counsel for the Uhlers prepared a third application for extension of time which was mailed on Thursday, October 25, 1979. It was received by the Clerk of the Court of Special Appeals on Monday, October 29, 1979. This application was predicated on the inability of the court reporter to complete the transcript. To it was attached a copy of the letter of October 17, 1979 from the court reporter. These facts were not controverted. The extension was denied. On the margin of the application is endorsed the court's order which reads, "11/7/79 Denied. Untimely filed. Court without jurisdiction to grant. Md. Rule 1025 b." Appellants moved to strike the order of November 7. It was denied on November 15. The court's notation on the motion to strike reads, "Appellant misconstrues Md. Rule 1025 b. Court is without jurisdiction to grant relief unless request for extension is timely. Here it was not." Despite denial of the extension, counsel for the Uhlers had requested the court reporter to complete preparation of the transcript. This was done and the balance of the transcript was filed with the Clerk of the Circuit Court on November 19. The record was transmitted by the Clerk of the Circuit Court to the Clerk of the Court of Special Appeals on November 30, 1979 under cover of a one sentence letter which states, "We have been requested by the Appellants' attorney to forward this Record to your office and are complying with his request." On December 6, 1979 RPI filed in the Court of Special Appeals a motion to dismiss the appeal on the ground that the record had not been transmitted within the time prescribed by Rule 1025. The Uhlers answered under affidavit of their counsel who stated that "the failure to transmit the record by October 26, 1979 was due to the inability of the court stenographer to complete the necessary transcripts of testimony by that time." In support of this 11 position appellants again attached the court reporter's letter of October 17.[1] The Court of Special Appeals entered an order dismissing the appeal on December 14, 1979. It cited Rule 1035 b 4 which provides that failure to transmit the record within the time prescribed by Rule 1025 is a reason for dismissal. We granted appellants' petition for certiorari directed to the questions of whether the Court of Special Appeals had jurisdiction to extend the time for filing the record and whether there was error in dismissing the appeal. At the times relevant here[2] Rule 1025 in pertinent part provided: a. Within Sixty Days. Within sixty days after the first order for appeal is filed, unless a different time shall be fixed by order entered pursuant to section b of this Rule, the clerk of the lower court shall transmit the record to this Court. b. Court of Special Appeals May Shorten or Extend Time. Upon application of any party and for sufficient cause shown, or upon its own motion, this Court may direct that the record be transmitted within such shorter or longer period of time as may be ordered. Any application for extension of time to file the record shall be made by filing such application with the clerk of this Court within the period 12 of time for filing the record as prescribed by section a of this Rule or as extended by this Court pursuant to this section. No order extending the time for filing the record may be entered if the application is made after the prescribed time for transmitting the record has expired unless it be shown that the failure to transmit the record was occasioned by the neglect, omission or inability of a judge of this Court, the clerk of the lower court, the court stenographer or the appellee. c. Delay in Transmitting Due to Mistake. An appeal shall not be dismissed because the record has not been transmitted within the time prescribed, if it appears to this Court that such delay was occasioned by the neglect, omission or inability of a judge of this Court, the clerk of the lower court, the court stenographer or the appellee; provided, however, that such neglect, omission or inability shall not be presumed but must be shown by the appellant. [Emphasis added.] These provisions have roots going back more than one and a quarter centuries. An appellant in Maryland has been increasingly protected from dismissal of his appeal for failure timely to transmit the record, if it is shown to the appellate court that the failure is occasioned by certain persons, other than the appellant, who play roles in the record preparation and transmittal process. Initially, under Chapter 288 of the Acts of 1842,[3] the appeal was preserved if the delay in transmitting the record was occasioned by the neglect or omission of the clerk of the lower court. The substance of this provision was continued in the 1860 Code of 13 Public General Laws as Art. 5, § 30.[4] In rules of this Court respecting appeals, effective January 1, 1870, the 1860 Code provision was continued as Rule 16. The "inability" of the clerk was added together with the following clause: "but such neglect, omission or inability shall not be presumed, but must be shown by the appellant." 29 Md. xxii (1898 Perkins' ed.); Md. Code (1888), Art. 5, § 38. In the revision of the Rules of this Court of April 5, 1909, Rule 16 was amended to add excuse for delay occasioned by the appellee. The provision continued without textual change[5] until the order of January 30, 1945, effective February 1, 1945 when a sentence was added which reads: "For good cause shown the Court of Appeals, or if the Court is not in session the Chief Judge thereof, may extend the time for transmitting the transcript by order made before the expiration of the time." The rule in this form remained unchanged until January 1, 1957. The general operation of these provisions, in terms of former Rule 16 (Md. Code (1912), Art. 5, § 40) is described in Miller v. Mencken, 124 Md. 673, 675, 93 A. 219, 220 (1915). This section has many times been under consideration by this Court, and it has been consistently held, and thus firmly established as the law, that when it appears that more than the prescribed time, from the date of the appeal and the transmission of the record, had elapsed, prima facie evidence has been furnished requiring the Court, under its rules, to dismiss the appeal; and, if the appellant would save his appeal, he must rebut and overcome this prima facie evidence. As the rule 14 states, no presumption arises that it was the neglect, omission or inability of the clerk or appellee, but the onus is on the appellant of showing the neglect, omission or inability was theirs or of one of them, and in the absence of proof that they, or either of them, were in default the presumption is that the delay was through the default of the appellant, and he must satisfy the Court that by proper diligence the record could not have been prepared and transmitted in time. In cases arising under the statutes or rules existing prior to January 1, 1957, where the appellant was able to make the required showing that the failure to transmit the record had been occasioned by the neglect, omission or inability of the clerk or appellee, the appeal has been preserved.[6] In cases governed by those provisions in which the appeal was dismissed for failure to transmit the record within the time required, we have regularly noted that there was either absent a showing, or there was an insufficient showing, that the delay was occasioned by the neglect, omission or inability of the clerk or appellee.[7] 15 We dismissed on December 14, 1943, under former Rule 18, an appeal in which a delay of three weeks in transmittal of the record was due neither to the fault of the clerk nor of the appellee but was at least contended to be due to the court reporter. Part of this Court's rationale was that "the delay was not for any reason covered by Rule 18." Doughnut Corporation of America v. Chapman, 182 Md. 493, 496, 35 A.2d 114, 115 (1943). This problem was addressed in the rules revision effective January 1, 1957. The comprehensive Twelfth Report of the Standing Committee on Rules of Practice and Procedure resulted in the organization of the rules into chapters, including Chapter 800. Rule 825 expanded the former rule by including protection against dismissal because of the neglect, omission or inability of the court stenographer. The 1957 appeal rules also reduced the time for transmittal of the record to 30 days following filing of the first order for appeal. It was recognized that the prime obstacle in meeting the 30 day requirement for some cases could be the inability of court reporters to complete transcripts within that time. Accordingly, provision was made for the first time in appellate rules adopted under our rule making power expressed in the Maryland Constitution for the trial court to extend the time for transmittal of the record. This was because the trial court would be more familiar with any difficulties which the court reporter might have. Extensions by trial courts were limited to a maximum of 90 days from the appeal order. Thereafter, an extension of time could only be obtained from this Court, before the time for transmitting the record had expired, "unless it be shown that the failure ... was occasioned by the neglect, omission or inability of the clerk of the lower court, the court stenographer or appellee."[8] 16 Rule 825 b was further amended, effective May 15, 1963, "to make it clear that the lower court may only extend if the order is signed before the expiration of the original thirty-day period, or within the period as extended by a previous extension order." Committee Note to Rule 825 b, 9B Md. Code (1957, 1963 Repl. Vol.).[9] This limitation on the time of signing a trial court extension order should be contrasted, however, with the provision of section c of Rule 825, applicable to this Court, under which an extension order could be entered after the time for transmittal had expired, upon a showing of delay caused by designated persons other than the appellant. 17 The first rules of the Court of Special Appeals were adopted by this Court January 6, 1967. Chapter 1000 was patterned on Chapter 800, and the model for Rule 1025 was Rule 825, as amended in 1963. In the period between January 1, 1957 and the amendments to Rules 825 and 1025 in 1975, hereinafter discussed, both this Court and the Court of Special Appeals have noted, in dismissing appeals for failure timely to transmit the record, that the particular cases did not present delays caused by neglect, omission or inability of the clerk, reporter or appellee. See, e.g., Goldman v. Tauber, 258 Md. 174, 176, 265 A.2d 225, 226 (1970); Rossen v. Novak, 259 Md. 508, 509, 270 A.2d 465 (1970); Agnoli v. Powers, 235 Md. 289, 293, 201 A.2d 487, 489 (1964); Laukenmann v. Laukenmann, 17 Md. App. 107, 109, 299 A.2d 466, 467 (1973). Following the conferral on the Court of Special Appeals of exclusive initial appellate jurisdiction and the conferral on this Court of jurisdiction to review by certiorari a judgment of a circuit court on an appeal from the District Court of Maryland, a revision of Chapters 800 and 1000 of the Maryland Rules was proposed by the Rules Committee as part of its 48th Report. These proposed rules were published May 14, 1975 in 2 Md. Reg. 725. Under the Rules Committee draft of Rule 1025, power would have been retained in the trial court to extend the time for record transmittal. The report also recommended amendments to then Rule 1025 c. Changes proposed for Rule 1025 c are set forth below (italics denote new matter; brackets denote deletions): c. Court of Special Appeals May Shorten or Extend Time. Upon application of any party and for sufficient cause shown, or upon its own motion, this Court may direct that the record be transmitted within such shorter or longer period of time as may be ordered. Any application for an extension of time to file the record shall be made within the period of time for filing the record as prescribed by section a. of this Rule or as extended by the lower court pursuant to section b. of this Rule. [Such an] No 18 order extending the time for filing the record [will] may [not] be entered if the application is made after the prescribed time for transmitting the record has expired, unless it be shown that the failure to transmit the record was occasioned by the neglect, omission or inability of the clerk of the lower court, the court stenographer or the appellee. An order of this Court entered pursuant to this section [shall supersede] supersedes and [take] takes precedence over any order of the lower court entered pursuant to section b. of this Rule. If in the instant matter the Court of Special Appeals correctly determined that it lacked power to grant the requested extension then it would seem that that result must have been produced by the rules changes of 1975. However, in its 48th Report the Rules Committee described all of the changes proposed for Chapter 1000, with two exceptions not pertinent here, "to be basic `housekeeping' changes required to delete obsolete provisions and to conform procedure to the pertinent sections of the Courts Article, as amended...." 2 Md. Reg. at 726. Thereafter, this Court revised the proposed rules by removing from the trial courts the power to grant extensions and by enlarging the basic period for record transmittal to 60 days. Of particular significance here is that the class of persons whose "neglect, omission or inability" could occasion and excuse delay was expanded to include a judge of the Court of Special Appeals in Rule 1025, and, in a companion amendment to Rule 825, a judge of this Court. Former section b of Rule 1025 was deleted, former section c was relettered to "b" and Rule 1025 was adopted in the form extant at the time relevant to the subject appeal. 2 Md. Reg. 983, 987, 994 (June 25, 1975). Section b of Rule 1025 must be read as a whole and read in conjunction with section c. The 1975 addition of the second sentence under which any "application for extension of time to file the record shall be made ... within the period of time for filing the record as prescribed [by Rule 1025 a] ... or as 19 extended ..." did not remove the condition of the third sentence which allows the Court of Special Appeals to grant an extension untimely applied for if "it be shown that the failure to transmit the record was occasioned by the ... inability of ... the court stenographer...." Even more fundamental is that present section c of Rule 825, from which Rule 1025 c was cloned, has stood intact since 1957 and embodies an historic policy designed to protect, in appropriate cases, against dismissal of appeals because of specified types of delay in record transmittal. Rule 1025 c is a prohibition against dismissal ("[a]n appeal shall not be dismissed ...") where a specified excusing condition has been demonstrated. Thus the second sentence of Rule 1025 b is an express direction to appellants as to the time within which the application for extension is to be filed. It applies to all requests for extensions of time for filing the record, without regard to the reasons either advanced for the request or in fact underlying the failure to have transmitted the record within the prescribed time. But, because of the third sentence of Rule 1025 b and because of Rule 1025 c, the consequences of an untimely extension application may vary. The procedure in the Court of Special Appeals may also vary under which the issue of the existence of excusing conditions arises. If the untimely extension request fails to show one of the reasons for delay in record transmittal specified in the third sentence of Rule 1025 b, the request cannot at that time be granted. The appeal is then in a posture where it is subject to dismissal on motion of the appellee, or by the Court of Special Appeals on its own motion. Rule 1035 a 2 and b 4. This is so because it is an appellant's burden to demonstrate that one of the excusing conditions occasioned the delay and all delay is presumed to be due to the appellant. Should the appellee move to dismiss under Rule 1036 c and the appellant answer by asserting an excusing condition, the issue is resolved on motion, and usually, with affidavits. A. Scanlan, Effective Appellate Advocacy in the Court of Appeals of Maryland, 29 Md. L. Rev. 126, 129 (1969); 2 Poe, Pleading and Practice § 823, at 781 n. 1 (1st ed. 1882). On the other 20 hand, should the Court of Special Appeals desire to address the problem immediately, there would be at least two options available. The court may conclude to issue an order for the appellant to show cause why the appeal should not be dismissed, which would be resolved much like a motion to dismiss by the appellee. Alternatively, the appeal may be dismissed on the court's own motion.[10] However, an appellant whose appeal is dismissed may move in the Court of Special Appeals to rescind the order of dismissal. Rule 1035 c provides in part as follows: If an appeal has been dismissed pursuant to subsection 4 [record not transmitted within time prescribed by Rule 1025] ... the order dismissing the appeal may, upon motion filed within twenty days thereafter be rescinded if [the Court of Special Appeals] be satisfied that the failure to transmit the record ... was unavoidable by reason of sickness or other sufficient cause. The "sufficient cause" referred to in Rule 1035 c at least includes the excusing conditions set forth in Rule 1025 c. If the absence of any of these excusing conditions has not been determined prior to dismissal and the existence of an excusing condition is shown in support of the motion to rescind, then the motion must be granted. If an appellant's request for extension of time for filing the record is based upon one of the conditions which could excuse delay, as enumerated in the third sentence of Rule 1025 b, but it is not timely filed, the procedure for resolving the matter lies in the motion practice of the Court of Special 21 Appeals. If that court is satisfied intially that an excusing condition has been tentatively demonstrated, it may grant the motion for extension forthwith, under the provisions of the third sentence of Rule 1025 b and as an emergency matter under Rule 1055 e 2, subject to the right of the appellee to file a motion to strike the extension order. Alternatively, the court may defer ruling on the motion for an extension until the appellee has had an opportunity to answer. Rule 1055 e 1. If the existence of excusing conditions asserted in the motion for extension is not controverted, or, if controverted, it appears to the Court of Special Appeals that the delay was occasioned by the neglect, omission or inability of a judge of that court, the clerk of the lower court, the court stenographer or the appellee, then the appeal cannot be dismissed for failure to transmit the record within the time prescribed. Rule 1025 c. The purpose for requiring that an application for extension of time for transmittal of the record be filed prior to a prescribed date is to maintain docket control. An appellant's counsel who fails timely to apply for an extension runs the risk that his case is not within one of the excusing conditions, or that he will be unable to demonstrate that it is. At all times, however, the Court of Special Appeals retains the ability to avoid a procedural limbo by its power to dismiss an appeal on its own motion where failure timely to transmit the record has not been shown to be excused. There is also a power conferred on the lower court by Rule 1013 to dismiss an appeal for, inter alia, failure to transmit the record within the time prescribed. The procedure under that rule is not presented in this appeal.[11] In the instant matter the Uhlers had demonstrated in their motion for extension of time which was filed one court business day late, in their motion to strike the order denying the extension, and in their opposition to RPI's motion to 22 dismiss that the failure to transmit the record within the time prescribed had been occasioned by the inability of the court reporter. It was therefore error for the Court of Special Appeals to dismiss the appeal. Since the record has now been filed, the issue of whether the Uhlers' request for an extension should have been granted when presented is moot. However, for the reasons set forth above, the Court of Special Appeals did have the power to grant an extension when the request was filed, had that court concluded to do so at that time. RPI, in its argument, emphasizes that the court reporter advised counsel for the Uhlers, by letter dated October 17 and received a day or two thereafter, of the need for a 30 day extension from October 26, but that counsel for the Uhlers did not mail the extension application from Westminster until one day prior to October 26. This argument is really addressed to whether the failure to apply for the extension within the prescribed time was occasioned by the neglect, omission or inability of the court stenographer, which it clearly was not. However, the Uhlers' appeal was dismissed under Rule 1035 b 4 because the record had not been transmitted within the time prescribed, i.e., on or before October 26, 1979. The reason the record was not transmitted by October 26, 1979 was because the court stenographer had been unable to complete the transcript and Rule 1025 c therefore applies. Judgment of the Court of Special Appeals reversed. Case remanded to the Court of Special Appeals for further proceedings. Costs to abide the result. NOTES [1] Appellants' answer states that a letter of November 19, 1979 from the court reporter was attached. However, the attachment was the October 17 letter as reflected by the original record. There is also a letter dated November 19 which was addressed by the court reporter directly to the Clerk of the Court of Special Appeals, filed in the Circuit Court with the transcript and delivered as part of the record to the intermediate appellate court. The November 19 letter states that the transcript was "the testimony and proceedings taken on four different dates," and that the transcript had been completed at the request of appellants' counsel who "was going to file a motion to reinstate the appeal." [2] Rule 1025 a was amended July 3, 1980, effective September 1, 1980, to accommodate prehearing conferences in appeals to the Court of Special Appeals in civil cases. See Md. Code (1957, 1977 Repl. Vol., 1980 Cum. Supp.), Rule 1025 a. [3] The Act, passed March 7, 1843 provided: Be it enacted by the General Assembly of Maryland, That in any case now pending or hereafter to be depending in the Court of Appeals of the Eastern or Western Shore of this State, the court shall entertain said appeal although the transcript or certified copy of the record shall not have been transmitted within the time required by law, if it shall appear to the said Court of Appeals that such delay in transmitting of the transcript of the record was occasioned by the neglect or omission of the register or clerk, and without default of the party. [4] The Code of 1860 was adopted as the statutory law of Maryland. Acts of 1860, Ch. 1, § 1; Mayor of Frederick v. Groshon, 30 Md. 436 (1869). Md. Code (1860), Art. 5, § 30 provided: No appeal shall be dismissed because a copy of the record shall not have been transmitted within the time required by law, if it shall appear to the Court of Appeals that such delay was occasioned by the neglect or omission of the clerk. [5] The provision became Rule 18 in the rules revision under Order of this Court of November 21, 1919, effective March 1, 1920. It was Rule 17 in the order effective February 1, 1945 and was renumbered as Rule 11 by order of July 24, 1945. Rule 11 is reproduced in 3 Md. Code 4823 (1951). [6] E.g., Williams Realty Co. v. Robey, 175 Md. 532, 534, 2 A.2d 683, 684 (1938); Mitchell v. Slye, 137 Md. 89, 94-96, 111 A. 814, 815-16 (1920); Whittington v. Commissioners of Crisfield, 121 Md. 387, 395, 88 A. 232, 235 (1913); Koenig v. Ward, 104 Md. 564, 567, 65 A. 345, 346 (1906); Miller v. Gehr, 91 Md. 709, 714, 47 A. 1032, 1033 (1900); Ellinger v. Mayor and City Council of Baltimore, 90 Md. 696, 697, 45 A. 884, 885 (1900); Brown v. Ravenscraft, 88 Md. 216, 217-18, 44 A. 170, 171 (1898); Baldwin v. Mitchell, 86 Md. 379, 384, 38 A. 775, 776-77 (1897); Bixler v. Sellman, 77 Md. 494, 495, 27 A. 137 (1893); Walter v. Second National Bank of Baltimore, 56 Md. 138, 139-40 (1881) (appeal dismissed on other grounds); Bowie v. Neale, 41 Md. 124, 130-31 (1874); Lewin v. Simpson, 38 Md. 468, 480-81 (1873); O'Hern v. Browning, 33 Md. 471, 474-75 (1871). [7] Presstman v. Fine, 162 Md. 133, 136, 159 A. 265, 266 (1932); Wilmer v. Haines, 148 Md. 387, 389, 129 A. 347, 348 (1925); Brill v. State, 144 Md. 68, 73, 124 A. 414, 415-16 (1923); Marx v. Reinecke, 142 Md. 342, 345, 120 A. 876, 877-78 (1923), appeal dismissed, 270 U.S. 664, 46 S.Ct. 204, 70 L.Ed. 788 (1926); Castelberg v. Hamburger, 133 Md. 42, 45, 104 A. 473, 474 (1918); Warburton v. Robinson, 113 Md. 24, 27, 77 A. 127, 128 (1910); Maryland, Delaware & Virginia Ry. v. Hammond, 110 Md. 124, 72 A. 650, 651 (1909); Estep v. Tuck, 109 Md. 528, 531, 72 A. 459, 460-61 (1909); Steiner v. Harding, 88 Md. 343, 41 A. 799, 800 (1898); Parsons v. Padgett, 65 Md. 356, 4 A. 410 (1886); Northern Central Ry. v. Rutledge, 48 Md. 262 (1878). [8] The full text of Rule 825, as adopted effective January 1, 1957, is: Rule 825. Record Time for Transmitting. a. Within Thirty Days. Promptly after an order for appeal is filed pursuant to Rule 812 (Appeal Time for Filing), and in any event within thirty days after the first order for appeal is filed unless a different time shall be fixed by order entered pursuant to sections b and c of this Rule, the clerk of the lower court shall transmit the record to this Court. b. Lower Court May Shorten or Extend Time. Upon application of any party and for sufficient cause shown, or upon its own motion, the lower court may direct that the record be transmitted within such shorter or longer period of time, not exceeding ninety days after the first order for appeal is filed, as may be ordered. c. Court of Appeals May Shorten or Extend Time. Upon application of any party and for sufficient cause shown, or upon its own motion, this Court may direct that the record be transmitted within such shorter or longer period of time as may be ordered. Such an order will not be entered after the time for transmitting the record has expired unless it be shown that the failure to transmit the record was occasioned by the neglect, omission or inability of the clerk of the lower court, the court stenographer or appellee. An order of this Court entered pursuant to this Section shall supersede and take precedence over any order of the lower court entered pursuant to section b of this Rule. d. Delay in Transmitting Due to Mistake. An appeal shall not be dismissed because the record has not been transmitted within the time prescribed, if it appears to this Court that such delay was occasioned by the neglect, omission or inability of the clerk of the lower court, the court stenographer or appellee; provided, however, that such neglect, omission or inability shall not be presumed but must be shown by the appellant. See 9 Md. Code (1957), Rule 825 and the accompanying committee note. [9] The text of Rule 825 b, as amended in 1963, was: b. Lower Court May Shorten or Extend Time. Upon application of any party and for sufficient cause shown, or upon its own motion, the lower court may, by order, shorten or extend the time for transmitting the record, if its order is made before the expiration of the period for transmitting the record as originally prescribed or as extended by a previous order; but the lower court shall not extend the time to a day more than ninety days from the date after the first order for appeal is filed. [10] In the instant matter RPI's motion to dismiss was filed more than 10 days after the expiration of the extended time for transmittal of the record. Rule 1036 c. There is authority for an appellate court declining to consider a motion to dismiss which is not timely filed, with the right in the appellee later to move to dismiss in conjunction with the filing of the appellee's brief. Agnoli v. Powers, supra, 235 Md. at 293-94, 201 A.2d at 489. If the granting in this case of RPI's motion to dismiss were viewed to be improper on procedural grounds, dismissal of the Uhlers' appeal would in effect have resulted from the Court of Special Appeals dismissing on its own motion. Assuming that the dismissal here is on the court's own motion, nevertheless the Uhlers had demonstrated an excusing condition prior to the entry of the order of dismissal. [11] Petition No. 294, September Term 1980 involves an untimely application for an extension of time for record transmittal which was based upon alleged inability of the court reporter. Denial of the extension by the Court of Special Appeals was followed by a dismissal of the appeal by the lower court under Rule 1013. We have granted certiorari.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259963/	167 Cal.App.4th 437 (2008) JAY BHARAT DEVELOPERS, INC., et al., Plaintiffs and Appellants, v. JIM MINIDIS et al., Defendants and Respondents. No. B199294. Court of Appeals of California, Second District, Division Two. September 11, 2008. 439 James W. Denison for Plaintiffs and Appellants. Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, David M. Makous, Leo A. Bautista and Allison A. Arabian for Defendants and Respondents. OPINION ASHMANN-GERST, J. This appeal arises out of the termination of a franchise agreement. Appellants Jay Bharat Developers, Inc. (Jay Bharat), Jay Bharat Resorts, Inc., Bipin Morari (Morari), and Chandrakant Patel (Patel), the franchisees, challenge a trial court order granting the motion for a preliminary injunction of respondents Jim Minidis (Jim), Lynn Minidis (Lynn),[1] RedBrick Pizza Worldwide, Inc. (RedBrick Pizza), and RedBrick Pizza, Inc., the franchisors. They essentially assign three errors to the trial 440 court's order. First, appellants contend that the trial court erroneously followed Burger King Corp. v. Hall (S.D.Fla. 1991) 770 F.Supp. 633 (Burger King) and refused to consider appellants' alleged evidence of fraud in evaluating the merits of respondents' request for an injunction. They claim that the trial court should have found that respondents' termination of the franchise agreement was proper before granting their request for a preliminary injunction. Second, appellants argue that respondents' unclean hands precluded the issuance of a preliminary injunction. Third, citing Code of Civil Procedure section 1281.8,[2] appellants assert that the trial court should never have entertained respondents' motion given that the litigation had been ordered into arbitration before respondents sought injunctive relief. We are not convinced by appellants' arguments. Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND The Parties to the Master Franchise Agreement (MFA) RedBrick Pizza is the franchisor of the RedBrick Pizza Franchise System. Jim and Lynn are cofounders of the franchise. Jay Bharat is a California corporation owned and operated by Morari and Patel. In 2002, pursuant to the MFA, Jay Bharat became a master franchisee of RedBrick Pizza in Southern California. The MFA permitted Jay Bharat to sell franchises within a certain territory. Morari and Patel executed the MFA on behalf of Jay Bharat. The MFA explains the terms of the parties' business relationship. As is relevant to this appeal, the MFA contains a royalty payment schedule, which sets forth Jay Bharat's royalty payment obligations to RedBrick Pizza. The MFA also sets forth the circumstances under which RedBrick Pizza can terminate the MFA. In addition to other grounds, "[i]f [Jay Bharat] fails to perform any obligation imposed upon [it] by this [MFA] . . . and such default is not totally cured within 30 days after . . . written notice of such default to [Jay Bharat] . . ., then [RedBrick Pizza] may terminate this [MFA] at any time thereafter." And, the MFA contains an arbitration provision. Excluded from the parties' arbitration agreement are disputes in which injunctive relief is sought. 441 As a condition of their agreement, Morari and Patel agreed to own and operate a RedBrick Pizza restaurant within the territory of Cerritos, California pursuant to a unit franchise agreement, which contains substantially similar terms to the MFA. The Complaint On July 8, 2005, appellants initiated a lawsuit against respondents, alleging 11 causes of action. In particular, appellants averred that respondents fraudulently induced them to enter into the MFA by failing to disclose pending litigation in the franchise-offering circular and by misrepresenting that they could adequately train and support franchisees, had sufficient vendor contacts, and ownership of the trademark rights pertaining to the RedBrick Pizza brand. Appellants later filed a first amended complaint, with largely similar allegations and claims. The Parties Are Ordered to Arbitration Respondents moved to compel arbitration pursuant to the MFA. Over appellants' opposition, on November 21, 2005, the trial court granted the motion and ordered the case to arbitration. RedBrick Pizza Terminates the MFA On August 25, 2006, RedBrick Pizza terminated Jay Bharat's MFA. According to RedBrick Pizza, Jay Bharat had been in breach of the MFA by failing to pay royalties and advertising fees. Jay Bharat then permitted its registration as a franchisor with the State of California to lapse, operated franchises outside of its territory, failed to report income, and committed other contract violations. RedBrick Pizza provided Jay Bharat numerous opportunities to cure the defaults, but terminated the contract when no cure was forthcoming. The notice of termination demanded that Jay Bharat comply with all posttermination obligations under the MFA. RedBrick Pizza's Cross-complaint On or about February 13, 2007, RedBrick Pizza filed a cross-complaint against Jay Bharat, Morari, and Patel. RedBrick Pizza alleged, inter alia, that Jay Bharat refused to honor the termination of the MFA and continued to receive royalties from its former franchisees and withhold them from RedBrick Pizza. RedBrick Pizza's Motion for Preliminary Injunction The cross-complaint was accompanied by a motion for a preliminary injunction. RedBrick Pizza argued that Jay Bharat, Morari, and Patel should 442 be enjoined from continuing to represent themselves as a RedBrick Pizza master franchisee and from using franchise trademarks. RedBrick Pizza further asserted that the franchise relationship was properly terminated and that the injunction was warranted to prevent further economic harm. In support of the motion, RedBrick Pizza offered Lynn's declaration. Lynn, the vice-president and chief financial officer of RedBrick Pizza, testified that in August 2002, Morari and Patel executed the MFA with RedBrick Pizza on behalf of Jay Bharat. Under the terms of the MFA, Jay Bharat became a master developer for a protected territory that included Los Angeles, Ventura, and Mono Counties. However, the Antelope and Santa Clarita Valleys were specifically excluded from the territory. Jay Bharat paid an initial fee of $600,000 for the right to act as a subfranchisor in the protected territory using the franchise system and its proprietary marks. As a master developer, Jay Bharat was responsible for selling a certain number of third party franchises in the territory as well as operating its own RedBrick Pizza restaurant in Cerritos. Lynn further attested that the franchise relationship began to deteriorate before Jay Bharat commenced litigation. For example, Jay Bharat sold a franchise outside of its territory, in Santa Clarita Valley. Jay Bharat ignored Lynn's request for $21,000 to add this new territory to the MFA. Moreover, Jim was attempting to address various issues that were impacting the franchise relationship, including Jay Bharat's operation of its own restaurant in Cerritos, its failure to use approved vendors, its default on royalty payments, the failure to properly close down one of the franchises within its territory, and unprofessional behavior. Thus, RedBrick Pizza gave it notice that it was in material breach of the MFA. RedBrick Pizza demanded that the defaults be cured within 30 days. Ultimately, the breaches were not cured and, on August 25, 2006, RedBrick Pizza terminated the MFA. Although RedBrick Pizza demanded that Jay Bharat comply with its posttermination obligations, it failed to do so, proceeding as if the termination were ineffective. Appellants opposed the motion for preliminary injunction on several grounds. In particular, they asserted that section 1281.8 prohibited the issuance of a preliminary injunction; and that respondents could not establish a likelihood of success on the merits, in part because of respondents' alleged unclean hands. After entertaining oral argument, the trial court granted respondents' motion. Appellants' motion for reconsideration was denied. 443 This timely appeal ensued. DISCUSSION I. Standard of review (1) The issue in this appeal is whether the trial court erred in issuing the preliminary injunction. "The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause." (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63 73 [196 Cal.Rptr. 715, 672 P.2d 121].) "[A]s a general matter, the question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief." (White v. Davis (2003) 30 Cal.4th 528, 554 [133 Cal.Rptr.2d 648, 68 P.3d 74].) "The party challenging an order granting or denying a preliminary injunction has the burden of making a clear showing of an abuse of discretion. [Citation.] An abuse of discretion will be found only where the trial court's decision exceeds the bounds of reason or contravenes the uncontradicted evidence. [Citation.]" (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1470 [28 Cal.Rptr.2d 734].) "Where the evidence with respect to the right to a preliminary injunction is conflicting, the reviewing court must `interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order.'" (Gleaves v. Waters (1985) 175 Cal.App.3d 413, 416-417 [220 Cal.Rptr. 621].) When the matter raised on appeal is solely a question of law, the standard of review is not abuse of discretion "`but whether statutory or constitutional law was correctly interpreted and applied by the trial court.'" (Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1094 [271 Cal.Rptr. 44].) II. The trial court properly issued a preliminary injunction (2) Applying the foregoing principles, we conclude that the trial court properly granted respondents' motion for a preliminary injunction. First, respondents established the likelihood of prevailing on the merits. (White v. Davis, supra, 30 Cal.4th at p. 554.) "Under basic contract principles, when one party to a contract feels that the other contracting party has breached its agreement, the non-breaching party may either stop performance and assume the contract is avoided, or continue its performance and sue for damages. Under no circumstances may the non-breaching party stop performance and continue to take advantage of the contract's benefits." (S & R Corp. v. Jiffy 444 Lube Intern., Inc. (3d Cir. 1992) 968 F.2d 371, 376.) Yet that is exactly what appellants tried to do. According to the evidence presented to the trial court, appellants breached the MFA by failing to make royalty payments and failing to pay advertising fees. Despite their breaches, appellants still wanted to use the RedBrick Pizza franchise and trademarks. They cannot do so. Once appellants breached the MFA, respondents could terminate that franchise agreement and prevent appellants from utilizing the RedBrick Pizza franchise. Based upon respondents' showing of likelihood of success on its claims, we conclude that the trial court could presume irreparable injury. (See, e.g., GoTo.com, Inc. v. Walt Disney Co. (9th Cir. 2000) 202 F.3d 1199, 1209; Charles Schwab & Co., Inc. v. Hibernia Bank (N.D.Cal. 1987) 665 F.Supp. 800, 812.) In any event, after weighing the balance of harms, an injunction prohibiting appellants, as terminated franchisees, from continuing to use respondents' trademark is certainly appropriate. (S & R Corp. v. Jiffy Lube Intern., Inc., supra, 968 F.2d at p. 378.) In urging us to reverse the trial court's order, appellants raise several arguments. First, they contend that the trial court erroneously relied upon Burger King, supra, 770 F.Supp. 633 in granting respondents' motion. They claim that the trial court should have (1) found that respondents' termination was not wrongful before granting a preliminary injunction, and (2) considered appellants' allegations of fraud. Appellants' argument is flawed. As evidenced by the reporter's transcript, the trial court did find that respondents' termination of the MFA was not wrongful; in fact, the trial court determined that respondents terminated the MFA because of appellants' several contractual breaches. At the hearing on respondents' motion, the trial court commenced oral argument by commenting on the "substantial and serious disputes between the parties with regard to this franchise." The trial court then noted that appellants had not "been living up to the franchise agreement with regard to royalty payments [and] advertising fees due,"[3] prompting it to query why an injunction should not issue "where in fact we have all of the breaches of the franchise agreement." Appellants responded by disputing whether they had breached the MFA and by asserting that the trial court should not ignore their allegations of fraud. But, the trial court was not persuaded, concluding that even if appellants ultimately proved their fraud claim, "there [would] still [be] no way that [they could] continue operating under the franchise. All they [could] get is a judgment, money judgment, for huge amounts of money." 445 This dialogue compels us to conclude that, appellants' arguments on appeal notwithstanding, the trial court did not follow Burger King, supra, 770 F.Supp. 633, and ignore appellants' allegations of fraud. Rather, it considered the evidence and determined that appellants had breached the MFA, which provided grounds for its termination. This analysis was proper and supported by the evidence. (See, e.g., S & R Corp. v. Jiffy Lube Intern., Inc., supra, 968 F.2d at p. 377.) Moreover, in so ruling, the trial court was mindful of appellants' allegations of fraud. However, the trial court correctly determined that those allegations were relevant to appellants' damages claim, not to the question of whether an injunction was an appropriate remedy. In a similar vein, appellants assert that the doctrine of unclean hands precludes the imposition of a preliminary injunction. In other words, appellants claim that their allegations of fraud, based upon respondents' alleged nondisclosure of pending litigation at the time the parties entered into the MFA, preclude them from obtaining the equitable remedy of an injunction. (3) We disagree. The venerable doctrine of unclean hands arises from the maxim that one who comes to court seeking equity must come with clean hands. (Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1059 [272 Cal.Rptr. 250].) "The doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim." (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978 [90 Cal.Rptr.2d 743] (Kendall-Jackson).) "The unclean hands doctrine protects judicial integrity and promotes justice. It protects judicial integrity because allowing a plaintiff with unclean hands to recover in an action creates doubts as to the justice provided by the judicial system. Thus, precluding recovery to the unclean plaintiff protects the court's, rather than the opposing party's, interests. [Citations.] The doctrine promotes justice by making a plaintiff answer for his own misconduct in the action. It prevents `a wrongdoer from enjoying the fruits of his transgression.' [Citations.]" (Kendall-Jackson, supra, 76 Cal.App.4th at pp. 978-979.) "The misconduct that brings the unclean hands doctrine into play must relate directly to the cause at issue . . . . The misconduct must `"`prejudicially affect . . . the rights of the person against whom the relief is sought so that it would be inequitable to grant such relief.'"' [Citation.]" (Kendall-Jackson, supra, 76 Cal.App.4th at p. 979.) (4) Courts have "gleaned a three-pronged test to determine the effect to be given to the plaintiff's unclean hands conduct. Whether the particular 446 misconduct is a bar to the alleged claim for relief depends on (1) analogous case law, (2) the nature of the misconduct, and (3) the relationship of the misconduct to the claimed injuries. [Citations.]" (Kendall-Jackson, supra, 76 Cal.App.4th at p. 979.) (5) Against this backdrop, the doctrine of unclean hands does not preclude respondents from obtaining injunctive relief. As for analogous case law, courts have concluded that injunctive relief is appropriate where a terminated franchisee continues to use a franchisor's trademark. (See, e.g., S & R Corp. v. Jiffy Lube Intern., Inc., supra, 968 F.2d at pp. 376-377; McDonald's Corp. v. Robertson (11th Cir. 1998) 147 F.3d 1301, 1308-1310.) Moreover, the nature of the alleged misconductrespondents' alleged failure to disclose pending litigation in the franchise-offering circulardoes not "infect the cause of action involved and affect the equitable relations between the litigants." (Kendall-Jackson, supra, 76 Cal.App.4th at p. 984.) Rather, as the trial court pointed out, if appellants prevail on their fraud claim, they will obtain a substantial money judgment. Nothing in that respect is changed by the injunction. Accordingly, the trial court did not abuse its discretion in refusing to deny respondents a preliminary injunction based upon the unclean hands doctrine. (O'Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1100 [9 Cal.Rptr.3d 286].) Finally, Jay Bharat argues that section 1281.8 prohibited the trial court from issuing the preliminary injunction. We are not convinced. Section 1281.8, subdivision (b), provides, in relevant part: "A party to an arbitration agreement may file in the court in the county in which an arbitration proceeding is pending, or if an arbitration proceeding has not commenced, in any proper court, an application for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief." (6) In deciding whether to issue an injunction pursuant to section 1281.8, the trial court must weigh the same factors it considers in proceeding under section 526: (1) likelihood of success on the merits, and (2) whether the moving party will suffer irreparable harm in the interim if the injunction is not issued. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420-1421 [130 Cal.Rptr.2d 385].) Interim injunctive relief under section 1281.8, therefore, is appropriate only if the applicant "has no adequate alternative remedy, and will suffer irreparable harm if the injunction is denied." (Davenport v. Blue Cross off California (1997) 52 Cal.App.4th 435, 450 [60 Cal.Rptr.2d 641].) *447 (7) That is exactly what RedBrick Pizza established. As set forth above, respondents proved a likelihood of success on the merits. They also established irreparable harm, namely by the lack of control over its RedBrick Pizza mark. (S & R Corp. v. Jiffy Lube Intern., supra, 968 F.2d at p. 378.) Because RedBrick Pizza proved that the interim harm it would suffer was more than monetary, injunctive relief was appropriate. (Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 306 [63 Cal.Rptr. 148] ["Generally, where damages afford an adequate remedy by way of compensation for breach of contract, equitable relief will be denied."].) DISPOSITION The order is affirmed. Respondents are entitled to costs on appeal. Boren, P. J., and Chavez, J., concurred. NOTES [1] We refer to the Minidises by their first names, not out of familiarity or disrespect, but for ease of reference. (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 828, fn. 2 [102 Cal.Rptr.2d 743]; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475, fn. 1 [274 Cal.Rptr. 911].) [2] All further statutory references are to the Code of Civil Procedure unless otherwise indicated. [3] Later, in its discussion with counsel, the trial court reiterated that appellants had not "paid any fees or any of the monies due under the [MFA] for . . . almost a year and three or four months."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259970/	167 Cal.App.4th 311 (2008) HANELINE PACIFIC PROPERTIES, LLC, Plaintiff and Appellant, v. CARL R. MAY et al., Defendants and Respondents. No. G039782. Court of Appeals of California, Fourth District, Division Three. October 1, 2008. As modified October 14, 2008. 314 DLA Piper, Betty M. Shumener, Henry H. Oh, John D. Spurling; Dubia Erickson & Tenerelli and Christian F. Dubia, Jr., for Plaintiff and Appellant. Jackson, DeMarco, Tidus & Peckenpaugh, Roger M. Franks and Jeff J. Astarabadi for Defendants and Respondents. OPINION MOORE, J. This is an appeal from an order granting a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute.[1] (Subsequent statutory references are to the Code of Civil Procedure unless otherwise noted.) The trial court found that the allegations of the complaint fell within the litigation privilege, but upon independent review, we disagree. We find the gravamen of plaintiff's complaint does not relate to contemplated litigation, but attempts at persuasion and negotiation between co-owners of property regarding how best to manage their property. We therefore reverse and remand. I FACTS The underlying action in this case involves real property in Laguna Beach (the property). In 1961, K.B. May and Norma N. May, owners of the property, entered into a lease with Loren and Elizabeth Haneline. The lease term was 58 years, from 1961 to 2019. In 1970, the Hanelines entered into a sublease with Vacation Bay Hotel Properties, Inc. (VBHP). The property was improved and operated as a hotel. Norma May died in 1978. Upon her death, two separate trusts were createdthe Children's Trust and the Survivor's Trust. The only asset of the 315 Children's Trust was an undivided one-half interest in the property. In 2005, Carl R. May (May) acquired this interest by quitclaim deed. The Survivor's Trust owned the other one-half interest in the property.[2] Thus, May and the Survivor's Trust were co-owners of the property and colandlords under the lease. The rent on the property was $55,196.36 per year. In April 2006, plaintiff Haneline Pacific Properties, LLC (Haneline),[3] received an offer from the trustee of the Survivor's Trust, George Sutton, to sell the trust's 50 percent interest in the property for $525,000. After some subsequent communication, Haneline agreed to buy the interest at that price. The sale, however, was not completed. In May 2006, the hotel on the property was acquired by Laguna Resort Property, LLC (LRP). May believed the rent on the property was substantially below market and asked his attorneys to consider whether terminating the lease was possible. Based on a nonassignment provision, May's attorneys concluded it was.[4] Without the lease, the property would be worth considerably more. May sought Sutton's assistance in pursuing this option. In what Haneline calls a carrot-and-stick approach, it claims May "alternated overtures of friendship and concern with threats and misrepresentations . . . ." During an initial conversation in August 2006, May's attorney, Ronald J. DeFelice, contacted Sutton. Sutton advised DeFelice of a "potential deal" to sell the trust's interest in the property. DeFelice told Sutton that the sales price was "off by a factor of ten." Shortly thereafter he received a call from Janet Oldfield, an attorney representing Sutton and Marie Waltz, the beneficiary. After Oldfield said there was no written agreement as of yet to sell the trust's interest, DeFelice asked her to advise Sutton to cooperate with May regarding a termination of the lease. She said she would discuss the matter with Waltz. After Oldfield stopped communicating with DeFelice, he sent her a letter on August 25, 2006. The letter asserted a fiduciary duty between May and the trust, and stated that absent Sutton's communication by August 30, May would assume that the trust refused to honor its fiduciary obligations to May. As a result, the trust would be liable for any losses May suffered. 316 On September 7, DeFelice sent Oldfield an e-mail stating that based on preliminary appraisals, the property would be worth in excess of $30 million. On September 13, DeFelice sent Oldfield another letter, which he characterized as a "demand letter." DeFelice again asserted the trust had fiduciary obligations to May, threatening to hold the trust responsible for any losses to May if the trust refused to cooperate with May's attempt to terminate the lease. In late October, DeFelice proposed, on behalf of May, that Sutton and Waltz jointly retain DeFelice's firm, on a contingent fee basis, to, among other things, terminate the lease. On November 8, DeFelice sent an e-mail to Oldfield, stating that an appraisal demonstrated that the value of the property, unencumbered by the lease, was $17.5 million. (Haneline asserts this appraisal used faulty methodology and was overinflated, designed to lure Sutton with the prospect of a windfall.) On January 7, 2007, May and his wife, Bonnie Montoya-May (collectively the Mays) sent a letter to Sutton, claiming that despite the clear demonstration that the property was worth considerably more than the trust's sale offer, the Mays would be moving forward without the trust's assistance. In March, Haneline filed a complaint against Sutton for breach of contract. In July, as part of a settlement, Sutton sold the trust's interest in the property to Haneline for $950,000-$425,000 more than the initial offer. On July 27, Haneline filed the present complaint against the Mays for interference with contract, interference with prospective economic relations, and "tort of another." On September 17, the Mays filed an anti-SLAPP motion pursuant to section 425.16. They argued that the tortious acts Haneline alleged in the complaint were prelitigation conduct protected by the litigation privilege (Civ. Code, § 47). They further argued that Haneline could not demonstrate a prima facie showing to support a probability of success on the merits.[5] On November 15, the court entered an order granting the Mays' anti-SLAPP motion and dismissing the complaint. Based on new case law, Haneline brought a motion for consideration, which was subsequently denied. Haneline now appeals. 317 II DISCUSSION Jurisdiction and Standard of Review An order granting or denying a special motion to strike is subject to immediate appeal. (§ 425.16, subd. (j)(1).) We exercise independent judgment to determine whether the motion to strike should have been granted. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 [46 Cal.Rptr.3d 606, 139 P.3d 2].) The Anti-SLAPP Statute (1) A SLAPP suit is "a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights." (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2 [33 Cal.Rptr.2d 446], disapproved of on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5 [124 Cal.Rptr.2d 507, 52 P.3d 685].) In response to the threat such lawsuits posed to the important public policy of open and free participation in the democratic process, the Legislature adopted section 425.16 (the anti-SLAPP statute): "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) The statute is to be "construed broadly." (§ 425.16, subd. (a).) The purpose of the anti-SLAPP statute is to dismiss meritless lawsuits designed to chill the defendant's free speech rights at the earliest stage of the case. (See Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 815, fn. 2.) The statute defines "`act in furtherance of a person's right of petition or free speech . . . in connection with a public issue'" as: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection 318 with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).) (2) "Resolution of an anti-SLAPP motion `requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue," as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statutei.e., that arises from protected speech or petitioning and lacks even minimal meritis a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [124 Cal.Rptr.2d 530, 52 P.3d 703].) Protected Activity We must first decide whether the challenged claims arise from acts in furtherance of defendant's right of free speech or right of petition under one of the four categories set forth in section 425.16, subdivision (e). (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043 [61 Cal.Rptr.2d 58].) The categories suggested by the facts in this case are "any written or oral statement or writing made before a . . . judicial proceeding, or any other official proceeding authorized by law" or "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . ." (§ 425.16, subd. (e).) (3) The Mays claim that the torts alleged by Haneline "arise from" protected activity because those acts are privileged pursuant to Civil Code section 47, subdivision (b) (the litigation privilege). Indeed, this is the only argument offered by the Mays in support of the applicability of the anti-SLAPP statute in this case. As pertinent here, Civil Code section 47, subdivision (b) provides: "A privileged publication or broadcast is one made . . . [¶] . . . [¶] (b) In any . . . (2) judicial proceeding . . . ." The "principal purpose of section 47[, subd. (b)] is to afford litigants [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]" (Silberg v. Anderson (1990) 50 Cal.3d 205, 213 [266 Cal.Rptr. 638, 786 P.2d 365].) 319 "Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.]" (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.) "The scope of the protections afforded to litigation-related communications under the anti-SLAPP statute and that afforded by the litigation privilege (Civ. Code, § 47) are not identical. The two statutes `are substantively different statutes that serve quite different purposes . . . .' [Citations.]" (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479 [74 Cal.Rptr.3d 1].) Thus, while prelitigation communications can fall within the ambit of the anti-SLAPP statute, the question here is whether the communications at issue are accurately characterized as such. The communications at issue here are those between Sutton, the trustee, and May and his attorneys, specifically, the letters and e-mails that were exchanged attempting to persuade Sutton to join with May to terminate the lease. Haneline's theory is that those communications prompted Sutton not to consummate the alleged contract at $525,000. The litigation privilege "arises at the point in time when litigation is no longer a mere possibility, but has instead ripened into a proposed proceeding that is actually contemplated in good faith and under serious consideration as a means of obtaining access to the courts for the purpose of resolving the dispute." (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 39 [61 Cal.Rptr.2d 518], italics omitted.) "[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation] . . . ." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [6 Cal.Rptr.3d 494].) We are unpersuaded that the communications that form the gravamen of Haneline's complaint fall within the ambit of the litigation privilege. Despite the mentions of "pursuing remedies" the overall tone of the communications is one of persuasion and a desire to cooperate to achieve mutual goals. Despite characterizing his September 13 letter to Oldfield as a "demand letter," in a letter to Haneline's attorney dated two days later, DeFelice asserted: "At no time has Mr. May or any representative of Mr. May, including this firm, made any demand of or threat against the trustee or the beneficiary of the Trust with respect to a sale of the Trust's undivided one-half interest in the Property to your client." Thus, it seemed that not even the Mays' attorney construed his prior communications with Sutton as threats of, or in anticipation of, litigation. 320 Further, far from contemplating or threatening litigation, DeFelice, on behalf of the Mays, sent a proposal to the trust and Sutton in October, suggesting that DeFelice's firm jointly represent both the Mays and the trust with respect to terminating the lease and selling the property. Further communications delivered appraisals. Overall, we find the tone and the language were intended to encourage collaboration and agreement, not "serious consideration" of litigation. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 [63 Cal.Rptr.3d 398, 163 P.3d 89].) The communications here are thus clearly distinguishable from the cases cited by the Mays. The Mays argue that "The spectre of litigation `loomed' over the entire course of the parties' communications," but the same could be said of nearly any high-stakes negotiation. "[T]he purpose of the litigation privilege is to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation. [Citation.]" (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1492 [25 Cal.Rptr.3d 109].) We do not find that any of these purposes would be served by characterizing the communications at issue here as covered by the privilege. Negotiations and persuasion are part of any business deal. To suggest that nearly any attempt at negotiation is covered by the privilege, especially when attorneys are involved, is unduly overbroad. We do not find the purposes of the privilege stretch that far, and thus, neither should the privilege. (4) Because the communications at issue were not covered by the litigation privilege, the anti-SLAPP motion should not have been granted. Because the communications in question are not covered by the statute, we need not reach the issue of whether Haneline established a prima facie case of success on the merits. Attorney Fees (5) In the final paragraph of each of its briefs on appeal, Haneline requests attorney fees. Pursuant to section 425.16, subdivision (c), a prevailing plaintiff is entitled to attorney fees if the court finds that the anti-SLAPP motion was "frivolous" or "intended to cause unnecessary delay." Because Haneline failed to develop an argument that this provision should apply here, we cannot reach that conclusion. Therefore, no attorney fees are awarded. 321 III DISPOSITION We reverse the order granting the Mays' anti-SLAPP motion and remand for further proceedings. Haneline is entitled to its costs on appeal. Sills, P. J., and Ikola, J., concurred. NOTES [1] "SLAPP is an acronym for `strategic lawsuits against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1 [3 Cal.Rptr.3d 636, 74 P.3d 737].) [2] Marie Waltz was the beneficiary of the survivor's trust, entitled to the income derived from the survivor's trust's 50 percent interest in the property during her lifetime. [3] Originally, the survivor's trust had established the Red Cross as the remainder beneficiary of the trust after Waltz's death. Haneline purchased the remainder interest from the Red Cross. [4] This was the subject of a separate dispute. According to LRP, it acquired 100 percent of VBHP's stock and the membership interests of Haneline. Thus, LRP argued, no violation of the nonassignment clause had occurred. [5] While the motion was pending, the Mays filed a cross-complaint against both Haneline (for declaratory relief) and Sutton (for breach of fiduciary duty). The claim against Sutton was premised on the notion that Sutton owed May a fiduciary duty as cotenant. Sutton filed a demurrer, joined by Haneline, which the court later sustained on the grounds that based on the allegations in the cross-complaint, "co-tenants that acquired their interest at different times through different instruments don't have that relationship of trust and confidence." The Mays did not take advantage of leave to amend, instead filing a request to dismiss the cross-complaint against Sutton.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259974/	167 Cal.App.4th 242 (2008) ORIX FINANCIAL SERVICES, INC., Plaintiff and Appellant, v. MIKE KOVACS et al., Defendants and Respondents. No. A119605. Court of Appeals of California, First District, Division Five. September 30, 2008. As modified October 16, 2007. 245 Hauser & Mouzes and Raymond A. Policar for Plaintiff and Appellant. Law Offices of James G. Schwartz, James G. Schwartz and Joshua D. Brysk for Defendant and Respondent Mike Kovacs. No appearance for Defendant and Respondent Marius Marta. OPINION REARDON, J.[] California Uniform Commercial Code section 9332, subdivision (b)[1] reads, "A transferee of funds from a deposit account takes the funds free of a security interest in the deposit account unless the transferee acts in collusion with the debtor in violating the rights of the secured party." This case presents a very narrow questionone of first impression in California: Is an unsecured judgment creditor, which satisfies its judgment from deposit account funds, included in the definition of "transferee" as contemplated by section 9332(b), such that it may take those funds free of any security interest? Appellant, Orix Financial Services, Inc. (Orix), filed a complaint against defendants Mike Kovacs and Marius Marta, doing business as Bay Technology (collectively, Kovacs), for unjust enrichment and imposition of a constructive trust. The trial court, answering the foregoing question in the affirmative, sustained defendants' demurrer to the complaint without leave to amend. For purposes of our review, we therefore assume the truth of the allegations contained in the complaint (Zelig v. County of Los Angeles (2002) 246 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171]), and further conclude that the trial court was correct. ADA Machine Company, Inc. (ADA), defaulted on financial obligations to Orix, which were secured by interests in all of ADA's goods, chattels and property. Approximately $1.5 million remains owing on those obligations. Separately, Kovacs obtained a judgment against ADA for $157,468.11 and, thereafter, a writ of execution against ADA's deposit accounts. All of the funds contained in these accounts were derived from the proceeds of the sale of ADA's inventory and collection of its accounts receivable. Kovacs's satisfaction of its judgment from these funds is the basis of Orix's complaint.[2] Kovacs essentially concedes that Orix's position as a secured creditor is superior to Kovacs's own position as an unsecured creditor under a traditional creditors' priority analysis. However, Kovacs argues that such an analysis is irrelevant to the question of the satisfaction of a judgment from a deposit account, which it argues is wholly free of such a priority analysis in light of section 9332(b). The provisions of the California Uniform Commercial Code are, in large part, identical to those of the UCC and versions adopted by jurisdictions around the country. A revised title 9 of the California Uniform Commercial Code was adopted in 1999 (Stats. 1999, ch. 991, § 35, operative July 1, 2001), following adoption in 1998 of a revised article 9 of the UCC by the permanent editorial board of the UCC. (9A Hawkland, Uniform Commercial Code Series (12/2000) rev. § 9-101, Official Com. 2, p. Rev. Art. 9-2.) We quote at length from the UCC comment to its section 9-332: "2. Scope of This Section. This section affords broad protection to transferees who take funds from a deposit account and to those who take money.[3] The term `transferee' is not defined; however, the debtor itself is not a transferee. Thus this section does not cover the case in which a debtor withdraws money (currency) from its deposit account or the case in which a bank debits an encumbered account and credits another account it maintains for the debtor. [¶] A transfer of funds from a deposit account, to which subsection (b) applies, normally will be made by check, by funds transfer, or by debiting the debtor's deposit account and crediting another depositor's account. [¶] . . . . [¶] 3. Policy. Broad protection for transferees helps to ensure that security 247 interests in deposit accounts do not impair the free flow of funds. It also minimizes the likelihood that a secured party will enjoy a claim to whatever the transferee purchases with the funds. Rules concerning recovery of payments traditionally have placed a high value on finality. The opportunity to upset a completed transaction, or even to place a completed transaction in jeopardy by bringing suit against the transferee of funds, should be severely limited. Although the giving of value usually is a prerequisite for receiving the ability to take free from third-party claims, where payments are concerned the law is even more protective. Thus, Section 3-418(c) provides that, even where the law of restitution otherwise would permit recovery of funds paid by mistake, no recovery may be had from a person `who in good faith changed position in reliance on the payment.' Rather than adopt this standard, this section eliminates all reliance requirements whatsoever. Payments made by mistake are relatively rare, but payments of funds from encumbered deposit accounts (e.g., deposit accounts containing collections from accounts receivable) occur with great regularity. In most cases, unlike payment by mistake, no one would object to these payments. In the vast proportion of cases, the transferee probably would be able to show a change of position in reliance on the payment. This section does not put the transferee to the burden of having to make this proof. [¶] 4. `Bad Actors.' To deal with the question of the `bad actor,' this section borrows `collusion' language from Article 8. See, e.g., Sections 8-115, 8-503(e). This is the most protective (i.e., least stringent) of the various standards now found in the UCC." (9B Hawkland, Uniform Commercial Code Series (5/2001) rev. § 9-332, Official Coms. 2, 3, & 4, pp. Rev. Art. 9-493 to Rev. Art. 9-495.) The prior version of title 9 of the California Uniform Commercial Code did not contain a section 9332. Similarly, the prior version of article 9 of the UCC did not contain a section 9-332. These sections find their provenance in Uniform Commercial Code, section 9-306, as it existed before the revisionspecifically in comment 2(c) to that section, which read: "Where cash proceeds are covered into the debtor's checking account and paid out in the operation of the debtor's business, recipients of the funds of course take free of any claim which the secured party may have in them as proceeds. What has been said relates to payments and transfers in ordinary course. The law of fraudulent conveyances would no doubt in appropriate cases support recovery of proceeds by a secured party from a transferee out of ordinary course or otherwise in collusion with the debtor to defraud the secured party." (9 Hawkland, Uniform Commercial Code Series (9/2001) § 9-306, Official Com. 2(c), p. Art. 9-190.) The scope of the exception found in comment 2(c)excepting fraudulent conveyances from the provision that a recipient of funds from a deposit account takes free from encumbranceswas the subject of litigation before the revision of the UCC. 248 (1) In Harley-Davidson Motor Co. v. Bank of New England (1st Cir. 1990) 897 F.2d 611, 622 (Harley-Davidson), now Supreme Court Justice Breyer considered the scope of this exception: "Comment 2(c) explicitly excludes any judicial efforts to trace (as `identifiable' secured `proceeds') money `paid out [of a commingled account] in the [ordinary course of] operation of the debtor's business.' [Citation.] That comment goes on explicitly to include transfers that are `fraudulent,' or `otherwise in collusion with the debtor to defraud the secured party,' [citation]; and, courts have recognized instances falling between these two sets of circumstances where tracing is appropriate, [citations]. If, however, courts too readily impose liability upon those who receive funds from the debtor's ordinary bank accountif, for example, they define `ordinary course' of business too narrowlythen ordinary suppliers, sellers of gas, electricity, tables, chairs, etc., might find themselves called upon to return ordinary payments (from a commingled account) to a debtor's secured creditor, say a financer of inventory. Indeed, we can imagine good commercial reasons for not imposing, even upon sophisticated suppliers or secondary lenders, who are aware that inventory financers often take senior secured interests in `all inventory plus proceeds,' the complicated burden of contacting these financers to secure permission to take payment from a dealer's ordinary commingled bank account. [Citation.] These considerations indicate that `ordinary course' has a fairly broad meaning; and that a court should restrict the use of tracing rules to conduct that, in the commercial context, is rather clearly improper." In General Elec. Capital v. Union Planters (8th Cir. 2005) 409 F.3d 1049, 1056 (General Elec.), the court considered the meaning of the "ordinary course" language in comment 2(c) and, in so doing, agreed with the analysis of the court in Orix Credit Alliance, Inc. v. Sovran Bank, N.A. (4th Cir. 1993) 4 F.3d 1262, 1266: "As to the plaintiff's claim that the depository bank knew that encumbered proceeds had been deposited, the [Orix] court said, `[A] transferee's knowledge of a prior security interest in proceeds does not, by itself, [suggest] that the transfer of these proceeds occurred outside the ordinary course of the debtor's business.' [Citation.] We agree with that statement and, like the court in Orix, we conclude that the phrase `in the ordinary course,' means that the plaintiff must establish more than a defendant's knowledge of a superior security interest: It must establish either a lack of good faith or that the payee `knows . . . that the [payment] is in violation of some term in the security agreement not waived by the words or conduct of the secured party.' [Citations.]" A close examination of the language of comment 2(c) reveals an ambiguity. The comment speaks to recovery of proceeds from a transferee "out of ordinary course or otherwise in collusion with the debtor." In determining the definition of "out of ordinary course," the use of the word "otherwise" 249 suggests that conveyances are out of ordinary course when they are essentially collusive. If "collusive" means something other than "out of ordinary course," there would be no need for the word "otherwise." That is, the comment would simply except those conveyances that are out of ordinary course or collusive. On the other hand, if the terms mean the same thing, why use both? Or, why not use the conjunctive "and"? In HCC Credit v. Springs Valley Bank & Trust (Ind. 1999) 712 N.E.2d 952, the Indiana Supreme Court considered this same language. In doing so, the court cited Justice Breyer's analysis in Harley-Davidson and anticipated the revisions to the UCC. (Id. at p. 956 & fn. 6.) The court determined that the "`operation of the debtor's business'" and "`collusion'" language in comment 2(c) were "descriptive of two parameters for determining `ordinary course.' That is, whether a payment was made in the ordinary course will be a function of (1) the extent to which the payment was made in the routine operation of the debtor's business and (2) the extent to which the recipient was aware that it was acting to the prejudice of the secured party. [¶] As to the routine operation of business parameter, payment of sales tax collections or F.I.C.A. withholdings would obviously be at the most routine end and a one-shot payment of subordinated debt not yet due would be at the least. At various points between these extremes would fall payments ordered by how routine they were to both debtor and transfereemeasured by such factors as their size, their frequency, whether the debtor received merchandise or services in return, whether the payment was on an obligation overdue, due or not yet due, etc. . . . [¶] As to the awareness of prejudice parameter, it is hard to imagine the recipient of the monthly utility or rent payment having any knowledge that it was being paid with proceeds. At the other end of the spectrum is actual fraud in which debtor and recipient have colluded against the secured party." (Id. at pp. 956-957, fns. omitted.) (2) Significantly, upon the revision of the UCC and the adoption of section 9-332, the language regarding "operation of the debtor's business" and "ordinary course" did not make the transfer from comment 2(c), only the language regarding "collusion" did so. As noted in the comment to section 9-332, the "collusion" standard is the standard most protective of transferees and is, thus, consistent with that suggested by Justice Breyer in Harley-Davidson and arguably more protective than the standard suggested by General Elec. Thus, the history of the code and its amendments suggests that only those transferees who act in collusion with the debtor are excepted from the broad protections of section 9-332(b). Here, Orix did not allege that Kovacs acted in collusion with ADA to defeat Orix's interest. Instead, Orix contends that a judgment creditor is not the kind of transferee contemplated by section 9-332(b). 250 (3) The broad language of the statute does not support Orix's contention. The drafters of the revised UCC, as well as our Legislature, had the opportunity to include the exception suggested by Orix in the language of the revised codesthe issue was certainly presented by the history of litigation on the subject. They did not do so; we will not do so in the first instance. We note that the lion's share of transferees from a deposit account are creditors of one form or anothersecured, unsecured, judgment, etc. For instance, a landlord and a utility company are creditors and are, ordinarily, unsecured. They would not be excepted from the protections of section 9-332(b). Thus, any suggestion that the rights of a secured creditor cannot be compromised by junior creditors is not persuasive. Indeed, as the comment to section 9-332 quoted above makes clear, a protected transferee need not be a creditor at all, but may have been paid by mistake or otherwise have provided no value to the debtor in exchange for the payment.[4] (4) Orix makes a series of contentions, which are each belied by the foregoing analysis. First, it contends section 9332(b) should not extend to a lien creditor who took possession of the funds by garnishment rather than any activity or payment by the debtor. As noted, Kovacs's status as a creditor is irrelevant, and there is no requirement that the debtor actively or even voluntarily make a payment. In support of the notion that there must be a volitional act by the debtor, Orix notes that the comment to section 9-332 repeatedly uses the word "payment" rather than "transfer." Certainly, any potential distinction, in this context, between the two words is rendered moot by the use of the word "transferee" and not "payee" in the code itself. Finally, Orix cites the policy found in the UCC comment to section 9-332 of preserving "completed transactions" and argues that what occurred here was not a transaction but a unilateral act. However, both California Uniform Commercial Code section 9332 and Uniform Commercial Code section 9-332 require only a transfer, which indisputably occurred. (5) Our analysis and conclusion are consistent with those of the federal bankruptcy court in In re Machinery, Inc. (Bankr. E.D.Mo. 2006) 342 B.R. 790, 798-799, which the trial court here relied upon in granting Kovacs's demurrer. Orix has at no time suggested it could allege collusion between ADA and Kovacs. Specifically, Orix never moved for leave to amend its complaint to so state. Indeed, its argument that ADA was passive and did not 251 participate in the transfer (i.e., did not make a "payment") augers against any suggestion of collusion. Consequently, the trial court's order granting the demurrer without leave to amend was appropriate. The judgment is affirmed. Respondents to receive costs on appeal. Simons, Acting P. J., and Needham, J., concurred. NOTES [*] Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. [1] Hereafter, all statutory references are to the California Uniform Commercial Code. Additionally, for ease of reference, we refer to the statute in question here as section 9332(b) and to its cognate in the national Uniform Commercial Code (UCC) as section 9-332(b). [2] It is not clear from the pleadings whether satisfaction of Kovacs's judgment exhausted the funds in Orix's deposit account. [3] Subdivision (a) of Uniform Commercial Code section 9-332 (and Cal. U. Com. Code, § 9332) is identical to subdivision (b) except that it pertains to the transfer of "money" rather than of "funds from a deposit account." [4] Example 1 to Section 2 of the comment reads in part: "Unless Payee acted in collusion with Debtor in violating Lender's rights, Payee takes the funds (the credits running in favor of Payee) free of Lender's security interest. This is true regardless of whether Payee is a holder in due course of the check and even if Payee gave no value for the check." (9B Hawkland, Uniform Commercial Code Series, supra, rev. § 9-332, Official Com. 2, example 1, p. Rev. Art. 9-494, italics added.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259981/	167 Cal.App.4th 87 (2008) HEWLETT-PACKARD COMPANY, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; ED RUTLEDGE et al., Real Parties in Interest. No. H031594. Court of Appeals of California, Sixth District. September 26, 2008. 89 Drinker Biddle & Reath, Michael J. Stortz and Rodney M. Hudson for Petitioner. No appearance for Respondent. Green Welling, Robert S. Green, Jenelle Welling; Kershaw Cutter & Ratinoff, William A. Kershaw and Stuart C. Talley for Real Parties in Interest. OPINION RUSHING, P. J. Hewlett-Packard Company (HP) petitions for a peremptory writ of mandate directing the trial court to vacate an order certifying a class in this action, which alleges that HP's Pavilion series notebook computers suffer from a manufacturing defect. HP contends that the trial court erred in certifying the class, because under the principles of Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824 [51 Cal.Rptr.3d 118] (Daugherty), this case does not meet the requirement of community of interest for class certification. FACTUAL AND PROCEDURAL BACKGROUND In April 2002, plaintiff I Braun Degenshein purchased a ZT1175 (version 4.0) model notebook computer. He experienced display screen visibility problems with the computer six months after he purchased it. He joined in this lawsuit against HP after it had been filed in the Superior Court of Santa 90 Clara County.[1] The complaint alleged that HP had marketed and distributed Pavilion series notebook computers, knowing that the computers had defective inverters that could potentially cause dim displays, but without disclosing such defects to consumers; the complaint asserted causes of action for violation of the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.), violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.), breach of express warranty and "unjust enrichment." The display screen of notebook computers consists of a liquid crystal display and other component parts, including an inverter located within the chassis at the bottom of the display screen assembly. The inverter has two functions in the display screen: to amplify electricity received from the motherboard to illuminate the backlight; and to regulate the flow of electricity to the backlight so that the screen remains illuminated. A faulty inverter can result in a dim or darkened display screen. A dim display in a notebook computer can also be caused by other factors, such as liquid spills, customer abuse, and software incompatibility. In order to determine the type of inverter installed in any given notebook computer, the display screen must be disassembled to allow inspection of the inverter. HP Zinfandel 3.5 and 4.0 notebook computers contain inverters from many different suppliers, including TDK and Ambit, two Japanese companies. The manufacturer of the inverter cannot be determined by the serial number of the individual computer; rather, the display must be disassembled to inspect the inverter itself. This case involves some Zinfandel 3.5 and 4.0 notebook computers that contain inverters manufactured by TDK and Ambit that are faulty, causing dim and darkening display screens. In August 2005, plaintiffs filed a motion for certification of a class consisting of all persons and entities who own or owned certain HP computers, listed by product number, "who contacted HP about a lack of visibility of the display screen." In support of this motion, plaintiffs presented evidence of two service notes dated April 15, 2002, and November 11, 2003, that were issued by Compal, the Taiwan computer manufacturer that manufactured the Pavilion notebook computers that were the subject of the suit. The service note dated April 15, 2002, referred to a specific type of inverter manufactured by TDK. The TDK inverters were used in some of the Zinfandel 3.5 model notebooks. This service note stated that certain Pavilion notebooks returned for repair for no backlight were found to have an inverter fuse open or "blown" leading to no backlight of the display screen. The service note called 91 for the service center to open the display screen to see if the computer contained the TDK inverter and to replace it with a new and different inverter, manufactured by Ambit. The November 11, 2003 service note referred to a specific type of inverter manufactured by Ambit used in some Zinfandel notebook computers. The specific inverters were found to have solder cracks, potentially leading to no backlight of the display screen, or to blinking on the display panel. The service note called for replacing the inverter with a reworked version of the same inverter. HP opposed the motion, contending plaintiffs had not shown either that common issues of fact and law predominated or that there was an ascertainable class. Specifically, HP presented evidence that of the approximately 118,514 class model computers sold under the Pavilion brand name, approximately 4,716 were reported to need repairs due to display screen problems. In November 2005, the court determined that the proposed class definition was flawed, but that it would consider a subsequent motion should plaintiffs cure the defect. In response, plaintiffs filed a supplemental motion for class certification in April 2006, revising the proposed class definition to include: "[a]ll persons or entities who own or owned one or more of the following HP Pavilion notebook models: [model numbers]; and who experienced a dim, dark, or flickering display screen." At the July 2006 hearing on the supplemental motion, the trial court expressed its view that the class definition should contain one of the inverters in question. The court stated it could give plaintiffs another opportunity to redefine the class to include the inverter. On August 30, 2006, plaintiffs again filed a supplemental memorandum in support of their motion for class certification. Plaintiffs redefined their proposed class as "[a]ll persons or entities who own or owned one or more of the following HP Pavilion notebook models: [model numbers]; [a]nd the computer contained or contains TDK TAD669 Rev. 2.0 inverter or an Ambit inverter, [part numbers]." At the September 2006 hearing on the supplemental motion for class certification, the court expressed concern that there was no evidence on the useful life of notebook computers, and allowed plaintiffs time to submit supplemental briefing and evidence on the issue. In response, plaintiffs submitted the declaration of an expert on the useful life of notebook computers as five years. At the November 2006 hearing on the supplemental motion, the court asked the parties to provide briefing on the effect of Daugherty, supra, 144 92 Cal.App.4th 824, a case related to product liability under express warranties that had been decided in October 2006. At the fifth and final hearing on the motion for class certification in January 2007, the court granted plaintiffs' motion in part, certifying a class with respect to the causes of action for violation of the UCL and for breach of express warranty. The court defined the class as follows: "[a]ll persons or entities who own or owned one or more of the following HP Pavilion notebook models: [model numbers] containing a TDK TAD669 Rev. 2.0 inverter or an Ambit inverter, [part numbers]; who purchased the notebook from an entity located within California, and who experienced a dim, dark, or flickering display. Excluded from the class are employees, directors, officers, or agents of Defendant." The court also ordered that only plaintiff Degenshein could represent the class, because it was limited to those who purchased in California. In its order certifying the class, the court stated that it was not ruling on the effect of the principles set forth in the Daugherty case. The trial court concluded that the issues in Daugherty go to whether individual class members are entitled to recover, not whether there is a sufficient class. Following the California Supreme Court's denial of the petition for review in Daugherty, HP filed a motion for decertification on February 27, 2007, requesting the trial court rule on the effect that Daugherty had on the class certification. At the hearing on the motion for decertification in March 2007, the trial court stated it would deny HP's motion for decertification because it was "premature." At the court's request, plaintiffs submitted a revised proposed class action notice, and on April 23, 2007, the court entered its order approving a class notice including the following as members of the class: "[a]ll persons and entities who own one or more of the following HP Pavilion notebook models: [model numbers]; and who purchased a computer from an entity in California; and whose computer contains or contained a TDK TAD699 Rev. 2.0 inverter or an Ambit inverter bearing [part numbers]; and who experienced a dim or flickering display that made the notebook inoperable." HP filed a petition for peremptory writ of mandate, directing the trial court to vacate an order certifying a class in this action. We stayed the matter, and issued an order to show cause why the writ should not issue, and requested opposition from real parties in interest. DISCUSSION (1) "Courts long have acknowledged the importance of class actions as a means to prevent a failure of justice in our judicial system. [Citations.] `"By 93 establishing a technique whereby the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress. . . ."'" (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 434-435 [97 Cal.Rptr.2d 179, 2 P.3d 27] (Linder).) "Generally, a class suit is appropriate `when numerous parties suffer injury of insufficient size to warrant individual action and when denial of class relief would result in unjust advantage to the wrongdoer.' [Citations.] But because group action also has the potential to create injustice, trial courts are required to `"carefully weigh respective benefits and burdens and to allow maintenance of the class action only where substantial benefits accrue both to litigants and the courts."'" (Linder, supra, 23 Cal.4th at p. 435.) (2) Code of Civil Procedure section 382 authorizes class actions "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . ." The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104 [131 Cal.Rptr.2d 1, 63 P.3d 913] (Lockheed), citing Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 913 [103 Cal.Rptr.2d 320, 15 P.3d 1071].) The "community of interest" requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. (Lockheed, supra, 29 Cal.4th at p. 1104.) (3) Certification is a question that is "essentially . . . procedural . . . [and] does not ask whether an action is legally or factually meritorious." (Linder, supra, 23 Cal.4th at pp. 439-440.) A trial court ruling on a certification motion determines "[W]hether . . . the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants." (Collins v. Rocha (1972) 7 Cal.3d 232, 238 [102 Cal.Rptr. 1, 497 P.2d 225] (Rocha).) The trial court in this case determined that plaintiffs had established by a preponderance of the evidence that common issues predominate and ruled that a class action is "superior to alternate means for a fair and efficient adjudication of the litigation." "Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification . . . . [citations] . . . [Accordingly,] a trial court ruling supported by substantial evidence generally will not be disturbed 94 `unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]' [citation]." (Linder, supra, 23 Cal.4th at pp. 435-436.) "`Any valid pertinent reason stated will be sufficient to uphold the order.'" (Id. at p. 436.) Therefore, we review the trial court's ruling granting certification of the class in this case for abuse of discretion. Although HP contends the trial court erred in concluding Degenshein has claims typical of the class and is an adequate representative of the class, the primary issue in dispute is whether the trial court abused its discretion in concluding that common issues predominate necessitating class treatment. HP specifically focuses on the case of Daugherty, supra, 144 Cal.App.4th 824, and its holding that an express warranty does not extend the claims of defect beyond the warranty period. HP asserts Daugherty's rationale is applicable to the present case, and specifically limits its potential liability for the allegations set forth by plaintiffs, making the issues individual, rather than subject to common proof. Moreover, HP argues the trial court erred in refusing to apply the principles of Daugherty to the determination of class certification.[2] In Daugherty, the plaintiffs were owners of Honda automobiles with an allegedly defective engine. (Daugherty, supra, 144 Cal.App.4th at p. 827.) The plaintiffs alleged that Honda had actual notice that the engines were experiencing severe mechanical problems due to oil leaks, but failed to provide adequate notice of the defect to owners of affected models. (Id. at p. 828.) The plaintiffs first discovered the defects in their cars after the express warranty term of three years or 36,000 miles. The plaintiffs contended that "because the language of Honda's express warranty did not state that the defect must be `found,' `discovered' or `manifest' during the warranty period, the warranty covers any defect that `exists' during the warranty period, no matter when or whether a malfunction occurs." (Id. at pp. 831-832.) With respect to the plaintiffs' express warranty claim, the Daugherty court held: "[w]e agree with the trial court that, as a matter of law, in giving its promise to repair or replace any part that was defective in material or workmanship and stating the car was covered for three years or 36,000 miles, `Honda did not agree, and plaintiffs did not understand it to agree, to repair latent defects that lead to a malfunction after the term of the warranty.'" (Id. at p. 832.) The principles of Daugherty address the law of express warranty as applied to claims of economic loss due to a product's defect. Specifically, Daugherty 95 holds that failure of a component part after the expiration of the express warranty does not support a claim for relief under an express warranty claim. (Daugherty, supra, 144 Cal.App.4th at pp. 838-839.) The crux of plaintiff's claim is that certain HP notebook computers contained types of inverters that HP knew would likely fail and cause the screens to dim and darken at some time before the end of the notebook's "useful life." HP asserts that under Daugherty, this claim would not establish its liability. Daugherty holds there can be no claim for breach of express warranty or UCL violations arising from proof that the manufacturer knew at the time of the sale that the component part might fail at some point in the future. (Daugherty, supra, 144 Cal.App.4th at pp. 838-839.) While Daugherty may have implications for the merits of the underlying action, and indeed may serve to bar claims by plaintiffs that occurred outside the warranty period, it does not affect a determination of class certification. Daugherty is distinguished from the present action because it related to a substantive question on demurrer rather than a procedural question as here on a motion for class certification. And the question in a determination of class certification is "essentially . . . procedural . . . [and] does not ask whether an action is legally or factually meritorious." (Linder, supra, 23 Cal.4th 429, 439-440, italics added.) If we were to accept HP's argument regarding the application of Daugherty to the present action, we would be considering the merits of the underlying action. And the question of class certification "does not ask whether an action is legally or factually meritorious." (Linder, supra, 23 Cal.4th at pp. 439-440.) Rather, a ruling on a certification motion determines whether "the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants." (Rocha, supra, 7 Cal.3d at p. 238.) Moreover, in considering HP's arguments, we are not persuaded by HP's reliance on Daugherty for its position that a product malfunction is required in order for the product to be considered defective. Indeed, Degenshein's theory of liability is based on Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908 [107 Cal.Rptr.2d 761] (Hicks), and its holding that defect is defined by a substantial certainty of premature failure, not on an actual malfunction during the warranty period. In Hicks, the Court of Appeal reversed the trial court's denial of class certification for a construction defect breach of warranty claim in part on its finding that "proof of breach of warranty does not require proof the product has malfunctioned but only that it contains an inherent defect which is substantially certain to result in malfunction during the useful life of the product." (Id. at p. 918.) The court 96 concluded that common issues predominated for the purpose of class certification because the "question whether an inherently defective product is presently functioning as warranted goes to the remedy for the breach, not proof of the breach itself." (Ibid.) As applied to the present case, under this theory, an actual malfunction of the notebook screens would not be necessary to establish defect, if it could be established that the notebook screens were substantially certain to fail prematurely. Contrary to HP's argument in this case, whether or not the alleged defects occurred during the warranty period does not affect a finding of community of interest in the present case. Plaintiffs here allege a common defect in the HP notebook computers and their display screens. In order to prove that defect, plaintiffs will present evidence of call records reporting dim displays, records of repairs of faulty inverters, service notes documenting defects that were known to HP, and an HP policy that all notebooks returned for any reason would have their inverter repaired, regardless of whether the screen actually failed. A jury could find, based on this evidence, that the inverters in question were defective and that HP is liable for the defect. The issue of whether the inverters were defective is appropriate for a joint trial with common proof. For example, if the jury finds that the inverters were defective, then each plaintiff would not need to separately prove that his or her inverter was defective, only that he or she had a computer that contained that type of inverter. In this writ, HP requests that we order the trial court to vacate its order certifying the class because some of the plaintiffs' claims may be substantively invalid under Daugherty. This is not a proper consideration on the question of class certification. The merits of the case can and will be decided at a later point in this case. Indeed, the trial court stated with regard to Daugherty that it was "neither ruling on the merits of the causes of action not what limits to recovery for any class member might be." (4) In sum, the trial court did not abuse its discretion in certifying the class in this case. The principles of Daugherty do not serve to undermine the community of interest required to certify a class in the present case. When applied, Daugherty goes to the merits of the claim, rather than the procedural question of class determination. HP's liability to the class overall is subject to a review by facts common to all class members, and as such, it is appropriate for class treatment. *97 DISPOSITION The writ is denied. Costs in these original proceedings are awarded to real parties in interest. Premo, J., and Elia, J., concurred. NOTES [1] The original complaint was filed by plaintiff Ed Rutledge on June 12, 2003. [2] The trial court requested briefing on the Daugherty case following its issuance on October 31, 2006, and after review, the court declined to apply Daugherty's principles, stating in reference to HP's motion for reconsideration following the court's certification of the class: "I don't have a sufficient basis for determining whether or not Daugherty applies to this case or not today."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259992/	421 A.2d 14 (1980) The WASHINGTON ETHICAL SOCIETY et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent. No. 10999. District of Columbia Court of Appeals. Argued January 26, 1978. Decided September 23, 1980. 15 Whayne S. Quin, Washington, D. C., with whom Norman M. Glasglow and Iverson O. Mitchell, III, Washington, D. C., were on brief, for petitioners. Margaret L. Hines, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Washington, D. C., at the time the case was argued, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., at the time the case was argued, were on brief, for respondent. 16 Before NEBEKER and FERREN, Associate Judges, and BACON, Associate Judge, Superior Court of the District of Columbia.[] BACON, Associate Judge: This is a petition for review of an order of the District of Columbia Board of Zoning Adjustment denying a special exception for an increased enrollment at a private school. The dispositive issues are the adequacy of the Board findings and the correctness of its conclusions. After applying the principles of law discussed in Citizens Association of Georgetown, Inc. v. District of Columbia Zoning Commission, D.C.App., 402 A.2d 36 (1979), we reverse and remand. The decision is not "based on express factual findings which articulate with certainty and clarity the basis for the decision." Dupont Circle Citizens Association v. District of Columbia Board of Zoning Adjustment, D.C.App., 390 A.2d 1009, 1011 (1978). The Board's conclusions are not "supported by and in accordance with the reliable, probative and substantial evidence." District of Columbia Administrative Procedure Act, D.C.Code 1978 Supp., § 1-1509(e). The property in issue is located at 7750-16th Street, Northwest, in a residential area zoned R-1-A. Since 1968, the two-story structure located on that property has been used by petitioners, the Washington Ethical Society and the Washington Ethical Society School, as a high school. They have a certificate of occupancy for 40 full-time students and an actual enrollment of 65 students. They plan to increase the enrollment to 80 full-time students, but no expansion of the school building is required. Without waiving their claims to an increase in the enrollment as a matter of right,[1] petitioners filed an application with the Board of Zoning Adjustment for special exception as a private school. As a private school, petitioners must establish (a) that the school is "not likely to become objectionable to adjoining or nearby property because of noise, traffic, number of students or otherwise objectionable conditions," and (b) that there is "ample parking space." Zoning Regulations § 3101.42. The Board gave due notice of petitioners' application and a public hearing was held. Support for the application was presented by an environmental planner, the headmaster of the school, and some area residents. The Municipal Planning Office recommended approval of the increased enrollment. Opposition was presented by area residents and by a representative of the Shepherd Park Citizens Association. In reaching its decision, the Board made 15 findings of fact. By a vote of 4 to 0, it concluded that an expanded enrollment at the school would adversely impact on the surrounding property by "increasing noise, litter, traffic and other adverse impacts" and would prevent the neighborhood from enjoying the benefits of a single-family area in harmony with an R-1-A zoning. Petitioners' claims as a church school were not addressed. Review of the Board's decision issue by issue reveals its inadequacy. Few of the findings address the contested issues or set forth "basic" and "underlying" facts on those issues. Further, nowhere in the record is there a rational basis for the Board's conclusion that the addition of 15 students would cause the school to become objectionable and inconsistent with R-1-A zoning. 1. Noise and Traffic: A private school seeking a special exception to the Zoning Regulations must show that the proposed use of its property will not become objectionable to adjoining or nearby property because of noise and traffic. In making its findings on these issues, the Board primarily summarizes the testimony and draws unreasoned conclusions of ultimate 17 fact. For example, in finding number 9, there are 3 sentences summarizing the testimony of 1 of the expert witnesses and 1 sentence concluding that lay testimony "adequately refuted" the expert testimony. In finding number 11, the Board merely notes that testimony was offered on each side of the issue. There are no findings of fact of a "basic or underlying nature" about the future impact of an increased student body on noise and traffic in the Shepherd Park area. Palmer v. District of Columbia Board of Zoning Adjustment, D.C.App., 287 A.2d 535, 538 (1972). The Board's findings are "[g]eneralized, conclusory (and) incomplete." Dietrich v. District of Columbia Board of Zoning Adjustment, D.C.App., 293 A.2d 470, 473 (1972). They appear to be based on lay observations of current conditions, not future impact, and on testimony of witnesses who often could not distinguish between conditions attributable to petitioners' students and conditions attributable to the nearby junior college or to the local elementary school or to other citizens' activities.[2] Further, the Board, without statement of reasons, rejects unimpeached, expert testimony on the impact of 15 additional students on noise and traffic levels and rejects the expert recommendations of the Municipal Planning Office. Although an "agency is not legally required to explain . . . why it favored one witness or one statistic over another", this case falls within the circumstances contemplated in Citizens Association, supra, 402 A.2d at 47 n. 19 & 20. When lay testimony is so weak in contrast with other evidence, an agency must be guided by the language in Shay v. District of Columbia Board of Zoning Adjustment, D.C. App., 334 A.2d 175, 178 n.10 (1975): While agencies are not always bound to accept expert testimony over lay testimony, see Marjorie Webster Jun. C., I. v. District of Col. B. of Z. A., D.C.App., 309 A.2d 314, 319 (1973), the opinions of qualified experts are not to be lightly disregarded and the probative value of lay opinions is often doubtful. See, e. g., Goldstein v. Zoning Board of Review, City of Warwick, 101 R.I. 728, 227 A.2d 195 (R.I.1967). In any event, some indication in the findings as to the reasons for rejecting the expert testimony in favor of that of lay witnesses was certainly required if judicial review is to be meaningful. In sum, the Board's findings on the issues of noise and traffic are inadequate and not supported by the record. They are as deficient as the findings which were rejected in Citizens Association of Georgetown, Inc. v. District of Columbia Board of Zoning Adjustment, D.C.App., 365 A.2d 372, 375 (1976). They contrast sharply with those found adequate in Citizens Association of Georgetown, Inc. v. District of Columbia Board of Zoning Adjustment, D.C.App., 403 A.2d 737, 741 (1979). 2. Number of Students: Although the Board finds that petitioners' school now has 65 students and that the school exceeds its occupancy certificate by 25 students, the finding is in limbo. Nowhere in the record is there any evidence which distinguishes the impact of 40 students from the impact of 65 students or 80 students. There is no indication of whether the Board found adverse effects attributable to the 25 students who exceed the current occupancy certificate or to the 15 who might be added. 3. Other Objectionable Conditions: The Board's findings on student activities in the neighborhood, lunch facilities and matters of litter, trash and vandalism are primarily summaries of testimony. From these summaries of testimony on current conditions, the Board concludes in finding number 15 that the problems would be magnified if petitioners' application were granted. 18 The record, however, does not support the conclusion. It does not reveal "evidence sufficient to convince reasonable minds of its adequacy." Citizens Association, supra, 402 A.2d at 42. Many of the witnesses on whom the Board relied could not attribute the present problems to petitioners' students. Little of the testimony was couched in terms of future impact on noise, litter or other adverse conditions. Citizens Association, supra, 365 A.2d at 375. Further, the record reveals substantial expert testimony including information from the Municipal Planning Office which, in an exercise of its expert judgment, recommended approval of the application after considering location, number of students, projected transportation patterns and uses of the surrounding areas. 4. Parking Spaces: In order to obtain a special exception to the Zoning Regulations, a private school must provide "ample parking space." There is no definition of what constitutes an ample number of spaces but under § 7202.1 of the Zoning Regulations, a school with 80 students and 13 adults must provide a minimum of 8 parking spaces. In its decision, the Board outlines petitioners' plan to provide 12 to 13 parking spaces on the school property and 10 more parking spaces at an off-site location. Nowhere, however, does the Board take cognizance of the 8 space minimum or state that the proposed 22 to 23 parking spaces are not ample. It merely hints at some inadequacy by suggesting that petitioners offer no covenant to guarantee the 10 off-site parking spaces. On this material contested issue, the Board simply fails to make the findings and conclusions required by the Administrative Procedure Act as interpreted in Citizens Association, supra, 402 A.2d at 40. Further, the Board does not consider its authority to require a covenant for off-site parking as a condition for granting the exception if 22 spaces are required. 5. Claims as a Church-Related School: Petitioners contend that a school which is operated or sponsored by a religious organization is a land use permitted as of right in an R-1-A area. They rely on §§ 3101.32 and 3101.56 of the Zoning Regulations, the Constitution of the United States, and the decisions of other jurisdictions. Although the Board finds that petitioners' school is church sponsored, it does not address the issues raised by that finding. Rather, it proceeds as if petitioners' sole claim was made as a private school under § 3101.42. Thus, no reference is made to Board policy or interpretation which might be entitled to deference under Udall v. Tallman, 380 U.S. 1, 17, 85 S.Ct. 792, 802, 13 L.Ed.2d 616 (1964). Neither is there any indication of Board policy on the distinctions which petitioners seek to draw between themselves and petitioners in cases such as Robey v. Schwab, 113 U.S.App.D.C. 241, 307 F.2d 198 (1962) and Rose Lees Hardy Home v. District of Columbia Board of Zoning Adjustment, D.C.App., 343 A.2d 564 (1975). The Board may be of the view that petitioners' claims as a church-related school are without merit, that there are no distinctions between petitioners and others, and that Constitutional issues have been decided adversely under principles announced in Marjorie Webster Junior College, Inc. v. District of Columbia Board of Zoning Adjustment, D.C.App., 309 A.2d 314, 319 (1973). Nonetheless, a decision by the Board on this contested issue would appear appropriate. In remanding this case to the District of Columbia Board of Zoning Adjustment, attention is called to the applicable law on special exceptions as set forth in Stewart v. District of Columbia Board of Zoning Adjustment, D.C.App., 305 A.2d 516, 518 (1973): Special exceptions, unlike variances, are expressly provided for in the Zoning Regulations. The Board's discretion to grant special exceptions is limited to a determination whether the exception sought meets the requirements of the regulation. The burden of showing that the proposal meets the prerequisite enumerated 19 in the particular regulation pursuant to which the exception is sought rests with the applicant. In sum, the applicant must make the requisite showing, and once he has, the Board ordinarily must grant his application. The court, however, cannot find facts from the record either to fill gaps or to revise a decision which is based on erroneous findings. Lee v. District of Columbia Zoning Commission, D.C.App., 411 A.2d 635, 639 (1980), and Citizens Association, supra, 403 A.2d at 741. The proper disposition must be a remand. However, "[s]uch remand is not solely for the purpose of redrafting findings and conclusions to facilitate our review and reinforce the Board's decision. The Board may . . . conduct further hearings or . . . even reach a different result." Salsbery v. District of Columbia Board of Zoning Adjustment, D.C.App., 318 A.2d 894, 898 (1974). Reversed and remanded. NOTES [*] Sitting by designation pursuant to D.C.Code 1973, § 11-707(a). [1] Petitioners assert that because their school is a church-related school located on church property, they are entitled to increase its enrollment without approval of the Board of Zoning Adjustment. They argue that the law requires a distinction between church-related schools and other private schools. Infra, pp. 17-18. [2] E. g.: Witnesses noted potholes in the road and traffic congestion in the alley, but could not determine if the conditions were caused by cars belonging to petitioners' students. Even the Board itself failed to make proper distinctions when it apparently relied on a finding that church functions create adverse traffic and parking conditions in the evening hours when the primary issue was future impact of school functions during school hours.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260006/	421 A.2d 1312 (1980) In re C. E. E. No. 404-79. Supreme Court of Vermont. September 16, 1980. 1313 John A. Rocray, Windham County State's Atty., and Linda Levitt, Deputy State's Atty., Brattleboro, for plaintiff State. Thomas F. Garrett, Vermont Legal Aid, Inc., Burlington, for defendant. Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ. PER CURIAM. On September 21, 1979, M.C.E. filed, pursuant to 18 V.S.A. § 7612(a), an application for involuntary treatment for her son C.E.E. The application was not accompanied by a certificate of a licensed physician, 18 V.S.A. § 7612(e)(1), but did contain a statement by the applicant that the proposed patient refused to submit to an examination by a licensed physician, 18 V.S.A. § 7612(e)(2). The application requested that the court order a psychiatric examination. The then presiding district judge, without notice or hearing, ordered the proposed patient, C.E.E., to submit to an examination by a licensed psychiatrist, and further ordered the Windham County Sheriff's Department to transport him to the named psychiatrist's office for the purposes of such examination. C.E.E. was taken to the psychiatrist, examined and later released. A hearing was held before a new presiding judge who concluded, based generally on testimony of the psychiatrist who had examined C.E.E., that the proposed patient was a person in need of treatment, and granted the application for involuntary treatment. C.E.E. timely objected to the testimony of the psychiatrist, and assigns as error the refusal of the judge to sustain his objection to that testimony. He claims that since the order for an examination without notice or hearing was outside the authority of the first judge, the testimony based on information obtained during that examination was inadmissible during the hearing before the second judge. We agree. Once an application for involuntary treatment is filed under 18 V.S.A. § 7612, the district judge is required to appoint counsel for the proposed patient, transmit to him a copy of the application, and give notice to interested parties of the prospective hearing. 18 V.S.A. § 7613. After the involuntary treatment proceedings have been commenced, the district court is empowered to authorize an examination of the proposed patient. 18 V.S.A. § 7614. However, while § 7614 provides that the court, upon motion, shall authorize an examination, it does not establish a procedure to implement the provision. Therefore, we must look elsewhere in the mental health law to determine the proper procedure for requiring a person to submit to an involuntary examination. C.E.E. points to 18 V.S.A. §§ 7504 and 7505 as being the only provisions of our Vermont mental health law which authorize law enforcement officers to take a person into custody for the purpose of a psychiatric 1314 examination. And, as he further points out, neither is applicable. Section 7504 requires that a doctor's certificate accompany the application. Since no such certificate was filed with the application in the present case, this section was not applicable. Section 7505 permits a judge to order a person to submit to an immediate examination at a designated hospital if "a physician's certificate is not available without serious and unreasonable delay, and [there is] probable cause . . . to believe that the person is in need of an immediate examination." 18 V.S.A. § 7505(c). Section 7505(a) and (b) restrict, however, the issuance of such order to an application for a warrant prepared by a law enforcement officer or mental health professional. The application here was filed by C.E.E.'s mother, who is neither a law enforcement officer nor a mental health professional. Therefore, this provision was inapplicable. 18 V.S.A. § 7615(c) provides that the rules of civil procedure shall be applicable to the hearing contemplated by the involuntary treatment procedure. Presumably, those rules are also applicable to the prehearing discovery stages. V.R.C.P. 35(a), which applies to civil actions in the district court through D.C.C.R. 35, provides as follows: When the mental . . . condition . . . of a party . . . is in controversy, the Presiding Judge may order the party to submit to a . . . mental examination by a physician. . . . The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. Pursuant to this rule, mental examinations are not to be granted as a matter of right. Notice must be given to the person sought to be examined, and the party seeking the order must show good cause. The proposed examinee must, of course, be given the opportunity to contest the matter. Furthermore, the good cause requirement is "not met by mere conclusory allegations of the pleadings-nor by mere relevance to the case-but require[s] an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination." Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 242, 13 L.Ed.2d 152 (1964). While the nature and extent of the hearing required for a contested motion under Rule 35(a) depends on the particular facts of a case, id. at 119, 85 S.Ct. at 243, we believe that the facts of the present case required the district court to scrutinize carefully the State's request for a psychiatric examination. Because C.E.E. was neither given notice of nor an opportunity to be present at the hearing on the State's initial application for involuntary treatment, he was improperly committed for the psychiatric examination. Moreover, unlike the emergency procedures under 18 V.S.A. §§ 7504 and 7505, compliance with a court order under V.R.C.P. 35 is not achieved by taking the proposed patient into custody, but rather it is achieved by the imposition of coercive sanctions under V.R.C.P. 37. Since the district court failed to comply with the strictures of V.R.C.P. 35 and 18 V.S.A. § 7613, the psychiatric examination was unlawful, and any testimony derived from that examination should have been excluded at the later hearing. One final point should be noted. In its findings, conclusions and order, the district court recited that "[t]he evidence was received and taken in the light most favorable to the State, after considering modifying evidence . . . ." This is plain error. And, had the parties not agreed that this was mere boilerplate language that was improperly inserted by the district court, it alone would have required reversal, for that is an appellate standard, not a trial court standard. The trial court is obligated to weigh all the evidence objectively and impartially before reaching its decision. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310947/	229 Wis.2d 433 (1999) 600 N.W.2d 1 James ANTISDEL, Plaintiff-Appellant, v. CITY OF OAK CREEK POLICE AND FIRE COMMISSION, City of Oak Creek Police Department and Acting Chief Thomas P. Bauer, Defendants-Respondents.[] No. 97-3818. Court of Appeals of Wisconsin. Submitted on briefs February 2, 1999. Decided July 20, 1999. 434 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John F. Fuchs of Fuchs, Snow, O'Connell & DeStefanis, S.C., of Milwaukee. On behalf of the defendants-respondents, the cause was submitted on the brief of Maria K. Myers of Davis & Kuelthau, S.C., of Milwaukee, and Lawrence J. Haskin of Haskin & Book, S.C., of Oak Creek. Before Fine, Schudson and Curley, JJ. FINE, J. James Antisdel is a police officer employed by the City of Oak Creek. He joined the department in 1985. In March of 1996, Michael Younglove, then Oak Creek chief of police, promoted Antisdel to sergeant. A memorandum that Younglove sent to Antisdel on March 1, 1996, told him that he was "being promoted to the position of sergeant effective March 10, 1996." It also told Antisdel: "Upon completion of a one year probationary period, you will receive a permanent appointment as sergeant." In December of 435 1996, Thomas P. Bauer, who had succeeded to the chief-of-police position, demoted Antisdel to "police officer." Antisdel sought a "just cause" hearing under § 62.13(5)(em), STATS. The Oak Creek Police and Fire Commission refused to grant him one. Antisdel then sought review in the circuit court.[1] The trial court granted summary judgment to the defendants and dismissed Antisdel's action. Antisdel appeals. We reverse. [1, 2] Our review of a trial court's grant of summary judgment is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). Summary judgment is to be granted if "there is no genuine issue as to any material fact" so that a party "is 436 entitled to a judgment as a matter of law." See RULE 802.08(2), STATS.; Green Spring Farms, 136 Wis. 2d at 315, 401 N.W.2d at 820. The parties do not contend that there are any genuine issues of fact material to this appeal. The only issue is whether the Board of Police and Fire Commissioners acted "under an incorrect theory of law" in denying Antisdel a hearing under § 62.13(5)(em), STATS. See Owens v. Board of Police & Fire Comm'rs, 122 Wis. 2d 449, 451, 362 N.W.2d 171, 173 (Ct. App. 1984) (explaining scope of review on certiorari). We conclude that it did. Section 62.13(5)(em), STATS., provides: No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable: 1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct. 2. Whether the rule or order that the subordinate allegedly violated is reasonable. 3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order. 4. Whether the effort described under subd. 3. was fair and objective. 5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate. 437 6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate. 7. Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chief's department. This statute is plain: "[n]o subordinate may be ... reduced in rank ... based on charges filed by ... the chief ... unless the board determines whether there is just cause ... to sustain the charges." Absent a constitutional infirmity, we must apply unambiguous statutes as they are written. Department of Natural Resources v. Wisconsin Power & Light Co., 108 Wis. 2d 403, 408, 321 N.W.2d 286, 288 (1982); State v. Young, 180 Wis. 2d 700, 704, 511 N.W.2d 309, 311 (Ct. App. 1993), aff'd by an equally divided court, 191 Wis. 2d 393, 528 N.W.2d 417 (1995). The syllogism here is inescapable: 1) Antisdel is a "subordinate." See Kaiser v. Board of Police & Fire Comm'rs, 104 Wis. 2d 498, 503, 311 N.W.2d 646, 649 (1981) ("As used in the statute, [`subordinate'] is a generic term including all police officers."); 2) The defendants seek to "reduce[]" Antisdel "in rank" based on "charges" made (albeit, apparently, not formally "filed") "by ... the chief." This they may not do unless the board of police and fire commissioners "determines ... there is just cause" for the proposed reduction in rank. In attempting to avoid the statute's clear mandate, the defendants argue that Antisdel accepted his promotion with the understanding that he would be on 438 probation as a sergeant for the first year, and that this is the way the Oak Creek police department has routinely handled promotions within the force. Additionally, the defendants point out, the Wisconsin Supreme Court has recognized probationary employment as a valuable management tool. We discuss these contentions in turn. [3] There is no doubt but that, with one exception not material here, Oak Creek has routinely subjected police officers promoted to sergeant to a period of probation, and that Antisdel did not contest the "terms" of his promotion as explained to him in Younglove's memorandum. The defendants thus contend that Antisdel agreed, either explicitly or implicitly, to the probationary nature of the promotion. Agreements and practices that conflict with a statute, however, must give way; the statute controls. See State ex rel. Cooper v. Baumann, 231 Wis. 607, 286 N.W. 76 (1939) (practice in conflict with statute); Drivers, etc., Local No. 695 v. WERC, 121 Wis. 2d 291, 298, 359 N.W.2d 174, 177-178 (Ct. App. 1984) (contract in conflict with statute); Milwaukee Police Ass'n v. City of Milwaukee, 113 Wis. 2d 192, 196, 335 N.W.2d 417, 419 (Ct. App. 1983) (contract in conflict with statute). Although it is also true "that the use of a probationary period is an excellent means of examining candidates and is well-suited to securing the best service available," Kaiser, 104 Wis. 2d at 504, 311 N.W.2d at 649, the only statute authorizing probationary terms for law-enforcement officers is § 165.85(4)(b), STATS. Indeed, in Kaiser, it was § 165.85(4)(b) (and the collective-bargaining agreement recognizing that under § 165.85(4)(b) newly hired police officers are probationary employees) upon which the court relied in determining that Kaiser was a probationary 439 police officer and thus not entitled to a "just cause" hearing under § 62.13(5)(em). Kaiser, 104 Wis. 2d at 501-503, 505, 311 N.W.2d at 648-649, 650.[2] [4] There is no allegation that Antisdel's original appointment as an Oak Creek police officer did not satisfy § 165.85(4)(b), STATS. Once having cleared that hurdle, any promotion he received could not be taken away without the "just cause" hearing required by § 62.13(5)(em), STATS.[3] Any other rule would give to the appointing authority the limitless power to circumvent the "just cause" protection against arbitrary action the legislature created in § 62.13(5)(em) by simply making every promotion temporary or probationary or otherwise terminable at will. 440 By the Court.Judgment reversed. SCHUDSON, J. (concurring). Should probationary hirees and probationary promotees have the same status for the purpose of determining whether they are entitled to "just cause" hearings under § 62.13(5)(em), STATS.? It may very well be, as the dissent opines, that "the benefits of probation apply with equal force" to hirees and promotees and, therefore, that Kaiser should extend to cover Antisdel's case. Whether that is so, however, may depend on myriad factors and policy considerations, not the least of which is whether a career officer would even accept a promotion if it were conditioned on the acceptance of a "probationary" status requiring the officer to relinquish "just cause" hearing rights or other contractual guarantees enjoyed by permanent employees. None of these factors has been presented for consideration in this appeal. The dissent depends on a misreading of § 165.85(4)(e), STATS. The statute deals with "setting recruit training and employment standards which are higher than the minimum standards set by the board." See § 165.85(4)(e), STATS. (emphasis added). Literally and contextually, "recruit" modifies "employment standards." Therefore, § 165.85(4)(e), affecting only the training and employment of recruits, provides no support for the dissent's determined effort to locate a statutory basis that, under the guise of "higher ... standards," would deny "just cause" hearings to promotees. Someday, perhaps, the legislature may decide to allow for the demotion of probationary promotees without "just cause" hearings. Or perhaps, someday, the supreme court will consider the policy arguments 441 about whether the reasoning of Kaiser should extend from hirees to promotees. Until that day, however, § 62.13(5)(em), STATS., clearly controls: "[n]o subordinate"no exceptions for probationary promotees"may be ... reduced in rank" without a "just cause" hearing. Accordingly, I respectfully concur. CURLEY, J. (dissenting). The majority claims that Antisdel is entitled to a just cause hearing under § 62.13(5)(em), STATS. Although the majority opinion makes mention of the Kaiser case, the opinion concludes that only first-time hirees are subject to its holding that persons on probation are exempt from the operation of the statute. I disagree. The facts in this case present a logical extension of the Kaiser holding. The majority opinion, quoting from Kaiser, notes the advantages derived by the citizenry when police departments utilize probationary periods. "There is no doubt that the use of a probationary period is an excellent means of examining candidates and is well-suited to securing the best service available. It enables the board to better evaluate a potential officer's skill and character." Kaiser, 104 Wis. 2d at 504, 311 N.W.2d at 649. I believe the benefits of probation apply with equal force to Antisdel's situation. Kaiser was a probationary employee. Antisdel is a probationary promotee. Just as a period of probation may reveal the new recruit who does not possess the requisite skills and character to be a law enforcement officer, a period of probation may expose the newly-promoted police officer who does not possess the skills and character necessary to be an effective sergeant. 442 Law enforcement officers play a unique role in our society. They are given enormous power and discretion. We should not discourage a police chief from dismissing, at the earliest possible time, a promotee whose performance is substandard. The legislature found law enforcement work, in § 165.85(1), STATS., to be of such importance that it established a law enforcement standards board. In § 165.85(1), the legislature gave its reasons for doing so. (1) FINDINGS AND POLICY. The legislature finds that the administration of criminal justice is of statewide concern, and that law enforcement work is of vital importance to the health, safety and welfare of the people of this state and is of such a nature as to require training, education and the establishment of standards of a proper professional character. The public interest requires that these standards be established and that this training and education be made available to persons who seek to become law enforcement, tribal law enforcement, jail or secure detention officers, persons who are serving as these officers in a temporary or probationary capacity and persons already in regular service. This preamble also makes clear that the legislature is not only concerned with the training of new recruits, but also expects "persons ... already in regular service" to receive training. The majority, in dismissing the holding of Kaiser, reads Chapter 165 and the law enforcement standards board duties too narrowly. This legislation is intended to encompass all law enforcement training, not only that of recruits. Although much of the chapter devotes itself to recruit training, the statutes charge the law enforcement standards 443 board with additional duties which are outlined in § 165.85(3)(d), STATS.: (3) POWERS. The board may: . . . . (d) Establish minimum curriculum requirements for preparatory courses and programs, and recommend minimum curriculum requirements for recertification and advanced courses and programs, in schools operated by or for this state or any political subdivision of the state for the specific purpose of training law enforcement recruits, law enforcement officers, tribal law enforcement recruits, tribal law enforcement officers, jail officer recruits, jail officers, secure detention officer recruits or secure detention officers in areas of knowledge and ability necessary to the attainment of effective performance as an officer, and ranging from traditional subjects such as first aid, patrolling, statutory authority, techniques of arrest and firearms to subjects designed to provide a better understanding of ever-increasing complex problems in law enforcement such as human relations, civil rights, constitutional law and supervision, control and maintenance of a jail or secure detention facility. (Emphasis added.) Further, while the supreme court in Kaiser found that § 165.85(4)(b), STATS., authorized the police department to exempt Kaiser from the requirement of a hearing under § 62.13(5)(em), STATS., because he was a probationary recruit, I find § 165.85(4)(e) to be the statutory equivalent that authorized the Oak Creek Police Department to require a one-year probationary period for promotees. Section 165.85(4)(e) provides: "(4) REQUIRED STANDARDS. . . . (e) This section does not preclude any law enforcement or tribal law enforcement 444 agency or sheriff from setting recruit training and employment standards which are higher than the minimum standards set by the board." (Emphasis added.) Thus, I conclude that the Oak Creek police chief could require a one-year probationary period for promotees and he could demote Antisdel without providing him with a just cause hearing during his probationary period. Further, like Kaiser, Antisdel had no more than a unilateral expectation of fulfilling the year's probation and becoming a permanent sergeant. See Kaiser, 104 Wis. 2d at 505, 311 N.W.2d at 650. Consequently, Antisdel had no due process right to a hearing. Moreover, I believe the labor agreement between the City of Oak Creek and the police union also justifies the decision not to hold a just cause hearing under § 62.13(5)(em), STATS. The labor agreement, in effect, stated: For the first year of his or her employment, each employee shall be on probation.... During the probationary period, the probationary employee may be disciplined, discharged or otherwise dismissed at the sole discretion of the City, and neither the reason for nor the disciplinary action, discharge or dismissal shall be subject of a grievance or arbitration filing. This agreement shall apply to such employees in all other respects. As applied to Antisdel, I interpret this language to mean "in the first year of his employment as a sergeant." Consequently, Antisdel's belated request for a hearing was properly denied because he was a probationary promotee in the first year of his employment as a sergeant and not entitled to a hearing. 445 For these reasons, I would affirm the trial court. NOTES [] Petition to review granted. [1] Antisdel sought judicial review by filing in the circuit court a document that he designated "notice of review" (uppercasing omitted), which stated that it was filed "pursuant to Sec. 62.13(5)(i), Wis. Stats." This statute permits "[a]ny person ... reduced" by a board of police and fire commissioners to "appeal from the order of the board to the circuit court." Antisdel was not, however, reduced in rank by the Oak Creek Board of Police and Fire Commissioners; he was reduced in rank by Bauer, Oak Creek's chief of police. The Board denied Antisdel the "just cause" hearing required by § 62.13(5)(em), STATS. Although Antisdel filed another action in the circuit court seeking specifically a writ of mandamus directing the Board to give him a "just cause" hearing under § 62.13(5)(em), the parties and the circuit court in this case have treated Antisdel's notice of review as seeking an order directing the Board to grant Antisdel his requested hearing. Although we do not decide this issue, we, as did the parties and the circuit court, view Antisdel's notice of review as, in effect, seeking certiorari and mandamus relief, inasmuch as these avenues of judicial review may also be used by a police officer aggrieved by some disciplinary action. See Owens v. Board of Police & Fire Comm'rs, 122 Wis. 2d 449, 451, 362 N.W.2d 171, 172 (Ct. App. 1984). [2] Section 165.85(4)(b), STATS., provides, as material here: 1. No person may be appointed as a law enforcement ... officer, except on a temporary or probationary basis, unless the person has satisfactorily completed a preparatory program of law enforcement training approved by the board and has been certified by the board as being qualified to be a law enforcement ... officer. [3] The defendants contend, and the Dissent agrees, that because § 165.85(4)(e), STATS., does not prohibit "any law enforcement ... agency ... from setting recruit training and employment standards which are higher than the minimum standards set by the [law enforcement standards] board" the City of Oak Creek could condition promotion on an initial probationary period and could thus demote Antisdel without a "just cause" hearing. We disagree. It is not standards set by the law enforcement standards board that permit the discharge of probationary police officers without a "just cause" hearing required by § 62.13(5)(em), STATS.it is the statute: § 165.85(4)(b), STATS. See Kaiser v. Board of Police & Fire Comm'rs, 104 Wis. 2d 498, 502-503, 311 N.W.2d 646, 649 (1981) (police officer not "entitled to the procedures" set out in § 62.13(5) because § "165.85(4)(b) limited his hiring as a probationary officer").	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310888/	589 S.E.2d 168 (2003) STATE of North Carolina v. Michael Lamont MACK. No. COA03-176. Court of Appeals of North Carolina. December 16, 2003. 170 Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Bruce T. Cunningham, Jr., Southern Pines, for defendant-appellant. TYSON, Judge. Michael Lamont Mack ("defendant") appeals from a judgment entered after a jury found him guilty of assault on a law enforcement officer with a firearm, possession of a 171 firearm by a convicted felon, and attempted first-degree murder. I. Facts The State's evidence tended to show that on 6 September 1999, around 1:00 a.m., defendant went to Christina Johnson's ("Johnson") house to see his son. Johnson and defendant had conceived the child. Johnson did not allow defendant inside the house. Her mother called 911 while Johnson talked to defendant through the door. When Johnson informed defendant that the police were on their way, defendant stated, "I ain't afraid of the police. When they get here I'll show you." Around the same time, Raleigh police officer Kevin Lillis ("Officer Lillis") responded to Johnson's mother's 911 call complaining of trespassing in violation of a domestic violence protection order. The call informed him that the suspect's name was "Mike." Officer Lillis was wearing an orange raincoat when he arrived at the apartment complex in his marked Raleigh Police Department vehicle. He saw a black male standing on the porch of one of the apartments. Officer Lillis yelled "Mike" as the suspect began to walk away. The suspect raised his arm toward Officer Lillis and fired two shots. Officer Lillis retreated to his vehicle for cover and drew his service weapon. He observed the suspect remove a red baseball cap and red shirt as he fled the scene. Officer Lillis pursued the suspect on foot but lost sight of him. Investigators found a semiautomatic pistol, red ball cap, red shirt, and a red bandana at the scene. Defendant was sentenced to a minimum of sixteen (16) months and a maximum of twenty (20) months for the possession of a firearm by a felon charge, and received a minimum 220 months and maximum 273 months for the attempted first-degree murder and assault on a law enforcement officer with a firearm. Defendant appeals. II. Issues The issues are whether the trial court erred by: (1) making comments and questioning witnesses in violation of defendant's right to an impartial judge; (2) rejecting defendant's proposed stipulation that he had previously been convicted of a felony; (3) failing to submit lesser included offenses to the jury; (4) failing to dismiss the charge of attempted first-degree murder; (5) refusing to allow an expert witness to testify regarding mitigating factors; and (6) failing to find the existence of statutory mitigating factors. III. Right to an Impartial Judge A. Standard of Review Defendant argues the trial court violated his right to an impartial judge by: (1) making demeaning and sarcastic remarks, and (2) calling and questioning witnesses. "The law imposes on the trial judge the duty of absolute impartiality. The trial judge also has the duty to supervise and control a defendant's trial ... to ensure fair and impartial justice for both parties." State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732, cert. denied, 528 U.S. 941, 120 S.Ct. 351, 145 L.Ed.2d 274 (1999) (citations omitted). "It is fundamental to our system of justice that each and every person charged with a crime be afforded the opportunity to be tried `before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.'" State v. Larrimore, 340 N.C. 119, 154, 456 S.E.2d 789, 808 (1995) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)). "In evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized. Unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless." Id. at 155, 456 S.E.2d at 808 (citations omitted). The trial judge's broad discretionary power to supervise and control the trial "will not be disturbed absent a manifest abuse of discretion." State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361, 368 (1984). B. Remarks by the Trial Judge to Defendant's Counsel Defendant assigns error to the trial judge's remarks made during cross-examination 172 of a State's witness. "The judge's duty of impartiality extends to defense counsel. He should refrain from remarks which tend to belittle or humiliate counsel since a jury hearing such remarks may tend to disbelieve evidence adduced in defendant's behalf." State v. Coleman, 65 N.C.App. 23, 29, 308 S.E.2d 742, 746, cert. denied, 311 N.C. 404, 319 S.E.2d 275 (1983). Defendant argues the following comments were sarcastic, demeaning, and violated his right to an impartial judge: Q. [Witness], do you know Michael Lamont Mack? A. Personally, no. Q. Do you know THE COURT: When you talk to the jury start the morning off with your big boy voice. MR. McCOPPIN: Thank you, Judge. THE COURT: I have the same problem. I'm like this in the morning. Here, the trial judge was attempting to ensure that the court, jurors, and opposing counsel heard counsel's questions and the testimony. Although the statement requesting counsel to use his "big boy voice" constitutes an inappropriate comment, we cannot conclude, under the "totality of the circumstances," that this statement had a "prejudicial effect on the result of the trial." Larrimore, 340 N.C. at 155, 456 S.E.2d at 808. Defendant also assigns error to the trial judge's comments regarding his counsel's repetitive questioning. Officer Lillis was recalled by the State. Defense counsel asked on cross-examination whether the officer could "visually identify" defendant as the person who shot at him. This fact had been established in prior questioning. The court stated, in front of the jury, "If you'd like to ask that 15 more times, you've already asked that about five times." "The trial court has a duty to control the examination of witnesses, both for the purpose of conserving the trial court's time and for the purpose of protecting the witness from prolonged, needless, or abusive examination." State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 861, cert. denied, 516 U.S. 994, 116 S.Ct. 530, 133 L.Ed.2d 436 (1995). Here, defense counsel's question was cumulative and repetitive on Officer Lillis' lack of visual identity of defendant on the night of the incident. The trial judge's comment to avoid repetition might have tended to "belittle" counsel, but the comment was calculated to prevent "needless examination." Coleman, 65 N.C.App. at 29, 308 S.E.2d at 746; White, 340 N.C. at 299, 457 S.E.2d at 861. The transcript at bar reveals other incidents of inappropriate and sarcastic comments not assigned as error in this case. The trial judge at bar was recently censured by our Supreme Court for "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" for derogatory comments during trial. In re: Inquiry of Hill, 357 N.C. 559, ___, 591 S.E.2d 859, 861 (2003). We expressly disapprove and remonstrate the trial judge's inappropriate comments and unprofessional demeanor displayed before the court, litigants, and jury in this criminal trial. Such behavior falls below the standard of professionalism expected of an officer of the court. Defendant has not, however, met his heavy burden of proving the trial judge's remarks deprived him of a fair trial and caused a prejudicial effect on the outcome. State v. Waters, 87 N.C.App. 502, 504, 361 S.E.2d 416, 417 (1987). This assignment of error is overruled. C. Interrogation of Witnesses by the Court Defendant assigns as error the court's calling and questioning of witnesses. N.C. Gen.Stat. § 8C-1, Rule 614(b) (2003) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." "[T]he judge may question a witness in order to clarify confusing or contradictory testimony." State v. Geddie, 345 N.C. 73, 93, 478 S.E.2d 146, 156 (1996), petition denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997) (quoting State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986)). "When the trial judge questions a witness to clarify his testimony or to promote an understanding of the case, such questioning does not amount to an expression of the trial judge's opinion 173 as to defendant's guilt or innocence." State v. Davis, 294 N.C. 397, 402, 241 S.E.2d 656, 659 (1978). The court questioned a State's witness following defense counsel's attempt to discredit the witness's personal knowledge of the case. [MR. McCOPPIN]: All that you know is what you have read from the document the prosecutor provided? [THE WITNESS]: That's correct. MR. McCOPPIN: If I may have just a moment. THE COURT: Can we go back to the last question? Mr. McCoppin, you asked her: All you know is what is on the document the prosecutor provided you. Where did that document come from? THE WITNESS: From the Clerk's Office. The document is a certified copy of what is on file in the Clerk's office. THE COURT: Did it come from the prosecutor? Or from you, from the Clerk's office? THE WITNESS: The original is in the Clerk's office. The certified copy was in the possession of the prosecutor. But it is a certified, true copy of the original, which is all filed in our office. Defendant argues the court's questioning was intended to discredit the defense counsel and bolster the State's position. Defendant also asserts the court erred by interposing a series of questions seeking to assist a witness in the description of the perpetrator. The State asked Officer Lillis to describe the perpetrator. Officer Lillis testified the person was about six feet tall, had on dark clothing, and wore a red bandana. The court then asked several questions: THE COURT: Was it male, or female? THE WITNESS: Male. THE COURT: Could you tell what gender? THE WITNESS: I could tell it was a male. THE COURT: What race? THE WITNESS: Black. THE COURT: The person that was having this argument, had you ever met him before that you know of? THE WITNESS: No. Defendant contends the jury could have perceived this exchange as the trial judge assisting the State in proving its case. Defendant also argues the court erred in calling and questioning a witness after the jury returned a guilty verdict and during the sentencing phase of the trial. Defense counsel called an expert witness who testified that, in his opinion, defendant was suffering from symptoms of schizophrenia when the incident occurred. After the State rested, the court recalled Officer Lillis to the stand and asked him: BY THE COURT: Q. During the entire incident in question did the defendant, while in your presence, including while running behind the house out of your sight, during any time that you were in the presence of the defendant that night did he at any time by his movements, his physical ability appear or mental appear [sic] to be impaired. A. No, ma'am. Defense counsel did not object or move to strike any of the questions asked or testimony given in each of these instances. See N.C.R.App. P. 10(b)(1) (2003) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion...."). While unusual, the court did not abuse its discretion in questioning witnesses in front of the jury to clarify the evidence and testimony being presented. The court's questioning during the sentencing phase, when no jury was present, was also proper. See N.C. Gen. Stat. § 15A-1340.12 (2003) ("primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender's culpability...."). These assignments of error are overruled. 174 IV. Stipulation of Conviction Defendant contends the trial court committed plain error in rejecting defendant's proposed stipulation that he had previously been convicted of a felony. Since defendant was charged with possession of a firearm by a felon, the State was required to prove a prior felony conviction. Defendant offered to stipulate to the prior conviction to avoid putting this evidence before the jury. The court refused to give any special instructions and instructed the jury based on the Pattern Jury Instruction on possession of a firearm by a felon. Defendant then withdrew his stipulation. The Clerk of Court introduced evidence of a prior felony conviction. Defendant failed to object to or move to strike when this evidence was introduced and now argues plain error. Defendant contends his attorney's failure to object constitutes ineffective assistance of counsel. Defendant has failed to provide any authority or support for this ineffective assistance of counsel claim. "Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." State v. Walters, 357 N.C. 68, 82-83, 588 S.E.2d 344, 353, cert. denied, ___ U.S. ___, 124 S.Ct. 442, 157 L.Ed.2d 320 (2003); N.C.R.App. P. 28(b)(6) (2003). "[I]n our review of the record for plain error, `defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.'" Id. at 85, 588 S.E.2d at 354 (quoting State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002)). Defendant has failed to include his request for a special instruction in the record on appeal. We cannot "assume or speculate that there was prejudicial error when none appears on the record before it." State v. Moore, 75 N.C.App. 543, 548, 331 S.E.2d 251, 255, disc. rev. denied, 315 N.C. 188, 337 S.E.2d 862 (1985). This assignment of error is dismissed. V. Lesser-Included Offenses Defendant contends the trial court committed plain error by failing to submit to the jury lesser-included offenses of attempted voluntary manslaughter, assault with a deadly weapon with intent to kill, and attempted second-degree murder. At trial, defendant failed to object to the proposed instruction regarding attempted murder and argues plain error. Defendant was indicted for attempted first-degree murder, not assault with a deadly weapon with intent to kill. "Because assault with a deadly weapon with intent to kill requires proof of an element not required for attempted murderuse of a deadly weaponit is not a lesser-included offense of attempted murder, and must be charged in a separate indictment." State v. Coble, 351 N.C. 448, 453, 527 S.E.2d 45, 49 (2000) (citation omitted). Since defendant was not charged with assault with a deadly weapon with intent to kill under a separate indictment, the trial court was not required to give a jury instruction on this offense. Defendant's assignment of error regarding attempted second-degree murder was also addressed in Coble. "Because specific intent to kill is not an element of seconddegree murder, the crime of attempted second-degree murder is a logical impossibility under North Carolina law." Id. at 451, 527 S.E.2d at 48. The trial court did not err by not giving an instruction on attempted second-degree murder. "[T]o support an instruction on attempted voluntary manslaughter, a defendant must produce `heat of passion' or `provocation' evidence negating the elements of malice, premeditation, or deliberation." State v. Rainey, 154 N.C.App. 282, 290, 574 S.E.2d 25, 30, disc. rev. denied, 356 N.C. 621, 575 S.E.2d 520 (2002); but see Coble, 351 N.C. at 450, 527 S.E.2d at 47 ("[T]he crime of attempted murder, as recognized in this state, can be committed only when a person acts with the specific intent to commit firstdegree murder."). Words or language do not constitute adequate provocation for taking human life. State v. Watson, 287 N.C. 147, 156, 214 S.E.2d 85, 91 (1975). Here, there 175 was no assault or threatened assault on defendant prior to his firing of the weapon. Defendant has failed to show evidence of legal provocation. Defendant has failed to show the court committed plain error by not instructing ex mero motu on attempted voluntary manslaughter, assault with a deadly weapon with intent to kill, and attempted second-degree murder. This assignment of error is overruled. VI. Motion to Dismiss Defendant argues the trial court erred in failing to dismiss the charge of attempted first-degree murder. In a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn from the facts and evidence presented. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). "Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied." State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). "Substantial evidence is defined as relevant evidence which a reasonable mind could accept as adequate to support a conclusion." Lee, 348 N.C. at 488, 501 S.E.2d at 343. "[T]he evidence need only give rise to a reasonable inference of guilt for the case to be properly submitted to the jury." State v. Barnett, 141 N.C.App. 378, 383, 540 S.E.2d 423, 427 (2000), aff'd, 354 N.C. 350, 554 S.E.2d 644 (2001). "The elements of attempted first degree [sic] murder are: (1) a specific intent to kill another person unlawfully; (2) an overt act calculated to carry out that intent, going beyond mere preparation; (3) the existence of malice, premeditation, and deliberation accompanying the act; and (4) a failure to complete the intended killing." State v. Poag, N.C.App. ___, ___, 583 S.E.2d 661, 666 (2003) (quoting State v. Peoples, 141 N.C.App. 115, 117, 539 S.E.2d 25, 28 (2000)). Defendant contends the State presented no evidence of his premeditation and deliberation to kill Officer Lillis. We have held "[p]remeditation is present where the defendant formed a specific intent to kill the victim [over] [sic] some period of time, no matter how short, prior to perpetrating the actual act. Deliberation is acting [in][sic] a cool state of blood and not under the influence of a violent passion." State v. Andrews, 154 N.C.App. 553, 561, 572 S.E.2d 798, 804 (2002) (citations omitted). Premeditation and deliberation "are usually proven by circumstantial evidence because they are mental processes that are not readily susceptible to proof by direct evidence." State v. Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994). Here, the State's evidence tended to show the complete absence of any provocation by Officer Lillis. At the time defendant fired the gun, Officer Lillis had not drawn his service weapon and had only called out defendant's name. Additionally, defendant fired multiple shots within a fairly close range, approximately fifty feet, towards Officer Lillis, which required separate pulls of the trigger. "[S]ome amount of time, however brief, for thought and deliberation must elapse between each pull of the trigger." State v. Austin, 320 N.C. 276, 295, 357 S.E.2d 641, 653, cert. denied, 484 U.S. 916, 108 S.Ct. 267, 98 L.Ed.2d 224 (1987). Defendant's own statements also tended to show defendant's intent to kill. After being informed that the police had been called, he stated, "I ain't afraid of the police. When they get here I'll show you." The circumstantial evidence presented was sufficient to allow a reasonable juror to conclude that defendant acted with premeditation and deliberation. This assignment of error is overruled. VII. Mitigating Factors in Sentencing Defendant contends the trial court erred in refusing to allow an expert witness to testify regarding the existence of mitigating factors. Defendant did not make an offer of proof for the excluded testimony. This assignment of error was not preserved for appellate review and is dismissed. See State v. Williams, 355 N.C. 501, 534, 565 S.E.2d 609, 629 (2002), cert. denied, 537 U.S. 1125, 123 S.Ct. 894, 154 L.Ed.2d 808 (2003). *176 Defendant also argues the trial court erred in failing to find the existence of statutory mitigating factors despite sufficient evidence presented to support the factors. "The court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences specified in G.S. 15A-1340.17(c)(2)." N.C. Gen.Stat. § 15A-1340.16(c)(2003). Defendant was sentenced in the presumptive range and concedes that this Court has rejected his argument in State v. Streeter, 146 N.C.App. 594, 553 S.E.2d 240 (2001). This assignment of error is dismissed. VIII. Conclusion We have carefully reviewed all of defendant's assignments of error. The trial judge's comments and actions complained of were inappropriate, and fell below the professionalism expected of an officer of the court. Plaintiff, however, has failed to show that but for such comments and conduct, under the "totality of the circumstances," the trial court's actions had a "prejudicial effect on the result at trial." Larrimore, 340 N.C. at 155, 456 S.E.2d at 808. No prejudicial error. Judges McCULLOUGH and BRYANT concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310903/	589 S.E.2d 36 (2003) 214 W.Va. 305 Margaret WAYS, Douglas Brill, William E. Crum, Dael Copeland, Gwendolyn Shells, Edgar Carter and Larry Linton, Individually and as Representatives of the Class, Plaintiffs Below, Appellants v. IMATION ENTERPRISES CORPORATION, Minnesota Mining and Manufacturing Corporation DBA 3M, Charles Osterlien, Barbara Cederberg, K.C. Lum, Larry Doris, Sam Adams, Dean Stickel and Clarence Ruppenthal, Individually and as Agents of 3M/Imation, and Spectratech International, Inc., Defendants Below, Respondents No. 31062. Supreme Court of Appeals of West Virginia. Submitted June 11, 2003. Decided July 7, 2003. 39 Mark N. Troobnick, Esq., Wright & Sielaty, PC, Lake Ridge, Virginia, Richard G. Gay, Esq., Nathan Cochran, Esq., Law Office of Richard G. Gay, LC, Berkeley Springs, West Virginia, Mark Jenkinson, Esq., Burke, Shultz, Harman & Jenkinson, Martinsburg, West Virginia, Clinton R. Ritter, Esq., Winchester, Virginia, Attorneys for Appellants. Christopher Robertson, Esq., Jackson & Kelly, Martinsburg, Kathleen M. Mahoney, Esq., David M. Wilk, Esq., Larson-King, LLP, St. Paul, Minnesota, Attorneys for Imation Enterprises Corp., Imation Corp., 3M Company, Charles Oesterlein, Barbara Cederberg, K.C. Lum, Larry Doris & Dean Stickel. Harry P. Waddell, Esq., Law Offices of Harry P. Waddell, Martinsburg, West Virginia, Attorney for Sam Adams. Charles F. Printz, Jr., Esq., Bowles Rice McDavid Graff & Love, PLLC, Martinsburg, West Virginia, Attorney for Clarence Ruppenthal. Sara E. Hauptfuehren, Esq., Rodney L. Bean, Esq., Steptoe & Johnson, Clarksburg, West Virginia, Attorney for Spectratech International, Inc. 37 38 PER CURIAM: The appellants and plaintiffs below, seven former employees of appellees and defendants below, Imation Enterprises Corporation, Imation Corporation, and Minnesota Mining and Manufacturing Company, appeal the June 5, 2002, order of the Circuit Court of Jefferson County that denied the appellants' motion for class certification in their claims for breach of contract and employment discrimination.[1] After careful consideration of the issues, we affirm the circuit court. I. FACTS Each of the seven appellants was formerly employed by the Minnesota Mining and Manufacturing Company, which does business as 3M (hereinafter "3M"), at its Middleway plant near Kearneysville in Jefferson County, West Virginia. The Middleway plant, which opened in 1961, manufactured lithographic 40 metal plates[2] used by commercial printers. The appellants were employed at the plant for periods ranging from 15 to more than 30 years. Effective July 1, 1996, Appellant Imation Enterprises Corporation (hereinafter "Imation") was formed as a result of the "spin off"[3] of certain 3M businesses. Imation owned and operated the Middleway plant from Imation's inception until December 31, 1998, when the plant closed. Prior to the closing, Imation offered its approximately 150 employees[4] two separate severance plan optionsa "voluntary plan," and an "income assistance pay plan." According to the appellees, 72 employees accepted the "voluntary plan," and the remaining 88 employees accepted the "income assistance plan." As a condition of participation in the plan, the employees were required to sign a document titled "General Release Of All ClaimsCovenant Not To Sue."[5] In November 1998, Appellee Spectratech International Inc. agreed to purchase certain Middleway plant assets. Spectratech subsequently reopened the plant with a workforce of 28 employees, all of whom were former employees of Imation. On March 28, 2000, the appellants filed an action in the Circuit Court of Jefferson County against Imation, 3M, Spectratech, and several former employees of 3M and Imation. The eight appellants are: Margaret Waysa female over the age of 40 years who worked at the Middleway plant for a continual period of 24 years and 11 months; 41 Douglas Brilla male over the age of 40 years who worked at the plant for a continual period of 30 years and five months; William E. Cruma male over the age of 40 years who worked at the plant for a continual period of 18 years and six months; Dael Copelanda male over the age of 40 years who worked at the plant for a continual period of 30 years and one month; Gwendolyn Shellsan African-American female over the age of 40 years who worked for 3M/Imation for a continual period of 24 years and 9 months; Edgar Carteran African-American male over the age of 40 years who worked at the plant for a continual period of 21 years; and Larry Lintona male over the age of 40 years who worked at the plant for a continual period of 32 years and two months. In their complaint, the appellants alleged breach of express and implied oral contracts of continued employment. Essentially, the appellants claimed that the employees at the Middleway plant were promised in a series of meetings with Imation management that if they perfected a new type of lithographic plate, known as a "negative no process plate,"[6] their jobs were assured and the Middleway plant would continue as an operational unit; the employees perfected the technology; nevertheless, Imation, in collusion with Spectratech, breached its express and implied promises of continued employment by closing the plant. The appellants also alleged race, gender, and age discrimination in violation of the West Virginia Human Rights Act, W.Va.Code §§ 5-11-1, et seq. According to the appellants, Imation engaged in a conspiracy with Spectratech to deny employment offers to the appellants because of their race, sex, and age. The appellants alleged that none of the approximately 17 African-Americans employed by Imation were hired by Spectratech, only three of approximately 47 women were hired, and fewer older workers were hired in comparison to the younger white males who were hired.[7] By motion dated November 5, 2001, the appellants moved the circuit court to certify their action against the appellees as a class action. According to the appellants, "[t]he overarching class action claims that potentially involve approximately 150 people are Plaintiffs' breach of contract claims, and retaliatory action claims. Subclasses within the overall class are based upon Plaintiff employees' discrimination in employment practices claims based on race, gender, and age." The appellants excluded from the proposed class former employees of Imation who were named as defendants in their complaint. The circuit court denied the motion for class certification by order of June 5, 2002, after it determined that the appellants failed to meet the requirements of Rule 23 of the West Virginia Rules of Civil Procedure. II. STANDARD OF REVIEW This Court has held that "[w]hether the requisites for a class action exist rests within the sound discretion of the trial court." Syllabus Point 5, Mitchem v. Melton, 167 W.Va. 21, 277 S.E.2d 895 (1981). Accordingly, "[t]his Court will review a circuit court's order granting or denying a motion for class certification pursuant to Rule 23 of the West Virginia Rules of Civil Procedure [1998] under an abuse of discretion standard." Syllabus Point 1, In Re: West Virginia Rezulin Litigation, 214 W.Va. 52, 585 S.E.2d 52 (2003). III. DISCUSSION As a preliminary matter, we note that the appellants spend a substantial portion 42 of their brief challenging the legality of the releases signed by the employees of Imation pursuant to obtaining severance benefits. The appellants argue that the releases are unconscionable, and that the circuit court erred in ruling that the releases bar class certification of the appellants' claims. Significantly, however, the circuit court has not yet determined the validity of the releases. Our law is clear that "[t]his Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance." Syllabus Point 2, Sands v. Security Trust Company, 143 W.Va. 522, 102 S.E.2d 733 (1958). Because the circuit court has not decided the question of the validity of the releases, we decline to consider the matter. This leaves us with the sole issue of whether the circuit court abused its discretion in determining that the appellants fail to meet the requirements for class certification listed in Rule 23 of the West Virginia Rules of Civil Procedure. According to Rule 23, in part: (a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (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 defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class actions maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) The prosecution of separate actions by or against individual members of the class would create a risk of (A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relieve [sic] or corresponding declaratory relief with respect to the class as a whole; or (3) 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. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. This Court has held: Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [1998], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a)numerosity, commonality, typicality, and adequacy of representationand has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party. Syllabus Point 8, In Re: West Virginia Rezulin Litigation, supra. "The party who seeks to establish the propriety of a class action has the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure have been satisfied." Syllabus Point 6, Jefferson Cty. Bd. of Educ. v. Educ. Ass'n, 183 W.Va. 15, 393 S.E.2d 653 (1990). As noted above, the circuit 43 court found that the appellants failed to meet any of the requirements of Rule 23. A. Breach of Contract Claims Distilled to its essence, the appellants' complaint makes two essential claims, breach of contract and employment discrimination. A significant basis for the circuit court's denial of class certification on the appellants' breach of contract claims was its finding that the proposed class failed to meet the Rule 23(a) requirements of commonality and typicality. Specifically, the circuit court found that, there are aspects of the claims that would appear to anticipate individualized proof (e.g., employee duress with respect to the releases; detrimental reliance upon employer promises of continued employment; the discrimination claims). The Court is also concerned that proof of oral representations (the alleged promises of continued employment were oral and were made at different company meetings by different sets of managers/company agents and heard by different subsets of employees) could deteriorate into a number of minitrials. The need to receive individualized proof as to certain claims, or aspects of certain claims, could present management problems for the Court. In regards to the typicality requirement, the circuit court again opined, As noted above, Defendants point to the need for the Court to receive individualized proof in litigating, for example, the breach of contract issue, as to the extent of any detrimental reliance upon an oral express or implied promise of continued employment.... Under such circumstances the Court is unable to conclude that the issues raised in the lawsuit satisfy the commonality and typicality requirements[.] The Supreme Court has characterized the commonality and typicality requirements of Rule 23 of the Federal Rules of Civil Procedure as follows: The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-ofrepresentation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157-58 n. 13, 102 S.Ct. 2364, 2370 n. 13, 72 L.Ed.2d 740, 750 n. 13 (1982). "The typicality and commonality requirements of the Federal Rules ensure that only those plaintiffs or defendants who can advance the same factual and legal arguments may be grouped together as a class." Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 340 (4th Cir.1998), quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 341 (7th Cir.1997). This Court recently considered at length Rule 23 of the West Virginia Rules of Civil Procedure in In Re: West Virginia Rezulin Litigation, supra. We held in Syllabus Points 11, 12, and 13 of that opinion: 11. The "commonality" requirement of Rule 23(a)(2) of the West Virginia Rules of Civil Procedure [1998] requires that the party seeking class certification show that "there are questions of law or fact common to the class." A common nucleus of operative fact or law is usually enough to satisfy the commonality requirement. The threshold of "commonality" is not high, and requires only that the resolution of common questions affect all or a substantial number of the class members. 12. The "typicality" requirement of Rule 23(a)(3) of the West Virginia Rules of Civil Procedure [1998] requires that the "claims or defenses of the representative parties [be] typical of the claims or defenses of the class." A representative party's claim or defense is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. Rule 23(a)(3) only requires that the class representatives' 44 claims be typical of the other class members' claims, not that the claims be identical. When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment. 13. The "adequacy of representation" requirement of Rule 23(a)(4) of the West Virginia Rules of Civil Procedure [1998] requires that the party seeking class action status show that the "representative parties will fairly and adequately represent the interests of the class." First, the adequacy of representation inquiry tests the qualifications of the attorneys to represent the class. Second, it serves to uncover conflicts of interest between the named parties and the class they seek to represent. Concerning the establishment of a contract, this Court has held that "[t]he fundamentals of a legal `contract' are competent parties, legal subject-matter, valuable consideration, and mutual assent. There can be no contract, if there is one of these essential elements upon which the minds of the parties are not in agreement." Syllabus Point 5, Virginian Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253 (1926). Further, It is elementary that mutuality of assent is an essential element of all contracts. Wheeling Downs Racing Ass'n v. West Virginia Sportservice, Inc., 158 W.Va. 935, 216 S.E.2d 234 (1975). In order for this mutuality to exist, it is necessary that there be a proposal or offer on the part of one party and an acceptance on the part of the other. Both the offer and acceptance may be by word, act or conduct that evince the intention of the parties to contract. That their minds have met may be shown by direct evidence of an actual agreement or by indirect evidence through facts from which an agreement may be implied. See Lacey v. Cardwell, 216 Va. 212, 217 S.E.2d 835 (1975); Charbonnages de France v. Smith, 597 F.2d 406, 415-416 (4th Cir. 1979). Bailey v. Sewell Coal Co., 190 W.Va. 138, 140-41, 437 S.E.2d 448, 450-51 (1993). In regards to employment contracts, this Court has held that "[a]n oral promise which has as its effect the alteration of an `at will' employment relationship must contain terms that are both ascertainable and definitive in nature to be enforceable." Syllabus Point 1, Sayres v. Bauman, 188 W.Va. 550, 425 S.E.2d 226 (1992). The appellants' contract claims essentially are based on the allegation that several members of Imation management verbally promised continued employment if the employees perfected a negative no process plate.[8] A significant problem with the appellants' contract claims is that the alleged oral promises of continued employment apparently were made by different members of management at different times to different employees. In addition, the appellants' recollections of the nature of the alleged oral promises differ. As the court opined in Broussard, 155 F.3d at 341, The oral nature of [individualized representations] makes them a particularly shaky basis for a class claim. Fifth Circuit caselaw even suggests a per se prohibition against class actions based on oral representations. See Simon v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 482 F.2d 880, 882-83 (5th Cir.1973). As the Seventh Circuit has indicated, "claims based substantially on oral rather than written communications are inappropriate 45 for treatment as class actions unless the communications are shown to be standardized." Retired Chicago Police, 7 F.3d at 597 n. 17. In order to prove the existence of a valid contract of continued employment, the appellants must present evidence that the terms of the alleged contract were ascertainable and definitive in nature. They also must show that there was mutuality of assent on these terms. Because the bulk of the appellants' breach of contract claims rests upon alleged individual oral representations made by various members of management, we agree with the circuit court that individualized evidence as to the specific circumstances surrounding the alleged promises is required. Accordingly, we conclude that the circuit court did not abuse its discretion when it ruled that the appellants' breach of contract claims do not meet the commonality and typicality requirements of Rule 23(a). B. Employment Discrimination Claims In their employment discrimination claims, the appellants allege discrimination based on race, gender, and age. In support of their claims, they assert that Spectratech hired no African-American workers of the approximately 17 employed by 3M/Imation, only three women out of the approximately 47 who worked at the 3M/Imation plant, and excluded from employment a disproportionate number of older workers. A case which is instructive in deciding the propriety of class certification in discrimination claims is General Telephone Co. of Southwest v. Falcon, supra. In Falcon, the named plaintiff was a Mexican-American whose only personal claim was for an allegedly discriminatory denial of a promotion. On his class claims, the plaintiff sought to challenge a wide variety of discriminatory employment practices including hiring. The Supreme Court held that a plaintiff could not maintain a class action on behalf of both employees who were denied promotions and applicants who were denied employment. This decision was based on the reasoning that, [c]onceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact and that the individual's claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim. Even though evidence that he was passed over for promotion when several less deserving whites were advanced may support the conclusion that respondent was denied the promotion because of his national origin, such evidence would not necessarily justify the additional inferences (1) that this discriminatory treatment is typical of petitioner's promotion practices, (2) that petitioner's promotion practices are motivated by a policy of ethnic discrimination that pervades petitioner's Irving division, or (3) that this policy of ethnic discrimination is reflected in petitioner's other employment practices, such as hiring, in the same way it is manifested in the promotion practices. These additional inferences demonstrate the tenuous character of any presumption that the class claims are "fairly encompassed" within respondent's claim. Id., 457 U.S. at 157-58, 102 S.Ct. at 2370-71, 72 L.Ed.2d at 750-51. The Supreme Court reiterated that the requirements of Rule 23(a) "limit the class claims to those fairly encompassed by the named plaintiff's claims." Id., 457 U.S. at 156, 102 S.Ct. at 2370, 72 L.Ed.2d at 749 (quoting General Telephone Co. of Northwest v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 1706, 64 L.Ed.2d 319, 330 (1980)). "The primary significance of the Falcon holding ... is that plaintiffs in Title VII class actions, like plaintiffs in all class actions, must meet the requirements of Rules 23(a)." Sheehan v. Purolator, Inc., 103 F.R.D. 641, 647 (E.D.N.Y. 1984). The court in Sheehan applied the principles of Falcon where two former employees and one present employee brought a 46 Title VII[9] sex discrimination action against a common employer and moved for class certification. The court noted that to bridge the conceptual gap mentioned in Falcon, "courts in Title VII actions after Falcon have required that the individual plaintiffs establish that there are aggrieved persons in the purported class, primarily through affidavits from employees alleging discriminatory treatment, or other evidence establishing the existence of an aggrieved class." Sheehan, 103 F.R.D. at 648 (citations omitted). In Sheehan, the plaintiffs relied, in part, on statistics comparing job titles, salaries, and fringe benefits received by male and female employees. The court, however, rejected these statistics as establishing an aggrieved class of female employees because, [t]he statistics do not offer the relevant comparisons of similarly situated female and male employees (i.e., females and males with the same qualifications and experience), nor do the statistics alone indicate that other female employees feel aggrieved. Affidavits from individual employees are needed to flesh out these statistics by particularizing instances where females were discriminated against in favor of similarly situated males. Id. at 649. When we apply the reasoning in Falcon and Sheehan to the instant case, we note that the appellants offer as evidence to support their discrimination claim that Spectratech hired none of the 17 African-Americans who worked at Imation, three of the 47 women who worked at Imation, and few older workers. As in Sheehan, these numbers do not establish that there are aggrieved persons, other than the appellants, in the aggrieved class. Specifically, the numbers do not indicate how many women, older persons, or African-American former employees of Imation, other than those who are appellants herein, feel aggrieved by Spectratech's hiring decisions. In other words, it is not indicative of how many African-Americans, women, or older workers were qualified for the jobs at Spectratech or how many expressed an interest in or actively pursued employment at Spectratech. Absent such evidence, we conclude that the appellants have failed to show the existence of an aggrieved class that meets the requirements of Rule 23(a). In addition, in order to prove commonality, typicality, or adequate representation in employment discrimination claims, the appellants must show not only common race, gender, or age with members of the proposed class, but also common qualifications and work experiences. Otherwise, it cannot be shown that the resolution of common questions affect all or a substantial number of class members. Accordingly, we are unable to conclude that the circuit court abused its discretion in denying the appellants' motion for class certification on their employment discrimination claim.[10] Finally, in considering the issues raised by the appellants, we are mindful that, Despite the potential benefits of class actions, there remains an overarching concern that absentees' interests are being resolved and quite possibly bound by the operation of res judicata even though most of the plaintiffs are not the real parties to the suit. The protection of the absentees' due process rights depends in part on the 47 extent... that the class representatives have interests that are sufficiently aligned with the absentees to assure that the monitoring serves the interests of the class as a whole. In addition, the court plays the important role of protector of the absentees' interests, in a sort of fiduciary capacity, by approving appropriate representative plaintiffs[.] * * * * * The drafters designed the procedural requirements of Rule 23, especially the requisites of subsection (a), so that the court can assure, to the greatest extent possible, that the actions are prosecuted on behalf of the actual class members in a way that makes it fair to bind their interests. The rule thus represents a measured response to the issues of how the due process rights of absentee interests can be protected and how absentees' represented status can be reconciled with a litigation system premised on traditional bipolar litigation. In re General Motors Corp. Pick-Up Truck Fuel Tank, 55 F.3d 768, 784-85 (3rd Cir. 1995). Thus, it is of the utmost importance that the requirements of Rule 23 be met in order to protect the rights of non-appearing class members. In the instant case, the circuit court found, in its discretion, that the appellants failed to meet the Rule 23 requirements. In other words, the circuit court found an insufficient guarantee that the due process rights of the non-appearing former employees of Imation would be sufficiently protected in a class action. We do not believe that the circuit court abused its discretion. III. CONCLUSION For the reasons stated above, we affirm the June 5, 2002, order of the Circuit Court of Jefferson County that denied the appellants' motion for class certification. Affirmed. Justice McGRAW dissents and reserves the right to file a dissenting opinion. McGRAW, Justice, dissenting: What the plaintiffs allege in this case is that a company decided it wanted to reduce its long-term obligations by shedding many of its long-term employees. According to the plaintiffs below, when the plant was still operating under 3M, about 17 employees were black, and about 40 were women, and many were over age 40. The plaintiffs claim that after the plant was "spun off" to Imation and then closed and reopened as Spectratech, approximately three women and zero black people worked there, and the percentage of older workers had dropped significantly. Had 3M simply announced it was laying off most women, most older men, and all blacks, it would have been met with outrage. But now that this result has been reached via different methods, outrage is in short supply. The majority cites several new syllabus points from the Rezulin case, including those on commonality and typicality, but then finds that the plaintiffs in this case do not meet those tests. I disagree. As quoted by the majority: "A common nucleus of operative fact is usually enough to satisfy the commonality requirement. The threshold of `commonality' is not high, and requires only that the resolution of common questions affect all or a substantial number of class members." Syl. pt. 11, in part, In Re: West Virginia Rezulin Litigation, 214 W.Va. 52, 585 S.E.2d 52 (2003). Here, the entire potential class worked at the plant, and all have ended up without their jobs as a result of the company's efforts to reduce its workforce. I believe that the common question of whether or not the employers' activity violated our Human Rights Act is sufficient to meet this threshold. The majority then quotes the Rezulin again, noting that "Rule 23(a)(3) only requires that the class representatives' claims be typical of the other class members' claims, not that the claims be identical. When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment." Id. at syl. pt. 12, in part. While there are factual variations in this case relating to what should have protected the plaintiffs (i.e., race, sex, or age), there is no *48 variation in the damages suffered by the plaintiffs; all are without their former jobs. Furthermore, all of their claims are based on the same remedial theorythat an employer must comply with our Human Rights Act when terminating employees. This Court has explained before that, though a given employee may not be member of a protected class, he or she may still join a lawsuit filed by fellow workers who are members of a protected class and who claim discrimination under our Human Rights Act. That is to say, that if an employer fires a few young male employees to make it more difficult to prove the employer is in fact firing all of its older male employees in violation of the Human Rights Act, those younger employees are still victims of discrimination: Collateral victims of discrimination are entitled to relief under West Virginia Code § 5-11-9(7) (1999) upon establishing that the employer has engaged in an unlawful discriminatory practice, such as activities designed to cause economic loss. Such collateral victims are properly included as Plaintiffs in a cause of action initiated by other victims of discrimination under the West Virginia Human Rights Act. Syl. pt. 10, Bailey v. Norfolk & Western Ry. Co., 206 W.Va. 654, 527 S.E.2d 516 (1999). As in Bailey, the plaintiffs in this case are claiming that the employer attempted to mask illegal, discriminatory deeds with apparently legal and non-discriminatory actions. What plaintiffs claim may or may not be truethat is a question for the finder of fact. However, they do not have to prove the merits of their claim to have their class certified. I believe the plaintiffs have demonstrated sufficient commonality and typicality to have their class certified by the lower court. Therefore, I must respectfully dissent to the majority opinion. NOTES [1] This Court has made clear that "[a]n order denying class action standing under Rule 23 of the West Virginia Rules of Civil Procedure may be appealed by the party who asserts such class standing." Syllabus Point 6, Mitchem v. Melton, 167 W.Va. 21, 277 S.E.2d 895 (1981). [2] As explained in the circuit court's order, these lithographic printing plates, were affixed to the drum of large printing presses to transfer images to paper as the drum rotates. The commercial printer developed these printing plates, using chemicals, much like photographs are developed. The traditional printing plates, as manufactured by 3M/Imation, required extensive chemicalbased preparation by the commercial printer or end user. [3] A "spin-off" is "a corporate divestiture in which a division of a corporation becomes an independent company and stock of the new company is distributed to the original corporation's shareholders." A Handbook of Business Law Terms 558 (1999). According to Imation, since July 1, 1996, it has been a separate company from 3M, with its own listing on the New York Stock Exchange; Imation and 3M are separately incorporated in the State of Delaware; and each files separate disclosures with the Securities and Exchange Commission. Finally, says Imation, it and 3M have no overlapping ownership and have different officers and directors. [4] According to the appellees, not all of the plant employees were employed by Imation. Some were employed in a part of the facility that Imation leased to 3M following the spin-off. [5] According to the subsection of the Release titled "What I Am Releasing," I agree to release all federal, state or local charges, claims, demands, actions or liabilities I now have or might have in the future based on events through the date I sign this Agreement (even if I don't know of them when I sign this Agreement) against Imation of whatever kind including, but not limited to, those related to my employment with Imation or the termination of my employment. I also agree that I will not file any charge or lawsuit of any kind against Imation, and that I agree any charge or lawsuit already filed on my behalf will be withdrawn or dismissed. I will sign any documents that need to be signed to accomplish that withdrawal or dismissal. I waive the right to receive monetary or other relief awarded in connection with those charges or lawsuits. I UNDERSTAND THAT MY RELEASE COVERS, BUT IS NOT LIMITED TO, CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE AMERICANS WITH DISABILITIES ACT, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, ANY OTHER FEDERAL, STATE OR COMMON LAW DEALING WITH EMPLOYMENT, AND ANY CLAIMS BASED ON THEORIES OF CONTRACT OR TORT (SUCH AS DEFAMATION OR EMOTIONAL DISTRESS). I understand and agree that if I violate this Agreement by making a claim or filing a lawsuit against Imation, I will pay all costs and expenses that Imation incurs in defending against these claims, including reasonable attorneys' fees. I also agree that I will pay back to Imation the total amount of consideration received under this Agreement if I challenge the validity of this Agreement. According to the subsection titled "What I am not Releasing," I am not releasing any claims for post-termination benefits, under the provisions of any employee benefit plan maintained by Imation. I also am not waiving any rights I have for events that occur after the date of this Agreement. I understand and agree that I am not being released from my obligations under the Imation "Employee Agreement". [6] A Negative No Process Plate was a new type of chemical-free printing plate technology. [7] Subsequently, Imation filed a separate federal lawsuit against the named plaintiff employees and any other former employees who would qualify as a class member. Thereafter, the appellants amended their complaint to allege that the federal lawsuit was a separate unlawful discriminatory act of reprisal against the appellants, and other employees who may join their lawsuit, under W.Va.Code § 5-11-9(7) of the West Virginia Human Rights Act. [8] In addition, Count III of the appellees' amended complaint alleges breach of a written contract and Count VI alleges wrongful discharge. Both of these are based on the terms of an employee handbook. However, there appears to be a lack of consensus among the appellants concerning the significance of the handbook. For example, when questioned during a deposition whether she read any provision in the handbook as guaranteeing Imation or 3M employees lifetime employment, Appellant Gwendolyn Shells responded, "There are none that I can see here." Appellant Edgar Carter testified in a deposition that he just did not know where in the handbook it promised continued employment. Further, Appellant Margaret Ways stated in an affidavit and deposition testimony that employees of Imation were told to follow the guidelines in the 3/M handbook, and that she does not know whether the handbook promised continued employment. Accordingly, we also are unable to find that the circuit court abused its discretion in denying certification on these claims. [9] The appellants have brought their employment discrimination claims under the West Virginia Human Rights Act, not federal Title VII. However, this Court has "consistently held that cases brought under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., are governed by the same analytical framework and structures developed under Title VII, at least where our statute's language does not direct otherwise." Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 482, 457 S.E.2d 152, 159 (1995) (citations omitted), modified on other grounds by Dodrill v. Nationwide Mut. Ins. Co., 201 W.Va. 1, 491 S.E.2d 1 (1996). [10] In their amended complaint, the appellants also allege a civil conspiracy between Imation and Spectratech to preclude the hiring of the appellants by Spectratech in violation of the West Virginia Human Rights Act, and unlawful reprisal in violation of W.Va.Code § 5-11-9(7) based on the fact that Imation brought an action against the appellants in federal court. We find that the circuit court did not abuse its discretion in denying class certification of these claims for essentially the same reasons stated in our discussion of the appellants' employment discrimination claims.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1310915/	213 Ga. App. 421 (1994) 445 S.E.2d 270 ABDUL-MAJEED v. EMORY UNIVERSITY HOSPITAL. A94A0518. Court of Appeals of Georgia. Decided May 11, 1994. Reconsideration Denied June 2, 1994. S. Ralph Martin, Jr., M. Gino Brogdon, for appellant. Long, Weinberg, Ansley & Wheeler, Stephen H. Sparwath, J. M. Hudgins IV, Allen & Peters, Bradley C. Reeves, for appellee. POPE, Chief Judge. In this wrongful death action against a doctor and a hospital, plaintiff appeals the trial court's grant of summary judgment for the hospital. After an automobile accident, plaintiff's decedent was rushed to South Fulton Hospital. South Fulton Hospital did not have room for plaintiff's decedent on its trauma ward, however, so he was taken to defendant Emory University Hospital ("Emory" or "the hospital"). There he came under the care of defendant Dr. Richard Riggins, an orthopedic surgeon who is not a party to this appeal. Several days after surgery, plaintiff's decedent died as the result of a blood clot in his heart. Plaintiff brought suit against Riggins and Emory and attached 422 an affidavit from another orthopedic surgeon who opined that Dr. Riggins and Emory should have diagnosed the blood clots in the decedent's left leg and utilized various devices and techniques to prevent them from moving to his heart, and that they deviated from reasonable standards of medical care in failing to do so. Emory moved for summary judgment on the grounds that: (1) the hospital was not responsible for any alleged negligence on the part of Dr. Riggins because Dr. Riggins was an independent contractor rather than an employee, and (2) there was no evidence of any independent negligence on the part of the hospital or any of its employees. The trial court granted Emory's motion, and plaintiff appealed. 1. On appeal, plaintiff contends that even if Dr. Riggins was not Emory's actual employee, summary judgment was inappropriate because the hospital may be liable under the doctrine of apparent or ostensible authority. See Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987). We agree. In Richmond County Hosp. Auth., the Supreme Court held that a hospital may be liable for a doctor's negligence, even though the doctor is an independent contractor, if the hospital represents or holds out the doctor as its agent and the plaintiff justifiably relies on that representation. Id.; see also Whitaker v. Zirkle, 188 Ga. App. 706, 709 (2) (374 SE2d 106) (1988). "Quite clearly, a hospital patient whose treatment is under the control and supervision of a privately retained physician is in a categorically different relationship with the hospital than is a patient whose attending physician is furnished to him by the hospital itself . . . . By furnishing the attending physician, the hospital is in effect holding him out as its own and calling upon the patient to accept his services based on its own reputation rather than the physician's." Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 897-898 (354 SE2d 632), aff'd sub nom. Richmond County Hosp. Auth. v. Brown, supra. Although the doctrine of apparent or ostensible authority first developed in the context of emergency room doctors, we have since held that it applies not just to emergency room physicians, but to all doctors who "`share the common characteristic of being supplied through the hospital rather than being selected by the patient.'" Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152, 163 (6b) (392 SE2d 897) (1990). In this case, it is undisputed that plaintiff's decedent did not have a doctor when he arrived at Emory and that Dr. Riggins was supplied by the hospital. Plaintiff also stated in her affidavit that Emory employees told her "one of our doctors" would be assigned to her husband's case. Contrary to Emory's contention, plaintiff's testimony regarding this statement by Emory employees is not hearsay because it is offered to show that the statement was made, not to show that the content of the statement was true. See Hurston v. State, 194 Ga. 423 App. 226 (390 SE2d 119) (1990). And plaintiff's inability to name the employees goes to the weight of her testimony rather than its admissibility. In any case, we conclude, based on the language from Brown v. Coastal Emergency Svcs. quoted above, that even without plaintiff's testimony regarding the employees' statement, the fact that the hospital supplied the doctor without explicitly informing the patient that the doctor was not its employee would be sufficient to support a finding that the hospital "held out" the doctor as its agent. Compare Holmes v. Univ. Health Svc., 205 Ga. App. 602 (423 SE2d 281) (1992) (there is no holding out of doctor as agent where hospital conspicuously posts large signs in emergency room notifying patients that doctors are not hospital employees and patient signs statement acknowledging that doctors are not hospital employees or agents). With respect to reliance, Emory argues that plaintiff's statement in her affidavit that she chose to take her husband to Emory based on its good reputation contradicts her prior deposition testimony that she chose Emory because of her friend's negative experience at Georgia Baptist.[1] As no explanation for the contradiction was offered, Emory asserts the affidavit testimony must be ignored. See Prohpecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986); Bryant v. Crider, 209 Ga. App. 623, 625 (3) (434 SE2d 161) (1993). While we agree that plaintiff's testimony regarding her choice of Emory was contradictory without explanation and must be construed against her, we do not agree with Emory's position that this disposes of plaintiff's ability to show reliance. The relevant question here is not whether plaintiff relied on the hospital's reputation in choosing between Georgia Baptist and Emory Hospitals, but whether plaintiff relied on the hospital's representation that Dr. Riggins was its agent in accepting that doctor's services. Plaintiff stated in her affidavit that she knew no physicians at Emory but "felt that the hospital would provide competent personnel to attend to her husband," and this statement is not contradicted in her earlier deposition testimony. Indeed, it is fully consistent with plaintiff's prior statements that she did not have a family doctor and did not know any doctors affiliated with Emory; that the two nurses who met the ambulance and an employee in the admissions office assured her the hospital would provide a doctor; that Dr. Riggins became involved when he was assigned to her husband's case by the hospital the following morning; that plaintiff could have called some of her husband's college classmates who could have referred her to another doctor but she did not; that she called Dr. Riggins when problems with her husband's *424 treatment arose; and that she thought she could trust Emory and Dr. Riggins. From plaintiff's statement in her affidavit and the circumstances related in her deposition, a jury could infer that plaintiff relied on the hospital's representation that Dr. Riggins was its agent. See Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. at 164. Accordingly, the hospital was not entitled to summary judgment on the issue of liability pursuant to the doctrine of apparent or ostensible agency. 2. However, we agree with the trial court that there is no evidence of any independent negligence on the part of any actual employees of the hospital. Thus, the trial court did not err in granting summary judgment with respect to this basis of liability. Judgment affirmed in part and reversed in part. McMurray, P. J., and Smith, J., concur. NOTES [1] For some reason not apparent from the record, plaintiff was given only two choices of hospitals, Emory and Georgia Baptist.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260248/	178 Cal. App. 4th 1417 (2009) ROY L. EVANS et al., Plaintiffs and Appellants, v. LASCO BATHWARE, INC., et al., Defendants and Respondents. No. D053731. Court of Appeals of California, Fourth District, Division One. October 13, 2009. 1420 Epsten Grinnell & Howell, Douglas W. Grinnell and Steven L. Banks for Plaintiffs and Appellants. Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Martin K. Deniston and Daniel H. Lee for Defendant and Respondent Lasco Bathware, Inc. Horton, Oberrecht, Kirkpatrick & Martha, Luther W. Horton and Richard H. Martha for Defendant and Respondent LSW Tile, Inc. OPINION McDONALD, J. Plaintiffs Roy L. Evans and Arthea LaFrades (together plaintiffs) each owned homes in which shower pans manufactured by defendant Lasco Bathware, Inc. (Lasco), were installed. Plaintiffs' action against Lasco alleged the shower pans suffered from design defects that resulted in 1421 water leakage, and the leakage caused damage to adjacent building components. Plaintiffs' fourth amended complaint (FAC), styled as a proposed class action lawsuit, alleged two causes of action against Lasco: a claim for strict products liability, and a claim for negligence. The present appeal challenges the trial court order denying class certification. Plaintiffs assert the trial court abused its discretion when it denied their motion for class certification. I LAW APPLICABLE TO CLASS CERTIFICATION ORDERS A. Standards for Class Actions (1) Code of Civil Procedure section 382 authorizes class actions in California when "the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . ." The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members. (Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 435 [97 Cal. Rptr. 2d 179, 2 P.3d 27] (Linder).) To establish the requisite community of interest, the proponent of certification must show there are questions of law or fact common to the proposed class (the commonality criterion), and those questions predominate over the different questions affecting individual members (the predominance criterion). (See Richmond v. Dart Industries, Inc. (1981) 29 Cal. 3d 462, 470 [174 Cal. Rptr. 515, 629 P.2d 23].) The community of interest requirement also requires a showing that the proposed class representatives have claims or defenses typical of those held by the class and can adequately represent the class. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal. 4th 1096, 1104 [131 Cal. Rptr. 2d 1, 63 P.3d 913].) (2) The predominance criteria means "each member must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment; and the issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants." (City of San Jose v. Superior Court (1974) 12 Cal. 3d 447, 460 [115 Cal. Rptr. 797, 525 P.2d 701] (San Jose).) When the proposed class action will not provide substantial benefits both to the courts and the litigants, it is proper to deny certification. (Linder, supra, 23 Cal.4th at p. 435.) 1422 (3) In addition to showing predominance of common questions, the proponent has the burden to show the proposed class is ascertainable. "Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size of the class, and (3) the means available for identifying class members. [Citations.]" (Reyes v. Board of Supervisors (1987) 196 Cal. App. 3d 1263, 1271 [242 Cal. Rptr. 339].) Ascertainability, a separate criterion required "to give notice to putative class members as to whom the judgment in the action will be res judicata" (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal. App. 4th 908, 914 [107 Cal. Rptr. 2d 761] (Hicks)), is best implemented by "defining the class in terms of objective characteristics and common transactional facts making the ultimate identification of class members possible when that identification becomes necessary." (Id. at p. 915.) The ascertainability of members of the class recedes as the right of each individual to recover becomes increasingly dependent on a separate set of facts applicable only to the individual. (Cf. Vasquez v. Superior Court (1971) 4 Cal. 3d 800, 809 [94 Cal. Rptr. 796, 484 P.2d 964].) (4) A proponent at the class certification stage is not required to identify individual class members (Stephens v. Montgomery Ward (1987) 193 Cal. App. 3d 411, 419 [238 Cal. Rptr. 602]), demonstrate the merits of their claims (Linder, supra, 23 Cal.4th at pp. 440-441), show that each class member has been injured (Hicks, supra, 89 Cal.App.4th at p. 914), or identify a form of notice (Linder, at p. 444) to obtain class certification. However, the trial court is entitled to consider "the totality of the evidence in making [the] determination" of whether a "plaintiff has presented substantial evidence of the class action requisites" (Quacchia v. DaimlerChrysler Corp. (2004) 122 Cal. App. 4th 1442, 1448 [19 Cal. Rptr. 3d 508]), including whether the causes of action asserted on behalf of the proposed class would involve the resolution of common issues of fact and law that predominate over the factual and legal issues applicable to the individual class members' rights to recover on those causes of action. (Id. at pp. 1449-1454.) B. Standard of Appellate Review "Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification" (Linder, supra, 23 Cal.4th at p. 435), and "`[a]ny valid pertinent reason stated will be sufficient to uphold the order'" (id. at p. 436), as long as the stated reasons are supported by the evidence (cf. Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal. 4th 319, 328 [17 Cal. Rptr. 3d 906, 96 P.3d 194]) or by any properly implied findings (Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal. App. 4th 1282, 1287-1288 [119 Cal. Rptr. 2d 190]). Our review is limited to the 1423 grounds stated, and we ignore any other grounds that might have supported the ruling. (Corbett v. Superior Court (2002) 101 Cal. App. 4th 649, 658 [125 Cal. Rptr. 2d 46].) However, "an order based upon improper criteria or incorrect assumptions calls for reversal `"even though there may be substantial evidence to support the court's order."'" (Linder, supra, 23 Cal.4th at p. 436.) Accordingly, we examine the stated reasons for the order to determine whether the court relied on improper criteria to deny certification. (Ibid.) II PROCEDURAL AND FACTUAL BACKGROUND RELEVANT TO CLASS CERTIFICATION ORDER A. Allegations of Plaintiffs' FAC Plaintiffs' FAC alleged Lasco manufactured defectively designed shower pans that caused the pans to leak and cause water damage to adjacent shower components. The complaint sought to recover only the costs of removing and replacing the shower pans and expressly excluded any consequential damages to adjacent shower components caused by the water leakage. The complaint, styled as a class action lawsuit, proposed to bring the action on behalf of all owners of real property "in which `PAN' or `APAN' model shower pans manufactured by LASCO have been installed with tile walls, and where said shower pans have been used at least 500 times," but excluding from the class all persons who had previously filed lawsuits or were plaintiffs in lawsuits as of the date of the complaint. Lasco answered the FAC and also filed a cross-complaint against LSW Tile, Inc. (LSW), and Sun Plumbing Company, Inc. (Sun), for comparative indemnity, contribution and declaratory relief. B. The Class Certification Motion Plaintiffs' Motion Plaintiffs' motion for class certification asserted there were questions of law and fact common to the proposed class that predominated over the different questions affecting individual members, the class was ascertainable, and plaintiffs had claims typical of the class and could adequately represent the class. On the commonality and predominance criteria, plaintiffs submitted evidence from an expert witness that the shower pan design was defective and prevented installation in a tile wall shower enclosure in a manner that would prevent water leakage, the nature of the damage attributable to the 1424 defective design was unique, and the nature of the damage was distinguishable from water leakage damage attributable to other causes. Plaintiffs also asserted the damages issue would not impede class treatment because damages would be calculable through a formula that estimated the average cost to replace the shower pan with Lasco's newer generation shower pan, thereby obviating the necessity of class members submitting individual damage estimates. On the numerosity criterion, plaintiffs submitted evidence that a large number of defectively designed shower pans were sold between 1996 and 2006, and a large number of lawsuits were filed against LASCO involving the shower pans. Plaintiffs finally asserted they possessed claims typical of the proposed class, and plaintiffs' counsel could adequately represent the proposed class. Lasco's Opposition Lasco, joined by cross-defendant LSW and Sun, opposed the class certification motion. Lasco asserted there were numerous obstacles to the ascertainability criterion, including (1) the absence of a ready method for determining which consumers presently had Lasco shower pans installed in their bathrooms;[1] (2) the absence of a ready method for determining whether the shower had been used the requisite number of times; and (3) the absence of a ready method for determining whether a specific consumer would be excluded from the class.[2] Lasco also asserted common issues did not predominate over individual issues because the only common issue (whether the design was defective) was outweighed by the noncommon issues. Lasco argued that whether any particular shower suffered water damage at all (i.e., without regard to the cause of the damage) could only be shown by conducting destructive testing on each class member's shower by removing the tiles and inspecting for damage under the tiled surface. Additionally, even if this destructive testing located water damage, additional individualized testing would also be required to determine whether the subject shower pan was the exclusive cause 1425 of water damage, or whether other factors caused (or contributed to) each homeowner's water damage.[3] Finally, Lasco argued individualized questions of the amount or extent of damage would be required because of the wide variety of construction materials and methods used to install shower pans, which would require individualized damage determinations for the costs to replace the pans even if no extensive consequential damages to adjacent shower components were uncovered. Lasco also argued that its affirmative defenses would vary from individual to individual, requiring Lasco to take discovery from, and conduct minitrials as to, each separate class member. Lasco argued that issues of comparative negligence,[4] statute of limitations, assumption of the risk and possible cross-claims against third parties would require individualized resolution and thereby obviate any efficiencies of a class action. Lasco finally asserted plaintiffs had not shown the proposed representatives were either typical or would adequately represent the class. Lasco argued typicality could not be demonstrated because of the variety of possible actual and proximate causes of water damage. Lasco also asserted, insofar as the representative must adequately represent the class, that requirement is not met 1426 if the class member "fail[s] to raise claims reasonably expected to be raised by the members of the class." (San Jose, supra, 12 Cal.3d at p. 464.) Lasco argued that because the proposed class action expressly waived any recovery beyond the cost of replacing the pan, thereby waiving class members' claims for damages to other components, plaintiffs did not demonstrate the adequacy of representation requirement. Plaintiffs' Reply Plaintiffs' reply asserted the arguments raised by Lasco against class certification were either incorrect or did not pose insurmountable obstacles to certification. Insofar as is relevant to this appeal,[5] plaintiffs argued individual issues of causation were irrelevant because plaintiffs contended the design of the shower pans necessarily caused water damage, even if the shower pan had been perfectly installed and the homeowner had perfectly maintained the integrity of the grout lines, caulking and weep holes. Plaintiffs asserted that, although these supplemental factors may have exacerbated the damage to the surrounding components, plaintiffs specifically eschewed recovery for that additional damage and only sought the costs to replace the defective pans with nondefective pans, and therefore any additional causes of supplemental damage were irrelevant to the issues to be litigated on behalf of the class. Plaintiffs also asserted that expressly limiting the damage recovery to the costs of replacing the pan did not render them inadequate as class representatives because potential class members who wished to preserve their claim for additional recovery for damage to any surrounding component could opt out of the class. Finally, plaintiffs suggested the court could create subclasses, or alternatively could limit the litigation to the single issue of whether the shower pan was defective and then permit class members to use that judgment as the springboard for individual damages claims. C. Trial Court's Ruling The trial court denied the class certification motion. It concluded that, even without consideration of any distinct additional damages to other components, the need for individualized proof of the amount of damages for removing and replacing the shower pans predominated over the common questions. Moreover, the court appeared to conclude that limiting the recovery to the cost of replacing the pans rendered plaintiffs inadequate as class 1427 representatives, because the possible methods for protecting against forfeiture of additional recoveries (such as opting out or creating subclasses) were not feasible or practical under the circumstances presented in this case. Accordingly, the court concluded plaintiffs had not met their burden of showing the common issues predominated over the separate issues or that the class representatives were adequate, and therefore denied certification. ANALYSIS We conclude the trial court did not abuse its discretion when it found class certification was inappropriate. There is substantial evidence from which the court could have concluded the sole common issue (whether the shower pan was defectively or negligently designed) did not predominate over individualized questions of damages, and there is substantial evidence from which the court could have concluded the proposed plaintiffs did not adequately represent the interests of the class. Individualized Damages Issues (5) First, there was substantial evidence to support the trial court's conclusion that, even without considering the problems raised by plaintiffs' decision to limit the damages award to the cost to replace the shower pans in each class member's home, class treatment was inappropriate because individualized trials for each class member's damages would be required to determine the appropriate award for each class member. When evaluating whether to permit an action to proceed as a class action under the community of interest element, it is not sufficient that there are some questions of law or fact common to the proposed class. Instead, the court must also evaluate predominance and decide whether "`the issues which may be jointly tried, when compared with those requiring separate adjudication, [are] sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants.'" (Washington Mutual Bank v. Superior Court (2001) 24 Cal. 4th 906, 913-914 [103 Cal. Rptr. 2d 320, 15 P.3d 1071].) A court may properly deny certification where there are diverse factual issues to be resolved even though there may also be many common questions of law. (Basurco v. 21st Century Ins. Co. (2003) 108 Cal. App. 4th 110, 118 [133 Cal. Rptr. 2d 367].) Here, although plaintiffs' expert (Mr. Gliko) stated the cost to replace each shower pan was calculable through a formula that would permit a classwide aggregate recovery (by using a formula to estimate the average cost to replace the pan multiplied by the total number of class members) and thereby eliminate any need for individual class members to litigate damage estimates, Mr. Gliko admitted his formula assumed that (1) standard grade tile would be 1428 used, (2) the removal of the existing system would extend to the existing framing, (3) "[b]locking, dam, or framing repairs incidental to the installation of the replacement [shower pan] will be performed," and (4) a new shower door would be installed. Moreover, although Mr. Gliko explained the replacement process would "incidentally include repair of some, if not all, of the consequential damage caused by the leaking shower pan . . . [such as] repair of the damage to adjacent drywall and other finishes incidental to the installation of the replacement [pan]," his formula would not include any "estimate for repairing consequential damage." However, Lasco's evidence showed the actual costs of replacement were not amenable to estimation because the costs associated with removing and replacing each individual shower pan could vary widely from one class member to the next. Lasco's expert (Mr. Kuczwara) explained there was a wide variety of construction materials and methods used to install shower pans, as well as a wide variety in the type of finish materials that would be used, and therefore it would be necessary to conduct individualized damage determinations for the costs to replace the pans even if no extensive consequential damage to adjacent components was uncovered and needed repair. Kuczwara explained that a shower pan is unlike other shower assembly components because, after the framing, it is the first component installed in the shower assembly and, after it is attached to the framing, the moisture barrier, the cementitious substrate, and the tile wall are all integrated with the shower pan; accordingly, unlike components like "a showerhead, which can be removed and replaced with relative ease, a shower pan cannot." Kuczwara also explained there were numerous component parts to a shower assembly that must be considered when estimating the cost to replace a shower pan, including the type of moisture barrier (which can be 15 pound felt, Jumbo Tex 20-60 minute paper, Aquabar, or lath covered with scratch coat); the type of substrate system (such as Durock, Hardibacker, or mortar set); the type of floor finishing in the bathroom (such as hardwood flooring, carpeting, linoleum tile, ceramic tile, or stone); the type of shower door; the type of tile used for the shower enclosure (of which there are countless variations); and the type of walls and finishes on the walls outside the shower (including tile, stone, drywall, paint over drywall, or wallpaper over drywall). Kuczwara explained that Gliko's standardized formula "failed to account for these variables" and gave, as one example, that Gliko's formula was based on the "assum[ption] that he will only repair `standard grade tile' [which demonstrated Gliko] did not take into account in his estimate the fact that the cost to remove and replace the tile depends on the kind of tile that currently exists in the shower, which varies from shower to shower, for which there are countless possibilities." (6) Plaintiffs assert on appeal that it was error for the trial court to deny class certification on this ground because variations in the damages actually 1429 sustained among individual class members is no impediment to a classwide recovery based on estimations of the total injury suffered by the class.[6] However, the cases cited by plaintiffs as permitting damages based on approximations are inapplicable. For example, in Daar v. Yellow Cab Co. (1967) 67 Cal. 2d 695 [63 Cal. Rptr. 724, 433 P.2d 732], the plaintiff sought recovery on behalf of the class for overcharges for cab fares, and the Daar court concluded the demurrer was improperly sustained because the allegations of the complaint showed a classwide recovery was possible without the necessity of individual class members proving their separate damage claims because "the exact amount of the overcharge can be ascertained from defendant's books and records . . . ." (Id. at pp. 713-714.) Thus, Daar approved a classwide recovery in which the amount of liability was known to the defendant and ascertainable from its records. Here, in contrast, there was no evidence Lasco's records contained information that would quantify the amount of the recovery for shower pan removal and replacement. Plaintiffs also cite Bell v. Farmers Ins. Exchange (2004) 115 Cal. App. 4th 715 [9 Cal. Rptr. 3d 544] and In re Cipro Cases I & II (2004) 121 Cal. App. 4th 402 [17 Cal. Rptr. 3d 1] (Cipro Cases) to support their argument that, because those cases allowed estimations of damages based on formulas, the trial court 1430 here abused its discretion by denying class certification based on the necessity of individualized damage showings. However, Bell was a class action in which the Court of Appeal affirmed that portion of a jury verdict based on expert testimony that used statistical methods to calculate unpaid overtime compensation after the employees' entitlement to such compensation had already been decided as a matter of law and affirmed by the Court of Appeal; accordingly, only the amount of damages (rather than the fact of each class member's right to recover) remained at issue. Bell merely concluded it was within the discretion of the trial court to weigh "the disadvantage of statistical inferencethe calculation of average damages imperfectly tailored to the facts of particular employeeswith the opportunity it afforded to vindicate an important statutory policy without unduly burdening the courts" (Bell, at p. 751), and expressly observed that "`[o]ur review of a trial court's plan for proceeding in a complex case is a deferential one that recognizes the fact that the trial judge is in a much better position than an appellate court to formulate an appropriate methodology for a trial.'" (Ibid., italics added.) Indeed, the limited import of Bell is highlighted by the opinion, filed just weeks after Bell by a different panel of the same division of the Court of Appeal (with two of the same members), in Frieman v. San Rafael Rock Quarry, Inc. (2004) 116 Cal. App. 4th 29 [10 Cal. Rptr. 3d 82]. There, the court affirmed the denial of an order denying class certification where the claims involved class action damages for nuisance from the noise generated by the defendant's quarry. Citing two separate expert reports filed by the defendants showing large variations in "noise exposure" (id. at p. 39), Frieman held: "In this case, the multiple variations in potential impact (or complete lack of impact) of Quarry's operations discussed in the Salter and Blast Dynamics reports involve differences in establishing Quarry's liability to the proposed class members as well as in the nature of the damages suffered. For example, the residents of a house built on soil, behind a hill or on the waterfront may be completely unaware of the Quarry's activities and suffer no discomfort or annoyance. Neighboring residents in homes built on rock without barriers might suffer varying degrees of annoyance from vibration, noise, dust or other by-products of the Quarry's business. The former residents cannot establish liability for maintaining a public nuisance. The latter have infinite variations in degree of impact." (Id. at pp. 41-42, fn. omitted.) (7) We distill from those cases that, although a trial court has discretion to permit a class action to proceed where the damages recoverable by the class must necessarily be based on estimations, the trial court equally has discretion to deny certification when it concludes the fact and extent of each member's injury requires individualized inquiries that defeat predominance. The evidence offered here is similar to the evidence considered in Frieman insofar as there is a potentially wide disparity in the amount of damages 1431 recoverable by each class member,[7] and the trial court here (as did the trial court in Frieman) exercised its discretion to conclude these individual issues predominated over common issues. We likewise cannot find it was an abuse of discretion to deny certification based on this finding. For similar reasons, the court's statements in Cipro Cases approving the use of a formula to extrapolate damages to the class do not compel reversal here. First, Cipro Cases was decided in the context of antitrust litigation, where it has long been recognized that, although the fact of injury must be established with reasonable certainty, a less rigid standard of proof is imposed with respect to the amount of damage caused by an antitrust violation, because economic harm in such actions is difficult to quantify.[8] (See, e.g., Copper Liquor, Inc. v. Adolph Coors Co. (5th Cir. 1980) 624 F.2d 575, 580; Bigelow v. RKO Radio Pictures (1946) 327 U.S. 251, 264 [90 L. Ed. 652, 66 S. Ct. 574] ["[T]he [fact finder] may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly."].) Because of such difficulty, rather than deny any recovery to those injured by anticompetitive activity because they cannot prove damages with exactitude, "it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate." (Story Parchment Co. v. Paterson (1931) 282 U.S. 555, 563 [75 L. Ed. 544, 51 S. Ct. 248].) In contrast, no similar impediment exists to show what damages (if any) would be recoverable by any individual whose shower pan 1432 leaked, which renders the Cipro Cases's approval of approximations inapposite to plaintiffs' action here.[9] Moreover, the court in Cipro Cases did not hold a trial court abuses its discretion when it declines to certify a class on the grounds that individual showings of damages predominate over common issues merely because the class proponent offered a formula to calculate classwide damages, which formula the trial court rejected. To the contrary, the Cipro Cases court upheld the trial court's discretionary determination because it recognized "[t]he trial court is in the best position to weigh the advantages of class treatment against its disadvantages" (Cipro Cases, supra, 121 Cal.App.4th at p. 416), and specifically stated it was not an abuse of discretion to adopt a formula to calculate damages in that case because it was "within the trial court's discretion to weigh the inherent imperfections of such approximations against the vindication of important statutory policies and the burden to the courts of proving damages on a strictly individual basis." (Id. at p. 418.) Because the decision of whether to accept statistical evidence in these circumstances is discretionary for the trial court (Bell v. Farmers Ins. Exchange, supra, 115 Cal.App.4th at p. 751), we will not reverse that discretionary determination merely because plaintiffs disagree with the trial court's resolution. Inadequacy of Class Representative (8) The court alternatively appeared to agree with Lasco's argument that plaintiffs, by limiting the recovery to the cost of replacing the shower pans, were not adequate class representatives because that recovery would forfeit additional recoveries (e.g., to consequential damages to other component parts of the house) class members might otherwise be entitled to recover. A proposed representative must adequately represent the class, and a trial court may conclude that requirement is not met if the class member "fail[s] to raise claims reasonably expected to be raised by the members of the class." (San Jose, supra, 12 Cal.3d at p. 464.) In San Jose, the proposed representatives were found inadequate representatives for the class because the class action sought (for themselves and all other real property owners situated in the flight path of the city airport) the diminution of the market value of that property caused by aircraft noise, vibration, etc., based on theories of nuisance and inverse condemnation. (Id. at pp. 452-453.) The court, noting a successful nuisance action for injury to real property could include not merely diminution of market value but also could encompass damages for annoyance, inconvenience and discomfort, observed that seeking only one form of 1433 damages would be waiving on behalf of all other class members recovery of damages in other forms, and therefore it was error to certify the class. (Id. at p. 464.) Plaintiffs do not dispute a class member would forfeit such recovery if he or she remained a member of the class. Instead, plaintiffs assert the trial court erred when it concluded the possible methods for protecting against forfeiture of additional recoveries (including creating subclasses or permitting potential class members to opt out if they wished to preserve their additional recoveries) were not feasible or practical under the circumstances presented in this case. Plaintiffs assert the class should have been certified as to the remedy sought (i.e., damages limited to the costs to replace the shower pan), and problems with adequacy of representation would be solved by advising prospective class members (in the class notice) that the recovery would be limited and providing the class members the opportunity to preserve their additional claims by opting out of the class.[10] (9) We are convinced the trial court acted within its discretion to the extent it denied class certification based on plaintiffs' failure to raise those claims reasonably expected to be raised by members of the class. Plaintiffs' proposed class action, although proceeding on both strict liability and negligence claims, expressly waived any recovery beyond the average cost to replace the shower pans, thereby forfeiting recovery of damages to other parts 1434 of the house. Although plaintiffs are correct that class actions may be maintained with regard to particular issues and if necessary a class action may be subdivided into subclasses and each subclass treated as a class (as in Hicks, supra, 89 Cal.App.4th at p. 925), or a court may allow class members who wish to raise additional issues to opt out of the class action (as in Lebrilla v. Farmers Group, Inc. (2004) 119 Cal. App. 4th 1070, 1088-1089 [16 Cal. Rptr. 3d 25]), whether these devices are sufficient or appropriate measures in any given action is a matter for the trial court to decide. In this case, the trial court could reasonably determine the interests of the class members were potentially diverse, an insufficient community of interest existed and class certification should be denied, which the creation of subclasses or the permitting of "opting out" would not cure under the peculiar facts of this case. For example, although Hicks suggested in dicta that a court could use subclasses (Hicks, at p. 925), creating subclasses here would merely resurrect all of the individualized issues (i.e., on such issues as comparative negligence of the individual class member, statute of limitations, assumption of the risk and possible cross-claims against third parties) as well as individualized showing of damages, which would splinter the class into thousands of minitrials and largely defeat the benefits of proceeding as a class action. Similarly, although Hicks also suggested in dicta that a court could use the class notice procedure to permit potential members seeking additional recoveries to opt out, the trial court noted the Hicks solution "is not feasible under the circumstances of this case." The facts of Hicks apparently involved easily identifiable determinations by individual class members whether the defective foundation had created additional damages "(e.g., uneven floors, insect infestation, misaligned doors and windows) and that such damage was caused by cracks in the foundation" (Hicks, supra, 89 Cal.App.4th at p. 924), but the trial court in this action observed that was "not the situation here." There is substantial evidence to support this conclusion. Lasco contended, and plaintiffs did not dispute, that a class member could not determine whether he or she had suffered such additional damages. Accordingly, even if the class notice provided a potential member with sufficient information on the reasons he or she might wish to opt out of the class (e.g., to preserve a claim for additional damages), the class member here (unlike potential class members in Hicks) could not readily decide whether to opt out of the class but could only make that decision after engaging in destructive testing. The trial court had substantial evidence to conclude the solutions suggested in the Hicks and Anthony dicta were infeasible under the facts presented in this case. "Liability Only" Certification Plaintiffs finally argue the court abused its discretion by declining to certify the class solely as to the common issues of liability and causation, which 1435 would then permit individual members to seek damages in the event plaintiffs prevailed on the liability questions tried in the class action. Plaintiffs argue the court could have "resol[ved] the central question of whether Lasco's shower pans are defective and have caused damage, and thereafter allow[ed] class members to prove their individual monetary damages in the event [plaintiffs] prevailed on the liability issue at trial." Although plaintiffs alluded to that possibility in their attorney's declaration below, and cited the dicta in Hicks to support that approach, the trial court (after noting even plaintiffs did not recommend that approach) recognized Hicks alluded to that approach in the context of a class action pursuing a breach of warranty claim and the trial court here rejected it because "plaintiffs herein do not sue for breach of warranty; and the Court does not see how this `liability only' approach could be implemented in this case." On appeal, plaintiffs argue the Hicks approach was feasible here. Plaintiffs note Hicks stated that "if the defendant's liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages" (Hicks, supra, 89 Cal.App.4th at p. 916), and that because the plaintiffs in Hicks could prove their breach of warranty claim through a common set of facts, the class should have been certified as to the breach of warranty claim. (Id. at p. 923.) From this language, plaintiffs argue Lasco's liability could be shown through a common set of facts, and thereafter leave to the individual class members their individual proofs of damages. However, plaintiffs ignore that the Hicks court, although it reversed the trial court's denial of certification of the class action insofar as it sought to pursue claims for breach of express and implied warranties, affirmed the trial court's denial of certification of the class action insofar as it sought to pursue claims for strict liability and negligence, stating: "It is well-settled strict liability and negligence do not provide a remedy for defects which have not caused property damage, i.e., defects causing only economic damage. Accordingly, to recover under these theories of liability each class member would have to come forward and prove specific damage to her home (e.g., uneven floors, insect infestation, misaligned doors and windows), and that such damage was caused by cracks in the foundation, not some other agent. [¶] Given this need for individualized proof, commonality of facts is lost and the action splits into more pieces than the allegedly defective foundations." (Id. at pp. 923-924, italics added, fn. omitted.) Here, the precise causes of action Hicks held were properly rejected as amenable to resolution in a class setting are the only causes of action being pursued by plaintiffs. Indeed, the emphasized language undermines plaintiffs' claim that a "liability only" class action would be feasible here, because there would be no liability established on the pleaded claims as to any class member here unless and until each class member individually proved (1) specific damage to his or her home and (2) such damage was caused by *1436 the design of the pan rather than some other cause. We conclude the trial court correctly concluded a liability only approach could be not be implemented in this action. DISPOSITION The order is affirmed. Defendants are entitled to costs on appeal. Huffman, Acting P. J., and O'Rourke, J., concurred. NOTES [1] Lasco noted that because approximately 75 percent of the pans sold by Lasco were sold to wholesale and retail distributors, Lasco's records would not contain the names of homeowners who became the ultimate end users of the pans. Additionally, there would be no ready method for identifying whether an end user who once had a subject shower pan had not remodeled the bathroom and therefore already had replaced the pan. [2] Lasco noted it was party to hundreds of lawsuits in which construction defect claims were litigated, most of which were settled, and therefore to determine whether a class member might be excluded would require detailed examination of each lawsuit to determine whether a specific homeowner was a person who had "previously filed lawsuits complaining of defective LASCO SHOWER PANS [or was a plaintiff] in such lawsuit[] as of the date of this complaint" within plaintiffs' proposed class definition. [3] For example, Lasco noted that even in the case of proposed class representative Mrs. LaFrades, several other conditions could have caused the water damage. She did not repair or maintain the grout lines, thereby allowing excessive moisture to penetrate to the subwall, and the joint where her shower door touched the tile wall was improperly sealed, which allowed additional water to penetrate the tile. Additionally, the escutcheon plate near the shower valve typically has a weep hole, which allows water trapped behind the tile wall to escape back into the enclosure, but a weep hole was not present on her shower. Additionally, the shower pan has several weep valleys designed to allow the water to migrate back into the pan, but those valleys in Mrs. LaFrades's pan had been improperly sealed with caulk, which caused excessive buildup of moisture. Additionally, it appeared the installer did not correctly leave a one-fourth inch gap where the tile wall joined the shower pan reveal, which was required to allow a channel through which water trapped behind the tile could migrate back into the pan. Finally, there was a large gap between the shower door and the door frame, allowing water to escape when the shower was being used. Moreover, another expert stated that other causes of water damage can be common, including improper installation of the shower valve, improper sealing of the weep hole on the escutcheon, or deterioration of the joint between the pipe and the shower arm. Lasco asserted that, in addition to the noncommon issues of fact raised by this evidence, this evidence raised the problem of a exponentially expanding set of cross-complaints (against the persons who installed the various components of the shower seeking to apportion comparative fault) were the action granted class action treatment. [4] For example, as to proposed class representative Mrs. LaFrades, discovery showed that she typically took very long showers and then exited the shower without ensuring she was not dripping, both of which could contribute to water damage. Additionally, Mrs. LaFrades received instructions from the builder when she moved into the house advising her of the danger of possible water damage if she did not properly maintain the grout in the shower and caulking along the shower doors, but inspection of those areas revealed problems had developed as to her shower, raising problems of comparative negligence. [5] Plaintiffs attacked other arguments raised by Lasco. For example, replying to Lasco's lack of ascertainability argument, plaintiffs argued the identities of approximately 25 percent of class members could be ascertained from Lasco's records and the proposed public notice would provide sufficient information to the other 75 percent of end users from which those class members could self-identify, and excluded members could be determined from either Lasco's records or other means. However, because the court did not specify the absence of ascertainability was a barrier to certification, we do not further evaluate this impediment. [6] Plaintiffs also assert on appeal that, even if the trial court correctly concluded individual class members would be required to show each member's specific cost to replace the shower pans, this complexity cannot defeat class certification. Plaintiffs quote B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal. App. 3d 1341, 1354 [235 Cal. Rptr. 228] as holding the "presence of individual damage issues cannot bar certification," and plaintiffs cite Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at page 339 for the proposition that courts routinely fashion methods to handle individual questions and "`the trial court has an obligation to consider the use of . . . innovative procedural tools proposed by a party to certify a manageable class' . . . ." Plaintiffs therefore assert, in their reply brief on appeal, the court abused its discretion by declining to certify the class because it could have ordered liability issues bifurcated from damages issues and tried the individual damages issues after liability was established. We are not persuaded by this claim, for several reasons. First, it does not appear plaintiffs raised this argument below, and we decline to consider arguments raised either for the first time on appeal (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal. App. 4th 1236, 1249 [100 Cal. Rptr. 2d 403]) or, as here, when raised for the first time in the reply brief. (Reichardt v. Hoffman (1997) 52 Cal. App. 4th 754, 764 [60 Cal. Rptr. 2d 770].) Indeed, plaintiffs' failure to propose below how the litigation of individualized damages could be handled in a manageable fashion as part of its proposed class action bars plaintiffs' claim that the trial court failed "`to consider the use of . . . innovative procedural tools proposed by a party to certify a manageable class.'" (Sav-On Drug Stores, Inc. v. Superior Court, supra, at p. 339, italics added.) Finally, we note that B.W.I. is the only California case of which we are aware that has reversed the trial court on the ground that the presence of individual damage issues cannot provide grounds to deny certification. Because we are unaware of any California case that subsequently cited B.W.I. for that proposition, and that proposition appears contrary to other California cases (see, e.g., Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal. App. 4th 799, 813 [50 Cal. Rptr. 2d 736]; Clausing v. San Francisco Unified School Dist. (1990) 221 Cal. App. 3d 1224, 1233-1234 [271 Cal. Rptr. 72]), we are not persuaded B.W.I. compels reversal here. [7] Indeed, this case also parallels Frieman, and is not analogous to Bell (where the class members' right to recover was established and only damages remained) because, like Frieman (and unlike Bell), whether any individual class member would be entitled to recover depends not merely on proof the shower pan was defectively designed but also that each individual members' property was actually damaged by the defective pan. (See, e.g., Jiminez v. Superior Court (2002) 29 Cal. 4th 473, 481-485 [127 Cal. Rptr. 2d 614, 58 P.3d 450] [no product liability claim absent proof of economic loss arising from property damage other than damage to the defective product].) [8] Plaintiffs also rely on a series of federal cases purporting to approve the use of approximations of damages to obviate concerns over the necessity of individualized damages showings in a class action. However, most of plaintiffs' federal cases were similarly decided in an antitrust context (see, e.g., In re Domestic Air Transp. Antitrust Litigation (N.D.Ga. 1991) 137 F.R.D. 677 [class action under Clayton Act (15 U.S.C. § 12 et seq.) for alleged conspiracy to fix ticket prices]; Meredith v. Mid-Atlantic Coca Cola Bottling Co., Inc. (E.D.Va. 1989) 129 F.R.D. 130 [antitrust action against cola bottling companies alleging price-fixing conspiracy]; cf. In re Texas Intern. Securities Litigation (W.D.Okla. 1987) 114 F.R.D. 33), and thus provide no guidance here. The other federal decisions relied on by plaintiffs, although decided in a mass tort context (see, e.g., In re Estate of Marcos Human Rights Litigation (D. Hawaii 1995) 910 F. Supp. 1460 and In re Agent Orange Product Liability Litigation (E.D.N.Y. 1984) 597 F. Supp. 740), did not address the foundational issues of whether to certify the class based on approximations of damages. Instead, those cases assumed the class had been properly certified and address only whether to approve a settlement (as in the Agent Orange litigation) or whether a damage award based on sampling violated the defendant's due process or jury trial rights under the federal constitution (as in the Marcos case). [9] Indeed, the only reason proving damages with exactitude presents difficulty in this case is that it would prove unwieldy in a class action setting to prove each member's right to recovery and the amount. However, that latter factor supports, rather than undermines, the determination that individual issues predominated over common issues. [10] Plaintiffs argue this procedure was the basis for the court's decision in Anthony v. General Motors Corp. (1973) 33 Cal. App. 3d 699 [109 Cal. Rptr. 254]. However, plaintiffs' reliance on Anthony appears misplaced. In Anthony, the plaintiffs sued for breach of warranty based on the allegation that certain automobile wheels were defective, and sought replacement costs. The defendant asserted the plaintiffs were not members of the class they purported to represent, and therefore lacked standing to sue on behalf of the class, because the plaintiffs did not allege they personally sustained any personal injury or any physical property damage. (Id. at p. 704.) The court rejected that argument because the gravamen of the plaintiffs' case was the contention that all wheels of the type involved were inherently defective, which may cause them to fail at some time, and prayed for replacement. Anthony explained that the "fallacy of defendant's argument lies in its assumption that plaintiffs seek, in this action, to recover for all kinds of damage that might, heretofore or hereafter, flow from actual failure of the wheels. Admittedly, a suit seeking that broad kind of recovery would require . . . the determination of a variety of issuesassumption of risk, negligent maintenance and driving, overloading, among others. . . . [T]hose are matters for the trial court to consider in delimiting the class and in framing its notice and further orders. If, on remand, the trial court feels that the pleadings before it would involve too many individual sub-trials, the proper action is to require plaintiffs to eliminate such claims from their requested relief and to see that potential members of the plaintiff class are advised of such limitations; dismissal of the action as a whole, on that ground is, on the record before us, neither necessary nor proper. If, however, as we read the record, plaintiffs are correct that all of the wheels are inherently suspect, the recovery expressly sought herein will not turn on the conduct of any individual purchaser." (Id. at p. 705.) Thus, Anthony held dismissal of a class action pleading breach of warranty claim was improper in that case, and any comments made by the Anthony court about how to handle those class members entitled to pursue additional recoveries was mere dicta.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260078/	632 F. Supp. 172 (1986) Vera H. JOHNSON, Plaintiff, v. UNITED STATES of America, Defendant. No. ST-C-84-241. United States District Court, W.D. North Carolina, Statesville Division. January 14, 1986. 173 Donald L. Weinhold, Jr., R. William McCanless, Weinhold & McCanless, Salisbury, N.C., for plaintiff. Charles Brewer, Asheville, N.C., Betsy Burke, Trial Atty., Tax Div., Dept. of Justice, Washington, D.C., for defendant. MEMORANDUM AND ORDER WOODROW WILSON JONES, District Judge. Plaintiff brought this action seeking to recover $2,000.00 in federal employment taxes which were allegedly erroneously assessed and which Plaintiff contends she was not legally obligated to pay. The United States counterclaimed seeking collection of the unpaid balance of a tax assessment which it contends is still due and owing from the Plaintiff. The matter is presently before the Court upon the government's motion for partial summary judgment. The Court heard the motion in Statesville, North Carolina on December 16, 1985. After careful consideration of the pleadings, the depositions of Plaintiff and Everette M. Huffman, and the briefs and arguments of counsel the Court now enters its findings and conclusions. According to the complaint Plaintiff, Vera H. Johnson, and her brother, Everette M. Huffman, became "loosely associated ... in an entity known as H & J Lumber Company" sometime in or around January 1973. H & J Lumber Company was, as its name implies, a sawmilling operation. The business never did do well financially and eventually ceased operations altogether in mid-1975. The government contends that certain federal employee withholding taxes, social security taxes and unemployment taxes were never paid to the Internal Revenue Service by Plaintiff, Huffman or the entity known as H & J Lumber Company. The Internal Revenue Service has made assessments against the Plaintiff as a partner of H & J Lumber Company for the amount of the alleged tax deficiency together with civil fraud penalties and interest. Plaintiff paid $2,000.00 of such assessment and instituted this action seeking refund of the amount paid. The United States has counterclaimed for the unpaid amount of the assessment still alleged to be owed to the government. The primary issue before the Court at this stage of the proceedings is whether there is a genuine issue of material fact concerning Plaintiff's status as a partner in the H & J Lumber Company. Plaintiff is in apparent agreement with the government's contention that if she were a partner in H & J Lumber Company then she is liable, jointly and severally, for any taxes due the government by H & J Lumber Company. Plaintiff strenuously denies the government's allegations that she was a partner in the H & J Lumber Company. The question of whether an entity is a partnership for tax purposes is generally a question of fact and hinges primarily 174 upon the presence or absence of an intention of the parties to join together to carry on a business and to share in the profits or losses of such business. Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 741-42, 69 S. Ct. 1210, 1214, 93 L. Ed. 1659 (1949). The parties' intention is not to be determined from their protestations that a partnership was not intended. United States v. Levasseur, 80-1 U.S.T.C., para. 9349 (D.Vt.1980). True intent must be determined by examination of the relevant facts and circumstances governing the parties' relationship. Id., citing Commissioner of Internal Revenue v. Culbertson, supra, and Burde v. Commissioner of Internal Revenue, 352 F.2d 995, 1002 (2d Cir.1965). The relevant facts and circumstances to be considered are: (1) whether a partnership agreement exists; (2) whether the parties have represented to others that they were partners; (3) whether the parties have a proprietary interest in the partnership profits and an obligation to share the losses; (4) whether the parties have a right to control the partnership income and capital; and (5) whether the parties have contributed capital or services. United States v. Levasseur, supra, citing Estate of Kahn v. Commissioner of Internal Revenue, 499 F.2d 1186, 1189 (2d Cir.1974). The "H & J" in H & J Lumber Company stood for Huffman and Johnson, the last names of Plaintiff's brother and Plaintiff (Huffman deposition, page 27). Plaintiff contributed approximately $20,000.00 to the capital of the company (Plaintiff deposition, page 7). It was Plaintiff's understanding that she and her brother were forming a partnership and were to "share and share alike" (Plaintiff deposition, page 4), and that she and her brother were to have a one-half interest in the business (Plaintiff deposition, pages 5-6). When asked if she ever considered herself a partner in H & J Lumber Company Plaintiff replied, "I thought it was going to develop into a partnership, but it didn't take me long to find out it was not a partnership" (Plaintiff deposition, page 4). In their dealings with the Internal Revenue Service Plaintiff and her brother always represented themselves to be partners. They applied for a tax identification number as partners. Plaintiff insists however that her brother applied for the tax identification number without her knowledge and that she does not recall whether she ever asked that her name be removed from the tax identification number (Plaintiff deposition, page 5). Plaintiff and her brother filed partnership tax returns as well as other tax documents indicating their status as partners. Plaintiff took half of the yearly losses of the business as a deduction on her individual income tax returns for the years in question. Plaintiff worked for the business approximately forty hours per week for the entire period that the business was operating (Plaintiff deposition, page 5). Plaintiff stated that she wasn't sure what her salary was because she didn't get paid every week (Plaintiff deposition, pages 26-28). Plaintiff contends that the facts in her case lead to a different conclusion than that reached by the Court in Levasseur where the defendant wife was found to have been a partner in a business venture with her husband and thus liable for unpaid federal taxes owed by the partnership. The Court is compelled to hold otherwise. It appears clear from the deposition testimony of both Plaintiff and her brother that a partnership agreement between the two did exist, albeit that the agreement was verbal rather than written. Whether the Plaintiff and her brother represented to their customers, suppliers, employees or others that they were partners is unclear, but it is certain that they represented to the Internal Revenue Service that they were partners. Plaintiff and her brother agreed to share the profits of the business fifty-fifty. As it turned out there was no profits to be shared, but they did equally claim the tax benefits to be gained by the business losses. Plaintiff had the right to control the partnership income and capital even though she might have lacked sufficient knowledge of the nature of the business to exercise that right responsibly or 175 her brother might have by his own action prevented her from exercising her right to control of the business. Finally Plaintiff contributed both capital and services to the business. If Plaintiff were an employee of the business rather than a partner it seems odd that she would contribute substantial services for which she was not paid. Moreover, Plaintiff's individual tax returns for the years in question disclose that, although Plaintiff kept the books for the company and contends that she was paid a salary on a sporadic basis, she never withheld Social Security or income taxes from the amount which she was paid for her services as an alleged "employee" of the business. Plaintiff's treatment of the money she received from the business was therefore more akin to a return of capital than to a salary received as an employee of the business. Thus in examining all of the factors set forth in Levasseur it appears that each factor points to the conclusion that Plaintiff and her brother formed a partnership rather than to the conclusion pressed by the Plaintiff, that is, that she was merely an employee in her brother's business. It should further be kept in mind that the purpose in examining the Levasseur factors is to determine whether two or more persons intended to form a partnership. Huffman readily admits that it was his intention to form a partnership with his sister. Plaintiff goes to great lengths to avoid the use of the word partnership to describe her agreement with her brother, but does state that at the inception of the business Huffman "got me to think it was partners" (Plaintiff deposition, page 16). Moreover Plaintiff's statements that "it was supposed to be, from [Huffman's] talking, a partnership and we share and share alike," (Plaintiff deposition, page 4) and "we were supposed to have half and half was what [Huffman] said" (Plaintiff deposition, page 6) point conclusively to Plaintiff's original intent to form a partnership with her brother. Even assuming that Huffman later took it upon himself to control the day to day operation of the business and the finances, and that he excluded Plaintiff from active participation in the affairs of the business, those facts would not support the Plaintiff's denial that a partnership existed. Since it appears that the only legitimate basis upon which the Plaintiff could deny her partnership status is her lack of actual control in conducting the affairs of business, and that such lack of control is an insufficient basis upon which to determine that Plaintiff was not a partner, the Court concludes that Plaintiff was a partner with her brother in the H & J Lumber Company, that there is no genuine issue of material fact as to her status as a partner and that the government is therefore entitled to partial summary judgment as to such issue. Even if the Court were to determine that Plaintiff and her brother never intended to form a partnership, the Court would be obliged to hold that the Plaintiff was estopped from denying that she and her brother were partners in H & J Lumber Company. Plaintiff repeatedly represented to the Internal Revenue Service that she was a partner in the business. If that fact alone is not sufficient to estop her from denying her partnership with her brother, then the fact that she also took a substantial deduction on her personal income tax return for her share of the loss incurred by the business mandates such an estoppel. The government has also moved for partial summary judgment as to two other issues; (1) whether Plaintiff may avoid the civil fraud penalties assessed against her personally by establishing that she did not act in a negligent, willful, or fraudulent manner, and (2) whether the statute of limitations prevents the United States from recovering taxes and penalties incurred in the four quarters at issue for 1973. The government is correct in its argument that Plaintiff is liable from the wrongful acts of her partner which are done in the ordinary course of business. Calvey v. United States, 448 F.2d 177 (6th Cir.1971). However the Court is not able to say at this point that as a matter of law Plaintiff's brother committed fraud against 176 the government and that such fraud was in the ordinary course of the business of the H & J Lumber Company. This issue will accordingly have to be resolved by the jury. Neither can the Court rule that the government's claim for taxes allegedly due for 1973 is not barred by the statute of limitations absent a determination that either the Plaintiff, or her brother acting in the ordinary course of partnership business, acted fraudulently. The government's motion for partial summary judgment as to these last two issues must therefore be denied. IT IS THEREFORE ORDERED that the Defendant's motion for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure be and the same is hereby granted as to the issue of whether Plaintiff was a partner in the H & J Lumber Company from January 1973 through July 1975 and the Court hereby holds as a matter of law that Plaintiff was a partner in the H & J Lumber Company during the aforesaid period. IT IS FURTHER ORDERED that the Defendant's motion for partial summary judgment be and the same is in all other respects denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260082/	632 F. Supp. 36 (1986) ICC INDUSTRIES, INC.; ICD Group, Inc., Plaintiffs, v. UNITED STATES, et al., Defendants. Court No. 84-2-00252. United States Court of International Trade. March 19, 1986. Brownstein Zeidman and Schomer (Steven P. Kersner and Donald S. Stein, Washington, D.C., of counsel), for plaintiffs. Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Dir., Commercial Litigation Branch (J. Kevin Horgan, attorney Commercial Litigation Branch), Berniece A. Browne, Sr. Trial Counsel, Office of the Asst. Gen. Counsel for Import Administration, Dept. of Commerce, Carol McCue Verratti, attorney, Office of the Gen. Counsel, 37 U.S. International Trade Com'n, Washington, D.C., for defendants. OPINION WATSON, Judge. This action challenges agency determinations[1] which gave a retroactive effect to the imposition of antidumping duties on importations of potassium permanganate from the Peoples Republic of China (PRC). To achieve retroactive effect the Commerce Department had to make a final determination that "critical circumstances" existed under the terms of 19 U.S.C. § 1673d(a)(3)[2] and then the International Trade Commission had to make additional findings under 19 U.S.C. § 1673d(b)(4)(A)[3] that retroactive duties were needed to prevent a recurrence of material injury. Both of these determinations are challenged as being unsupported by substantial evidence and otherwise not in accordance with the law. Normally, a determination that importations are being sold at less than fair value will begin to have an effect only as to those entries of merchandise entered after the date of publication of the notice of the preliminary determination by the Commerce Department. Liquidation of those entries will be suspended and the posting of security for the payment of estimated duty will be ordered in the manner set out in 19 U.S.C. § 1673b(d).[4] However, in conditions known as "critical circumstances", under the terms of 19 U.S.C. § 1673b(e)(2)[5] the suspension of liquidation and the ultimate obligation to pay antidumping duty can apply to entries of merchandise made 38 during the ninety-day period prior to the normal date of suspension of liquidation. The law provides that if the Commerce Department finds that massive importations have occurred and there is either a history of dumping or actual or constructive knowledge by the importers that the merchandise under investigation is being dumped, then the ultimate determination can affect unliquidated entries made in the expanded, pre-suspension ninety-day period. The "critical circumstances" which justify the expanded effect of the investigative determination can be determined by the Commerce Department as a preliminary matter under 19 U.S.C. § 1673b(e), or, even if the preliminary determination on that question is negative, can be found as part of the final determination under 19 U.S.C. § 1673d(a)(3). As a preliminary matter, "critical circumstances" may be found on the basis of belief or suspicion by the Commerce Department that the statutory conditions are present. As a final matter, however, given the standard of judicial review to which it is subjected under 19 U.S.C. §§ 1516a(a)(2)(B)(i) and 1516a(b)(1)(B), the determination must be supported by substantial evidence. In this case, because there was no history of dumping of potassium permanganate from the Peoples Republic of China, the final determination depends first, on the existence of massive imports, a fact which is amply supported by substantial evidence, and, second, on a finding that the importers knew or should have known that the merchandise was selling at less than fair value. The latter finding is disputed by plaintiffs. The determination by the Department of Commerce that importers knew or should have known that the potassium permanganate was being sold at less than fair value was expressed, at 48 Fed.Reg. 57349-50, as follows: ... After considering all of the circumstances in this industry, we conclude that U.S. importers knew or should have known that potassium permanganate from the PRC was being sold in the United States at less than its fair value. The following factors have led us to that conclusion: First, since U.S. importers admitted that the potassium permanganate bought at "competitive prices" in the European market and subsequently imported into the United States was PRC material, they were clearly aware of the price at which potassium permanganate from the PRC, both directly from the PRC and indirectly through Europe, was being sold for in the U.S. and European markets. Second, since importers were also aware of pricing of potassium permanganate in the U.S. market place from the two other alternative sources (Carus [the United States producer] and Spain), they were aware of the entire range of pricing in a market place where pricing is a major factor in determining sales. Third, since Spain is not a state-controlled economy country and the only other principal producer of the product that exports to the United States, importers knew or should have known, at least generally, what the value of the product is in market economy countries, and thus the minimum likely fair value of the PRC merchandise. Fourth, during the period of March through July, 1983, (from Initiation of this investigation to Preliminary Determination), the unit price of potassium permanganate imported into the U.S. from the PRC was 22% less than permanganate imported from Spain (all other sources). Importers should have known how to anticipate our antidumping methodology for Spain. They clearly knew that potassium permanganate from the PRC was being sold well below the Spanish price. Fifth, knowing that potassium permanganate from the PRC was priced significantly below that sold by the only other non-U.S. market economy producer (i.e., the most likely source of our fair value standard), importers knew or should 39 have known that the PRC exports were at less than fair value. Based on the preceding analysis, we determine that the unique circumstances found in this industry are such that we can impute knowledge of sales at lessthan fair value to the importers even though they could not anticipate the exact basis for our fair value determination. When the conclusions of the Commerce Department are reduced to essentials, the five supporting factors are really one that the importers knew that the price at which they were importing was 22% below the price of importations from Spain. This is the most concrete and "damaging" piece of knowledge attributed to the importers the price was 22% below the lowest price at which the merchandise was being sold to the United States. The question then becomes whether this sort of knowledge, i.e., of price differential alone, is sufficient to establish or impute knowledge on the part of the importer that the product is being sold at less than fair value. The Commerce Department is concerned that if it cannot make inferences and attribute knowledge of dumping based on knowledge of price differentials, massive injurious imports from state-controlled economies can enter with impunity during the first dumping investigation of a product from those countries. This would come about because a foreign market value in a country with a state-controlled economy may not be immediately ascertainable under 19 U.S.C. § 1677b(a). This is a circumstance which is recognized in 19 U.S.C. § 1677b(c)[6] in which special indirect methods have been provided for determining the foreign market value of merchandise in state-controlled economies. Although the issue is not without its difficulties, the court is of the opinion that in a close-knit international market for a fungible commodity, a price differential between the price from a state-controlled economy and the price from a market economy, of the magnitude involved here, is sufficient to alert importers to the fact that the product from the state-controlled economy is being sold at less than fair value. Accordingly, it may fairly be said that, even considering that there is no immediately ascertainable market value in the home market of a state-controlled economy and even absent any knowledge of how fair market value would ultimately be calculated for the country of production, the importers should have known that the price was "too good to be true" and too low to emerge unscathed from administrative scrutiny. It must be admitted that this situation represents a minimal factual predicate for imputing knowledge to an importer and a considerable allowance of discretion to the agency. But in view of the possibility that otherwise the law could not cope with the first occurrence of massive, dumped imports from a state-controlled economy, it appears to be an unavoidable exercise of agency expertise in an emergency situation. When done with attention to the structure of the international market, the nature of the commodity and the magnitude of the price differential, it is a permissible determination and those factors constitute 40 substantial evidence in these circumstances. In sum, the determination of the Commerce Department is within the range of discretion it has been accorded, Consumer Products Div., SCM Corp. v. United States, 753 F.2d 1033 (Fed.Cir.1985), and is supported by the degree of evidence which has been found sufficient in such matters. Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984). Plaintiffs have also challenged the final determination of the International Trade Commission (ITC) on the subject of critical circumstances for failing to separately find a causal link between the massive imports and the material injury. The statutory language governing the ITC determination reads as follows: 19 U.S.C. § 1673d (b) ..... (4) Certain additional findings. (A) If the finding of the administering authority under subsection (a)(2) of this section is affirmative, then the final determination of the Commission shall include a finding as to whether the material injury is by reason of massive imports described in subsection (a)(3) of this section to an extent that, in order to prevent such material injury from recurring, it is necessary to impose the duty imposed by section 1673 of this title retroactively on those imports. In the opinion of the court, where a finding has been made that imports priced at less than fair value are being knowingly entered in massive quantities during an investigation, the ITC is not required by law or considerations of fairness to isolate the massive quantities and make them the separate subject of an injury determination. In those circumstances it is sufficient if the ITC concentrates on the capacity of these massive imports to render ineffectual the normal imposition of duties (prospectively from the date of publication of the preliminary determination) and thereby bring about a recurrence of the material injury primarily caused by normal levels of importation. It must be admitted that the language of 19 U.S.C. § 1673d(b)(4)(A) can be read as requiring that material injury be attributed to the massive imports by themselves, rather than to the entire corpus of normal and massive imports, as was done here. But that reading, although it is possible, does not harmonize with the special purpose of a provision for critical circumstances. In this instance, the clear emergency purpose of the provision justifies a greater than normal flexibility in its interpretation and in the analysis and treatment of massive imports entered during an investigation. With some effort, it is possible to read this provision as speaking to the material injury caused by both normal and massive imports, with the participation of the massive imports being more as an instrument of recurrence than as an original or separate cause. It is even possible to read this provision as presuming the participation of the massive imports in the material injury caused by the normal imports and focusing on whether that presumed participation is to an extent which necessitates the retroactive imposition of duty. These are flexible readings, and the necessary result could have been expressed far more clearly in the statute. What is important however, is that these readings harmonize with the purposes of retroactive duty better than a rigid construction. On the other hand, a strict interpretation of the language to require a separate injury determination for the massive imports, raises the problem that it may be administratively impossible to measure the actual injurious effect of massive importations entered during the investigation. This might be due to the time limits on the investigation and the possibility that the investigation ends before the normal measurable market response can be ascertained. While the degree of investigative difficulty would not be a factor in the face of a clear legislative requirement, it does influence the interpretation when reasonable alternatives are available. This result is not unfair because it still requires the application of expertise to evidentiary 41 facts regarding the massive imports, albeit not to the extent required if the massive imports were the subject of a discrete injury investigation. It is the massiveness itself which can be measured and evaluated. The volume of the massive imports is the crucial subject. Given the underlying knowledge or pattern of dumping during an investigation and the peculiar urgency of the situation, it is sufficient if the ITC finds that the volumes will cause a recurrence of injury if retroactive duty is not imposed. Given the express legislative intent to deter circumvention of the law by those who would increase imports during the process of investigation, it would seem that the purpose of the additional provision for critical circumstances is to prevent recurrence of the injury already being caused by previous imports. See, H.Rep.No. 317, 96th Cong., 1st Sess. 63 (1979). Massive imports which arrive during the investigation and are found by the Commerce Department to have a history of dumping or to be knowingly bought at less than fair value do not have to be the subject of a separate injury analysis. Their injurious effect, coming on top of previous importations found to be injurious, may be easily and legitimately inferred. As to them, the requirement of additional findings is not meant to complicate the Commission's analysis of causation, but merely to require the Commission to determine whether the extent of massive imports will carry the injury already found to have occurred, beyond its normal duration unless retroactive duties are imposed. On this subject, there is good reason to credit the expertise of the I.T.C. If a high degree of deference to the agency is justified anywhere, it is justified in its analysis of massive imports entered with questionable motives during an investigation. Cf. Matsushita Electric Industrial Co., Ltd. v. United States, 750 F.2d 927 (Fed.Cir. 1984). The evidence of record clearly supports the determination that massive importations during the period from April through July 1983 were of such an extent that, in order to prevent the recurrence of material injury, retroactive duties had to be imposed. In April 1983 alone, importations were almost four times greater than in the entire period from April through July 1982. This being the case, the ITC's additional findings were, in these circumstances, supported by substantial evidence. For the reasons discussed above the court finds that both determinations at issue here were supported by substantial evidence and were otherwise in accordance with the law. Accordingly, plaintiffs' motion for judgment is hereby denied and it is further ORDERED that the Department of Commerce, International Trade Administration's final affirmative determination of sales at less than fair value of potassium permanganate from the Peoples Republic of China, 48 Fed.Reg. 57347 (December 29, 1983), and the International Trade Commission's final affirmative determination of material injury with respect to potassium permanganate from the Peoples Republic of China, 49 Fed.Reg. 3148 (January 25, 1984), be, and they hereby are, sustained in all respects. NOTES [1] The final determination of the Department of Commerce was published in 48 Fed.Reg. 57347. The final determination of the International Trade Commission was published in 49 Fed. Reg. 3148 and USITC Publication 1480 (January 1984). [2] 19 U.S.C. § 1673d(a) * * * * * (3) Critical circumstances determinations. If the final determination of the administering authority is affirmative, then that determination, in any investigation in which the presence of critical circumstances has been alleged under section 1673b(e) of this title, shall also contain a finding of whether (A)(i) there is a history of dumping in the United States or elsewhere of the class or kind of merchandise which is the subject of the investigation, or (ii) the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the merchandise which is the subject of the investigation at less than its fair value, and (B) there have been massive imports of the merchandise which is the subject of the investigation over a relatively short period. [3] 19 U.S.C. § 1673d(b) * * * * * * (4) Certain additional findings. (A) If the finding of the administering authority under subsection (a)(2) of this section is affirmative, then the final determination of the Commission shall include a finding as to whether the material injury is by reason of massive imports described in subsection (a)(3) of this section to an extent that, in order to prevent such material injury from recurring, it is necessary to impose the duty imposed by section 1673 of this title retroactively on those imports. * * * * * * [4] 19 U.S.C. § 1673b * * * * * * (d) Effect of determination by the administering authority. If the preliminary determination of the administering authority under subsection (b) of this section is affirmative, the administering authority (1) shall order the suspension of liquidation of all entries of merchandise subject to the determination which are entered, or withdrawn from warehouse, for consumption on or after the date of publication of the notice of the determination in the Federal Register, (2) shall order the posting of a cash deposit, bond, or other security, as it deems appropriate, for each entry for the merchandise concerned equal to the estimated average amount by which the foreign market value exceeds the United States price. * * * * * * [5] 19 U.S.C. § 1673b(e) * * * * * * (2) Suspension of liquidation. If the determination of the administering authority under paragraph (1) is affirmative, then any suspension of liquidation ordered under subsection (d)(1) of this section shall apply, or, if notice of such suspension of liquidation is already published, be amended to apply, to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the date on which suspension of liquidation was first ordered. [6] 19 U.S.C. § 1677b * * * * * * (c) State-controlled economies. If available information indicates to the administering authority that the economy of the country from which the merchandise is exported is State-controlled to an extent that sales or offers of sales of such or similar merchandise in that country or to countries other than the United States do not permit a determination of foreign market value under subsection (a) of this section, the administering authority shall determine the foreign market value of the merchandise on the basis of the normal costs, expenses, and profits as reflected by either (1) the prices, determined in accordance with subsection (a) of this section, at which such or similar merchandise of a non-State-controlled-economy country or countries is sold either (A) for consumption in the home market of that country or countries, or (B) to other countries, including the United States; or (2) the constructed value of such or similar merchandise in a non-State-controlled-economy country or countries as determined under subsection (e) of this section.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260228/	227 N.J. Super. 152 (1988) 549 A.2d 905 ALLSTATE INSURANCE COMPANY PLAINTIFF, v. ARTHUR ALVARADO AND CITY OF NEWARK DEFENDANTS. Superior Court of New Jersey, Law Division Essex County. Decided February 11, 1988. 153 Thomas A. Wester, argued the cause for plaintiff (McDermott, McGee and Ruprecht, attorneys). Ronald Washington, Assistant Corporation Counsel, argued the cause for defendants (Glenn A. Grant, Corporation Counsel for City of Newark). 154 WALLS, J.S.C. As a self insurer, Newark is legally mandated to provide uninsured motorist coverage to its employees such as here to the policeman who, while driving a municipally-owned automobile, sustained personal injuries because of the collision with his vehicle by one driven by an uninsured motorist. Christy v. Newark, 102 N.J. 598 (1986). At the time of the collision, May 29, 1983, the employed policeman was also covered and protected by his own privately obtained, uninsured motorist insurance coverage provided by Allstate Insurance Company, the plaintiff herein. By this motion, plaintiff seeks resolution in its favor of the following questions: Should the Christy, the judicially prescribed, uninsured motorist, coverage of the municipality be deemed primary in satisfaction of any liability prior to that of the protection bought and paid for by the employee from a private carrier? Additionally, now that Newark is deemed the provider of uninsured motorist coverage, must it submit controversies arising from such coverage to arbitration? The following discussion compels the conclusion that those questions be answered adversely to the interests of the moving party. Allstate demands that Newark furnish primary coverage of its uninsured motorist benefits to the injured employee Alvarado for one reason, i.e., Allstate's policy with Alvarado says so: "If there is another applicable similar insurance, we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance." Obviously, such a contractual understanding between this carrier and its insured is not binding upon Newark, a nonparty to the agreement of insurance. Without more, Newark may be affected by, but cannot be directly obligated to such terms. On the other hand, Newark argues that Allstate should pay its benefits first and contends that earlier decisions of our 155 appellate courts countenance such an approach. Montedoro v. Asbury Park, 174 N.J.Super 305 (App.Div. 1980); State Farm Mutual Auto Liab. v. Kiser, 168 N.J. Super. 230 (App.Div. 1979); Walkowitz v. Royal Globe Insurance Company, 149 N.J. Super. 442 (App.Div. 1977); Transport of New Jersey v. Watler, 161 N.J. Super. 453 (App.Div. 1978); Mortimer v. Peterkin, 170 N.J. Super. 598 (App.Div. 1979). From these, Newark, in its brief, seems to conclude that there is a judicial predilection to favor the interests of a municipality vis-a-vis those of the private sector. Such conclusion is erroneous. The aforecited, distinguished writings serve individually as steps in the development of the legislative goal of New Jersey to provide necessary benefits to victims of accidents involving vehicles operated by uninsured drivers and collectively, as "the springboard for resolution of the essential issue ..." of Christy v. Newark, 102 N.J. 598 (1986). Transport of New Jersey v. Watler, 161 N.J. Super. 453 (1978) aff'd as modified, 79 N.J. 400 (1979). That issue was, as we know, whether Newark, which had established an insurance fund pursuant to N.J.S.A. 40A:10-6, was required to furnish uninsured motorist coverage. And we know the answer of Christy. Still, Newark contends that the cases decided before Christy and NJSA 59:1-1 et seq., specifically 59:9-2(e) of the Tort Claims Act, require a deduction in any amount due from a public entity which is compensated by a third party. The insurance carrier should exhaust the limits of its coverage before the municipality pays, Newark argues. Generally, too rigid a reliance upon the Tort Claims Act is not sanctioned by our highest court which, in Christy, agreed with the refusal of the Appellate Division to characterize a claim for uninsured motorist benefits as "one in which a claim for tort has been asserted against the City. The claim is one arising out of a contract here, a statutory contract founded in NJSA 40A:10-6 ..." Christy v. Newark, 102 N.J. 598 at 610. It is "in effect, a contractual substitute for a tort action against an 156 uninsured motorist." Midland Insurance Co. v. Colatrella, 102 N.J. 612 at 617. In his review of NJSA 34:15-40, Justice Pollack, writing for the majority in Colatrella, determined that "the Legislature has expressed its intent that a compensation lien should be attached to the recovery from a third party tort feasor. Thus, we remain persuaded that when a negligent motorist, including one who is uninsured or unidentified injures a motorist, a compensation lien should attach to the uninsured motorist proceeds recovered by the injured employee." The Justice then defined the rationale "... [w]e base our decision on the belief that the primary concern of the Legislature here as in other work related injuries caused by third party tort feasors, is to integrate the source of recovery (emphasis supplied)." Id. at 618. Perhaps, something less than rigid reliance upon Tort Claims Section 59:9-2 may be allowed. As has been earlier indicated, Allstate asserts that its "excess coverage" clause requires that Newark pay its uninsured motorist benefits first to the injured Alvarado. Newark resists this suggestion and relies on NJSA 59:9-2(e): "If a claimant receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tort feasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award against a public entity or public employee recovered by such claimant; provided, however, that nothing in this provision shall be construed to limit the rights of a beneficiary under a life insurance policy. No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee." The above provides to Newark a statutory variation of the "excess coverage" clause earlier mentioned and found in the private policy between Allstate and Alvarado. To so construe the statute is not to recognize or even "characterize" a claim as one "for tort asserted against the City." See Christy, supra 102 N.J. at 610. Rather it is nothing more nor less than the 157 salutory, judicial acknowledgment of and deference to explicit legislative policy. Our law makers have ordained that contractual benefits flowing from tortiously created injuries which "duplicate" benefit awards from a public entity (a municipality, in this case) are subject to deduction from the award against the public entity. (Only the rights of a life insurance beneficiary under this section may not be restricted.) This writer further suggests that if NJSA 59:9-2(e) did not exist with regard to this present controversy, its equivalent would have to be judicially crafted to accompany the judicially discerned uninsured motorist coverage. No reason of law or public policy has been advanced to suggest that Newark should, by judicial determination, be placed at the outset in a position inferior to that of a private carrier in this setting. Newark, judicially obligated to provide uninsured motorist coverage, should have the benefits as well as the responsibilities of any private carrier. The coverage required should be no broader than that afforded by the contesting commercial carrier. Each must provide uninsured motorist benefits to Alvarado. Each has an "excess coverage" proviso. Evermindful of the rationale of Colatrella and Christy, it is determined that the policy and language of NJSA 17:28-1.1 and 59:9-2(e) are not inharmonious. Moreover, unlike Ciecka v. Transamerica Insurance Group, 81 N.J. 421 (1979) and Cosmopolitan Mutual Insurance Co. v. Continental Casualty Co., 28 N.J. 554 (1959) where each of the contesting carriers had an "excess coverage" clause and the courts concluded that because none could be deemed primary, none could be deemed secondary and all shared liability equally, our circumstances are different. They are made different because Newark's "excess coverage" proviso is law and has the force thereof. The contractual provisions of Allstate and Alvarado, if contrary, will have to yield to the explicit priority of NJSA 59:9-2(e), which has been New Jersey law since 1972 and 158 presumably predates the Alvarado agreement. Agreements are considered drafted within the context of existing law. (If the Allstate policy antedates 59:9-2(e), the court would consider the approach, rationale and holding of Cosmopolitan dispositive.) It is determined that Newark is, by law, entitled to have payments required to be made by Allstate deducted from any payment for similar benefits required to be made by Newark. Practically, therefore, Allstate is deemed to be the primary obligor, subject obviously to the limit of its agreed coverage; Newark placed in secondary position. Unfortunately, the final question posed by the Supreme Court in Christy in 1986 cannot be answered by this trial court in 1988. Has the Commissioner of Insurance, who is charged with the enforcement of the uninsured motorist statute, NJSA 17:28-1.1, by regulation or form, subjected all insurers to compulsory arbitration of disputes? No party has provided the court with evidence sufficient to provide an answer. The writer is guided, accordingly, by the caveat: "Were we certain that the only form that the Commissioner has approved for the provision of uninsured motorist benefits called for arbitration, we would again have no hesitancy in making arbitration a part of Newark's obligation. As well, there may be some regulation of the Commissioner that covers the subject, although none has been called to our attention." Christy v. City of Newark, 102 N.J. 598 at 611 (1986). Absent that, no precedent of statute or case law has been advanced to mandate a nonconsenting municipality as is Newark, to submit to arbitration. In re Matter of Arbitration Between Glover, 80 N.J. 221, 228-229 (1979), Newark is not required to submit the Alvarado matter to arbitration. Newark shall submit the appropriate order reflecting the above.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2445889/	349 S.W.2d 686 (1960) Taylor MADDOX, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. August 12, 1960. Rehearing Denied October 20, 1961. 688 Grant F. Knuckles, W. R. Lay, Pineville, William L. Rose, Williamsburg, Lewis & Weaver, London, for appellant. John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee. PALMORE, Judge. This appeal is from a judgment entered on a jury verdict finding the appellant, Taylor Maddox, Sr., guilty under KRS 431.170 as an accessory after the fact to the murder of Woodrow Smith and fixing his punishment at one year in jail and a $1,000 fine. The circumstances of the homicide are set forth in Warren v. Com., Ky. 1960, 333 S.W.2d 766, wherein the conviction of John Henry Warren, the principal, was affirmed. It is contended that the trial court erred to appellant's prejudice in (1) overruling his motions for a directed verdict, (2) receiving incompetent testimony, (3) instructing the jury, and (4) overruling his objections to improper argument to the jury by counsel. On March 31, 1959, a large number of striking miners met at Arjay, some four miles from Pineville in Bell County, Kentucky, for the purpose of proceeding to and picketing various mines in the area. In charge of Maddox, a union field representative, they visited one location in Bell County and then set out for Woodrow Smith's mine on Stinking Creek in Knox County. The intention, according to Maddox, was to unionize Smith's men and talk to him about a contract with the union. John Henry Warren and John "Billygoat" Cox, both of whom lived at or near Arjay, where the cavalcade originated, were among the passengers riding in Maddox's station wagon. Maddox, however, did not witness the murder. His car was parked a mile or so from Smith's mine, and he was first informed of the crime when Warren returned to the automobile, told Maddox there had been a shooting, that he had shot a man, and asked advice as to what he should do, whereupon Maddox recommended that he give himself up to the authorities. Maddox then drove Warren and Cox to Barbourville, county seat of Knox County, and there gave Warren a $10.00 bill and advised him to get a taxi. Warren and Cox accordingly took a taxicab from Barbourville to their respective homes in Bell County. The Sheriff of Bell County called on Warren the next day for the purpose of serving a subpoena to appear as a witness before a court of inquiry to be held at Barbourville, and at this time Warren reported that he had killed Smith and produced the fatal weapon from a coal pile near his home. An accessory after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts or assists a person whom he knows to be the felon, intending thereby to enable the felon 689 to escape arrest or detection. Certainty of knowledge is not required. It is sufficient that the accused had actual knowledge of facts which would give him good reason to believe the person assisted to be the felon. 22 C.J.S. Criminal Law §§ 95-97, pp. 165-167; Tully v. Com., 1877, 13 Bush 142, 76 Ky. 142; Clark v. State, 1953, 159 Tex.Cr. R. 187, 261 S.W.2d 339. As quoted in Roberson v. State, 1943, 69 Ga.App. 541, 26 S.E.2d 142, 143, from an earlier decision, "One cannot refrain from following up a clue, for fear of discovering the truth, and then shield himself behind such intentional ignorance." Any assistance whatever given to a felon to hinder his being apprehended, tried, or suffering punishment makes the assistor an accessory, IV Blackstone 37. "The true test for determining whether one is an accessory after the fact is, to consider whether what he did was done by way of personal help to his principal, with the view of enabling the principal to elude punishment, the kind of help rendered appearing to be unimportant." I Bishop's Criminal Law 365 (§ 634). On the other hand, actions that alone will not render one an accessory include (1) acts of charity that relieve or comfort a felon without tending to hinder his detection, apprehension or conviction, nor aid his escape, (2) nondisclosure of the crime, and (3) failure to apprehend or attempt to apprehend the criminal. 22 C.J.S. Criminal Law §§ 97-99, pp. 168-169. Whether the evidence of Maddox's conduct following the shooting of Smith by Warren is sufficient to sustain his conviction as an accessory after the fact must be tested within the alembic of the foregoing concepts. The information imparted to Maddox upon Warren's return to the automobile was certainly enough to put him on notice that a felony had been committed by Warren. That in fact it did so is affirmed not only by his recommendation then and there that Warren give himself up to the authorities, and by the course of his conduct thereafter, but more particularly by the following admission on cross-examination: "Q. You knew the man had committed a felony, didn't you? A. I thought so." It is contended, however, that the evidence did not prove Maddox was given enough details of the shooting to know at the time whether the victim was dead or alive, hence he could not have known a murder had been committed. At common law one could not be an accessory unless the felony was complete. "Thus, aiding the guilty party after he has given another a mortal wound, but before death has resulted therefrom, does not make the person giving such aid an accessory to the homicide." Roberson's New Kentucky Criminal Law and Procedure (2d ed.), § 190; I Bishop's Criminal Law 364, (§ 632); 14 Am. Jur. 837 (Crim. Law, § 102); Harrel v. State, 1861, 39 Miss. 702, 80 Am.Dec. 95. It must be recalled, however, that "under the common law an accessory after the fact was subject to the same punishment as the principal, 5 Blackstone p. 449; our statute reduced the offense to a misdemeanor." White v. Com., 1945, 301 Ky. 228, 191 S.W.2d 244, 247. This circumstance is relevant in that the degree of punishment may then have required a greater nicety of proof than should now be considered necessary. Under our statute, KRS 431.170, the accessorily crime is a misdemeanor, an offense without degree, not dependent on the degree of the principal's crime, but only on his guilt of felony. The culprit's work was complete when he fired the fatal shot or shots. He had committed a felony. Whether the victim lived or died fixed the gravity of his crime and the severity of punishment authorized by the law to be inflicted upon him, but it had no such relationship to an accessory after the fact. Therefore, the reason for the common-law rule just stated does not apply. It is our opinion that the 690 jury was authorized to find from the evidence that Maddox had sufficient information to put him on notice that Warren had committed a felonious shooting. This was enough to lay upon Maddox the interdict of the law against rendering assistance to him. The main assault on the evidence is that there was no proof of any design by Warren, the murderer, to escape detection or elude the processes of the law, nor of an intent by Maddox to help him do so. Maddox's story was that he took Warren to Barbourville in order that he might surrender himself, but Warren became fearful lest he be subjected to violence and decided he would rather give himself up to the Sheriff of his home county at Pineville, whereupon Maddox gave him the money to take a taxi to Pineville for that purpose. Had the jury chosen to believe this version, an acquittal should and presumably would have resulted. Since, however, it was not incumbent on the jury to accept his testimony at face value, we must consider whether the evidence as a whole sustains a verdict on the theory that Maddox's actions proceeded from a criminal intent. On the trip from Stinking Creek to Barbourville Maddox had three passengers, Warren, Cox and Arthur Lee Hamlett. He stopped first at a small store on the way out and paid a bill of some $72 for food, cigarettes, etc., bought there by the members of the picketing party on their way in. After reaching the main highway to Barbourville he stopped and attempted to reach his union superior in Middlesboro by telephone in order to report the shooting. On reaching Barbourville he parked at or near the court house square and placed or attempted to place another telephone call, to whom and for what purpose is not clear from the record. Maddox then drove a mile or so away from the court house to the railroad crossing at the edge of town, on the route to Pineville, where, according to the witness Cox, he "said he would give us boys the money and we would get a taxi and go home." (Emphasis added.) Maddox and his remaining passenger, Hamlett, thereupon departed in the direction of Pineville, which was on the way toward Maddox's home in Middlesboro. Warren and Cox returned by taxi to their home at Arjay, passing through Pineville en route. Cox did not recall hearing Warren's having said anything at all about giving himself up, nor, specifically, did he hear any mention of Warren's being afraid to surrender at Barbourville. Cox testified that it was he (Cox) who made the suggestion to Maddox that it would be a "pretty good idea" for him and Warren to go to Pineville in a taxi. He admitted that on a former trial (apparently the trial of Hamlett as an accessory, which resulted in an acquittal by direction) he had explained the matter as follows: "Q. Why didn't you go back to Pineville with Maddox? A. He named something about wouldn't it be a pretty good idea for us to go through in a taxi and I told him I would. "Q. Thought it a pretty good idea to go through in a taxi? A. Yes." Cox testified that he urged Warren to surrender himself at Pineville, as follows: "Q. Did you ever say anything to Warren about giving up in Pineville? A. I did. * * * * * "Q. Why didn't Warren give up in Pineville? A. I don't know anything about it. "Q. Was anything said about it? A. I don't know whether anything was or not. Might have been something said about it. I don't remember. "Q. In other words, you say there might have been something said about him giving up in Barbourville? A. I don't remember whether there was or not. I just know Maddox took him to Barbourville. 691 "Q. You don't know whether anything was said about giving up or not? A. I don't know whether he said anything about it. "Q. You tried to get him to give up in Pineville? A. I told him to go to Pineville and give up. "Q. In other words, you were suggesting that you and him go to Pineville? A. I was getting in home." Thus it may be seen that apart from Maddox's own version of the matter there was very little in the evidence to persuade the jury that his motives were simon-pure. Neither Warren nor Hamlett appeared as a witness. Cox heard no talk of surrender from Warren, and according to his testimony Maddox said he would give them the money to get a taxi and go home. To go home, conceal or dispose of the murder weapon, and act as if nothing had ever happened was the obvious way for Warren to avoid identification as the assassin. Taking him out to the edge of town to call a taxi after being in the middle of Barbourville where telephones were plentiful and one might most reasonably expect to find a cab was an action from which the jury could scarcely have drawn any inference except that the purpose was to keep Warren out of sight. Actually, Maddox's course of conduct would have been more persuasive of his innocence had he taken Warren on home himself. What Warren's own state of mind may have been during the course of the assistance rendered by Maddox is subject, of course, to the same inferences that may be drawn with respect to Maddox. We do not think, however, that an intent on the part of Warren to escape or avoid detection was necessary in order for Maddox to become an accessory. It was enough if Maddox himself knew or expected that the assistance rendered by him would promote such a purpose. Under the circumstances of the case it is our conclusion that the evidence sustains the verdict. With respect to the argument that incompetent and prejudicial testimony was admitted, the most serious question involves the evidence given by Mrs. Axi Mills, who lived at the point where Maddox turned his car in the road and parked about a mile below Woodrow Smith's mine. This occurred before the shooting. Witnessing the sudden appearance of the large group of 50 or more men, she asked in Maddox's presence, "What's this come in on us? Is this an army or something?" Someone replied, "Hell, yes." Mrs. Mills retorted, "I thought soldiers wore uniforms," which evoked from some unidentified member of the crowd the response, "You don't have to wear nothing when you kill them and throw them over the hill." It is contended that these statements had no bearing on whether Maddox was an accessory after the fact of the murder. Though the conviction of an accessory after the fact does not depend upon that of the principal, the principal's guilt must be alleged and proved. Tully v. Com., 1874, 11 Bush 154, 74 Ky. 154; Roberson's New Kentucky Criminal Law and Procedure (2d ed.), § 194. Under the decisions of this court in Jones v. Com., 1933. 249 Ky. 502, 60 S.W.2d 991, and Reynolds v. Com., 1933, 249 Ky. 644, 61 S.W.2d 288, what was said and done by others during the course of the organized venture in which they and the murderer, Warren, were participants was competent as bearing upon the guilt of Warren. Its relevance to Warren's guilt likewise validates the other evidence of which appellant complains, by which the details of the killing by Warren were proved. The indictment charged, in effect, that Warren wilfully murdered Smith and that Maddox, knowing he had done so, gave him assistance to avoid arrest and prosecution. 692 The first instruction given by the trial court deviated from the indictment by authorizing a conviction if Maddox aided or harbored Warren for the purpose of eluding punishment "at a time when he knew or had reasonable grounds to believe that the said John Henry Warren had shot and wounded Woodrow Smith or any other person, which shooting and wounding was a felony * * ." The instruction did, however, in proper form require as a prerequisite to conviction that the jury believe from the evidence beyond a reasonable doubt that Warren had wilfully and feloniously, of his malice aforethought and not in his necessary or apparently necessary self-defense, shot and killed Smith. Therefore, its effect was to say that if Warren murdered Smith, and Maddox, knowing that he had feloniously shot someone, gave him aid in order to escape, Maddox was guilty. Earlier in this opinion we have indicated that, in determining Maddox's guilt, whether Smith's death had occurred at the time of the accessorily acts is an immaterial technicality, it being sufficient if Maddox had good reason to believe Warren had committed a felonious shooting. It would likewise be immaterial that Maddox may not have known the identity of the person shot. The fair import of the instruction conveyed this theory to the jury. Though it should have defined the elements of a felonious shooting, and we therefore cannot approve its form, neither can we say that the error was prejudicial. There was no room to speculate and no possibility of a mistake as to what was meant. An error in the instructions that is not susceptible of a misleading and prejudicial interpretation by the jury, and thereby conducive to an unjust verdict, will not justify a reversal. Deaton v. Com., 1941, 288 Ky. 246, 156 S.W.2d 94; Lee v. Com., Ky., 1951, 242 S.W.2d 984; Abbott v. Com., 1947, 305 Ky. 620, 205 S.W.2d 348; Page v. Com., 1924, 202 Ky. 50, 258 S.W. 958. That the requirements for conviction as presented by the aforementioned instruction were something less than what was alleged in the indictment is not fatal in view of the indictment's having charged more than was strictly necessary in order to state the crime. We think the case of Bradley v. Com., 1927, 218 Ky. 788, 292 S.W. 343, is distinguishable in principle. There a defendant charged with the murder of her baby by smothering, choking or strangling was convicted of voluntary manslaughter under an instruction embracing the theory of gross negligence in the taking of medicines or doing of other things to induce premature birth, thus causing the child's death after birth. The instruction authorized a conviction for a different act from the one described in the indictment, and the conviction was reversed. Here the act committed by Warren, notice of which was an element of the accessorily offense, was the same regardless of whether its final result was murder, voluntary manslaughter or malicious shooting. In Moore v. State, 1956, 94 Ga.App. 210, 94 S.E.2d 80, 85, a conviction was sustained where the indictment charged the defendant with being an accessory after the fact of murder but the proof showed the principal's conviction of manslaughter instead. The following excerpt from the opinion is appropriate to this case: "Proof that the principal, indicted for murder, was convicted of manslaughter, is still proof (prima facie) that the principal was guilty of a culpable homicide concerning the same transaction for which the defendant is on trial. It matters not to the defendant that the jury trying the principal found the killing to be without malice. His own crime is the same whether malice existed or not. His defense is the same. We are accordingly of the opinion that evidence that the principal was convicted of a lesser degree of the crime charged is admissible against the defendant on trial as an accessory after the fact for the same purpose and 693 to the same extent as though the conviction had been for murder * * * we conclude that the jury was authorized to find that the defendant knew that Grissette had killed Martin without justification and that by allowing him to ride in his automobile away from the scene of the crime albeit for only a short distance he aided Grissette in escaping arrest and that he was, therefore, guilty as an accessory after the fact." Citing Bradley v. Com., supra; Hunter v. Com., Ky. 1951, 239 S.W.2d 993, 995; and Stanley's Instructions to Juries, § 764, appellant states the proposition that the instructions must be confined to the allegations and language contained in the indictment. None of these authorities announces such a principle. In the Hunter case, wherein it was held that instructions may not merely incorporate the indictment by reference, the rule is couched in this language: "The instructions should submit the elements of the offense as contained in the indictment." It is not necessary that the form or phraseology be the same. Stanley's Instructions to Juries, § 767. If the guts are there the feathers are inconsequential. Our previous remark in this opinion to the effect that an intent by the principal to escape or avoid detection is not requisite in order for another to become an accessory after the fact disposes of the contention that Warren's intent should have been embraced in the instructions as an element of the accessorial offense. We come finally to the question of improper and inflammatory argument by special counsel for the prosecution. Appellant was and is represented by several distinguished counsel, a circumstance that elicited from the special counsel for the state in his closing summation this comment: "Did you know that Al Capone, the biggest crook and rascal I guess the U.S. ever produced, sought just the same subterfuge that this man is using on this trial today dodged the enforcement of the law and didn't pay the penalty of his crimes, because he had smart help and smart assistance and smart lawyers and plenty money * * ." In considering the possible but unprovable effect of an argument to the jury a reasonable amount of common sense and fair judgment on the part of the jurors must be presumed. Shepherd v. Com., 1930, 236 Ky. 290, 33 S.W.2d 4. This allusion to the name of a man whose career has come to personify in the minds of the people of this country the evils of organized crime was but a graphic way of reminding the jurors that no man's case should be influenced or judged by his lawyers or his resources. The word "subterfuge" was, of course, unfortunate, ill-chosen and in poor taste, but in its over-all effect the argument drew no personal comparison between Maddox and Al Capone or their general proclivities, and we cannot say it was prejudicial. The most telling argument of which complaint is made had to do with the callousness of Maddox's character as exemplified by his admitted failure to call a doctor or ambulance or to seek some sort of assistance for the victim of the shooting. It will be recalled that after learning of the tragedy and while the murderer, Warren, was in his automobile Maddox used the telephone at two different places, once en route and once in Barbourville. During this time, as he professed in the trial and continues to maintain on this appeal, he knew a man had been shot by his companion, Warren, and left on a remote hillside miles from town, but did not know whether he was dead or alive. Counsel for the prosecution made full use of the opportunity for forceful eloquence presented by these circumstances, and it is contended that the result was inflammatory and prejudicial. In his defense the appellant called a number of witnesses, including a former circuit 694 judge, to attest his good reputation for morality, peace and quietude, and for truth and veracity. Through these witnesses it was brought before the jury, in one way or another, that he was a member of the Gideons, who distribute Bibles, a church board member and Sunday School teacher, and a good citizen. This, of course, is difficult sort of testimony to rebut in kind, and we do not regard it as an improper argument to contrast a man's reputation, as proven, with the evidence of his conduct in the case on trial. In the words of a rather unimpeachable authority it has been observed that men are best known by their fruits. Matthew 7:16-20. In the circumstances of the instant case we are inclined to regard this line of argument not only as proper, but rather appropriate. That it was not inflammatory is indicated by the relative moderation of the verdict. There is one further particular in which it is contended that the argument transcended the limits of propriety. It was stated that if Warren had possessed enough intelligence and education to know that the subpoena the officers came to serve on him was not a warrant of arrest he might have kept the secret of his guilt, the implication being that Warren, mistakenly assuming an arrest, gave up only because he thought the jig was up. The inference that Warren did not know the difference between the subpoena and a warrant was, of course, based on speculation, there being no evidence to that effect. It is suggested that this statement was prejudicial "because the Commonwealth, having failed to prove that John Henry Warren was trying to elude punishment, sought to do so by way of argument to the jury." As we have said, however, whether Warren in fact intended to escape detection is not vital, because the real question was whether Maddox not Warren had a guilty purpose in that respect. The significance of the argument was to bring home to the jury how easy it might have been for Warren to escape detection by mere silence, thus supporting the theory that by expediting his return home Maddox had in fact rendered aid conducing to hinder his detection. Therefore, the substance of the argument was legitimate. Though it was not proper for counsel to suggest affirmatively that Warren did not know the subpoena was not a warrant, he could have presented the same theory in the form of a hypothesis to illustrate how the conduct of Maddox might have resulted in Warren's escape. In any event, we are not persuaded that the argument was prejudicial. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/382122/	630 F.2d 458 80-2 USTC P 9707 UNITED STATES of America and Special Agent Thomas M.Williams, Internal Revenue Service, Petitioners-Appellees,v.Frederick A. PATMON, Respondent-Appellant,James S. Meredith, Intervenor-Appellant. No. 75-2246. United States Court of Appeals,Sixth Circuit. Argued Aug. 12, 1980.Decided Sept. 16, 1980. Stanley R. Kirk, Detroit, Mich., for Patmon. James B. Feaster, Hallison H. Young, Detroit, Mich., for Meredith. Philip Van Dam, U. S. Atty., Saul A. Green, Asst. U. S. Atty., Detroit, Mich., Joseph M. Gontram, Scott P. Crampton, Gilbert E. Andrews, M. Carr Ferguson, Charles E. Brookhart, William A. Whitledge, U. S. Dept. of Justice, Tax Division, Washington, D. C., for petitioners-appellees. Before LIVELY and JONES, Circuit Judges, and LAMBROS, District Judge.* PER CURIAM. 1 Frederick Patmon appeals an order which requires him to comply with a United States Government Internal Revenue Service summons to appear before an Internal Revenue agent and to provide certain tax records of James S. Meredith. The district court permitted Meredith to intervene. 2 After extensive hearings, Judge Feikens issued an order enforcing the summons on July 23, 1975, from which Patmon and the intervenor appeal. Because there is no issue or controversy left in this case, we vacate the court's order and remand to the district court to dismiss as moot. I. 3 The Internal Revenue Service began an investigation of the income tax liability of James S. Meredith for the calendar years 1968 through 1972. Special Agent Williams determined that the professional agency headed by Mr. Patmon had prepared Meredith's tax returns. Special Agent Williams issued a summons to Patmon pursuant to 26 U.S.C. § 7602, to appear before him to testify and produce certain books, records, and papers pertaining to Meredith's returns. In a series of letters to Agent Williams, Patmon refused to comply because of various constitutional and statutory objections. 4 On January 14, 1975 the United States and Special Agent Williams petitioned in district court for enforcement pursuant to U.S.C. §§ 7402(b) and 7604(a) seeking to have Mr. Patmon show cause why he should not comply with and obey the summons. Judge Feikens issued an order to show cause on January 24, 1975. 5 Agent Williams testified at the show cause hearing that he investigated Meredith for violations of the tax laws, that this investigation could lead to a criminal prosecution, but that he had not decided to recommend criminal prosecution. Agent Williams also testified that he began his investigation because of reports that Meredith was spending large amounts of money. He testified at the hearing that he had contacted the Detroit Police, the telephone company, and conducted a car surveillance of Meredith. He also testified about contacts with the Organized Crime Strike Force and the State of Michigan. 6 Judge Feikens found that the summons was issued with a proper purpose and that plaintiff's other claims were meritless in a bench opinion issued April 4, 1975. The district court issued an order on January 21, 1976 commanding Mr. Patmon's appearance before Agent Williams on January 22, 1976. 7 Patmon complied with this order to the satisfaction of Agent Williams and the United States. Agent Williams recommended that Meredith be criminally prosecuted, but, on October 5, 1978, the tax division declined prosecution. On July 30, 1976, the Commissioner issued a statutory notice of deficiency based upon that determination. Meredith has petitioned to the tax court to redetermine his tax liability. The agency claims it has no interest in obtaining further information pursuant to this summons. II. 8 If no live controversy exists, an appeal should be dismissed as moot. Kentucky West Virginia Gas Co. v. Oil, Chemical and Atomic Workers Int'l. Union, 549 F.2d 407, 411 (6th Cir. 1977); Troy v. Shell Oil Co., 519 F.2d 403 (6th Cir. 1975). In general a case is moot if the party has complied with a summons. Cf. Barney v. United States, 568 F.2d 116 (8th Cir. 1978) (Intervenor's claim that government should not be able to make a claim moot by "illegally" obtaining records is found to be without merit). This is consistent with the Article III prohibition against federal courts issuing advisory opinions. The government is seeking no further action on the part of Patmon and the issues raised by taxpayer are similarly no longer at issue given the government's decision not to attempt prosecution. Therefore, we hold that the compliance with the summons makes moot1 this appeal. 9 The government argues that this order should be vacated so that "a judgment, unreviewable because of mootness, ... (will have no) legal consequence." United States v. Munsingwear, Inc., 340 U.S. 36, 41, 71 S. Ct. 104, 107, 95 L. Ed. 36 (1950). We agree. 10 Accordingly, we vacate this order and remand to the district court to dismiss this case as moot. * Honorable Thomas D. Lambros, District Judge, United States District Court for the Northern District of Ohio, sitting by designation 1 The government filed a motion to dismiss the appeal as moot. By order of November 17, 1968, this Court denied the motion without prejudice to the presentation of this matter at a full hearing	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2259938/	167 Cal.App.4th 990 (2008) EL DORADO COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. JERRY B. NUTT, Defendant and Appellant. No. C056534. Court of Appeals of California, Third District. October 21, 2008. 991 Jerry B. Nutt, in pro. per., for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Paul Reynaga and Sharon Quinn, Deputy Attorneys General, for Plaintiff and Respondent. OPINION MORRISON, J. The El Dorado County Department of Child Support Services (County) filed a complaint for child support against incarcerated prisoner Jerry B. Nutt. The court found Nutt owed a duty of support, but found he presently has no income and so reserved jurisdiction on the amount of support. On appeal, Nutt asks us to find him "exempt" from all current and future support obligations. We decline and shall affirm the judgment. BACKGROUND At all times relevant here, Nutt was incarcerated at Mule Creek State Prison. He received a 50-year-to-life sentence in 1997 under the three strikes law, and he will be eligible for parole in 2045. 992 In May 2006, the County filed a complaint against Nutt to establish paternity and child support, when the minor child was 12 years old. It did not seek child support in any particular amount: its proposed judgment regarding Nutt's parental obligations "reserved" the amount of monthly support. Nutt submitted a declaration in which he averred he is "unable to earn, nor does the prison system at my current incarceration offer me the availability of a job, in which I can earn minimum wage or otherwise pay for support of" the minor. Nutt admitted paternity, and testing established it. At the hearing on the County's motion to enter judgment on its complaint, the court found that paternity had been established and ruled Nutt is "going to be [in prison] until long after the child is emancipated, so unless he . . . starts receiving income of some sort, he is not going to be ordered to pay any money." However, the court granted the County's request for an order that Nutt provide health insurance coverage for the minor "should it become available at reasonable cost." The judgment entered thereafter ordered Nutt to pay child support, but reserved judgment on the amount. Nutt moved to modify the child support order. He asked that the child support case be "closed"and his theoretical obligation to pay support or health insurance costs in the future eliminatedbecause he has no money, no prison job, and no prospect of ever having one. The County responded that federal regulations prevent its closing this case. The court denied Nutt's motion. It reasoned that, although "as long as he remains incarcerated he will not have to provide child support," jurisdiction over the matter of future support should be reserved because "if by some unforeseen circumstance, he would be released before the child is 18, become employed, start earning income, then the County would be able to come back and collect child support. . . ." Likewise, "[t]he order for him to provide health insurance is only if it becomes available to him, which is not as long as he is in prison. He can't be ordered to pay health insurance as long as he is in prison." DISCUSSION Nutt was not ordered to pay any child support. Yet, he contends the trial court erred in reserving issues related to his obligation to pay child support or health care insurance. 993 (1) The statewide uniform guideline for determining child support permits the court, in lieu of using evidence of a parent's actual income, to impute income to a parent based on his or her earning capacity. "Earning capacity," in turn, requires that the parent have both the ability and the opportunity to work. Accordingly, a court may not impute income to an incarcerated parent in the process of calculating amounts owed in child support, absent evidence that he has the ability and opportunity to work in prison. (State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123 [83 Cal.Rptr.2d 229] (Vargas); see also In re Marriage of Smith (2001) 90 Cal.App.4th 74 [108 Cal.Rptr.2d 537].) Relying on Vargas, Nutt insists the court should have found him "exempt" from any obligation for support or health insurance by virtue of his incarceration. However, Vargas involved support obligations actually imposedand, presumably, accruing arrearagesduring the period of incarceration, despite a lack of evidence the incarcerated parent could generate an income to satisfy those obligations. (Vargas, supra, 70 Cal.App.4th at p. 1125.) Vargas did not involve what is at issue here: parental responsibility imposed in the abstract only, with no determination or imposition of any monthly obligation so long as the parent remains incarcerated. Accordingly, we do not consider Vargas authority for the proposition the trial court erred in this case. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689] [cases are not authority for propositions they do not consider].) Moreover, one case which followed Vargas suggests the court's action here was proper. In In re Marriage of Smith, supra, 90 Cal.App.4th 74, the husband and wife separated in 1997 after 16 years of marriage and two children. The superior court entered a judgment of decision upon a marital settlement agreement, by which the husband agreed to give the wife his one-half interest in a 401(k) retirement plan, to be credited toward his support obligation until the interest was exhausted. (Id. at pp. 77-78.) The support amount was based on the assumption that the husband was still working at his job, but in 1998, the husband pleaded guilty to federal child pornography charges and was incarcerated. (Id. at p. 78.) When the money from his 401(k) plan ran out the next month and his wife began working, the county moved to modify the husband's child support obligation. (Ibid.) The husband testified he had no job in prison and was unable to pay anything. (Ibid.) The county argued his obligation should continue nonetheless because he, rather than his family, should bear the burden of his criminal act. The superior court, citing Vargas, concluded the husband had zero earning capacity and suspended his support obligation. The county appealed; the Court of Appeal affirmed the order as consistent with the rule of Vargas. (Id. at pp. 82-87.) What the court did here is not unlike the trial court's action in In re Marriage of Smith, supra, 90 Cal.App.4th 74: both properly refrained from 994 imputing an income to an incarcerated parent in the calculation of child support obligations, and suspended the obligation to pay support during incarceration. Nutt is not, as he suggests, being held to a standard of implied or imputed earning capacity. The court instead accepted Nutt's declaration that he has no income, and he was not ordered to pay any support amount. Nor was he ordered to provide any health insurance coverage now; the court merely directed that he must do so in the future, if it becomes available to him at a reasonable cost. Under these circumstances, Nutt has shown no error. (2) Though perhaps unlikely, it is not impossible that Nutt will have the ability or opportunity in the future to generate an income with which he may provide some support or health insurance for his child. The court did not err in finding he has an obligation to do so, even if that obligation cannot be satisfied now. DISPOSITION The judgment is affirmed. Sims, Acting P. J., and Raye, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259955/	777 F.Supp. 319 (1991) William F. MANCHESTER, individually and on behalf of others similarly situated, Plaintiff, v. Janet C. RZEWNICKI, in her individual capacity and in her official capacity as Treasurer of the State of Delaware, Charles M. Oberly III, Esq., in his individual capacity and in his official capacity as Attorney General of the State of Delaware, Richmond L. Williams, Esq., Lawrence W. Lewis, Esq., James J. Hanley, Esq., Diane Jean Bartels, Esq., in their individual capacities and in their official capacities as Deputy 320 Attorneys General of the State of Delaware, Ralph K. Durstein III, Esq., Timothy H. Barron, Esq., Richard D. Flynn, Richard D. Fairbanks, Jr., and Betty J. Gleason, in their individual capacities only, and John/Jane Doe(s) of the Department of Finance and the Division of Accounting of the State of Delaware in their individual and official capacities, Defendants. Civ. A. No. 91-93-JLL. United States District Court, D. Delaware. October 30, 1991. 321 322 William F. Manchester, pro se. James J. Maxwell, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendants. MEMORANDUM OPINION LATCHUM, Senior District Judge. The plaintiff, a prisoner at the Delaware Correctional Center, has filed suit pro se against various Delaware State officials. The defendants have moved for dismissal of this action under Federal Rule of Civil Procedure 12(b)(6). In spite of the reams of documentation submitted and the liberal reading of this complaint in the plaintiff's favor, this Court has determined that the motion to dismiss must be granted. For the reasons set forth below, the plaintiff fails to state a claim upon which relief can be granted. Accordingly, the complaint must be dismissed. I. Relevant Factual Background The complaint appears to assert four claims for relief: (1) recovery of compensatory and punitive damages under 42 U.S.C. § 1983 for deprivations of his Constitutional rights[1]; (2) recovery for compensatory and punitive damages for violations of 18 U.S.C. § 1964 (1984 & Supp.1991) ("RICO"); (3) recovery for compensatory and punitive damages resulting from civil conspiracy/aiding and abetting a civil conspiracy under Delaware tort law[2]; and (4) either a writ, a permanent injunction, or any other equitable relief required to cease the allegedly illegal conduct at issue. (Docket Item ["D.I."] 2.) 323 Plaintiff alleges that the defendants conspired to provide free legal counsel to certain individuals, at public expense without compliance with and authorization of the law, and that this conspiracy harmed him personally as well as the public at large. The acts allegedly violated both his right to equal protection and to due process under the law as guaranteed in the fourteenth amendment, violated both his right to procedural due process and to substantive due process under the fifth amendment, undermined his expectation of and his right to a republican form of State government under article IV, § 4 of the United States Constitution, perpetuated his indigence and/or incarceration, and that the free legal representation unlawfully drained funds from the public treasury. (D.I. 2 et seq.) To understand the present "conspiracy," it is necessary to review the plaintiff's previous allegations of an underlying conspiracy.[3] The plaintiff believes that his state conviction for attempted murder is directly related to a conspiracy between state and federal law enforcement agencies investigating the Pagan Motorcycle Club. Allegedly, the individual whom he attempted to kill was an informant to an ongoing federal investigation. The plaintiff contends that his victim denied his role as an informant on the witness stand and that the Federal Government refused to produce information concerning the investigation. Therefore, the plaintiff contends that he lacked sufficient information to ensure thorough cross examination of the key witness against him, depriving him of his sixth amendment Constitutional rights. (D.I. 14, 29 Ex. A.) Once in prison, the "conspirators" allegedly harassed the plaintiff because of his accusations against them. (D.I. 38.) In accordance with his strong belief in a conspiracy against him, the plaintiff filed a series of civil rights lawsuits ("Previous Actions") against various state officials and the plaintiff's court appointed counsel. (D.I. 2 ¶¶ 12, 15, 20; 14.) The Delaware Department of Justice defended the defendants named in the Previous Actions, both "officially" and "unofficially," through the appointment of deputy attorneys general ("DAGs"). (D.I. 2 ¶¶ 5-8, 13, 13A, 14, 16-18, 21, 23.) The Delaware Department of Justice refused to appoint counsel for the plaintiff in the prosecution of his civil rights claims. Now the plaintiff contends: (1) that the DAGs were illegally appointed and that the DAGs knowingly and intentionally provided an illegal defense, (2) that the defendants unlawfully schemed and conspired to unlawfully represent the defendants in the Previous Actions, (3) that various high-ranking officials knew and declined to respond to the illegal appointments and representations, (4) that the same conspirators conspired to commit the same unlawful scheme in a variety of unrelated cases, and (5) that the conspirators used interstate mail and electronic wire services in furtherance of their alleged scheme. (D.I. 2 et seq.) Although it is not clear from the complaint, it is presumed that he lost all three Previous Actions. II. The Standard of Review The standard for deciding a Rule 12(b)(6) motion is whether, taking all factual allegations in the complaint as true, the complaint states a claim which would entitle the plaintiff to relief. Rule 12(b)(6); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Procter & Gamble Co. v. Nabisco Brands, Inc., 125 F.R.D. 405 (D.Del.1987) (citing D.P. Enterprises v. Bucks County Community College, 725 F.2d 943 (3d Cir.1984)). The facts alleged in the complaint, and all reasonable factual inferences drawn from those facts, are construed in the plaintiff's favor. Procter & Gamble Co. v. Nabisco Brands, Inc., 125 F.R.D. at 412. The issue is not whether the plaintiff will ultimately 324 prevail but whether he is entitled to present evidence in support of his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Additionally, pro se complaints are read with less stringent scrutiny than formal complaints drafted by lawyers, Rowe v. Cuyler, 534 F.Supp. 297 (E.D.Pa.), aff'd, 696 F.2d 985 (3d Cir.1982), and dismissal is a harsh remedy, to be used cautiously so as to promote the liberal rules of pleading and to protect the interests of justice. 5A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (1990); Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381 (5th Cir.1985), cert. dismissed, 486 U.S. 1027, 108 S.Ct. 2007, 100 L.Ed.2d 237 (1988). Motions to dismiss under Rule 12(b)(6) are particularly disfavored in civil rights litigation "where the law is in a continuing state of flux and where the facts in issue are often quite complex." Mahoney v. NOW, 681 F.Supp. 129, 135 (D.Conn.1987) (quoting Granville v. Hunt, 411 F.2d 9, 11 (5th Cir.1969)). Conclusory allegations, however, will not preclude dismissal. Overbroad, unsupported allegations amounting to "barebones inferences ... totally without fleshing" do not constitute a cause of action. Id. at 136; Signore v. City of McKeesport, 680 F.Supp. 200, 203 (W.D.Pa.1988), aff'd, 877 F.2d 54 (3d Cir.1989). The plaintiff must allege specific conduct violating the plaintiff's rights, the time and place of the conduct, and the identity of the responsible officials. Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). III. Lack Of Standing To Assert Third Party Claims The plaintiff lacks standing to assert third party claims in this Court on behalf of the public at large. The United States Supreme Court limits judicial power to litigants who can prove either: (1) an actual injury sustained, or (2) imminent danger of sustaining direct injury as a result of illegal conduct. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 477, 102 S.Ct. 752, 761, 70 L.Ed.2d 700 (1962); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Psychological consequence produced by the observation of disagreeable conduct is not sufficient to confer standing, even if the disagreement is couched in Constitutional terms. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. at 485-86, 102 S.Ct. at 765-66. "[S]tanding is not measured by the intensity of the litigant's interest or the fervor of his advocacy." Id. at 486, 102 S.Ct. at 766. Plaintiffs must assert their own legal interests rather than rest their claim on the legal interests of third parties. Id. at 474, 102 S.Ct. at 759-60. This general rule is relaxed only in a few narrow circumstances. United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524 (1960). Impairment of a third party's Constitutional rights, when they are without an effective remedy, may justify third party standing but judicial power in Article III is not unconditioned authority to determine the constitutionality of legislative or executive acts or to air generalized grievances about the conduct of government. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. at 471, 473, 475, 102 S.Ct. at 757-58, 759, 760. Here, the plaintiff does not allege that the traditional rule should be relaxed nor does he allege facts to justify relaxing the rule. The plaintiff merely seeks to air generalized grievances about the conduct and powers of the Delaware Attorney General on behalf of the public at large. Entertainment of this third party claim is impermissible. Even if the perceived impairment existed, the public is able to seek an effective remedy through the legislative process. Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976); Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680-81, 14 L.Ed.2d 510 (1965); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955); Darling Apartment Co. 325 v. Springer, 25 Del.Ch. 420, 22 A.2d 397, 403 (1941). The plaintiff also does not state a claim as a "citizen and a taxpayer of the State of Delaware and the United States for the past 37 years." (D.I. 1 ¶ 56.) "[A] federal taxpayer's `interest in the moneys of the Treasury ... is comparatively minute and indeterminable' and that `the effect upon future taxation, of any payment out of the [Treasury's] funds, ... [is] remote, fluctuating and uncertain." Flast v. Cohen, 392 U.S. at 92, 88 S.Ct. at 1948 (quoting Frothingham v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923)). The Due Process Clause does not protect taxpayers against mere increases in tax liability. Id. at 105, 88 S.Ct. at 1955. The alleged unconstitutional expenditure of public funds, to which the plaintiff contributes as a taxpayer, is not an injury sufficient to confer standing. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. at 477, 102 S.Ct. at 761. To maintain an action as a federal taxpayer, it must be proven that: (1) the taxpayer is injured by virtue of his/her tax liability under the statute in question, and (2) that the challenge involves the exercise of congressional power under art. I, § 8 of the United States Constitution in excess of the Constitutional limitations. Flast v. Cohen, 392 U.S. at 102, 88 S.Ct. at 1953-54; Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. at 478-79, 102 S.Ct. at 762. Only when these two elements are established will the litigant have proven that he has a stake in the outcome of the controversy and that he is an appropriate party to invoke federal jurisdiction. Flast v. Cohen, 392 U.S. at 103, 88 S.Ct. at 1954. Here, the plaintiff challenges a state law granting broad powers to the Delaware Department of Justice and the Attorney General but his challenge does not involve a tax liability due to impermissible congressional action under the federal Spending Clause. Thus, the plaintiff failed to establish that he has an interest in the controversy and has standing to challenge the statute. As a Delaware taxpayer, the plaintiff has a direct interest in the proper use and allocation of tax receipts. City of Wilmington v. Lord, 378 A.2d 635 (Del.Supr. 1977). While this interest may entitle him to challenge the improper use of public funds in state court, the plaintiff lacks jurisdiction to pursue this challenge in federal court. The authority and powers of the Delaware Attorney General does not constitute a federal question, there is no diversity of citizenship, and, as discussed infra, there is no federal claim upon which to exercise pendant jurisdiction. Therefore, the plaintiff lacks standing to assert third party claims on behalf of the public. IV. Failure To Allege Facts To Recover As A Matter Of Law The complaint asserts three substantive claims, two claims under two federal statutes and one claim based upon Delaware tort law. The plaintiff alleges specific conduct taken at a definite time and place by specified parties. However, the alleged facts do not sufficiently support the contention that the conduct was unlawful, improper, or violative of the plaintiff's rights. Thus, the complaint does not provide a sufficient factual basis to support the necessary elements for relief, as set forth below, so the law mandates dismissal of all three claims. A. The Plaintiff Fails to Assert Facts to Support a § 1983 Action Section 1983 permits private parties to bring civil actions for deprivation of their civil rights. Congress designed the statute to protect persons against the misuse of state power. Signore v. City of McKeesport, 680 F.Supp. at 203. The statute does not create new substantive rights but rather it provides redress for violations of the United States Constitution and certain federal statutes. Id.; 42 U.S.C. § 1983. The elements of a § 1983 action are: (1) a person (2) taking an action under the color of state law, (3) depriving another person of rights, privileges, or immunities. Id. 326 1. Lack of Action By a Person A State is not a "person" under § 1983 and a suit against state officials in their official capacities is a suit against their offices and, thus, is no different from a suit against the State itself. Will v. Michigan Dept. of State Police, 491 U.S. 58, 64, 71, 109 S.Ct. 2304, 2307-08, 2311-12, 105 L.Ed.2d 45 (1989). The plaintiff's complaint alleges unlawful conduct by Delaware officials acting in their official capacity and, in effect, asserts a § 1983 action against the State of Delaware itself. Therefore, the claims involving official actions must be dismissed against Mrs. Janet Rzewnicki, Treasurer of the State of Delaware; Mr. Charles Oberly, III, Attorney General of the State of Delaware; Mr. Richmond Williams, and Mr. Lawrence Lewis, and Mr. James Hanley, and Ms. Diane Jean Bartels, DAGs for the State of Delaware; and John/Jane Doe(s) within the Division of Accounting and the Department of Finance of the State of Delaware. 2. The Color of State Law Element Presumed Power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of state law." Scheuer v. Rhodes, 416 U.S. at 243, 94 S.Ct. at 1689-90 (citing United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). In the present case, all parties appear to agree that the decision to provide representation in the Previous Actions was made under the color of state law. (D.I. 2, 38, 39.) 3. The Complaint Alleges No Unlawful Action or Deprivation of Constitutional Rights Section 1983 requires the use of state authority to be unlawful. Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980) ("not every injury in which a state official has played some part is actionable under § 1983"). To state a § 1983 claim, the plaintiff must allege a causal link between the official conduct and the alleged deprivation. Signore v. City of McKeesport, 680 F.Supp. at 203. Moreover, good faith action, not violative of clearly established statutory or Constitutional rights of which a reasonable person would have known, taken in fulfillment of official responsibilities will not be punished. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Scheuer v. Rhodes, 416 U.S. at 247-48, 94 S.Ct. at 1691-92. Mere error in judgment when acting under the color of state law will not give rise to liability. "The concept of [qualified] immunity assumes [that officials may err] and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all." Scheuer v. Rhodes, 416 U.S. at 241-42, 94 S.Ct. at 1689. In the present case, the complaint merely disagrees with the discretionary exercise of power by the Delaware Department of Justice and the Delaware Treasurer's financial support of such a exercise. The plaintiff fails to allege facts sufficient to support the unlawfulness of the appointment of counsel or abuse of power. Moreover, the plaintiff has not alleged deprivation of any rights, privileges, or immunities which is causally linked to a misuse of state authority. a. Lawful Appointment of Counsel Under Delaware law, the Attorney General has broad powers, exercised as public interest requires, absent an express legislative restriction to the contrary. Darling Apartment Co. v. Springer, 22 A.2d at 403.[4] The Attorney General, as the State's legal representative, is "clothed not only with the power but also the duty to represent the State and its several departments in all litigation where the public interests are concerned...." Id. "[I]t is for the legislature, and not the courts, to declare the public policy of the state." Seth v. Delaware, 592 A.2d 436 (Del.Supr.1991). The Delaware legislature 327 has determined that public interest requires that State officials be protected from liability. DEL.CODE ANN. tit. 10 § 4001 et seq., and tit. 29 § 2504(3); Smith v. New Castle County Vocational-Technical School Dist., 574 F.Supp. 813, 819 (D.Del.1983) (Tort Claims Act applies to individual defendants). With respect to suits against officials in their official capacity, the legislature promises to provide State representation. The State Department of Justice and the Attorney General shall have the power, duty and authority to "represent as counsel in all proceedings or actions which may be brought on behalf of or against them in their official capacity in any court, except in actions in which the State has a conflicting interest, all officers, agencies, departments, boards, commissions and instrumentalities of state government ..." DEL.CODE ANN. tit. 29 § 2504(3) (emphasis added), and tit. 29 § 2507 (officials are prohibited from securing their own counsel); Darling Apartment Co. v. Springer, 22 A.2d at 404 (prerogative of Attorney General to provide representation). In the event that a conflict of interest exists, the official has the right to petition for representation under DEL.CODE ANN. tit. 10 § 3925 (Supp.1990). This statutory entitlement is clearly not negated simply by suing the officials in their individual capacities as well. Furthermore, otherwise private individuals may be represented by the State if appointed to assist the Attorney General in the performance of his duties. DEL.CODE ANN. tit. 29 § 2505, and tit. 10 § 4001; Seth v. Delaware, 592 A.2d 436 (Del.Supr. 1991). State representation for actions taken while acting on behalf of the state is not only fair, but it may be necessary to encourage professionals to accept such appointments. Obviously, the public interest does not depend upon whether the plaintiff technically sues the State official in his/her official capacity. In the absence of a legislative restriction, suing an official in his/her individual capacity alone will not preclude representation provided the action is taken under the color of state law. Neither the statutory framework nor the common law imposes such a technicality and other legislative enactments, granting qualified immunity and an entitlement to indemnification, indicate that no such technicality was intended. Not only is representation based upon the same underlying public policy as qualified immunity[5], but State representation concentrates such claims, ensures a knowledgeable and experienced representation, and conserves public funds. The plaintiff contends that § 3925 and Rule 68 control each and every civil case where a state employee is sued in his/her individual capacity. (D.I. 2 ¶¶ 24-45.) These provisions require a petition to the court for court-appointed representation. The record does not reflect such a petition and the plaintiff concludes that representation must have been illegal. Although the Court can find no discussion concerning the relationship between § 2504(3) and § 3925, this Court believes that the plaintiff's contention is erroneous and that it arises from a misunderstanding of the powers of the Attorney General. As support for this conclusion, the plaintiff cites Smith v. Town of Dewey Beach, 659 F.Supp. 752 (D.Del. 1987). In Smith, the complaint sued the Director of Parks and Recreation for the State of Delaware both in his official and individual capacity. The Director requested court appointed counsel under § 3925 and the Court granted this request, appointing a DAG to represent the Director. The Court in Smith did not pronounce that § 3925/Rule 68 is the exclusive method of securing representation or that it was intended to limit the Attorney General's powers, duties, and discretion in the area of representation of state officials. The language in Rule 68 reads "may petition" 328 rather than "shall petition" and repeatedly refers to "private counsel." It appears that § 3925 controls a situation where outside counsel is desired, in a conflict of interest situation or where a discretionary decision is made not to provide representation, rather than securing representation in the first instance. Given the facts of Smith, it is likely that the Director sought private court appointed counsel but § 3925 directed the Court to first look to the Department of Justice for representation. Because the Court found DAG representation to be appropriate, outside counsel was not appointed.[6] In the present case, the plaintiff sued seven of the defendants individually and officially. The official activities entitled the officials to representation in the Previous Actions, in spite of being named in their individual capacities, either by a DAG or a court appointed private attorney.[7] DEL.CODE ANN. tit. 10 § 3925; Rule 68. Therefore, appointment of representation was lawful as to Mrs. Rzewnicki, Mr. Oberly, Mr. Williams, and Mr. Lewis, and Mr. Hanley, and Ms. Bartels, and John/Jane Doe(s). Likewise, five additional defendants, named only as private persons, were properly and lawfully represented by the state because the alleged unlawful acts apparently arose from their state appointment/employment. Mr. Ralph Durstein, plaintiff's court appointed counsel in the underlying criminal trial, was sued in the Previous Actions due to alleged unlawful acts within the scope of his court appointment. Mr. Richard Flynn, a Delaware police officer, was sued in the Previous Actions for alleged unlawful acts within the scope of his investigation of the underlying criminal action. Mr. Timothy Barron[8], a DAG, was sued in the Previous Actions for alleged unlawful actions within the scope of prosecuting the plaintiff in the underlying criminal action. Mr. Richard D. Fairbanks, Jr., also a DAG, was sued both in his individual and official capacities in a Previous Action presumably due to alleged unlawful acts within the scope of his official duties. Ms. Betty Gleason, a court reporter for the Delaware Superior Court, was sued within the scope of her official duties of transcribing the underlying criminal trial and sending the transcript up for appeal. Therefore, appointment of representation was lawful as to Mr. Durstein, Mr. Flynn, Mr. Barron, Mr. Fairbanks, and Ms. Gleason. Therefore, even taking all allegations as true, the plaintiff cannot state a § 1983 claim for which relief can be granted. An action against the State of Delaware through its officials acting in their official capacity is barred; the public interest mandated the defense of all defendants because the suits arose in connection with actions taken on behalf of the state; State representation was well within the powers, duties and authority of the Attorney General in furtherance of the public interest even though the complaint technically does not sue all defendants in their official capacity. 329 Accordingly, the counts pertaining to these defendants must be dismissed. b. No Deprivation of Constitutional Rights The complaint also fails to explain any deprivation of any Constitutional rights. He does not claim that he was denied access to the courts or that the Previous Actions were procedurally flawed. The plaintiff only alleges that the defendants had an unfair advantage because they were represented by counsel but he cites no cases to support the theory that lawful representation which creates an "unfair advantage" constitutes a Constitutional deprivation. He does not allege any facts that "shock the conscience" of this Court, involving either a high degree of harm or culpability, or deprivation of a well-defined right to property or liberty. The plaintiff fails to claim that the Attorney General's powers unfairly distinguished between classes of people, that indigence or incarceration are protected classes which would force strict scrutiny of such powers, or that state representation of people acting on behalf of the state but not people unrelated to the state is irrational or unfair. He does not allege that other indigent prisoners are entitled to counsel in civil actions and that he was subjected to different treatment. Lastly, he does not contend that our republican form of state government has been destroyed. In other words, the facts outlined in the complaint and all reasonable inferences therefrom do not state a Constitutional deprivation for which the plaintiff is entitled to relief under § 1983.[9] B. The Plaintiff Fails to Allege Facts to Support a RICO Action A RICO action requires injury to one's business or property. 18 U.S.C. § 1964(c); Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d Cir.1987). The plaintiff appears to believe that he had a property right in compensatory damages from the Previous Actions but fails to cite to common law or statutory law to support his curious logic. He reasons that if defendants were not represented by counsel, they would not have litigated the claim and a default judgment would be rendered against them. Therefore, the representation deprived him of three default judgments from the Previous Actions, to which he was entitled, and this constituted a property right. This Court agrees with defense counsel that this argument must be rejected. (D.I. 29 ¶ 13.) If DAG representation had not been granted, the defendants were entitled to petition for a court appointed private attorney under § 3925. Even if appointment of counsel had been denied, the plaintiff fails to explain why the defendants would not have litigated the claims pro se or why he was entitled to a default judgment as a matter of law. Any defense, no matter how weak, would force the Court to decide the case on its merits and, if the plaintiff had been successful, he would have secured a judgment rather than a default judgment. Obviously, the plaintiff is not "entitled" to a default judgment so there is no injury to "property" alleged in the complaint and this deficiency precludes relief under the RICO statute. Therefore, the plaintiff fails to state a claim for which relief can be granted.[10] C. The Plaintiff Fails to Allege Facts to Support a Civil Conspiracy This Court lacks jurisdiction to hear any actions under Delaware tort law. There is no federal question at issue, no *330 diversity of citizenship, and, as discussed supra, no federal cause of action to adjudicate the state-created claim by an exercise of pendant jurisdiction. Even if this Court had jurisdiction, the claim would still have to be dismissed because the necessary elements of civil conspiracy have not been met. Under Delaware law, a civil conspiracy requires: (1) a confederation or combination of two or more persons, (2) unlawful acts in furtherance of the conspiracy, and (3) actual damage. Nicolet, Inc. v. Nutt, 525 A.2d 146, 149-50 (Del.1987); Weinberger v. Rio Grande Industries, Inc., 519 A.2d 116 (Del.Ch.1986) (in a civil context, "aiding and abetting" is synonymous with "civil conspiracy"). As discussed supra, the complaint fails to allege unlawful/wrongful conduct, property damage, deprivation of Constitutional rights, or any other type of damage. V. Equitable Relief Is Inappropriate Under The Present Facts The plaintiff is requesting three forms of equitable relief. However, this Court finds no basis for relief either under the substantive law or as a matter of equity. The plaintiff clearly has failed to state a claim that entitles him to relief under § 1983, RICO, or Delaware tort law. This Court previously ruled that there is no irreparable harm to the plaintiff in this case and now reaffirms this previous ruling. (D.I. 18, 33.) With respect to injunctive relief on behalf of the general public, Centifanti v. Nix, 865 F.2d 1422, 1429-30 (3d Cir.1989), this Court further rules that there is no irreparable harm to the public and, again, refuses to grant injunctive relief. VI. Conclusion The plaintiff's complaint must be dismissed in its entirety for failure to state a claim which would entitle him to relief. The plaintiff lacks standing to assert federal third party claims, he fails to present facts to indicate that the State representation was unlawful and improper, he fails to allege facts to show an abuse of governmental power or resources, and he offers no factual support for an injury or deprivation of his rights. Thus, even taking all allegations in the complaint as true and liberally construing the facts and reasonable inferences in the plaintiff's favor, he cannot prove facts to support claims under § 1983, RICO, civil conspiracy claims, or any other legal theory for which relief can be granted. Moreover, in this Court's discretion, equitable relief is not appropriate under the facts and circumstances of this case. Therefore, the defendant's motion to dismiss will be granted and the plaintiff's motion for summary judgment will be denied. NOTES [1] 42 U.S.C. § 1983 (1981). The plaintiff correctly states that the federal district court has jurisdiction under 28 U.S.C. § 1343(3) and 28 U.S.C. § 1331(a). Examining Bd. of Engineers, Architects & Surveyors v. Flores De Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) (§ 1343 complements § 1983); Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972) (no conflict between § 1343(3) and § 1331). [2] The civil conspiracy counts, clearly separate and distinct from the plaintiff's RICO claims (D.I. 2 ¶¶ 68-76), are not supported by specific statutory or common law authority. Not only does the plaintiff fail to invoke a federal conspiracy statute, i.e. § 1985, but he omitted reference to § 1985 when quoting other statutes. This Court presumes that the civil conspiracy cause of action is to be under Delaware law. [3] (D.I. 14.) The factual basis for these claims is scattered throughout the voluminous record. Given the plaintiff's pro se status and the liberal pleading rules, this Court attempts to piece together a factual basis for the plaintiff's assertions from his previous filings in prosecuting the current claim. This Court does not express an opinion as to the merits of the underlying conspiracy. [4] Plaintiff has a distorted interpretation of this case. Darling does not give the judiciary the express duty and authority to approve or disapprove of legal representation in every single case. (D.I. 39 at 32.) [5] See DEL.CODE ANN. tit. 10 §§ 4001-4002; Smith v. New Castle County Vocational-Technical School Dist., 574 F.Supp. at 820-21 (seeks to discourage lawsuits which chill the exercise of decision-making authority). Given that claims run against the innocent as well as the guilty, the fear of suit will "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties." Harlow v. Fitzgerald, 457 U.S. at 814, 102 S.Ct. at 2736 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950). Qualified immunity permits quick termination of insubstantial suits and State representation eases the fear of suit. [6] Section 3925 and § 2504(3) appear to favor DAG representation. Both procedures appear to be consistent with the underlying public policy of protecting State of Delaware officials in the most cost effective method possible. [7] The plaintiff offers no authority that the mere existence of DAG defendants constitutes a conflict of interest, that suit against high-ranking government officials automatically creates a conflict of interest, or facts to suggest that such a conflict of interest existed. It appears that the plaintiff simply disagrees with the Attorney General's discretionary judgment but the statutory framework does not protect third parties who are dissatisfied by how such discretion is exercised. This Court lacks both the authority and the desire to second guess the Attorney General's exercise of professional judgment, especially when the Chief Judge of this Court refused to strike representation after reviewing the appointment. (D.I. 29 Ex. B.) [8] Mr. Barron may also enjoy absolute immunity under Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994-95, 47 L.Ed.2d 128 (1976). The parties did not brief this issue so it is not discussed in this opinion. [9] Also, this Court agrees with defense counsel that the § 1983 suit appears to be barred by the statute of limitations. [10] Although the lack of injury sufficiently precludes the plaintiff's RICO action, this Court also notes that the plaintiff's conclusory statements of an unlawful pattern of racketeering activity is insufficiently supported by the facts. Under the state and federal statutes cited (D.I. 2 ¶ 53), the complaint discusses no facts from which criminal charges could be brought, evidence of ongoing investigations into possible charges, or convictions under these statutes. Also, mere representation does not constitute "racketeering activity" under RICO, 18 U.S.C. § 1961(1), and it appears that any RICO action, no matter how legitimate, would be barred in this case by the four-year statute of limitations.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259957/	167 Cal.App.4th 1267 (2008) GLOBALIST INTERNET TECHNOLOGIES, INC., Plaintiff and Appellant, v. ALBERT R. REDA et al., Defendants and Respondents. No. G039795. Court of Appeals of California, Fourth District, Division Three. October 28, 2008. 1269 Hamburg, Karic, Edwards & Martin, Steven S. Karic and Fredric R. Brandfon for Plaintiff and Appellant. Law Offices of Scott E. Schutzman, Scott E. Schutzman and Lee W. Chen for Defendants and Respondents. OPINION O'LEARY, J. Code of Civil Procedure section 685.040,[1] provides that when a judgment awards attorney fees pursuant to a contract, the postjudgment attorney fees incurred by the judgment creditor in "enforcing" the judgment are included as recoverable costs. In this case, we are asked to consider whether attorney fees expended by a judgment creditor in successfully defending itself in a separate action filed against it by the judgment debtor, which had as its sole purpose the specific enforcement of an alleged agreement to settle the judgment debt at a substantial reduction, are attorney 1270 fees expended by the judgment creditor in enforcing the judgment. We conclude they are, and reverse the trial court's postjudgment order taxing the judgment creditor's postjudgment costs. FACTS 1. The Underlying Litigation and Judgment for Globalist In this case, Globalist Internet Technologies, Inc. v. Iron Horse Holdings Inc. (Super. Ct. Orange County, 2003, No. 01CC08369) (hereafter Globalist v. Iron Horse), Globalist Internet Technologies, Inc. (Globalist), successfully sued Albert R. Reda, Seamless Wi-Fi, Inc., a corporation formerly known as Internet Business's International, Inc. (and hereafter referred to as IBI), and Iron Horse Holdings, Inc. (Iron Horse), a company that held an ownership interest in IBI, for breach of contract and fraud arising out of the sale of two Internet Web sites by Globalist to IBI and Iron Horse. The final judgment, entered in July 2003, awarded Globalist compensatory damages of $136,799.86 against Reda, IBI, and Iron Horse jointly and severally, and punitive damages of $136,799.86 against Reda and IBI. The judgment awarded Globalist attorney fees of $88,972 as authorized by the contract. On May 4, 2005, we filed our first opinion in this case reversing the award of punitive damages against Reda only, but otherwise affirming the judgment and awarding Globalist its costs on appeal. (Globalist Internet Technologies, Inc. v. Iron Horse Holdings Inc. (May 4, 2005, G032813) [nonpub. opn.] (hereafter Globalist I).)[2] Remittitur was issued on July 11, 2005. On March 30, 2006, the trial court amended the judgment in this case to include Globalist's attorney fees incurred on the appeal ($22,800), and its attorney fees incurred through January 19, 2006, to enforce the judgment ($59,162). Also on May 4, 2005, we filed a second opinion affirming a judgment in favor of Soreena Salari (owner of Globalist), and his attorneys, in a separate malicious prosecution action filed against them by Reda (Reda v. Salari, supra, G033971), following a successful "anti-SLAPP" (strategic lawsuit against public participation) motion (hereafter the SLAPP suit). (§ 425.16.) We awarded Salari and his attorneys their costs and attorney fees on that appeal.[3] 1271 While this case and the SLAPP suit were pending in the trial court, Globalist filed a separate action in Los Angeles County Superior Court against some of Reda's business associates who were involved in the same business transactions underlying this case. (Globalist Internet Technologies v. Wilson (Super. Ct. L.A. County, 2005, No. BC317416); hereafter the Los Angeles action.) 2. Settlement Negotiations While the first appeal in this case and the SLAPP suit appeal were pending in this court, the litigants were also engaged in a global mediation of the entire dispute before retired Judge William Sheffield. The mediation apparently was prompted by the filing of the Los Angeles action, but the parties included Reda and IBI, who were not parties to the Los Angeles action. On February 7, 2005, a handwritten stipulation for settlement was signed by the parties to the mediation. Among the outlined terms were that Reda and IBI would pay Globalist $75,000, another individual defendant in the Los Angeles action would pay Globalist $25,000 and would assist in selling three properties owned by Iron Horse the proceeds from which would go to Globalist, and Globalist would release all of its claims against all of the parties. But negotiations over the terms of the final settlement and release agreement broke down and a final agreement was not executed. 3. Reda and IBI's Litigation Efforts to Enforce Settlement Reda and IBI then undertook a series of litigation actions to enforce the February 7, 2005, handwritten stipulation against Globalist as concerned only themselves and the judgment in this case. On March 30, 2005, in the then still pending first appeal in this case (Globalist I), Reda and IBI filed a motion in this court pursuant to section 664.6 to enforce the settlement. We declined to consider the motion concluding that because there was already a final judgment, the statutory procedure was likely not appropriate. We also concluded the enforceability of the handwritten stipulation involved evidentiary determinations best made by the trial court. (Globalist I, supra, No. G032813.) After remittitur issued in Globalist I, Reda and IBI filed a motion in the trial court under section 664.6 to enforce settlement. In December 2005, the 1272 trial court denied that motion, ruling because there was a final judgment in this case, there was no "pending litigation" to settle pursuant to that statutory procedure.[4] In January 2006, Reda and IBI filed a separate action against Globalist for breach of contract seeking specific performance of the February 7, 2005, handwritten stipulation as to them. (Reda v. Globalist Internet Technologies, Inc. (Super. Ct. Orange County, 2007, No. 06CC02588) (hereafter Reda v. Globalist).) In the Reda v. Globalist complaint, Reda and IBI alleged the February 7, 2005, handwritten stipulation constituted a settlement of this case (i.e., Globalist v. Iron Horse, supra, No. 01CC08369) as to them. Reda, IBI and Globalist stipulated to submit Reda v. Globalist to binding arbitration before Judge Sheffield. In a written arbitration award signed on April 17, 2007, Judge Sheffield ruled the February 7, 2005, handwritten stipulation was not an enforceable settlement agreement. Not only had Reda and IBI repudiated the terms of the stipulation when they subsequently lowered their settlement offer from $75,000 to $20,000, but Globalist would not be able to receive the full benefits of the agreement because as it turned out the Iron Horse properties (that were to be sold for Globalist's benefit) were too heavily encumbereda fact that apparently had not been disclosed to Globalist during negotiations. The arbitrator awarded Globalist costs ($7,468.65), but the award made no mention of Globalist's attorney fees (which had not been requested by Globalist in the arbitration). The trial court denied Reda and IBI's subsequent motion to vacate the arbitrator's award and granted Globalist's petition to confirm the award. On July 12, 2007, a judgment was entered in Globalist's favor in Reda v. Globalist, supra, No. 06CC02588. Reda and IBI appealed, and we affirmed the judgment. (Reda v. Globalist Internet Technologies, Inc., supra, G039232.) 4. The Order on Appeal On September 18, 2007, Globalist filed a memorandum of costs in the trial court in this case (i.e., Globalist v. Iron Horse, supra, No. 01CC08369). It claimed an additional $134,032.67 in attorney fees pursuant to section 685.040, which it asserted were incurred in enforcing the judgment since January 19, 2006. Included in its cost bill was $107,561 in attorney fees 1273 incurred by Globalist in defending itself in Reda v. Globalist, supra, No. 06CC02588. The other attorney fees related to Globalist's efforts at registering the judgment in another state and its continued attempts to locate Reda's and IBI's assets. Reda and IBI filed a motion to tax all of Globalist's additional attorney fees. The trial court denied Globalist's request for attorney fees incurred in defending Reda v. Globalist, supra, No. 06CC02588, but allowed the other attorney fees Globalist sought. The trial court concluded attorney fees incurred in defending Reda v. Globalist, supra, No. 06CC02588, were not attorney fees "incurred in `enforcing' the judgment[]" in this case, Globalist v. Iron Horse, supra, No. 01CC08369. In its minute order, the court noted that even though the alleged settlement encompassed this action, it "arose out of a separate action filed by [Globalist]," and Reda and IBI were attempting to enforce a settlement reached in the other action. The court concluded attorney fees Globalist incurred in defending Reda and IBI's separate specific performance action were not incurred in enforcing the judgment in this action and could not be recovered in this case. DISCUSSION Globalist contends the trial court erred by denying its claim for attorney fees incurred defending itself in Reda v. Globalist, supra, No. 06CC02588. We agree. The usual standard of review for an award of attorney fees is abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175 [39 Cal.Rptr.3d 788, 129 P.3d 1].) But whether the trial court had the authority to award attorney fees is a legal issue which we review de novo.[5] (37 Cal.4th at p. 1175.) (1) Section 685.040 provides that when a judgment includes an award of attorney fees pursuant to a contract, then "[a]ttorney's fees incurred in enforcing [the] judgment are included as costs collectible . . . ."[6] An award of such postjudgment attorney fees under section 685.040 is not, however, based 1274 on the contract. As explained in Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1770 [31 Cal.Rptr.2d 224], "When a party recovers a judgment for breach of contract, entry of the judgment absolves the defendant of any further contractual obligations, and the judgment for damages replaces the defendant's duty to perform the contract. [Citation.] Upon entry of judgment, all further contractual rights are extinguished, and the plaintiff's rights are thereafter governed by the rights on the judgment, not by any rights which might have been held to have arisen from the contract. [Citation.]" Postjudgment attorney fees are recoverable costs under section 685.040 if the fees were "incurred in enforcing a judgment" that contained an award of attorney fees pursuant to a contract. A judgment creditor may claim such costs via a memorandum of costs filed before the judgment has been "fully satisfied but not later than two years after the costs have been incurred." (§ 685.070, subds. (a)(6), (b).) The requisites were met here. The judgment in this case contained an award of contract attorney fees. Globalist incurred attorney fees in enforcing the judgment by defending the judgment from attack against its enforcement in the companion case of Reda v. Globalist, supra, No. 06CC02588. And Globalist's memorandum of costs was timely filed. The trial court's conclusion that Globalist could not obtain attorney fees in this case for defending Reda v. Globalist, supra, No. 06CC02588, was incorrect. To the extent the court concluded Reda v. Globalist, supra, No. 06CC02588, was filed to enforce the alleged settlement of a different action (i.e., the Los Angeles action) it was factually incorrect. Reda and IBI were not parties to the Los Angeles action. Although the mediation arose in the context of the Los Angeles action, the proposed settlement was global, and would have encompassed the judgment in this case. Indeed, the complaint in Reda v. Globalist, supra, No. 06CC02588, specifically alleged only this case as being the subject of the alleged settlementit made no mention of the Los Angeles action. (2) The trial court's conclusion the attorney fees could not be recovered because they were incurred in a different action than this action was also incorrect. The statute authorizes an award of "[a]ttorney's fees incurred in enforcing a judgment." Neither section 685.040, nor the Enforcement of Judgments Law of which it is a part, ascribe any special meaning to the word "enforcing." (See § 680.010 et seq.) The plain meaning of the word necessarily suggests "enforcing a judgment" would include defending the validity of the judgment against challenge in a separately filed attack. (See DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [7 Cal.Rptr.2d 238, 828 P.2d 140] [plain meaning of words in statute disregarded only when meaning is "`"repugnant"'" to purpose of act or for some other compelling reason].) For example, in Worth v. Superior Court (1989) 207 Cal.App.3d 1150, 1275 1154-1155 [255 Cal.Rptr. 304], the court concluded a statute authorizing the district attorney to "enforce" child support orders encompassed "`reinforc[ing]'" or "`urg[ing]'" the validity of such orders by opposing efforts by the payor to reduce or eliminate the payments. (3) Attorney fees incurred in one action may be considered necessary litigation costs in another. The recent decision in Jaffe v. Pacelli (2008) 165 Cal.App.4th 927 [82 Cal.Rptr.3d 423] (Jaffe), is on point. In Jaffe, a judgment against the judgment debtor that included an award of attorney fees was entered in 1996 in the underlying action. By 2003, the unpaid judgment exceeded $900,000, and the judgment creditor had endeavored to enforce his judgment to no avail. In 2004, the judgment debtor filed for bankruptcy listing the underlying judgment as her only debt to be discharged. Thereafter, the judgment creditor filed an adversary proceeding in the bankruptcy court and eventually succeeded in having the bankruptcy petition dismissed. (Id. at p. 931.) The judgment creditor then sought his attorney fees and costs related to litigating the bankruptcy proceeding in the underlying action pursuant to section 685.040 as being incurred to enforce the underlying judgment. The trial court denied the request reasoning that the bankruptcy proceeding was a separate proceeding, it did not involve directly defending the underlying judgment, and any award of attorney fees related to the bankruptcy proceeding should have been sought by the judgment creditor in the bankruptcy court. The appellate court reversed the trial court's order agreeing with the judgment creditor "that pursuant to section 685.040 he [was] entitled to an award of attorney fees and costs for the efforts he expended in combating [the judgment debtor's] bankruptcy attempt." (Jaffe, supra, 165 Cal.App.4th at p. 934.) The court reasoned, "[the judgment creditor's] request for attorney fees and costs is based upon the actions he took in the bankruptcy proceedings. The determination of whether section 685.040 entitles [him] to attorney fees and costs incurred in the bankruptcy proceedings is not dependent upon the forum in which the expenses were incurred." (Jaffe, supra, 165 Cal.App.4th at p. 936, fn. omitted, italics added.) The judgment creditor in Jaffe met the requisites of section 685.040: (1) the underlying judgment awarded attorney fees and costs pursuant to a contract; and (2) the attorney fees were incurred to enforce that judgment. "[T]he entire purpose of [the judgment debtor's] bankruptcy filing, and her related appeals, was to avoid paying the judgment which [the judgment creditor] sought to enforce. [The judgment debtor] sought to sabotage [the judgment creditor's] collection efforts. [The judgment creditor] filed the adversary proceeding seeking a determination that [the judgment debtor] was not entitled to have her debts discharged in bankruptcy. Had [the judgment 1276 debtor] been successful in the bankruptcy proceedings, the judgment in the superior court would have been extinguished and unenforceable by the bankruptcy court's discharge order. [Citation.] [The judgment creditor's] preventive measures were directly related to the continued enforceability of the superior court's [1996] judgment . . . . [His] actions in the bankruptcy proceedings were necessary in order to maintain, preserve, and protect the enforceability of the judgment. [The judgment creditor] successfully blocked [the judgment debtor's] efforts to have the debt discharged by the bankruptcy court and [he] protected the judgment. [The judgment creditor's] actions in the bankruptcy proceedings are enforcement proceedings pursuant to section 685.040." (Jaffe, supra, 165 Cal.App.4th at p. 938.) The court concluded that to deny the judgment creditor his attorney fees and costs incurred in the bankruptcy "would encourage judgment debtors to file bogus bankruptcy petitions and potentially escape paying for the attorney fees and costs incurred by the creditors in combating those petitions." (Ibid., fn. omitted.) (4) As in Jaffe, Globalist's right to recover attorney fees does not depend on the nature of the action or the forum in which the expenses were incurred. The inquiry compelled by section 685.040 is whether the attorney fees were incurred "in enforcing a judgment" containing an award of contract attorney fees. They were. The sole purpose of the specific performance action filed by Reda and IBI was to significantly decrease their unsatisfied judgment debtor obligations in this action. By the time Reda v. Globalist, supra, No. 06CC02588, was filed, Reda and IBI owed Globalist over $444,600 (not including accrued interest) on this judgment. Their action sought specific performance of an alleged settlement of the judgment for $75,000 or about one-sixth of what was owed. Had Globalist not defended against the specific performance action, it would have lost substantial rights under the judgment in this case. Accordingly, the attorney fees it incurred in defense of the companion action were incurred in enforcing the judgment. In their respondents' brief, Reda and IBI assert Globalist's appeal "border[s] on frivolous" because the "law is well settled" that Globalist's failure to specifically request attorney fees in the arbitration proceeding waives any claim it might have. Reda and IBI cite none of this "well[-]settled" law, and their brief contains no legal analysis of the contention. Accordingly, we need not consider the point. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [21 Cal.Rptr.2d 834].) We take no position on whether Globalist is entitled to all of the attorney fees incurred by Globalist in defending Reda v. Globalist, supra, No. 06CC02588. The trial court is in a better position to determine on remand if the attorney fees sought are reasonable. (See Phelps v. Stostad (1997) 16 Cal.4th 23, 33, fn. 7 [65 Cal.Rptr.2d 360, 939 P.2d 760].) *1277 DISPOSITION The postjudgment order taxing costs is reversed insofar as it denies Globalist attorney fees incurred in defending Reda v. Globalist, supra, No. 06CC02588. In all other respects, the order is affirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Globalist is awarded its costs on appeal. Sills, P. J., and Aronson, J., concurred. NOTES [1] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated. [2] Globalist's unopposed request we take judicial notice of our opinions in Globalist Internet Technologies, Inc. v. Iron Horse Holdings Inc., supra, G032813, Reda v. Salari (May 4, 2005, G033971) (nonpub. opn.), and Reda v. Globalist Internet Technologies, Inc. (July 8, 2008, G039232) (nonpub. opn.) is granted. (Evid. Code, § 452, subd. (d).) [3] Apparently there was another action filed by IBI against Salari and his attorneys, Internet Business's International v. Salari (Super. Ct. Orange County, 2005, No. 04CC07215). An appeal by IBI (case No. G034986) was dismissed without opinion by this court in 2005 due to IBI's failure to deposit costs for preparation of the record. [4] Section 664.6 provides, "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." (Italics added.) [5] An order denying a postjudgment motion for an award of attorney fees and expenses incurred in enforcing a judgment is appealable. (§ 904.1, subd. (a)(2); Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 648, 656 [25 Cal.Rptr.2d 109, 863 P.2d 179].) [6] Section 685.040 reads in full: "The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of [s]ection 1033.5."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259967/	288 Md. 656 (1980) 421 A.2d 576 DANIEL HOPE, JR. ET AL. v. BALTIMORE COUNTY, MARYLAND ET AL. [No. 9, September Term, 1980.] Court of Appeals of Maryland. Decided October 27, 1980. The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ. C. Victor McFarland, with whom was Louis J. Weinkam on the brief, for appellants. John A. Austin, Assistant County Solicitor, with whom was Leonard S. Jacobson, County Solicitor, on the brief, for appellee Baltimore County, Maryland. Charles B. Heyman, with whom were Ellen W. Fales, and Kaplan, Heyman, Greenberg, Engelman & Belgrad, John Martin Jones, Jr., Mark Pollak and Piper & Marbury on the brief, for other appellees. SMITH, J., delivered the opinion of the Court. We shall here hold that because Baltimore County Charter § 601 created and established a county board of appeals implementing Maryland Code (1957) Art. 25A, § 5 (U), a party aggrieved by the approval or disapproval of a subdivision plat in that county must appeal to that county's board of appeals and may not appeal directly to the circuit 658 court. Hence, we shall affirm the judgment of the Court of Special Appeals in Hope v. Baltimore County, 44 Md. App. 481, 409 A.2d 753 (1980), which in turn affirmed a similar determination in the Circuit Court for Baltimore County (Raine, C.J.). Appellants, Daniel Hope, Jr., et al., appealed to the Circuit Court for Baltimore County from the decision of the county's planning board approving a final subdivision plat called "Walden Pond" submitted by one of the appellees here. Hope invoked the provisions of Baltimore County Code (1968) § 22-38 which provides that "any person ... aggrieved by the action of the planning board on final plats of subdivisions under section 22-37" may appeal to the circuit court "within thirty days after the date of action by the planning board." A similar provision appeared in Baltimore County Code (1958) § 23-26. It had its genesis in Chapter 610 of the Acts of 1955, being enacted as § 466 of the Code of Public Local Laws of Baltimore County before home rule came to that county. Chief Judge Raine in the Circuit Court for Baltimore County dismissed the appeal from the approval of the subdivision plat, saying in pertinent part: I have no alternative except to rule that as a matter of law Section 22-38 of the Baltimore County Code is a nullity. It is void because it is in direct conflict with the Baltimore County Charter. It cannot be used as a vehicle to obtain judicial review of Planning Board action, and, therefore, the appeal of the persons who are aggrieved by their decision must be dismissed. * * All those comments are gratuitous and parenthetical. All that this court is deciding today in this case is that the County Charter provides an exclusive right for appeal from any planning or zoning administrative or adjudicatory order. The Charter provision providing that exclusive 659 right conflicts with Section 22-38 of the Baltimore County Code, and the latter must yield to the Charter provisions, the Charter being our organic law. If the Charter needs to be changed, if somebody wants to do something inconsistent with present Charter provisions, the people have to amend the Charter. The County Council has no power to pass legislation which is not in accord with the County Charter. That's a fundamental concept. Baltimore City and the twenty-three counties of Maryland are authorized by Maryland Constitution Art. XI-A to adopt home rule. Pursuant to that authorization a charter was adopted by the people of Baltimore County on November 6, 1956. Constitution Art. XI-A, § 2 required the General Assembly "at its first session after the adoption of [the home rule] amendment... by public general law [to] provide a grant of express powers for such County or Counties as m[ight] thereafter form a charter under the provisions of [Article XI-A]." This grant of express powers is found in Code (1957) Art. 25A. Section 5 of that article "enumerate[s] express powers [which] are ... granted to and conferred upon any county or counties which ... form a charter under the provisions of said Article 11A of the Constitution...." Subsection (U) provides in pertinent part that counties have power: To enact local laws providing (1) for the establishment of a county board of appeals whose members shall be appointed by the county council; . .. and (4) for the decision by the board on petition by any interested person and after notice and opportunity for hearing and on the basis of the record before the board, of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of, or subject to amendment or repeal by, the county council, as 660 shall be specified from time to time by such local laws enacted under this subsection: ... the issuance, renewal, denial, revocation, suspension, annulment, or modification of any ... approval . .. or other form of permission or of any adjudicatory order.... Any person aggrieved by the decision of the board and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision.... Any party to the proceeding in the circuit court aggrieved by the decision of the said court may appeal from such decision to the Court of Special Appeals. The review proceedings provided by this subsection shall be exclusive. Section 601 of the County charter says, "There is hereby created and established a county board of appeals...." Its powers and functions are spelled out in § 602 which states in relevant part: The county board of appeals shall have and may exercise the following functions and powers, which are hereby severally transferred from the board of zoning appeals, the board of license appeals and the county commissioners: (a) Appeals from orders relating to zoning. ... (b) Appeals from orders relating to licenses. ... (c) Appeals from orders relating to building. ... (d) Appeals from executive, administrative and adjudicatory orders. The county board of appeals shall hear and decide appeals from all other administrative and adjudicatory orders as may from time to time be provided by Article 25A of the Annotated Code of Maryland (1951 Edition), as amended, or by legislative act of the county council not inconsistent therewith. An aggrieved party is permitted by § 604 to appeal to the 661 circuit court. A further right of appeal is provided for a party aggrieved by the decision of the circuit court. In their effort to upset the decision of the Court of Special Appeals and that of the Circuit Court for Baltimore County, Dr. Hope and his group argue (1) that § 22-38 of the Baltimore County Code "is entitled to a presumption in favor of its validity"; (2) that enactment of § 602 of the County charter did not preclude the enactment of § 22-38 of the Baltimore County Code; (3) that the provisions of Art. 25A, § 5 (U) do not invalidate Baltimore County Code § 22-38; (4) that assuming that § 22-38 was enacted subsequent to the Baltimore County charter, pursuant to Art. 25A, § 5 (X) it would be valid, and (5) that the decision of the Court of Special Appeals affirming the decision of the lower court that § 22-38 was void "destroyed the right of appeal from any adverse decision of the Planning Board." We shall dispose of the first and last points at the beginning. We have said many times that statutes are presumed to be valid. Such presumption, however, does not prevent our striking down a statute when its invalidity is perceived, notwithstanding the passage of time. See, e.g., the comments for this Court of Chief Judge Boyd and Judge Pearce, respectively, in Somerset Co. v. Pocomoke Bridge Co., 109 Md. 1, 8, 71 A. 462 (1908), and Arnsperger v. Crawford, 101 Md. 247, 258, 61 A. 413 (1905). It is suggested that "[t]he contemporaneous construction of the Circuit Court for Baltimore County, in considering Section 22-38 before and after the adoption of the Baltimore County Charter" should shield that section from being struck down. No authority in support of that proposition is cited. Such is not the law. We point out that the elapsed time between enactment and court decision here is not nearly so long as that in the case of Code (1951) Art. 75, § 118 providing that in the matter of removal of cases for trial from one court to another the cost of the transcript of record should "be paid to the clerk making the same, by the party suggesting such removal before the said record is transmitted." That provision came in the Code by the enactment of Chapter 510 of the Acts of 1912. In Barnes v. 662 Meleski, 211 Md. 182, 187, 126 A.2d 599 (1956), the Court held the provision invalid, saying it "violates Sec. 8 of Art. IV of the Maryland Constitution" relative to removal. It may be that the appellants are thinking of the oft stated proposition that where the language of a statute is susceptible of two reasonable constructions, an administrative practice which has been followed by officials of the State for a long period of time has a very persuasive influence on the judicial construction of the statute. However, in that context, this Court has pointed out that where the language of a statute is plain and unambiguous, the judicial construction cannot be controlled by extraneous considerations and no custom, however venerable, can nullify the plain meaning and purpose of a statute. Rogan v. Baltimore & O.R.R., 188 Md. 44, 58, 52 A.2d 261 (1947). The cases cited by Dr. Hope in support of his proposition that the decision of the Court of Special Appeals holding that § 22-38 was void destroyed the right of appeal from any adverse decision of the planning board are decisions holding that one may not appeal from circuit court action on an appeal from an administrative agency unless such right of appeal is specifically provided. The contention here is without merit because § 604 of the charter and Art. 25A, § 5 (U) each specifically provide for an appeal from the decision of the circuit court by one aggrieved by its action on an appeal from the board of appeals. It will be noted that Constitution Art. XI-A, § 1 relative to county charters provides, "[A]ny public local laws inconsistent with the provisions of said charter ... shall be thereby repealed." Constitution Art. XI-A, § 3 provides "that in case of any conflict between [any] local law [enacted under a charter] and any Public General Law now or hereafter enacted the Public General Law shall control."[1] Section 602 of the Baltimore County charter after referring to appeals from certain types of orders provides in 663 § 602 (d) in unmistakably clear language that the board is to "hear and decide appeals from all other administrative and adjudicatory orders as may from time to time be provided by Article 25A ... as amended...." The approval or disapproval of a subdivision plat is an administrative or adjudicatory order. The section refers to "all" such orders. There would have been no need to insert in Constitution Art. XI-A, § 1 the provision that public local laws inconsistent with the provisions of the charter were to be thereby repealed unless it had been contemplated that the people of a county in adopting a charter might thereby enact charter provisions inconsistent with prior acts of the General Assembly. The power granted counties under Art. 25A, § 5 (U) is "[t]o enact local laws providing ... for the establishment of a county board of appeals" etc. It follows that when the people of Baltimore County placed a provision relative to a board of appeals in their charter they were acting pursuant to the authority granted under Constitution Art. XI-A and § 5 (U). If one had the slightest doubt of the intent of the charter it would be dispelled by reference to the Reporter's Notes. Those to § 601 state: Section 601. County Board of Appeals; Appointments; Terms; Compensation. The legal authority for the creation of a County Board of Appeals is contained in Article 25A, Section 5 (V) of the State Code, as amended by the Acts of 1953, Chapter 199. This statute expressly authorizes the chartered county to enact local laws providing for the establishment of a County Board of Appeals "whose members shall be appointed by the county council". [Proposed Home Rule Charter for Baltimore County, Maryland, with Reporter's Notes and Index (1956) 135-36.] Art. 25A, § 5 (V) has since been renumbered to the present § 5(U). Constant reference is made to § 5 (V) or, as it is now, § 5(U) in the several pages of Reporter's Notes dealing with Art. VI of the Baltimore County Charter. The plain meaning of the charter provisions is to embrace all of the authority 664 granted under § 5 (U). This provides for a right of appeal in the matter of any "approval ... or other form of permission or of any adjudicatory order," language sufficiently broad to grant a right of appeal from the approval or disapproval of a subdivision plat. It is suggested that "[i]t would be unreasonable and illogical to interpret the thrust of Article 25A, § 5 (U) as mandatory rather than discretionary." It certainly does not mandate that a county create a board of appeals implementing the powers there granted. Here Baltimore County in its creation of its board of appeals has indicated an intent that the board's powers are to be those set forth in Art. 25A, § 5 (U). Once having availed itself of that power, then it follows that § 5 (U)'s provisions must be applicable. The concluding sentence of the section is, "The review proceedings provided by this subsection shall be exclusive." This provision appeared at the time of the original enactment by the General Assembly of what is now § 5 (U) by Chapter 670 of the Acts of 1951. Accordingly, under Constitution Art. XI-A, § 1 providing that enactment of a charter would constitute repeal of all public local laws inconsistent with the charter provisions, the right of appeal provided in the preexisting county code was repealed. Thereafter, if Baltimore County had attempted to enact a statute concerning appeals inconsistent with the exclusive right of appeal provided in Art. 25A, § 5 (U) it would have been acting in a manner not permitted by its own charter. Obviously, it could repeal the charter provision. Dr. Hope points to Art. 25A, § 5 (X) which provides: To enact local laws, for the protection and promotion of public safety, health, morals, and welfare, relating to zoning and planning including the power to provide for the right of appeal of any matter arising under such planning and zoning laws to the circuit court except as is provided in § 5 (U) of this article. Any decision of the circuit court may be appealed to the Court of Special Appeals. He contends that this would validate the code provisions. We 665 do not see it that way. This is a grant of power to a county to enact local laws relating to zoning and planning. The amendment to Art. 25A, § 5 (X) by Chapter 267 of the Acts of 1975 added the words "including the power to provide for the right of appeal of any matter arising under such planning and zoning laws to the circuit court except as is provided in § 5 (U) of this article." This amendment was recommended by the Legislative Council to the General Assembly of 1975. It said in its report: Explanation Senate Bill 76 of the 1974 Session was intended to clarify the right of appeal from the Circuit Court to the Court of Appeals from zoning reclassifications made by the legislative bodies of non-charter counties, municipalities and the City of Baltimore under Article 66B of the Annotated Code. Senate Bill 76 also empowered all counties, municipalities and the City of Baltimore to provide for an appeal by local ordinance or statute in other planning and zoning matters.[[2]] During the course of the deliberations, objections were voiced to the inclusion of charter counties under the provisions of Article 66B which normally is applicable only to non-charter counties. The proposed legislation clarifies the right of appeal, and enables local jurisdictions to provide for other appeals for non-charter counties, municipalities and the City of Baltimore by amending the appropriate provisions of Article 66B. The proposed legislation also empowers charter counties to provide for appeals in planning and zoning matters by amending Article 25A, Section 5 666 (X), The Express Powers Act, pursuant to which charter counties derive their power to adopt planning and zoning regulations. [Id. at 193-94.] The title to Chapter 267 indicates that its purpose is that of clarifying the right of appeal of decisions of the Circuit Court or the Baltimore City Court in zoning cases, to provide that counties, municipalities and the City of Baltimore may provide for an appeal to the Circuit Court or the Baltimore City Court of any matter arising under the planning and zoning laws of a county, municipality or the City of Baltimore.... See the discussion of this chapter in Board v. Stephans, 286 Md. 384, 393-96, 408 A.2d 1017 (1979). If the County had not availed itself of the power granted under § 5 (U) to create a board of appeals, then § 5 (X) would in fact be power to the County "to provide for the right of appeal of any matter arising under such planning and zoning laws to the circuit court...." However, the phrase "except as provided in § 5 (U)" limits the County's grant of authority once it has availed itself of the powers under § 5 (U). We have said many times that where two statutes deal with the same subject matter they must be construed together if they are not inconsistent with one another; that, to the extent possible, full effect should be given to each; that this is true notwithstanding the fact that the statutes may have been enacted at different times with no reference to each other, because in that case the rule is that the statutes must be harmonized to the extent possible; and that absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory. Police Comm'r v. Dowling, 281 Md. 412, 418-19, 379 A.2d 1007 (1977), and cases there cited. Applying that reasoning, the answer here becomes clear. Charter § 602 provides a right of appeal consistent with Art. 25A, § 5 (U). Under § 5 (U) that appeal is the exclusive remedy. *667 Therefore, there was no right of appeal to the circuit court in this case from the approval of the subdivision. We have carefully examined Board v. Stephans, 286 Md. 384, 408 A.2d 1017 (1979), which appellants suggest is in some manner inconsistent with the holding of the Court of Special Appeals and the circuit court. We find no inconsistency between our decision here and that in Stephans or that in Klein v. Colonial Pipeline Co., 285 Md. 76, 400 A.2d 768 (1979), in which we last considered the applicability of Art. 25A, § 5 (U). Judgment affirmed; appellants to pay the costs. NOTES [1] This is contrary to the situation relative to conflict between a public general law and a public local law enacted by the General Assembly. In that situation under Code (1957) Art. 1, § 13 the public local law would prevail. Wilson v. Bd. of Sup. of Elections, 273 Md. 296, 301, 328 A.2d 305 (1974). [2] Senate Bill No. 76 of the 1974 session as originally introduced provided further appeal to this Court from circuit courts and the Baltimore City Court in the matter of appeals to those courts arising under Art. 66B. It was amended to authorize the Mayor and City Council of Baltimore, the local legislative body of counties (including home rule counties) and the local legislative body of municipalities to provide for review by the circuit courts and the Baltimore City Court of matters arising under the zoning laws with further appeal to the Court of Special Appeals.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259973/	421 A.2d 1334 (1980) William H. SEVERNS, Plaintiff, v. The WILMINGTON MEDICAL CENTER, INCORPORATED, a Corporation of the State of Delaware; Richard S. Gebelein, as Attorney General for the State of Delaware; Martin Gibbs, M. D., and the Board of Medical Practice of the State of Delaware, Defendants. Supreme Court of Delaware. Submitted April 18, 1980. Decided September 23, 1980. Thomas Herlihy, III (argued), of Herlihy & Herlihy, Wilmington, for plaintiff. William J. Wade (argued), of Richards, Layton & Finger, Wilmington, for defendant The Wilmington Medical Center, Inc. Edward F. Kafader, Deputy Atty. Gen. (argued), Wilmington, for defendants Richard S. Gebelein, Atty. Gen. for the State of Delaware, and The Board of Medical Practice of the State of Delaware. Martin Gibbs, M.D., pro se. 1336 G. Thomas Sandbach (argued), Wilmington, for Mary Reeser Severns. Before DUFFY, McNEILLY, QUILLEN and HORSEY, JJ., constituting the Court en banc. 1335 DUFFY, Justice: In this Certification proceeding the Court is asked to determine that the Court of Chancery has the power to order that certain life-sustaining supports for Mary Reeser Severns be removed. Implicitly, the complaint assumes that those supports sustain her life. The inevitable corollary is that, without them, Mrs. Severns will die. Thus the issue presented, no matter how it may be described, concerns actions which are expected to determine whether Mrs. Severns lives or dies. I Mrs. Severns, age 55, was the operator of an automobile which was involved in a one-car accident. She sustained serious injury to her brain which has significantly impaired its functioning. For all practical purposes, she has been in a coma since the accident occurred. Mrs. Severns was hospitalized at The Wilmington Medical Center after the accident and has remained there. Her husband, William H. Severns (plaintiff) filed a complaint in the Court of Chancery for an order appointing him as guardian of her person.[1] The complaint names as defendants The Wilmington Medical Center, Dr. Martin Gibbs (the physician who attends Mrs. Severns), The Board of Medical Practice of the State of Delaware and the Attorney General. The Court of Chancery appointed G. Thomas Sandbach, Esquire, as attorney for Mrs. Severns. All defendants have appeared by counsel except Dr. Gibbs. II For present purposes, the parties have stipulated to certain facts which we repeat in some detail because they are helpful in placing the proceeding in context. The stipulation reads, in part, as follows: "4. Shortly after her arrival at the Hospital, a tracheotomy was performed on Mrs. Severns by her treating neurosurgeon, Martin Gibbs, M.D. Mrs. Severns was connected to a respirator which in the beginning did the breathing for Mrs. Severns, and now assists her breathing. Drugs which helped maintain Mrs. Severns' blood pressure were administered to Mrs. Severns intravenously on December 18, 1979. Feeding was initially accomplished by intravenous methods and a catheter was put in place. 5. Since the time of her accident, Mrs. Severns has remained in a coma. The respirator remains attached. Drugs which help maintain her blood pressure have been discontinued and her body is now performing that function on its own. Occasional doses of medicine are used to control diarrhea. There is no present intent of the doctors or hospital personnel to withhold medicines which might become needed. For example, antibiotics would be used in the event of respiratory infection. Feeding is now accomplished through a naso-gastric tube. The catheter remains in place. 6. Mrs. Severns' coma is not as deep as it was shortly after her admission to the Wilmington Medical Center. Mrs. Severns is able to breathe without assistance to a degree in that she can be taken off the respirator for several hours, but she cannot be taken off the respirator indefinitely. Mrs. Severns demonstrates certain primitive reflexes. She demonstrates deep tendon reflexes such as a jerk of the lower part of the leg and foot in response to a tap of the knee. She also demonstrates the Babinski response by abnormally moving the ankle and toes in response to a scratching of the sole of the foot. Her body assumes a decerebrate position in response to a supra-orbital pressure. The right eye reacts to light and shows deviation to the right when the right ear is irrigated with ice water. In 1337 addition, Mrs. Severns demonstrates a primitive sucking reaction if her lips are touched. From the medical, neurologic point of view, the above responses do not imply that conscious, sentient brain functions exist but just that her body is capable of certain reactions without conscious awareness. 7. Mrs. Severns is not suffering and is not aware of pain or discomfort. 8. If the respirator were removed and not restored, Mrs. Severns would be susceptible to pneumonia and respiratory infections, which most persons could survive without difficulty. These infections would, if at all severe, probably be fatal to her. If the respirator were removed and not restored and no pneumonia or infection takes place, Mrs. Severns could live for months or maybe years. 9. Since there is no generally recognized treatment that may decrease the comatose state and bring Mrs. Severns closer to awareness, her recovery, if any, would be by means of the body's healing processes. 10. The injury to the upper portion of Mrs. Severns' brain is extensive. The brain functions dealing with awareness, conscious thought, memory, personality, intellectual functions and speech are contained in the upper portion of the brain. 11. The injury to the lower portion of Mrs. Severns' brain, the brain stem, has less serious consequences. The brain stem controls the primitive body functions of, among other things, breathing, blood pressure and heart rate. Mrs. Severns has demonstrated some recovery to that portion of the brain. It is possible, and quite likely, that Mrs. Severns' brain stem will, in time, heal itself sufficiently to be able to control the primitive body functions necessary for her survival. 12. The brain stem functions or the vegetative functions, by virtue of being primitive, tend to recover when injured. It is a kind of built-in survival mechanism. If a patient with a brain stem injury is kept alive long enough, there is generally a tendency to recover functions adequate for a vegetative existence. Mrs. Severns is a patient who had an injury to her brain that affected predominantly the higher levels; those levels are more susceptable [sic] to injury and less able to recover. 13. In order to determine the likelihood of the recovery of a comatose patient who has suffered injury to the brain, it is necessary to take into account, among other things, age (in as much as older people do not possess the same recovery powers as younger people), the nature and extent of the injury, the recovery made by the patient to date and the amount of time it has taken the patient to reach various states of recovery. 14. Two Wilmington area physicians, one, a highly skilled and respected neurosurgeon and the other, a highly skilled and respected neurologist, have examined Mrs. Severns and reviewed her chart. Based upon their observations, the factors listed in paragraph 13 and other relevant factors, they have reached the following determinations regarding the possibility of Mrs. Severns' recovery from her comatose state: (a) One physician is of the opinion that within the bounds of reasonable medical certainty, Mrs. Severns will not recover those brain functions which would permit her to resume a sapient and sentient adult existence. The other physician is of the opinion that such a recovery by Mrs. Severns is not impossible, although her chances of recovery to that state are the remote probability of one in ten thousand. (b) One physician is of the opinion that within the bounds of reasonable medical certainty Mrs. Severns will not recover those brain functions which are indicative of the mental state of a three year old person. The other physician is of the opinion that there is the remote probability of Mrs. Severns' recovery of those brain functions indicative of a mental state of a three year old of one in one thousand. (c) One of the physicians is of the opinion that within the bounds of reasonable medical certainty Mrs. Severns will not recover brain functions indicative of a new born to a three month old child. The other physician 1338 is of the opinion that there is a reasonable medical probability of one in one hundred that Mrs. Severns will recover those brain functions indicative of a new born to a three month old child. (d) The physician who is unable to completely preclude any hope of recovery by Mrs. Severns to sapient or cognitive existence is of the opinion that if Mrs. Severns failed to demonstrate any significant improvement within four to six months after the beginning of the coma, the probability of her recovery of a cognitive or sapient existence would diminish to zero. 15. Dr. Gibbs will continue the use of or restore the respirator to Mrs. Severns, if medically indicated unless there were an order to the contrary from a Delaware Court. Dr. Gibbs will continue the administration of medicines to Mrs. Severns as medically indicated, unless there were an order to the contrary from a Delaware Court. 16. The doctors' orders applicable to Mrs. Severns do not contain a "no code blue" order, that is, an order which would preclude the application of medical procedures and machinery in the event of an emergency or life threatening situation. Unless there were such an order by a doctor, the personnel of a hospital or other health care facility would apply to Mrs. Severns all treatment and machinery medically indicated to restore her in the event of an emergency or life threatening situation. Dr. Gibbs has indicated he will not enter a "no code blue" order unless a Delaware Court orders that such a "no code blue" order is permissible. 17. Current medical standards in the community of Wilmington require that in cases similar to Mrs. Severns that the respirator be continued as long as physiologically indicated. 18. Current medical standards in the community of Wilmington concerning the removal of the respirator require that the patient be medically evaluated to determine the patient's ability to adequately control the patient's own respiration. 19. Currently in the medical community of Wilmington, although there is no established medical practice, physicians commonly order that a person whose stage of illness precludes recovery not be resuscitated in the event of a life threatening situation, particularly, if the patient or family has requested that such procedures not be undertaken. 20. The standard medical practice in the community of Wilmington is that medicines are given to patients in all stages of illness when medically required. 21. Standard medical practice in the community of Wilmington requires that a patient who is unable to feed himself be fed or otherwise provided with nourishment. 22. Standard medical practice in the community of Wilmington, in cases such as Mrs. Severns is to continue the application of a tracheotomy tube to enable the cleaning of the airway to avoid infection. If a patient develops a sufficient cough reflex, then it is the standard medical practice to remove the tracheotomy tube. 23. Mrs. Severns is not dead under any standard, legal or medical definition of death. 24. Mrs. Severns is incompetent in that she is not mentally ill, but by reason of physical incapacity is unable properly to manage and care for her person or property. 25. The Wilmington Medical Center does not have an Ethics Committee or like body which has as a part of its functions the approval or disapproval of the discontinuance of life support systems."[2] In the complaint, Mr. Severns asks that the Court enter an order appointing him as guardian of the person of his wife and that the Court, inter alia, 1339 "(c) [a]uthorize the petitioner [Mr. Severns], as guardian, to cause, or request even if death of the infirm person [Mrs. Severns] is likely; (i) The discontinuance of the respirator and that use of the respirator not be restored to the infirm person. (ii) The discontinuance of the tracheotomy and that it not be replaced and that no alternative intubation of the airway be used. (iii) The discontinuance of the administration of drugs and that the administration not be restored. (iv) The placing of a continuing order to any doctor and hospital or health care personnel that in the event of an emergency or situation threatening the life of the infirm person, that no restorative measures be undertaken. Specifically, a "no code blue" order be entered at the appropriate place in the health care facility where the infirm person is being maintained. (d) Enter an order restraining the Attorney General from instituting or allowing any criminal prosecution which otherwise might ensue in the event of cessation of life in the infirm person resulting from the exercise of the aforesaid discontinuance authorizations were they to be granted to the guardian. (e) Enter an order restraining the respondents and any other person from preventing any voluntary act in accordance with the authorizations, if any, granted by the Court. . . . . . (g) Enter an order that any physician or other person acting under the direction of a physician or other individual, or any health care facility which acting in accordance with an order of this Court, who causes or participates in the withholding or withdrawal of life sustaining procedures from the infirm person shall not be subject to civil liability therefrom; and any physician or other person acting under the direction of a physician who participates in the withholding or withdrawal of life sustaining procedures from the infirm person in accordance with an order of this Court shall not be guilty of any criminal act or of unprofessional conduct, other determinations to the contrary notwithstanding." After the complaint was filed, the Court of Chancery, at the request of all parties, certified the following questions to this Court: "1. Considering established medical standards and practices, or the absence thereof, may the Court of Chancery grant the relief sought by petitioner, or is the case non-justiciable as being solely within the province of the practice of medicine? 2. In order for the Court of Chancery to grant the relief sought, must there be legislation authorizing and providing guidelines for the relief sought? 3. Does 12 Del.C. § 3914 permit the appointment of a guardian of the person who may carry out the relief requested? 4. Considering established medical standards and in the absence of authorizing legislation, may a guardian of an incompetent person exercise the incompetent person's right of privacy or exercise a right to self determination or rely on any other basis to cause the discontinuation of procedures sustaining the incompetent person's life if the likely result of the discontinuance is the death of the incompetent person? 5. Is the discontinuance of procedures sustaining the incompetent person's life, a crime, and if it is a crime, would that alone prohibit the Court of Chancery from authorizing the guardian of the person to cause such a discontinuance? 6. If the discontinuance of procedures sustaining the incompetent person's life constitutes a crime or unprofessional conduct, may the Court of Chancery enjoin the criminal prosecution or disciplinary action against the perpetrator or accessories, or, in the alternative, may the Court of Chancery decree that any perpetrator or accessory not be subject to civil, criminal or unprofessional conduct liability? 1340 7. Should the Court of Chancery give probative weight to the statements made to third persons by the incompetent, prior to her incompetency, relating to her desire for discontinuance of life sustaining procedures in the event of her suffering an incapacitating injury or illness? 8. If the relief sought by the petitioner is granted, what procedures, if any, should be followed before the guardian exercises the relief?" Thereafter, this Court accepted certification as to Question No. 2 but refused to receive the remaining Questions. Our order provided, in part, as follows: "(1) Question No. 2 of the Certification is as follows: `In order for the Court of Chancery to grant the relief sought, must there be legislation authorizing and providing guidelines for the relief sought?' (2) The parties have unanimously agreed that, for the purposes of Question No. 2, the `relief sought' consists of the following: (a) The appointment of the petitioner as guardian of the person and property of Mrs. Severns, with authorization from the Court to terminate, either by not continuing or not restoring, some or all of her life sustaining systems, if the likely result is the death of Mrs. Severns. (b) Determination of whether such termination with such `likely result' would constitute a crime or unprofessional conduct-and if so: (1) Would that alone prohibit the Court of Chancery from authorizing the guardian to cause such termination? and (2) May the Court of Chancery enjoin criminal prosecution or disciplinary action against the perpetrators or accessaries or, in the alternative, decree that any perpetrator or accessary not be subject to civil, criminal or unprofessional conduct liability?" Counsel have briefed and orally argued Question No. 2 on the basis of the Court's order and the record relevant thereto. III Invoking the broad principles announced in Matter of Quinlan, N.J.Supr., 70 N.J. 10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976), plaintiff argues that the Court of Chancery, in the absence of legislation, can grant the relief sought on the basis of the constitutional right to privacy, cf. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and on the common law right of self-determination, cf. Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). And, he contends, existing law "does not prohibit the exclusion of resuscitative measures" nor bar the Court of Chancery from granting the relief sought. The Medical Center generally supports Mr. Severns' position and argues that the Guardianship Statute, 12 Del.C. § 3914, authorizes the Court of Chancery to grant the relief he seeks.[3] The Center also contends that, (a) the Court may declare that the law does not prohibit the exclusion of resuscitative measures; (b) the relief sought would 1341 not constitute a crime or unprofessional conduct; and (c) the Court may enjoin a criminal prosecution, disciplinary action or civil liability proceeding arising out of the relief requested by Mr. Severns. The Attorney General and the attorney for Mrs. Severns are in opposition to those arguments. The Attorney General counters by contending that § 3914 prohibits the Court from appointing a guardian whose purpose is to terminate medical treatment necessary to sustain the life of an incompetent person. And, he argues, legislation is essential for the relief sought, the right to privacy is not applicable because State action is not involved, and terminating the life support systems of Mrs. Severns may be construed as a crime and/or unprofessional conduct. Supplementing those arguments, the attorney for Mrs. Severns says that a third person may not assert, on her behalf, a constitutional right (of privacy) against bodily invasion and that all essential elements of the crimes of Murder, 11 Del.C § 636, and Endangering an Incompetent, 11 Del.C. § 1105, are present in the relief requested; and, he contends, the General Assembly, in the Criminal Code (Title 11) and in § 3914, has declared the public policy of the State to be against the relief sought. Thus Mr. Severns and the Medical Center urge that the Court answer Question No. 2 in the negative, that is, legislation authorizing and providing guidelines is not required before the relief sought is granted. The Attorney General and the attorney for Mrs. Severns argue that such legislation is essential and, therefore, Question No. 2 should be answered affirmatively. Dr. Gibbs has not taken a position on the Question. IV Before discussing our own law, we note what has been occurring in other jurisdictions. Generally speaking, a few courts have granted relief of the kind sought by Mr. Severns without enabling legislation. In so doing, those courts have undertaken to create a code of conduct and procedure for doctors, hospitals and others with an interest in a person who has irreversible brain damage. The seminal case, of course, is Quinlan. There, the New Jersey Supreme Court engaged in judicial pioneering when it overruled a Trial Court and held, in a case involving a 22-year-old young lady who was comatose and in a chronic "vegetative" state, that "[u]pon the concurrence of the guardian and family of Karen [Quinlan], should the responsible attending physicians conclude that there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state and that the life-support apparatus now being administered to Karen should be discontinued, they shall consult with the hospital, `Ethics Committee' or like body of the institution in which Karen is then hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state, the present life-support system may be withdrawn and said action shall be without any civil or criminal liability therefor on the part of any participant, whether guardian, physician, hospital, or others." 355 A.2d at 671. The most recent reported opinion was announced by the Massachusetts Supreme Judicial Court. In re Spring, Mass.Sup.Jud. Ct., ___ Mass. ___, 405 N.E.2d 115 (1980). There, an incompetent person was receiving life-prolonging hemodialysis treatment and the Court noted that the issue was "another in a series of recent cases in which we have been called upon to apply legal principles to questions of life and death presented by modern medical procedures." 405 N.E.2d at 118. The Court then said this about the principles of law applicable to such cases: "[T]here is something approaching consensus in support of some of the principles elaborated in ... [Superintendent of Belchertown State School v. Saikewicz, Mass.Sup.Jud.Ct., 373 Mass. 728, 370 N.E.2d 417 (1977)]. A person has a strong interest in being free from non-consensual invasion of his bodily integrity 1342 and a constitutional right of privacy that may be asserted to prevent unwanted infringements of bodily integrity. Thus a competent person has a general right to refuse medical treatment in appropriate circumstances, to be determined by balancing the individual interest against counterveiling State interests, particularly the State interest in the preservation of life. In striking that balance account is to be taken of the prognosis and of the magnitude of the proposed invasion. The same right is also extended to an incompetent person, to be exercised through a `substituted judgment' on his behalf. The decision should be that which would be made by the incompetent person, if he were competent, taking into account his actual interests and preferences and also his present and future incompetency." 405 N.E.2d at 119. But as to the procedure to be followed in such cases, the Court differed significantly from the "delegation" approach adopted by the Supreme Court of New Jersey in Quinlan. The Court approved a finding by the Trial Court that the incompetent "would, if competent, choose not to receive the life prolonging treatment," 405 N.E.2d 115, but it reversed a ruling which authorized the attending physician and the incompetent's wife to make the decision as to whether dialysis treatment should be continued or terminated. On this key issue, the Court concluded that the Trial Judge could not delegate that decision which he alone could make based on the evidence available to him; the Court said: "What, then, is the significance of our disapproval of a shift of ultimate responsibility away from the courts? We in no way disapprove the practice of committee review of decisions by members of a hospital staff. But private medical decisions must be made responsibly, subject to judicial scrutiny if good faith or due care is brought into question in subsequent litigation, although the concurrence of qualified consultants may be highly persuasive on issues of good faith and good medical practice. This is true of medical decisions generally, and is no less true of a decision to withhold medical treatment from an incompetent patient. When a court is properly presented with the legal question, whether treatment may be withheld, it must decide that question and not delegate it to some private person or group. Subsidiary questions as to how to carry out the decision, particularly purely medical questions, must almost inevitably be left to private decision, but with no immunity for action taken in bad faith or action that is grievously unreasonable." 405 N.E.2d at 122. In a long and scholarly opinion, the New York Supreme Court, Appellate Division, has "firmly agree[d] with the major sister state decisions" announced in Quinlan for New Jersey and in Saikewicz for Massachusetts. Eichner v. Dillon, N.Y.App.Div., 73 A.D.2d 431, 426 N.Y.S.2d 517, 539 (1980).[4] Acting without a predicate in statutory law, the Court held as follows on the substantive legal issue, 426 N.Y.S.2d at 539. "By parity of reasoning, the constitutional right to privacy [announced in Roe v. Wade, U.S.Sup.Ct., 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)], we believe, encompasses the freedom of the terminally ill but competent individual to choose for himself whether or not to decline medical treatment where he reasonably believes that such treatment will only prolong his suffering needlessly, and serve merely to denigrate his conception of the quality of life. The decision by the incurably ill to forego medical treatment and allow the natural processes of death to follow their inevitable course is so manifestly a `fundamental' decision in their lives, that it is virtually inconceivable that the right of privacy would not 1343 apply to it. Individuals have an inherent right to prevent `pointless, even cruel, prolongation of the act of dying' (Matter of Dinnerstein [___ Mass.App. ___], 380 N.E.2d [134] at 137, supra). Stated in simpler and more fundamental terms, as a matter of constitutional law, a competent adult who is incurably and terminally ill has the right, if he so chooses, not to resist death and to die with dignity (see Rutherford v. United States, 438 F.Supp. 1287, 1299, supra; Satz v. Perlmutter, 362 So.2d 160, 162, supra; Superintendent of Belchertown State School v. Saikewicz [373 Mass. 728], 370 N.E.2d [417] at p. 426, supra; Matter of Quinlan [70 N.J. 10], 355 A.2d [647] at p. 663, supra; see, also, Cantor, A Patient's Decision to Decline Life-saving Medical Treatment: Bodily Integrity versus the Preservation of Life, 26 Rutgers L.Rev. 228; Paris, Compulsory Medical Treatment and Religious Freedom: Whose Law Shall Prevail?, 10 U.San.Fran.L.Rev. 1; Note, The Tragic Choice: Termination of Care for Patients in a Permanent Vegetative State, 51 N.Y.U.L.Rev. 285, 294)." And the Court agreed with Quinlan and Saikewicz that a "substitute" or "proxy" judgment could be made by the patient's guardian. 426 N.Y.S.2d at 548. But on the critical question of procedure, the Court agreed with Massachusetts that "the neutral presence of the law is necessary to weigh ... [relevant] factors, and, thus, judicial intervention is required before any life-support system can be withdrawn." 426 N.Y.S.2d at 550. The Court then spelled out its own procedure, as follows; "Accordingly, we hold that the following procedure shall be applicable to the proposed withdrawal of extraordinary life-sustaining measures from the terminally ill and comatose patient. The physicians attending the patient must first certify that he is terminally ill and in an irreversible, permanent or chronic vegetative coma, and that the prospects of his regaining cognitive brain function are extremely remote. Thereafter, the person to whom such certification is made, whether a member of the patient's family, someone having a close personal relationship with him, or an official of the hospital itself, may present the prognosis to an appropriate hospital committee. If the hospital has a standing committee for such purposes, composed of at least three physicians, then that committee shall either confirm or reject the prognosis. If the hospital has no such standing committee, then, upon the petition of the person seeking relief, the hospital's chief administrative officer shall appoint such a committee consisting of no fewer than three physicians with specialties relevant to the patient's case. Confirmation of the prognosis shall be by a majority of the members of the committee, although lack of unanimity may later be considered by the court. Upon confirmation of the prognosis, the person who secured it may commence a proceeding pursuant to article 78 of the Mental Hygiene Law for appointment as the Committee of the incompetent, and for permission to have the life-sustaining measures withdrawn. The Attorney General and the appropriate District Attorney shall be given notice of the proceeding and, if they deem it necessary, shall be afforded an opportunity to have examinations conducted by physicians of their own choosing. Additionally, a guardian ad litem shall be appointed to assure that the interests of the patient are indeed protected by a neutral and detached party wholly free of self-interest." 416 N.Y.S.2d at 550.[5] See also Satz v. Perlmutter, Fla.Supr., 379 So.2d 359 (1980), in which the Supreme Court of Florida affirmed an order of the District Court of Appeals, 362 So.2d 160 (1978), permitting removal of an artificial life-sustaining device 1344 from a competent but terminally ill adult; In Re Boyd, D.C.Ct.App., 403 A.2d 744 (1979), adopting the "substituted judgment rule" in a case seeking authority to administer psychotropic drugs to a mentally ill person; Annot., 79 A.L.R.3d 237; Power of Court to order or authorize discontinuation of extraordinary medical means of sustaining life. V. As those opinions by other courts and the developing literature make clear, the evolution of medical technology is compelling the public, through the courts, if not the legislatures, to formulate new standards and procedures for measuring the conduct of persons involved in the health care of persons with irreversible brain damage. And this case shows the wide spectrum of values which the question invokes. As we observed at the beginning of this opinion, those values relate to nothing less than the life or death of the ward. Our State has struggled with after-birth life-and-death issues before this, but almost always in a criminal context. With that single exception-which involves conduct so evil that the ultimate penalty (death) is imposed-our society has sustained life, and our medical techniques and our laws have been applied to preserve it.[6] Now, however, we are on the threshold of new terrain-the penumbra where death begins but life, in some form, continues. We have been led to it by the medical miracles which now compel us to distinguish between "death," as we have known it, and death in which the body lives in some fashion but the brain (or a significant part of it) does not. The stipulated facts bring those generalities into focus in this case. Thus, the brain stem, which "controls the primitive body functions" tends "to recover when injured" so that it will sustain a "vegetative existence." Reduced to one sentence and applied here, this implicitly means that Mrs. Severns may have, through the use of a respirator and other life-sustaining supports, a vegetative existence but not the brain functions which would "permit her to resume a sapient and sentient adult existence." It is against this background that Mr. Severns has invoked the aid of the Court of Chancery. VI A number of Delaware cases have held that the power of the Court of Chancery to appoint a guardian of the person is derived entirely from statute. See, for example, In re Markel, Del.Supr., 254 A.2d 236 (1969); and In re Conner, Del.Ch., 43 Del.Ch. 310, 226 A.2d 126 (1967). We recognize that, speaking generally, all Chancery jurisdiction is based on the absence of an adequate remedy at law, a principle which has been codified in this State. 10 Del.C. § 342.[7] We recognize also that § 342, negative though it is, may be construed as implicitly permitting the Court of Chancery to appoint a guardian of the person to exercise a protected constitutional right of a ward, if § 3914 does not grant such power.[8] For present purposes, however, we regard § 3914 as broad enough to permit the Court of Chancery to appoint Mr. Severns as "guardian of the person" of his wife because, "by reason of ... mental infirmity 1345 or physical incapacity," she is "unable properly" to "care for ... [her] person." Cf. 27 Am.Jur.2d Equity § 69. She "has remained in a coma" for more than five months and, for that reason alone, is unable properly to care for her person. Given the necessity for feeding her through a naso-gastric tube and for providing her with routine medical care and testing, all of which are self-evident from the stipulation, Mrs. Severns is certainly "in danger of substantially endangering [her] health" if she does not authorize such care. Obviously she cannot do that because she is comatose. Thus the threshold requirements for appointment of a guardian of the person are met, we think, on the stipulated facts in the record and the Court may appoint Mr. Severns as guardian of the person of his wife. Following such appointment the Court of Chancery may authorize Mr. Severns as guardian to exercise the powers usually incident to the appointment. Cf. 12 Del.C. § 3921, etc.; Rule 179 of the Court of Chancery. And, on special application after the requisite showing is made, the Court may authorize the guardian to exercise additional powers appropriate to the circumstances, as the Chancellor determines in his discretion. While this analysis of the issue may seem somewhat elemental, it has enabled us to reach the critical question regarding relief by following settled Delaware case law governing the appointment of a guardian. Properly understood, the Question submitted to the Court divides into two fundamental parts: the first concerns the power of the Court to appoint a guardian of the person of Mrs. Severns, and, the second relates to the power of the Court to authorize such guardian to take certain actions with respect to the medical techniques and apparatus which sustain her life. The power of the Court to appoint a guardian is jurisdictional and unless and until that is established, all questions with respect to what a guardian may be empowered to do are academic. We are satisfied that the requirements for jurisdiction are met and now we may proceed to the power question. 12 Del.C. § 3914; In re Markel, supra. A. As we have indicated, the Medical Center argues that § 3914 authorizes the Court of Chancery to grant the relief sought by the Guardian. The Attorney General and the attorney for Mrs. Severns have a quite different view of it; indeed, they say that the Statute prohibits the Court from granting the relief in issue. We need not undertake a line-by-line analysis of the Statute because we agree with neither hypothesis. Briefly stated, our view is that § 3914 falls between the two contentions which have been submitted. As we read it, the Statute outlines the predicate requirements for appointment of a guardian of the person and, while some guardianship powers may be implicitly derived from its language, nothing therein, or in the cases construing § 3914 persuades us that it authorizes the relief sought here. Nor does the Statute prohibit the Court from granting that relief. Rather, it seems to us that the Statute is silent on the critical issues proposed in this appeal. We also add (gratuitously) that even if § 3914 were regarded as ambiguous on whether it authorizes discontinuance of life-support systems, in all candor, given the subject matter, we would construe the language of the Statute against a Legislative grant of such power. The problem is too profound to imply Legislative approval of life-death powers from the broad language used in a general guardianship statute, much of which is directed to property matters. B. The next question, then, is whether the Court, acting without a statutory basis or guidelines, may grant the "relief sought." Specifically, as our order accepting the certification states, Mr. Severns seeks: "... authorization from the Court to terminate, either by not continuing or not restoring, some or all of her life sustaining systems, if the likely result is the death of Mrs. Severns. (b) Determination of whether such termination with such `likely result' would 1346 constitute a crime or unprofessional conduct-and if so: (1) Would that alone prohibit the Court of Chancery from authorizing the guardian to cause such termination? and (2) May the Court of Chancery enjoin criminal prosecution or disciplinary action against the perpetrators or accessaries or, in the alternative, decree that any perpetrator or accessary not be subject to civil, criminal or unprofessional conduct liability?" While the question is stated in terms of the absence of enabling legislation, plainly, the underlying issues invoke values which affect a very large section of the community. For example: Would terminating, or not continuing or restoring, "some" of the systems which now sustain Mrs. Severns' life (if the likely result is her death) be a crime? The possible crimes include those relating to homicide, that is, criminal negligence in violation of 11 Del.C. § 631 and murder in violation of 11 Del.C. §§ 635, 636; endangering the welfare of an incompetent person in violation of 11 Del.C. § 1105; and aiding a suicide in violation of 11 Del.C. § 645. In a real sense, any ruling by the Court granting the relief sought might well limit the parameters of such Statutes. And would the termination or the non-restoration of Mrs. Severns' life-sustaining systems, by doctors and other health care personnel, constitute "unprofessional conduct"? Are the critical decisions regarding those systems to be made administratively (by the family, doctors and/or hospital authorities), as in Quinlan; or only by the Court, as in Spring and Eichner? Both our Criminal Code, 11 Del.C. § 101, etc., and the Medical Practice Act, 24 Del.C. § 1701, etc., are the products of legislation enacted by the General Assembly. And, as such, they are the public policy of our State. Contemplated actions (or inaction) which are expected to determine whether a person lives or dies, plainly, should be authorized or conditioned or barred, as the case may be, by the General Assembly. The case under submission here relates only to Mrs. Severns, but the principle and the procedures adopted will undoubtedly govern other similar cases. Given the community values at stake, specific action by the General Assembly is most desirable. The same point was made by the Florida Supreme Court in Satz, when the Court said: "Because the issue with all its ramifications is fraught with complexity and encompasses the interests of the law, both civil and criminal, medical ethics and social morality, it is not one which is well-suited for resolution in an adversary judicial proceeding. It is the type issue which is more suitably addressed in the legislative forum, where fact finding can be less confined and the viewpoints of all interested institutions and disciplines can be presented and synthesized. In this manner only can the subject be dealt with comprehensively and the interests of all institutions and individuals be properly accommodated." 379 So.2d at 360. And the Appellate Division said much the same thing in Eichner: "... an act of the [New York] Legislature would ... be most welcome and appropriate. No one seriously doubts that the `Legislature has far greater capabilities to gather relevant data and to elicit expressions of pertinent opinion on the issues at hand.'" [Citation omitted.] 426 N.Y.S.2d at 535. We agree with these observations and we earnestly invite the prompt attention of the General Assembly to them, with the hope that it will enact a comprehensive State policy governing these matters which are, in the words of Quinlan, "of transcendent importance." 355 A.2d at 652. We must caution, however, that neither the Court in Florida nor the Court in New York refused to rule without legislative action. 1347 On the contrary, both Courts proceeded in the absence of a statutory basis.[9] C. The question thus narrows as to whether the Court of Chancery, at this stage in the proceeding, may order the relief sought, in the absence of legislation. As we view the question at this point in our analysis, three matters are particularly relevant: (1) the right of a guardian of the person to seek the relief in issue, (2) the power of the Court of Chancery to grant that relief, and (3) whether such relief may be granted on the present record. (1) First, as to the right of a guardian to seek the relief sought, we hold that he has the right to apply for it. Ordinarily, of course, only the person whose constitutional rights are in issue may assert them in litigation. But a person in a coma is helpless-she cannot invoke her own rights, including those which may be essential to her well being. Thus one who is in a coma may require surgery or other medical treatment to which she is incapable, temporarily or permanently, of consenting; and yet, persons providing health care will not do what is necessary without a "legal" consent. Under such circumstances, the Court of Chancery, in our opinion, may recognize the right of a guardian of the person to vicariously assert the constitutional right of a comatose ward to accept medical care or to refuse it. Cf. In re Boyd, supra, 403 A.2d at 750. Indeed, as the Court said in Eichner, to deny the exercise because the patient is unconscious would be to deny the right. Eichner id., 426 N.Y.S.2d at 546. We conclude that Mr. Severns, as guardian of the person of his wife, has standing to invoke her constitutional rights (including the right to privacy, Griswold v. Connecticut, supra), under the circumstances presented in the present record we so hold. Cf. Eichner id., 426 N.Y.S.2d at 546, 547; Quinlan id., 355 A.2d at 660, 661. (2) We turn now to the power of the Court of Chancery to grant the relief sought. We have tried to emphasize the importance of Legislative action in establishing public policy and the elimination of all doubt in this most sensitive area of community concern. But, even without legislation, we are satisfied that the Court of Chancery has the power, indeed, it has the duty, to grant appropriate relief based upon the invocation and establishment of constitutional rights. We distinguish between subject matter jurisdiction to hear or consider an application by a guardian for instructions, and the granting of remedial relief. We have already held that, under § 3914, the Court of Chancery has the power to appoint a guardian of the person on the present record. Plainly, such a guardian has the right to ask the Court which appoints him for permission to take specific action with respect to the ward.[10] Parenthetically, it is beyond 1348 dispute that, in the Delaware judicial system, no other Court has the power, under the common law or by Statute, to grant a "sufficient remedy" to the guardian concerning the withdrawal of life-support systems which now sustain Mrs. Severns. 10 Del.C. § 342. The situation in which Mr. Severns finds himself, then, is this: his wife has a constitutional right to accept or reject medical assistance; she is unconscious and, for that reason, she cannot assert that right; under the ruling made herein, he is the guardian of his wife's person, with standing to assert the right which she cannot voice; there is not a Delaware statute providing for the kind of relief he seeks; he cannot assert his wife's constitutional right in any law Court of this State. Of course the Court of Chancery will grant him relief under those circumstances, if he proves his right to it. That is what equity jurisprudence has been all about since its beginnings. The historic jurisdiction of the Court of Chancery is described in Glanding and, more recently, in Du Pont v. Du Pont,[11] Del.Supr., 32 Del.Ch. 413, 85 A.2d 724 (1951), but nothing in either of those cases indicates that the fashioning of relief is limited to that which was available in 1776. On the contrary, the very essence of our system of equity, as Pomeroy states in discussing its inherent power to meet social needs, is to render the "jurisprudence as a whole adequate to the social needs .... [I]t possesses an inherent capacity of expansion, so as to keep abreast of each succeeding generation and age." 1 Pomeroy's Equity Jurisprudence (5 ed.) § 67. That means that the absence of precedent is no bar to the award of appropriate relief. 30 C.J.S. Equity § 12. In discussing new questions or forms of relief, that text states as follows: "In a case which is concededly new to the court it is important that the court should have in mind the effect on future litigation and on the development of the law which would necessarily result from a step far outside of the beaten path of common law and equity. If the customary forms of relief do not fit the case, or a form of relief more equitable to the parties than those ordinarily applied can be devised, equity may grant such new form of relief." 30A C.J.S. Equity § 599. The general principle is similarly stated in 27 Am.Jur.2d Equity § 121: "The absence of a precedent for the giving of relief in a case where it is evident that under general principles of equity relief should be granted is of no consequence and presents no obstacle to the exercise of the jurisdiction of an equity court. Clearly, there must be an initial time at which a precedent is handed down, and the power to make precedents has not been exhausted. The mere fact that no case is found in which relief has been granted under similar circumstances is not a controlling reason for refusing it; otherwise, the court would often find itself powerless to grant adequate relief, solely because the precise question had never arisen." Compare Wright v. Scotton, Del.Supr., 13 Del.Ch. 402, 121 A. 69, 72 (1923), in which this Court stated: "A court of equity may adapt its relief to the particular rights and liabilities of each party and determine the interests of 1349 all, so far as they are legitimately connected with the subject-matter and properly within the scope of the adjudication." The relief sought by Mr. Severns is extraordinary, it is novel to Delaware and, relatively speaking, it is new in our civilization. But it does not follow that the Court of Chancery may refuse to grant it for those reasons. Indeed, the history of that Court records community concerns ranging from racial segregation to corporate fiduciary standards, for all of which the Court has had to find and adopt "sufficient remedy" for a successful plaintiff so that it might "keep abreast of each .... generation and age." Pomeroy, supra. We hold, as a general proposition and without reference to any of the specific relief sought, that the Court of Chancery has the power to grant relief to Mr. Severns in accordance with the proof which is made and the requirements of justice. Matter of Quinlan, supra; In re Spring, supra; Eichner v. Dillon, supra. Specific approval of any authority to continue or not restore any of Mrs. Severns' life-sustaining systems must await the holding of a necessary evidentiary hearing.[12] In terms of the Question submitted, we hold that there need not be legislation authorizing and providing guidelines for the relief sought. (3) Finally, as to the present record, the Court of Chancery cannot grant and we cannot order any relief without an evidentiary hearing. We are sensitive to the need for a prompt adjudication of the issues presented in the lawsuit and of the additional grief which uncertainty may bring to the Severns family. But we cannot undertake to rule on these life-and-death matters-which are of "transcendent importance" to all of us-on the basis of a stipulation of facts. The problems are too large, the precedent too significant and the stipulation is too vague.[13] As to the last point, which is crucial for present purposes, the problems presented are factual in a very significant way. For example: What is a life-sustaining system for a person who has been comatose for many months? Are "medicines" a part of such life-sustaining systems? If so, which medicines? Is food or nourishment a part of such life-sustaining systems? If so, to what extent? What extraordinary measures (or equipment) are a part of such systems? What measures (or equipment) are regarded by the medical profession as not extraordinary under the circumstances? What ordinary equipment is used? How is a respirator regarded in this context? What considerations are involved and who should make the decision as to the termination or restoration of "some or all of [Mrs. Severns'] ... life sustaining systems"? If there is a disagreement among the persons involved who are competent to make a responsible judgment in the matter, how is that to be resolved? Should any decision be 1350 unanimous? If not, whose vote controls? In what way are hospital administrative or ethics committees involved in the problem and how are they affected by a decision? What are the prevailing medical/hospital ethics which are relevant to the issue? Is there a consensus as to such ethics? While the stipulation of facts has served its purpose in getting the litigation under way, it does not answer the kind of questions which we think are essential to a ruling. And, indeed, the physicians whose opinions are relied upon are not even identified. To sum up, in responding to Question No. 2, we hold that: (a) Acting under 12 Del.C. § 3914, the Court of Chancery shall appoint Mr. Severns as guardian of the person of his wife, with powers as provided herein. (b) Section 3914 neither permits the Court of Chancery to grant other relief which is sought by Mr. Severns, nor does it prohibit the Court from granting such relief. (c) In applying for the relief sought, Mr. Severns may vicariously assert any constitutional right which Mrs. Severns has and which is relevant to the relief sought. (d) The Court of Chancery has the power to grant the relief which is sought, Matter of Quinlan, supra, In re Spring, supra, Eichner v. Dillon, supra, if the evidence warrants it. This ruling with respect to power is general and is not intended to approve or disapprove any specific action or non-action with respect to Mrs. Severns' life-sustaining systems. (e) An evidentiary hearing is required to determine what relief, if any, is appropriate. (f) As part of its ruling, the Court of Chancery shall make specific findings of fact before determining what relief is appropriate based on such findings. In so doing, the Court shall consider any relevant Act of the General Assembly and, it may also consider the absence of any action by the General Assembly in fashioning any relief which is granted. Other arguments made by the parties need not be considered by the Court. NOTES [1] At his request, the Court appointed Mr. Severns as guardian of his wife's property. See 12 Del.C. § 3914. [2] The stipulation of facts also includes the following: Mrs. Severns' husband, her children (all of whom are adults) and her brothers and sisters join in requesting removal of the life support systems; Mrs. Severns had been an active member of the Euthanasia Council of Delaware; and she had made statements to the effect that she wanted to make a "living will" and that she did not want to be kept alive as a "vegetable" or by extraordinary means. [3] 12 Del.C. § 3914 provides in part, as follows: "(a) Whenever any person not mentally ill, a resident in this State, by reason of advanced age or mental infirmity or physical incapacity is unable property to manage and care for his person or property and in consequence thereof is in danger of dissipating or losing such property or of becoming the victim of designing persons or, in the case where a guardian of the person so sought, such person is in danger of substantially endangering his health, or of becoming subject to abuse by other persons or of becoming the victim of designing persons, such person, his mother, father, brother, sister, husband, wife, child, next of kin, creditor, debtor, any public agency or, in the absence of such person or persons or public agency or their refusal or inability to act, any other person may file in the Court of Chancery of the county in which such aged, mentally infirm or physically incapacitated person resides his petition, under oath, setting forth the facts, praying the Court to adjudge that such person is unable properly to manage and care for his person or property and requesting the appointment of a guardian of the person or property of such person." [4] Interestingly enough, Brother Joseph Charles Fox, the ward who was the subject of the proceedings, died before the Appellate Division announced its ruling. The Court did not regard the appeal as moot, saying, "Since the controversy here is one likely to recur and may in the future again evade review, the issues presented are plainly not moot." 426 N.Y.S.2d at 523. [5] It is our understanding that an appeal has been taken by the District Attorney who opposed the petition. [6] The Preamble to the Declaration of Independence states that all men "are endowed by their Creator with certain unalienable rights, that among these are Life, ...." The Fifth Amendment to the Federal Constitution implements that by providing that "[n]o person shall be ... deprived of life ... without due process of law...." Article I § 7 of the Delaware Constitution is to the same effect. [7] 10 Del.C. § 342 reads as follows: "The Court of Chancery shall not have jurisdiction to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other court or jurisdiction of this State." [8] Compare 10 Del.C. § 341, which provides: "The Court of Chancery shall have jurisdiction to hear and determine all matters and causes in equity." Generally, as to the jurisdiction of the Court of Chancery, see Glanding v. Industrial Trust Co., Del.Supr., 28 Del. 499, 45 A.2d 553, 557 (1945). [9] In Satz, the Court said: "Nevertheless, preference for legislative treatment cannot shackle the courts when legally protected interests are at stake. As people seek to vindicate their constitutional rights, the courts have no alternative but to respond. Legislative inaction cannot serve to close the doors of the courtrooms of this state to its citizens who assert cognizable constitutional rights. As was observed ... [in a prior] opinion of this Court ...: `We think it is appropriate to observe here that one of the exceptions to the separation-of-powers doctrine is in the area of constitutionally guaranteed or protected rights. The judiciary is in a lofty sense the guardian of the law of the land and the Constitution is the highest law. A constitution would be a meaningless instrument without some responsible agency of government having authority to enforce it .... When the people have spoken through their organic law concerning their basic rights, it is primarily the duty of the legislative body to provide the ways and means of enforcing such rights; however, in the absence of appropriate legislative action, it is the responsibility of the courts to do so. [Citation omitted.]'" 379 So.2d at 360-361. [10] The attorney for Mrs. Severns relies upon Wilmington Trust Company v. Hahn, Del.Supr., 241 A.2d 517 (1968), in which this Court affirmed a judgment of the Superior Court denying standing to a guardian appointed by the Court of Chancery which sought to annul the ward's marriage. But, in that case, the Trust Company was guardian of the property of the ward, not her person. At that time, § 3914 did not authorize the appointment of a guardian of the person. [11] In Du Pont, Justice Wolcott stated: "It may be observed that no one denies that the general equity jurisdiction of the Court of Chancery, established originally by Sections 21 and 25 of a Colonial Act of 1726-1736, is defined as all the general equity jurisdiction of the High Court of Chancery of Great Britain as it existed prior to the separation of the colonies, subject to the proviso, originally contained in Section 25 of the Colonial Act and now found as Section 4367, R.C. 1935, to the effect that the Chancellor shall not hear and determine any cause where a sufficient remedy exists at law. This is a holding of the Glanding case ...." 85 A.2d at 727. [12] We recognize that if the Court of Chancery eventually authorizes the guardian of Mrs. Severns to discontinue a support which sustains her life-the respirator, for example-that may result in some conflict with one or more of the criminal Statutes to which we have referred. Under the Delaware Constitution, Article XV, § 1, and 29 Del.C. § 2501, the Attorney General is empowered to enforce the criminal laws of the State. And under general law the Court will not interfere with the performance of his discretionary duties, absent bad faith. Delaware Optometric Association v. Sherwood, Del. Ch., 35 Del.Ch. 507, 122 A.2d 424, aff'd, 36 Del.Ch. 223, 128 A.2d 812 (1957); 43A C.J.S. Injunctions § 114. However, the Court of Chancery may enjoin a criminal prosecution, to protect a property right, cf. Economy Cleaners v. Green, Del.Ch., 21 Del.Ch. 170, 184 A. 225 (1936), or a personal right, Degerberg v. McCormick, Del.Ch., 40 Del.Ch. 471, 184 A.2d 468 (1962). As the Attorney General points out in his brief, a criminal prosecution may be enjoined if it infringes upon some constitutional right, provided that the party seeking such relief demonstrates that failure to enjoin will cause irreparable harm. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Accommodation of these conflicting considerations will have to await proof of the factual context in which they arise. [13] So far as we have been able to determine, every reported decision in a Severns-type problem was based on a trial or similar evidentiary hearing. None was decided on stipulated facts agreed to by the attorneys in the case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259986/	421 A.2d 901 (1980) Courtland PITTS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. Supreme Court of Delaware. Submitted May 12, 1980. Decided September 17, 1980. Richard E. Fairbanks, Jr. (argued), Asst. Public Defender, Wilmington, for defendant-appellant. J. Patrick Hurley, Jr. (argued), Deputy Atty. Gen., Wilmington, for plaintiff-appellee. Before HERRMANN, C. J., and DUFFY and QUILLEN, JJ. 902 QUILLEN, Justice: The following statement of facts is taken practically verbatim from the defendant's brief, such statement having also been adopted by the State in its answering brief. Courtland Pitts was called as a witness on behalf of the State of Delaware during the trial of Messrs. Hickman and Williams on June 18, 1979. Mr. Pitts had testified in an earlier proceeding and expressed to the Court and prosecutor an unwillingness to testify again. Mr. Pitts took the stand, but when asked to swear on the Bible or to be affirmed, he said: "I don't know anything about this charge. I told you. "I wish you all both would stop bothering me." The Trial Judge explained to Mr. Pitts that "everytime you refuse to answer my question or refuse to take the oath ... I'll add five months to your sentence...." After considerable discussion on the matter between the Trial Judge, the Deputy Attorney General and the defendant and after a short recess, Mr. Pitts still declined to answer questions or to swear or be affirmed. The Trial Judge then proceeded to hold the defendant, Courtland Pitts, in contempt of court on two separate occasions and immediately sentenced him to two consecutive terms of five months imprisonment. Mr. Pitts explained his refusal as follows: "If you can't take my word me telling you sitting here and telling you I don't know nothing about it, I'm not going to swear or affirm to nothing." During that time, Mr. Pitts was not afforded counsel. The Trial Court, subsequent to finding Mr. Pitts in contempt and sentencing him, briefly inquired as to whether the defendant, an incarcerated inmate on other charges, had an attorney. The following colloquy took place: "THE COURT: Does Mr. Pitts have an attorney? "MR. LETANG: I'm not sure if "MR. PITTS: What do I need an attorney for? "MR. LETANG: Do you have an attorney? "MR. PITTS: What do I need one for? "MR. LETANG: I assume he doesn't have an attorney. I would suggest that we recess and see if he may have a Public Defender, and I'll talk to that Public Defender. "MR. PITTS: I don't need no Public Defender. "THE COURT: Maybe somebody can explain to him it's easier for him to take the stand and not get ten months plus any additional time. "MR. PITTS: Ain't nobody can explain nothing to me. "THE COURT: It's up to you whether or not you wish to proceed with this witness. "MR. PITTS: I-You might as well let me step off the case if you want to get on with this." The State, then, decided to withdraw Mr. Pitts as a witness. Thus, Mr. Pitts was summarily charged and convicted on two counts of contempt of court and he was immediately sentenced to two consecutive terms of five months imprisonment. He appeals. Four questions have been raised on appeal: (1) did the Trial Court err in holding a summary criminal contempt hearing for defendant's refusal to be sworn as a witness? (2) did the Trial Court err in holding defendant twice in contempt and in sentencing defendant twice? (3) did the Trial Court deny the defendant his constitutional right to trial by jury? and (4) did the Trial Court deny the defendant his constitutional right to court appointed counsel? 903 We note initially that these questions relate solely to the necessary or desirable technical requirements of contempt. They do not relate at all to the demeanor or manner of the Trial Judge. The Trial Judge, faced with considerable provocation, demonstrated admirable judicial temperment. Notwithstanding our different view on certain matters, we commend him for his effort to be fair in a highly technical area of the law. The first question turns on statutory construction. Under our new Criminal Code, all criminal offenses are defined by statute. 11 Del.C. § 202. The Code excludes civil contempt but criminal contempt is codified in 11 Del.C. § 1271. 11 Del.C. § 202(b); Delaware Criminal Code with Commentary on § 202, p. 7 (1973). The pertinent statutes on the instant question are 11 Del.C. §§ 1271-1272.[1] The defendant claims that the use of summary contempt authorized by § 1272 is statutorily limited to criminal contempts defined in § 1271(1) and cannot include a contempt proceeding for refusal to be sworn as a witness because that is specifically covered in § 1271(4). The matter is somewhat confusing. A violation of § 1271(1) is a class B misdemeanor and carries a maximum prison sentence of 6 months, whereas a violation of § 1271(4) is a class A misdemeanor with a maximum prison sentence of 2 years. 11 Del.C. § 4206(a)-(b). On the other hand, the Commentary to the Code says: "Subsection (4) deals with particularly serious cases of refusal to be sworn as a witness or to answer proper questions after being sworn. Some such conduct will be reached by subsection (1) also, but a separate provision is needed for cases which do not rise to insolence to the Court." Delaware Criminal Code with Commentary § 1271, p. 381 (1973). That comment might lead one to conclude that § 1271(1) cases, the "insolence" cases, are more aggravated. But compare "contumacious refusal" language in § 1271(4). It probably does not make sense to try to analyze the statute in terms of aggravation because the statute was written during the period when the six months or less petty crime concept was evolving for purposes of a federal constitutional right to jury trial. See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Frank v. United States, 395 U.S. 147, 149-50, 89 S.Ct. 1503, 1505-06, 23 L.Ed.2d 162, 166-67 (1969), rehearing denied 396 U.S. 869, 90 S.Ct. 34, 24 L.Ed.2d 123 (1969); Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437, 440 (1970). See also Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912, 919 (1974), particularly n.4. 904 The jury trial factor therefore was crucial in the classification of summary contempt as a class B misdemeanor. It seems to us that there is, as the Commentary recognizes, a clear overlap in the subsections. Furthermore, we think the extent of the overlap has to be determined by the language of the statute. The language in § 1271(1) refers to "[d]isorderly, contemptuous or insolent behavior . . . ." (emphasis added). The word "contemptuous" thus is given a status equal to and independent of the words "disorderly" and "insolent". A refusal to be sworn traditionally is "contemptuous" conduct [United States v. Wilson, 421 U.S. 309, 314-15, 95 S.Ct. 1802, 1805-06, 44 L.Ed.2d 186, 192 (1975)] and, if such refusal is "committed during the sitting of a court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority", it would constitute a violation of § 1271(1). Thus, while perhaps the draftsmen contemplated summary contempt use primarily in situations of disorder and insolence, they also appear to have deliberately granted the trial judge a wide discretion to balance all the factors in determining whether or not to use the summary contempt power. Of course, if the trial judge chooses the summary route, the defendant is spared the risk of the maximum two year prison sentence since a § 1271(4) proceeding is foreclosed. We conclude that the Trial Judge here did not err in holding a summary criminal contempt hearing pursuant to 11 Del.C. §§ 1271(1)-1272 for defendant's refusal to be sworn as a witness. The second question focuses on the dual conviction and sentence. Initially, we note that the defendant has claimed that the Trial Judge failed to follow the summary contempt procedure set forth in Superior Court Criminal Rule 42(a).[2] But no major emphasis has been given this alleged error as an independent ground for reversal and we hesitate to consider it absent a claim of prejudice or inadequate record. The record here is precise. We think it is clear from the comments of the Trial Judge that the defendant was subjected to a dual five month sentence for two criminal contempts summarily adjudicated. The subsequent contemptuous act was so interwoven with the prior conduct as to be inseparable therefrom. There was a single crime. See, e. g., Yates v. U. S., 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); United States v. Costello, 2d Cir., 198 F.2d 200 (1952); Annot., Separate Contempt-Successive Refusal, 94 A.L.R.2d 1246 (1961). Compare In re Amato, N.Y.Supr., 204 Misc. 454, 124 N.Y.S.2d 726 (1953). We conclude that, regardless of the resolution of the right to counsel question, the second conviction and sentence cannot stand. As to the third question and the right to jury trial, we need only note that we have found the summary contempt proceeding pursuant to §§ 1271(1)-1272 to be proper as to a single crime and therefore the statutory maximum sentence that could be imposed was six months. Given a single five month sentence, we conclude there is no violation of the right to jury trial. We turn finally to the fourth question and the defendant's right to court appointed counsel. We start with the Argersinger proposition that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial." Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972). Compare Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). The State has not disputed the defendant's indigency. The defendant has been 905 sentenced to prison. The facts disclose no "knowing and intelligent waiver" to a right of counsel. Indeed, the only inquiry by the Court about counsel occurred after both sentences. Understandably, however, the State contests the applicability of Argersinger in a summary contempt proceeding. There is a long history upholding summary adjudication including imprisonment for contempts "committed in the face of the court." 2 G. Sharswood, Blackstone's Commentaries, Book IV, ch. 20, p. 286 (1895). See also In re Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198 (1962). The following language from the Cooke case demonstrates the force of this history: "To preserve order in the courtroom for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court, when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary. It has always been so in the courts of the common law, and the punishment imposed is due process of law. Such a case had great consideration in the decision of this court in Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405. It was there held that a court of the United States, upon the commission of a contempt in open court, might upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately proceed to determine whether the facts justified punishment and to inflict such punishment as was fitting under the law." 267 U.S. at 534-35, 45 S.Ct. at 394, 69 L.Ed. at 773. Moreover, although the defendants in United States v. Wilson, supra, did have counsel, it is interesting to note that the United States Supreme Court in that 1975 decision upheld the use of summary contempt in a refusal to testify case. It is worth focusing on Chief Justice Burger's opinion of the Court and Justice Blackmun's concurrence: "In an ongoing trial, with the judge, jurors, counsel, and witnesses all waiting, Rule 42(a) provides an appropriate remedial tool to discourage witnesses from contumacious refusals to comply with lawful orders essential to prevent a breakdown of the proceedings. Where time is not of the essence, however, the provisions of Rule 42(b) may be more appropriate to deal with contemptuous conduct. We adhere to the principle that only `[T]he least possible power adequate to the end proposed' should be used in contempt cases. Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242 (1821). See Taylor v. Hayes, 418 U.S. 488, 498, 94 S.Ct. 2697, 2703, 41 L.Ed.2d 897 (1974). As with all power, the authority under Rule 42(a) to punish summarily can be abused; the courts of appeals, however, can deal with abuses of discretion without restricting the Rule in contradiction of its express terms, and without unduly limiting the power of the trial judge to act swiftly and firmly to prevent contumacious conduct from disrupting the orderly progress of a criminal trial." 421 U.S. at 319, 95 S.Ct. at 1808, 44 L.Ed.2d at 194-95. "Summary contempt, especially summary criminal contempt, as the Court indicates, ante, at 319 is not a power lightly to be exercised. Nevertheless, summary criminal contempt is a necessary and legitimate part of a court's arsenal of weapons to prevent obstruction, violent or otherwise, of its proceedings. It is not seriously disputed that a refusal to testify is punishable as a criminal contempt. So long as this Court holds, as it has, that the summary procedure of Rule 42(a) satisfies the requirements of due process, the Rule should be read to mean precisely what it says." 421 U.S. at 321-22, 95 S.Ct. at 1809, 44 L.Ed.2d at 196 (Blackmun, J., concurring). *906 See also Annot., Right to Counsel in Contempt Proceedings, 52 A.L.R.3d 1002, 1014-19 (1973). In light of the strong history and recent affirmation by the United States Supreme Court of the summary contempt power, we are somewhat hesitant to make a blanket constitutional ruling that Argersinger applies in every case of summary contempt regardless of how aggravated the circumstances. We note that the United States Supreme Court has not required counsel in every context as a matter of due process. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We also note our neighbor has struggled with this question and we have nothing of substance to add to the policy factors discussed by Justices of the Pennsylvania Supreme Court. Commonwealth v. Crawford, Pa.Super., 466 Pa. 269, 352 A.2d 52 (1976). See also Kuhns, The Summary Contempt Power: A Critique and a New Perspective, 88 Yale Law Journal 39, 58 (1978). While, from an appellate standpoint, it is better to have a lawyer appointed in every case because that eliminates the issue, we think it sufficient to dispose of the immediate case on a more narrow ground. Particularly, we need not attempt in advance to determine the constitutional question presented by a hypothetical disorderly and violent defendant. But, on the facts of this case, where there is no emergency such as conduct physically threatening to people and property in the courtroom and no other exigency unduly interfering with trial proceedings, the better policy, at least until the summary contempt situation is directly considered by the United States Supreme Court, is to afford an indigent defendant the opportunity for court-appointed counsel. Moreover, we do not think the United States Supreme Court would depart from the Argersinger requirement on the facts of this case. There is no good reason to deny the defendant the advantage of a disinterested advocate's view of the situation including a review of the defendant's state of mind, a consideration of the possibility of avoidance of conviction, a consideration and an appropriate statement as to sentence and a review of the legality of the proceedings. Failure to afford such opportunity requires reversal. The judgment of the Superior Court is reversed and the case is remanded for a new trial on a single charge of criminal contempt under §§ 1271(1)-1272 and Rule 42(a) of the Superior Court Criminal Rules. NOTES [1] The statutes read as follows: "§ 1271. Criminal contempt; class A misdemeanor; class B misdemeanor. "A person is guilty of criminal contempt when he engages in any of the following conduct: "(1) Disorderly, contemptuous or insolent behavior, committed during the sitting of a court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority; or "(2) Breach of the peace, noise or other disturbance directly tending to interrupt a court's proceedings; or "(3) Intentional disobedience or resistance to the process, injunction or other mandate of a court; or "(4) Contumacious refusal to be sworn as a witness in any court proceeding or, after being sworn, to answer any proper interrogatory; or "(5) Knowingly publishing a false or grossly inaccurate report of a court's proceedings; or "(6) Intentional refusal to serve as a juror; or "(7) Intentional and unexcused failure by a juror to attend a trial at which he has been chosen to serve as a juror; or "(8) Intentional failure to appear personally on the required date, having been released from custody, with or without bail, by court order or by other lawful authority, upon condition that he will subsequently appear personally in connection with a criminal action or proceeding. "Criminal contempt is a class A misdemeanor, except for violations of subdivision (1) of this section. A violation of subdivision (1) of this section shall be a class B misdemeanor." "§ 1272. Criminal contempt; summary punishment. "A person who commits criminal contempt as defined by § 1271(1) of this title may in the discretion of the court be convicted and sentenced for that offense without further criminal proceedings during or immediately after the termination of the proceeding in which the act constituting criminal contempt occurred." [2] The rule reads: "(a) Summary Disposition. A criminal contempt may be punished summarily if the Judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court. The order of contempt shall recite the facts and shall be signed by the Judge and entered of record."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259997/	491 Pa. 586 (1980) 421 A.2d 1040 COMMONWEALTH of Pennsylvania v. Wayne FORD a/k/a Levan Spann, Appellant. Supreme Court of Pennsylvania. Submitted January 9, 1979. Decided September 22, 1980. 587 588 589 James Gardner Colins, Philadelphia County, for appellant. Niel Kitrosser, Asst. Dist. Atty., Philadelphia County, for appellee. Before EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ. OPINION OF THE COURT O'BRIEN, Justice. Appellant, Wayne Ford, a/k/a Levan Spann, pleaded guilty to murder of the third degree in the Court of Common Pleas of Philadelphia County on December 4, 1975. On March 16, 1976, he was sentenced to a term of imprisonment of not less than eight nor more than twenty years. A direct appeal was taken to this Court in which appellant claimed, inter alia, he had been denied effective assistance of counsel. We remanded to the trial court for an evidentiary hearing on the claims of ineffectiveness. Commonwealth v. Ford, 484 Pa. 163, 398 A.2d 995 (1979). The evidentiary hearing so ordered was held on May 30, 1979, and on 590 February 15, 1980, the Court of Common Pleas of Philadelphia County determined appellant "was not deprived of his right to representation by competent counsel." In accordance with our mandate in Ford, id, 484 Pa. at 166, 398 A.2d at 996, the record is now returned to this Court for further consideration of the instant appeal. Instantly, as at the evidentiary hearing, appellant argues his claim of ineffective assistance of counsel in five particulars. Appellant correctly notes, initially, that the standard by which counsel's stewardship is gauged is well-settled: ". . . counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 352-353 (1967) (Emphasis in original). Notwithstanding the longevity of the Washington v. Maroney standard, appellant is constrained to note that it cannot be employed "from a standpoint of pure logic," and opines that our test is "a well meaning but ill-advised judicial non-sequitur." We decline appellant's implicit, if somewhat pedantic, invitation to depart from our standard of review. Moreover, we reiterate that the Washington v. Maroney test is far from being "a well meaning but ill-advised judicial non-sequitur." It is, rather, the law in Pennsylvania. We apply it to the instant case and affirm. Appellant's first claim of ineffectiveness assails trial counsel's failure to attempt to interview witnesses or independently investigate his case. Appellant had been represented initially by attorney George Gershenfeld. While so represented a suppression motion was filed, argued and denied. On November 10, 1975, attorney Gershenfeld, because of a conflict of interest which had arisen, withdrew and was replaced as counsel by 591 attorney Stephen Gallagher. It is attorney Gallagher's representation which is now assigned as ineffective. Appellant complains counsel did not confer with him at sufficient length, did not conduct an independent investigation of the case, and did not attempt to interview witnesses. We begin by noting that mere shortness of time in conference does not, without more, establish ineffective assistance of counsel. Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Neither is it per se ineffectiveness for counsel to fail to interview or call potential defense witnesses. Commonwealth v. Johnson, 479 Pa. 60, 387 A.2d 834 (1978); Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979). At the evidentiary hearing appellant asserted that if he had gone to trial he would have requested that counsel subpoena a doctor at the detention center who would testify appellant was given medication for narcotics withdrawal at the time he was arrested. It is true we have found ineffective assistance of counsel where counsel failed to call witnesses an accused wished to have testify. See, e.g., Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). In the instant case, however, trial counsel testified at the evidentiary hearing that when he was appointed to represent appellant he immediately met with prior counsel. Counsel testified he received the case file and transcript of the suppression hearing. He ascertained appellant's statement had been ruled admissible. Counsel further learned that three of appellant's co-defendants had been convicted for their participation in the instant crime and sentenced to life imprisonment, and that a fourth accomplice had testified at the trials of the three co-defendants and would testify against appellant. When counsel met with appellant prior to the entry of the guilty plea, appellant admitted the truth of the confession and volunteered nothing in mitigation. Appellant testified at the evidentiary hearing that he did not inform counsel of any witnesses he desired to have called, nor did he indicate what any such witnesses might provide by way of a defense. 592 Any failure to attempt to interview witnesses of whose existence counsel is unaware is not ineffectiveness. Commonwealth v. Johnson, 479 Pa. 60, 387 A.2d 834 (1978); Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). Moreover, the failure to conduct a more intensive investigation of the case than was instantly conducted in the absence of any indication that such investigation would develop more than was already known, is similarly not ineffectiveness. Jones, supra. Appellant next asserts trial counsel was ineffective in that he did not explain to appellant that the issue of voluntariness of his statement could, notwithstanding the adverse result at the suppression hearing, be argued to the trier of fact at trial. As we stated in Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978), "before a defendant on direct appeal is entitled to relief under a theory of ineffective assistance of trial counsel, it must appear that the lawyer's act of omission or commission was arguably ineffective representation, and that it is likely that such ineffectiveness was prejudicial to the defendant." Wade, Id., 480 Pa. at 172, 389 A.2d 560. The record in the instant case reveals that appellant's first attorney informed him subsequent to the denial of his suppression motion that the statement could still be challenged at trial. Moreover, counsel told appellant the issue of voluntariness could be appealed if the result at trial was adverse. Nevertheless appellant proposed entry of a guilty plea, on two occasions, in return for a sentence recommendation of five to twenty years. Although trial counsel testified he did not recall whether or not he told appellant the voluntariness of the statement could be challenged at trial, we find that even if he did not do so, on the state of this record, no prejudice resulted. Wade, id. Similarly, and for the same reasons, appellant's assertion that counsel was ineffective for failing to explain the suppression 593 issue was appealable, must also fail. Moreover, trial counsel testified that he did explain to appellant his appeal rights regarding the statement. Fourth, appellant argues trial counsel provided constitutionally ineffective representation because he failed to explain to appellant the procedures for withdrawal of a guilty plea and taking an appeal. Appellant's final and related assertion assigns as ineffectiveness counsel's failure to file a motion to withdraw the plea. We reiterate that in order for one on direct appeal to prevail on a theory of ineffective assistance of counsel, he must show an act of omission or commission by counsel which was arguably ineffective, and also the likelihood he was prejudiced thereby. Wade, id. For several reasons appellant in the instant case cannot prevail. Preliminarily we note that there is no requirement in our law that every attorney who has represented a criminally accused during a guilty plea proceeding file after its acceptance a petition to withdraw the plea. There is in the record of the instant case uncontradicted testimony that appellant never requested counsel to file such a petition. Appellant's response is that no such request was made because counsel never informed him of his right to file such a petition. Although the record would appear to indicate appellant was aware of this right in that subsequent to sentencing another attorney was retained for the express purpose of filing a petition to withdraw appellant's plea, we nevertheless address this contention. Although the only issues before us are those challenging counsel's representation, and not those which go to the merits of appellant's claim his plea was involuntarily entered, it is nevertheless often necessary, in an ineffectiveness context, to review the underlying claim as well. This is so because we have consistently held counsel will not be considered to have been ineffective if his action or inaction had "some reasonable basis designed to effectuate his 594 client's interests." Commonwealth ex rel. Washington v. Maroney, supra. And we will find a "reasonable basis" for inaction if the thing not done had no likelihood of success. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). Thus if a post-sentence petition to withdraw the guilty plea can, in the instant case, be said to have been a fruitless act, counsel will not be held to have been ineffective for failing to file such a petition. We are aided in our analysis of this question by the record of the evidentiary hearing and the opinion of the hearing court. That court, recognizing the interrelation between appellant's claim of ineffective assistance of counsel and his claim of an involuntary guilty plea, granted appellant's counsel considerable latitude in challenging the plea itself. And that court found, in its opinion, that as a matter of fact the plea was voluntarily entered. Other than the issues addressed supra, appellant's only additional argument concerning involuntariness is one which claims the trial court confused appellant regarding the use to which the prosecution might put appellant's confession at trial. Yet the hearing court noted the following portion of the guilty plea colloquy contradicts appellant: "[BY THE COURT]: `Well, if the case were to be tried, the Commonwealth has this statement which they said you gave, and you gave voluntarily, and that you were provided all your constitutional rights, and you would have the right to challenge that during the course of trial. Your attorney would object to the use of that statement. By pleading guilty you are giving up the right to challenge that, the use of that statement; do you understand that?' "To this the defendant replied, `Yes.' After further questions and answers the Court stated to the defendant: `But I won't accept any guilty plea unless you want to plead guilty. Do you understand all this?', and the defendant replied, `Yes, sir.' Immediately thereafter the Court asked: `Now, what is it that you want to do?', and the defendant replied, `I would like to plead guilty.'" *595 We agree with the hearing court that appellant understood his rights concerning his confession at the guilty plea stage. Finally we note that had appellant timely filed a petition to withdraw his plea he would have gotten no more than he has already received: a hearing on the issue of voluntariness. He has thus not been prejudiced by any failure to petition to withdraw the plea. Cf. Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978). Judgment of sentence affirmed. ROBERTS, J., files a concurring opinion in which NIX, J., joins. ROBERTS, Justice, concurring. I agree with the majority that the judgment of sentence must be affirmed. I write to clarify the proper standards to be applied in testing appellant's ineffective assistance claims. First, for appellant to prevail on his claims of pre-guilty plea ineffectiveness, the record must establish that the alleged ineffectiveness induced his plea. See e.g., Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978). Second, under Pennsylvania's test of ineffective assistance of counsel, see Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 352-53 (1967), the inquiry is not whether prejudice ensued from counsel's action or inaction. As Washington states, we do not employ a "hindsight evaluation of the record." Rather, the inquiry is whether "the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." This record reveals neither ineffective assistance inducing appellant's plea nor ineffective assistance in post-plea proceedings. Thus the judgment of sentence may not be disturbed. NIX, J., joins in this concurring opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260004/	280 Pa. Superior Ct. 278 (1980) 421 A.2d 721 COMMONWEALTH of Pennsylvania v. Joseph DANIELS, Appellant. Superior Court of Pennsylvania. Submitted December 6, 1979. Filed September 23, 1980. 279 Donald G. Joel, Philadelphia, for appellant. Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee. 280 Before BROSKY, WICKERSHAM and EAGEN, JJ.[] BROSKY, Judge: Joseph Daniels was found guilty at trial without a jury of possession, possession with intent to deliver, and manufacturing with intent to deliver a controlled substance. He was sentenced to seven and one-half (7½) to fifteen (15) years imprisonment on June 22, 1978. This appeal followed. On May 11, 1977, Officers Arthur Mee and Paul Rich responded to a telephone call from an anonymous caller that a screaming white female was being taken from a car to a building. The caller only identified himself as a third floor tenant of the same building-2335 North 13th Street, Philadelphia, Pennsylvania. The policemen rushed to the location of the alleged crime. Upon arrival, one of the officers knocked on the front door of the apartment identified by the anonymous caller and announced himself by asking if everything was "all right" (appellant's brief, page 2). Appellant unlocked the door, did not respond to the policeman's questions, and allowed the policemen to enter. Appellant walked through the apartment, followed by Officer Rich, to a bedroom. Officer Mee entered the front room of the apartment where he discovered Catherine Snelick, a white female. Officer Rich discovered a box of plastic bags "containing a tan substance, later identified as heroin" (appellant's brief, page 2). The box was open and within Officer Rich's plain view. Officer Rich stated in his testimony, described what inadvertently came into his view when he entered appellant's room: ". . . At that point, straight ahead of us (Officer Rich and Daniels) on the dresser, was a box containing I believe, it was thirty bundles of tan powder." Officer Mee found Ms. Snelick sitting on the floor partially covered with a green plant, later identified as marijuana, rolling a cigarette containing the plant. Joseph Daniels and Catherine Snelick were then placed under arrest and taken into custody. 281 Ms. Snelick subsequently obtained an agreement from the Commonwealth not to prosecute in return for her testimony. A hearing was held, pursuant to Daniels' motion to suppress evidence illegally seized, on December 22, 1977. The lower court suppressed evidence not within Officer Rich's plain view taken from a bureau in the bedroom. All other physical evidence was not suppressed. Appellant bases this appeal on three issues: first, whether the lower court erred in not suppressing all physical evidence; second, whether Catherine Snelick was properly immunized to give testimony; and third, whether the Commonwealth laid a proper foundation to use police chemist Perkins, who identified the physical evidence as controlled substances, as an expert witness. It has long been established that the Fourth Amendment does not prohibit all warrantless searches, only those which are unreasonable. U.S. v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1949). And what is reasonable must be judged on the totality of the circumstances of each particular case. U.S. v. Samuels, 374 F.Supp. 684 (E.D. Pa. 1974). If, however, a search would be unreasonable, the police must have a valid warrant to conduct a search unless their actions fall within one of the well established exceptions to the warrant requirement. In the instant case, the officers made a proper search of appellant's apartment. They had the consent of Daniels to enter the premises; and once within the apartment, all evidence which was admitted below came within their plain view. The officers neither asked for nor demanded admission. Their entry was the result of appellant's free action. Furthermore, even if Daniels did not consent to their entry, his actions, when viewed in combination with the anonymous telephone call, confronted police with very suspicious circumstances warranting additional inquiry. The Supreme Court has stated in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973): "[w]hen a prosecutor seeks to rely upon consent to 282 justify the lawfulness of a search, he has the burden of proving that the consent was in fact, freely and voluntarily given." Id. at 222, 93 S.Ct. at 2045. In U.S. v. Ruiz-Estrella, 481 F.2d 723 (1973), the Second Circuit stated: . . . While the question of voluntariness is one that must be resolved through an examination of "the totality of all the circumstances" [Schneckloth v. Bustamonte, supra, at 227, 93 S.Ct. at 2048] the [Supreme] Court emphasized that the prosecution's burden could not be met by only showing acquiescence to a claim of lawful authority, id. at 233, 93 S.Ct. 2041 [at 2050] . . . (emphasis added) The test for the validity of consent has been given further explanation in Virgin Islands v. Berry, D.C., 385 F.Supp. 134 (1974) where the court set the following guide to the Schneckloth test. . . . Factors to be considered by a court in assessing the voluntariness of the consent include the nature of the on the scene questioning, the subjective state of mind of the person who consents, his educational background, and the presence or lack of probable cause to arrest or search the subject. Id. at page 137. Officers Mee and Rich approached Daniels at his door and asked if everything was "all right". Daniels opened the door and walked away without responding to the officers' questions. Appellant voluntarily opened the door when he saw uniformed police officers. He did not respond to the policemen's question and in doing so, we hold, consented to their entry at least so they could complete their questioning. The consent issue in the instant case is not clearcut because Daniels did not respond to the officers. While on the totality of the circumstances it appeared he consented, it is uncertain because their verbal exchange was very limited. Nevertheless, the police acted properly. The apparent consent of Daniels presented the officers with very suspicious circumstances. They could not know if everyone within the apartment was "all right" let alone who was in the apartment. 283 We recognize that police have long followed the practice of stopping and questioning suspicious persons where they lack sufficient probable cause to arrest the individual. This practice was held not to violate the Fourth Amendment in the Supreme Court's landmark case, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There is very strong public policy in favor of permitting police to respond to reports of crime, to investigate, and hopefully, prevent any injury. In Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1979), the Pennsylvania Supreme Court discussed the Terry doctrine: The prosecution does not dispute that detaining appellees by blocking their automobile constituted a seizure within the meaning of the Fourth Amendment. Even if such an intrusion is not an arrest, as the prosecution argues, and if Terry is applicable, the seizure in this case does not meet the requirements of Terry. A stop for investigatory purposes is justified under Terry only if the "police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . ." (Emphasis added.) Terry, supra, 392 U.S. 1 at 30, 88 S.Ct. at 1884, 20 L.Ed.2d 911. Even if we were to apply this rationale to the present case, the police conduct here would remain unlawful because the record satisfies us that these police officers did not observe any unusual conduct. As correctly noted by the suppression court, the officer in question simply "assumed" that criminal conduct was occurring. Id., 478 Pa. at 67, 385 A.2d at 1316. Essentially, Terry v. Ohio, supra, states that "a police officer may in appropriate circumstances and in an appropriate moments approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Commonwealth v. Anderson, 481 Pa. 292 at 295, 392 A.2d 1298 at 1299 (1978), citing Terry v. Ohio, supra, 392 U.S. 22, 88 S.Ct. at 1880, see also Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973) which cites Commonwealth 284 v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Clarke, 219 Pa.Super. 340, 280 A.2d 662 (1971). The police legitimately were at appellant's door in response to a report of an ongoing crime. They introduced their interest in appellant's apartment; and it was his criminally suspicious conduct, viewed in light of the anonymous call, which permitted their entry. This is especially true when viewed in conjunction with his apparent consent. The police behaved responsibly in trying to question Daniels. Once confronted with his suspicious behavior, their inquiry became even more imperative. They had no choice but to follow Daniels into his bedroom if they wanted to continue questioning him. In Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978), the Pennsylvania Supreme Court held that the doctrine established under Terry v. Ohio, supra, was only applicable where police were legitimately on the premises. There, the court held police were properly admitted on the first floor of a premises, they could not go to the second floor of the house. In the instant case, police were properly admitted into the apartment and their legitimate inquiry required they follow the appellant into his apartment. They at no time entered any portion of the apartment but on the appellant's lead. Appellant contends the police had no authority to travel past the front room. We disagree. The Terry line of cases has been expanded in Pennsylvania to include an "intermediate response" applicable to circumstances where facts may not warrant an arrest. These situations are similar to the one in the instant case where police are duty bound to assure the safety of the woman and to inquire into the circumstances which induced their arrival. In other words, police should be encouraged to investigate all reports. This must be balanced against the appellant's privacy interests. Rather than force the officer to choose between making no inquiry and making an unwarranted search of the premises, we 285 allow him the "intermediate response" of questioning the appellant. Commonwealth v. Harper, 248 Pa.Super. 344, 375 A.2d 129 (1977); Commonwealth v. Lovette, 271 Pa.Super. 250, 413 A.2d 390 (1979). Of course, under the facts in this case, the police could not continue their inquiry without following Daniels. While we have determined that the police had sufficient grounds to enter the bedroom under the Terry analysis alone, the Commonwealth's position is clearly strengthened by "intermediate response" rationale adopted by this court. Therefore, once the officers entered the premises legitimately, they sought to question the appellant. In order to do so, he was followed to a bedroom where contraband came into plain view. This court made a careful review of the plain view doctrine in Commonwealth v. Adams, 234 Pa.Super. 475, 341 A.2d 206 (1975), where we stated that the plain view doctrine requires two distinct findings: 1) the police must legitimately be on the premises, and 2) the view must be inadvertent. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); see also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1973); U.S. v. Davis, 461 F.2d 1026 (3d Cir. 1973). In U.S. v. Herndon, 390 F.Supp. 1017 (1975), the court recounted the plain view doctrine. They stated: . . . In Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, [2037], 29 L.Ed.2d 564 (1970), Justice Stewart held that where the initial intrusion that brings the police within plain view of an article is supported not by a warrant but by one of the recognized exceptions to the warrant requirement, the seizure is legitimate. They stated that the plain view doctrine may be asserted where an officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object. Id. at 466, 91 S.Ct. 2022 [at 2038]. Where objects fall in the plain view of an officer who has a right to be in the position to have that view, they are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992 [993], 19 L.Ed.2d 1067 (1968). 286 See also Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1972); Commonwealth v. Legg, 258 Pa.Super. 294, 392 A.2d 801 (1978); Commonwealth v. Getz, 236 Pa.Super. 469, 344 A.2d 686 (1975); Commonwealth v. Cubler, 236 Pa.Super. 614, 346 A.2d 814 (1975); Commonwealth v. Rota, 222 Pa.Super. 163, 292 A.2d 496 (1972); Commonwealth v. Bowers, 217 Pa.Super. 317, 274 A.2d 546 (1970). All evidence which inadvertently came within the plain view of Officers Mee and Rich while legitimately on the appellant's premises was properly admitted into evidence. The lower court reached the same result as we do today. However, they did so, in part, through use of the exigent circumstances exception to the warrant requirement. We believe that it is imperative that no finding of sufficient exigent circumstances be made in this case. The police responded appropriately to a distress call. Nevertheless, that call was anonymous and there were no indicia of reliability of information accompanying the telephone call. It was nothing but a naked assertion that a white woman was screaming while being taken into an apartment in a black neighborhood. Therefore, we hold that there were not sufficient exigent circumstances present to make the search valid for that reason alone. The lower court erred in relying on the exigent circumstance exception to the warrant requirement. All decisions made pursuant to the exigent circumstances exception must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances. An anonymous call of an alleged crime cannot be sufficient to trigger the exception. It it were, the exception would in short order become the rule. Daniels argues that Ms. Snelick was not properly immunized to give testimony. The appellant lacks standing to raise this issue. Commonwealth v. Russell, 225 Pa.Super. 133, 310 A.2d 296 (1973). 287 Appellant's final contention is without merit. An expert witness may be qualified in several different ways. An expert may acquire his knowledge through occupational, practical or other experiential training. He is not required to acquire his expertise through academic training. Churbuck v. Union Railroad Company, 380 Pa. 181, 110 A.2d 210 (1955). Accordingly, the decision of the trial court is affirmed for the reasons stated herein. EAGEN, J., concurs in the result. NOTES [*] Chief Justice MICHAEL J. EAGEN of the Supreme Court of Pennsylvania, is sitting by designation.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260008/	280 Pa. Superior Ct. 621 (1980) 421 A.2d 1105 Edgar BLACK, Appellant, v. T.M. LANDIS, INC., American Bank & Trust Co. of Pa., and American Business Credit Corporation. Superior Court of Pennsylvania. Argued March 12, 1980. Filed September 26, 1980. 622 Philip R. Detwiler, Blue Bell, for appellant. 623 Michael Smith, Ambler, for Landis, appellee. Harris Goldich, Norristown, for American Bank and American Business, appellees. Before SPAETH, BROSKY and VAN der VOORT, JJ. SPAETH, Judge: This appeal is from an order sustaining preliminary objections and dismissing the complaint. Appellant is a cattle dealer. Appellees are a bank and its business credit subsidiary. T.M. Landis, Inc., which, with appellees, is also a defendant to the complaint, but is not a party to this appeal, is a cattle slaughterer. From the complaint and the several agreements made part of it, the following appears. Appellant had over a period of time been selling cattle to Landis, and Landis owed appellant $300,000 for cattle received but not paid for. Landis wanted to enter into a loan agreement with appellees, which would provide financing of $1,500,000, but as a condition of the loan, appellees required subordination of Landis's existing debt to appellant. On October 11, 1977, appellant and Landis executed an agreement that began by reciting that Landis was concurrently entering into the loan agreement with appellees and that subordination of Landis's debt to appellant was a condition of that agreement. The agreement between appellant and Landis went on to acknowledge and incorporate the subordination agreement concurrently executed by appellant, and to state that as an inducement to appellant to execute the subordination agreement, Landis would make appellant its sole supplier of cattle. The subordination agreement was executed only by appellant but began by reciting that it was given "[i]n consideration of the financial accommodations given, to be given or to be continued by" appellees to Landis. The body of the subordination agreement made numerous references to the loan agreement between appellees and 624 Landis, and the operational provisions of the subordination agreement were intertwined with those of the loan agreement. Appellant's complaint alleges that Landis has repeatedly violated the sole supplier agreement, and it prays for rescission of both the sole supplier agreement and the subordination agreement on the ground of failure of consideration. The complaint describes appellees as third party beneficiaries of the agreement between appellant and Landis. On appeal appellant has maintained that position; he argues that as third party beneficiaries, appellees are subject to any defects or defenses arising under the agreement between him and Landis. The opinion of the lower court begins by regarding the subordination agreement as being between appellant and appellees. Slip op. at 1. We agree that the agreement should be so regarded. However, because it was executed only by appellant and was attached to the agreement between appellant and Landis, it is necessary to analyze the agreement and its relationship to the other agreements in more detail in order to explain why we agree. In form the subordination agreement is unilateral; as just stated, it was executed only by appellant. Unilateral subordination agreements are not uncommon in commercial settings, and courts are frequently required to pass on their enforceability. One theory often used is that the senior creditor is a third party beneficiary. Calligar, Subordination Agreements, 70 Yale L.J. 376, 391 (1961). Most of the time it does not make any difference which of various possible theories of enforcement is used; what the court is really trying to do is effect the intent of the parties, and it selects a theory that will accomplish this. Id. See, e.g., In Re Credit Industrial Corporation, 366 F.2d 402 (2d Cir. 1966). However, in the present case, where appellant is arguing that the subordination agreement is only an attachment to another agreement and that that other agreement is subject 625 to rescission for failure of consideration, it does make a difference. In holding that the subordination agreement was between appellant and appellees, in holding, in other words, that appellees were not beneficiaries of but parties to the subordination agreement, even though they had not signed it, the lower court looked beyond the form of the agreement to its substance. As we have already indicated, we agree that this is the way the agreement should be regarded. It is a basic principle of contract law that when two or more writings are executed at the same time and involve the same transaction, they should be construed as a whole. Von Lange v. Morrison-Knudsen Co., Inc., 460 F.Supp. 643 (M.D.Pa. 1978), aff'd mem., 609 F.2d 504 (3d Cir. 1979); International Milling Co. v. Hachmeister, Inc., 380 Pa. 407, 110 A.2d 186 (1955). If the writings pertain to the same transaction, it does not matter that the parties to each writing are not the same. Von Lange v. Morrison-Knudsen, supra. See 4 Williston, Contracts § 628. Here, as appears from their own recitals, the subordination agreement and the sole supplier agreement were executed concurrently with each other and with the loan agreement between appellees and Landis. The three agreements represent different aspects of a single underlying transaction that involved all three parties-appellant, appellees, and Landis. When the three agreements are construed as a whole, it becomes clear that appellees were more than third party beneficiaries of the subordination agreement; they required, and insisted upon, the subordination agreement as a condition of their loan agreement with Landis, and appellant recognized and accepted this condition; appellees' financial accommodations to Landis are recited as consideration in the subordination agreement. Appellant's complaint nowhere alleges failure of that consideration. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260014/	777 F.Supp. 956 (1991) Farris PATTY, Plaintiff, v. TOYOTA MOTOR CORPORATION and Toyota Motor Sales, Inc., U.S.A., Defendants. Patricia P. NEAL, Plaintiff, v. TOYOTA MOTOR CORPORATION and Toyota Motor Sales, Inc., U.S.A., Defendants. Civ. A. Nos. 4:-91-v-62-HLM, 4:-91-v-63-HLM. United States District Court, N.D. Georgia, Rome Division. October 17, 1991. 957 James Edward Butler, Jr., Butler Wooten Overby & Cheeley, Columbus, Ga., Robert David Cheeley, Patrick Alan Dawson, Butler Wooten Overby & Cheeley, Atlanta, Ga., for plaintiffs. Benjamin Louis Weinberg, Jr., C. Bradford Marsh, Long Weinberg Ansley & Wheeler, Atlanta, Ga., for defendants. ORDER HAROLD L. MURPHY, District Judge. These cases are consolidated for the purposes of the pending motions which raise identical issues. The cases are before the Court on Defendant Toyota Motor Corporation's Motion to Dismiss Plaintiffs' Complaint. A hearing on the issues raised by Defendant's motion was held on Tuesday September 10, 1991, and a decision reserved pending this Court's receipt of further written arguments. Based on the evidence submitted at the hearing, and the briefs submitted, this Court concludes that Defendant's Motion to Dismiss should be denied. A. Facts The case arises from an auto accident involving an automobile manufactured by Toyota Motor Corporation and sold by Toyota Motor Sales, U.S.A., Inc. The accident occurred on March 29, 1989, when Plaintiff Patricia Neal was unable to deactivate the cruise control on her 1988 Toyota Corolla automobile and crashed into a transfer trailer truck. Patricia Neal's grandmother, Plaintiff Farris Patty, was a passenger in the automobile at the time of the accident. On March 26, 1991, Plaintiffs filed suit against Defendants alleging claims for strict liability, negligence, failure to warn, and failure to recall. On April 1, 1991, Plaintiff sent a copy of the summons and complaint to Defendant Toyota Motor Corporation in Japan via registered mail. On April 7, 1991, Toyota Motor Corporation's representatives in Japan acknowledged receipt of the summons and complaint. Defendants in Japan, however, insist on being served pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, TIAS No. 10072 (U.S. Treaties and other International Acts) and 20 UST 361. Although Plaintiff sent APS International[1] a copy of the summons and complaint on April 8, 1991, it was not until May 15, 1991 that the Toyota Branch of the Nagoya Legal Affairs Bureau certified the registered contents of the documents, and May 29, 1991, that the documents were served on Defendant Toyota Motor Corporation. On July 3, 1991, Defendants filed two motions to dismiss. The first, made by both Defendants, sought to dismiss Count II of the Plaintiff's Complaint on the ground that it failed to state a claim upon which relief may be granted. The second motion, filed by Toyota Motor Corporation of Japan, sought to dismiss Plaintiff's action since service was not perfected in a timely manner before the statute of limitations expired. As explained above, a decision on Defendant Toyota Motor Corporation's ("Defendant") motion was reserved until today. Defendant's motion to dismiss is premised on its contention that service of process on Japanese corporations by means of certified or registered mail is not allowed under the Convention on the Service Abroad of Judicial or Extrajudicial Documents in Civil or Commercial Matters ("Hague Convention") 20 U.S.T. 361, T.I.A.S. No. 6638, Art. 1 et seq., Fed. R.Civ.P. Rule 4. Although service in this case was later perfected by the more elaborate method set forth in the Hague Convention, Defendant seeks to have the Plaintiffs' complaints dismissed since service was not perfected in a timely manner before the statute of limitations expired. 958 B. Service of Process under the Hague Convention The Hague Convention is a multinational treaty, completed in 1965 for the purpose of creating an effective means of serving judicial and extrajudicial documents. Japan is a signatory of the treaty, as is the United States. Although several methods of service of process are permitted under the Convention,[2] this case revolves around whether Article 10 of the Hague Convention permits service by means of registered mail. Article 10 provides in relevant part: "Provided the state of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination." Under Article 21 any signatory State has the opportunity to object to one or more of the Convention's provisions. Japan has objected to subparagraph (b) and (c), but not to subparagraph (a). Two distinct lines of interpretation concerning Article 10(a) have arisen since the Convention's adoption. Some Courts hold that Japan's failure to object to subparagraph (a) indicates that country's acceptance of service of process by mail. See, Ackermann v. Levine, 788 F.2d 830 (2d Cir.1986); Meyers v. ASICS Corp., 711 F.Supp. 1001 (C.D.CA.1989); Smith v. Dainichi Kinzoku Co., 680 F.Supp. 847 (W.D.Tex.1988); Newport Components, Inc. v. NEC Home Electronics (U.S.A.) Inc., 671 F.Supp. 1525 (C.D.CA.1987); Weight v. Kawasaki Heavy Industries, 597 F.Supp. 1082 (E.D.Va.1984); Chrysler Corp. v. General Motors Corp., 589 F.Supp. 1182 (D.D.C.1984). Another line of interpretation holds that service of process by mail is not permitted under the Hague Convention. These cases consider the use of the word "send" in subparagraph (a) does not mean or include service of process. Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.1989); Wasden v. Yamaha Motor Co. Ltd., 131 F.R.D. 206 (M.D.Fla.1990); Hantover, Inc. v. Omet, S.N.C. of Volentieri & Co., 688 F.Supp. 1377 (W.D.Mo.1988); Prost v. Honda Motor Co., 122 F.R.D. 215 (E.D.Mo. 1987). The reasoning set forth in these opinions is well developed and does not need to be set forth in detail here.[3] This Court is persuaded that the weight of authority favors an interpretation of Article 10(a) of the Hague Convention which allows service 959 of process by registered mail. In the view of this Court, such an interpretation is reasonable based on the language of the Convention and also that such an interpretation serves the purposes of the Hague Convention and the Federal Rules of Civil Procedure by giving adequate notice of the complaint and the grounds thereof. See, e.g. Bankston, supra, 889 F.2d at 173 ("The Hague Convention [was formed] for the purpose of creating an `appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time'"). Applying this authority in the case at bar it appears that Plaintiffs' service of the summons and complaint via registered mail on April 1, 1991, and Toyota Motor Corporation's receipt and acknowledgement of that service on April 7, 1991, was effective under the Hague Convention. Accordingly, Defendant's Motion to Dismiss on this ground is denied. C. Reasonable Diligence under the Circumstances Even had this Court found that service of process by certified mail was not effective under the Hague Convention, however, this Court finds that Plaintiffs used due diligence in attempting to serve Toyota Motor Corporation after the statute of limitations had expired. On or about April 8, 1991, Plaintiffs sent copies of their complaint to APS International initiating the lengthy translation and service of process procedure provided in Article 5 of the Hague Convention. Plaintiffs used this method of service in addition to the more straight forward method provided under Article 10(a) in order to remove any doubt that service would be satisfactory. Service under this method was perfected under Article 5 in late May of 1991. Under Georgia law,[4] if service is perfected within five days of filing the complaint, even though the statute of limitations has run before service is perfected, service will relate back. Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, Inc., 125 Ga.App. 423, 188 S.E.2d 167 (1972). If service is perfected more than five days after the filing of the complaint and after the statute of limitations has run, service still relates back provided the plaintiff diligently attempted to perfect service. Cambridge Mutual Fire Insurance Co. v. City of Claxton, Georgia, 720 F.2d 1230 (11th Cir.1983). In determining whether a plaintiff diligently attempted to perfect service, "a reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be." Childs v. Catlin, 134 Ga.App. 778, 781, 216 S.E.2d 360 (1975). Applying this authority in the case at bar this Court finds that Plaintiffs were reasonably diligent in their attempts to serve the Toyota Motor Corporation. This Court finds the fact that Plaintiffs used two methods of service, and did so expeditiously under the circumstances (which include, of course, the short length of time before the statute of limitations was to expire, and the uncertainty under the law of this jurisdiction regarding service of process under the Hague Convention), as well as the other evidence of record and presented by the parties to this Court at the September 12, 1991, hearing, demonstrate reasonable diligence. Accordingly, this Court finds that even if Plaintiff's first attempt at service failed to comport with the standards of the Hague Convention, their second service pursuant to Article 5 of the Hague Convention relates back to time of filing and, therefore, avoids Defendant's statute of limitations defense. Defendant's Motion to Dismiss is denied on this alternative ground. D. Conclusion This Court finds that service of process by registered mail is an acceptable means 960 of service under the Hague Convention. Moreover, even had service of process by registered mail not been found acceptable under the Hague Convention, this Court finds that the Plaintiffs were reasonably diligent under the circumstances of this case in attempting to perfect service, and therefore, that their second method of service relates back to the time of filing and avoids Defendant's statute of limitations defense. Accordingly, based on the above, Defendant's Motion to Dismiss is DENIED. IT IS SO ORDERED. NOTES [1] APSI is a legal support company located in Minneapolis, Minnesota. APSI serves legal process in most countries of the world, and translates the documents into the local language. [2] Articles 2 through 6 of the Hague Convention provide for service of process through a central authority in each country, Article 8 allows service of process through diplomatic sources, and Article 19 allows service by any method permitted by the internal law of the country in which service is to be made. Bankston v. Toyota Motor Corporation, 889 F.2d 172, 173 (8th Cir. 1989). [3] This Court does register its specific disapproval of the analysis given this question by the Eighth Circuit in Bankston v. Toyota Motor Corporation, 889 F.2d 172 (8th Cir.1989). The Eighth Circuit's opinion in Bankston noted that it was "extremely unlikely that Japan's failure to object to Article 10(a) was intended to authorize the use of registered mail as an effective mode of service of process." Id. at 174. In the view of this Court, Japan's specific objections to other parts of the treaty indicate that its negotiators were well aware of the import of the provisions it failed to object to. Moreover, given the number of Courts which have upheld service of process by direct mail, this Court must assume that the Japanese Government is aware of the interpretation given the Hague Convention in this country. The fact that no efforts to amend the Convention have been undertaken by the Japanese Government can only indicate tacit agreement. Lastly, the Bankston Court's refusal to uphold service of process by registered mail gives Japanese Corporations doing business in the United States an unbargained for defense to a lawsuit brought by a United States consumer. [4] As both sides agree, statutes of limitations are substantive laws and must be followed by federal courts in diversity actions. See, Cambridge Mutual Fire Insurance Co. v. City of Claxton, Georgia, 720 F.2d 1230, (11th Cir.1983).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260017/	777 F.Supp. 539 (1991) FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff, v. HERSHISER SIGNATURE PROPERTIES, et al., Defendants. No. 89-CV-72345. United States District Court, E.D. Michigan, S.D. November 8, 1991. 540 Lawrence M. Dudek, Miller, Canfield, Paddock and Stone, Detroit, Mich., for plaintiff. David S. Snyder, Snyder & Handler, Southfield, Mich., I. William Cohen, Lori L. Tobis, Pepper, Hamilton & Scheetz, Detroit, Mich., for defendants. OPINION AND ORDER FEIKENS, District Judge. Before me is plaintiff's motion for summary judgment on Count II of the Complaint. Plaintiff Federal Deposit Insurance Corporation ("FDIC") is the holder of a $10.5 million promissory note assigned to and assumed by defendant Hershiser Signature Properties ("Hershiser Signature Properties") and personally guaranteed by the individually-named defendants. There is no question that: (1) Hershiser Signature Properties was assigned, assumed and subsequently defaulted on a valid promissory note now held by plaintiff; (2) the individually-named defendants executed valid personal guaranties as to this note; and (3) defendants have failed to allege any valid defense to the enforcement of either the note or the guaranty. Therefore, plaintiff's motion is GRANTED. I. BACKGROUND FDIC filed a two-count complaint alleging: (1) that Hershiser Signature Properties defaulted on a $10.5 million dollar promissory note and; (2) that individually-named defendants Orel Hershiser, Robert Forte, Seymour Mandell and the Orel Hershiser Trust are jointly and severally liable for the amount as a result of a valid Guaranty of Payment of the Note ("Guaranty"). Plaintiff now moves for summary judgment on Count II. Most of the relevant facts of this case were agreed to by the parties in a Consent Order Regarding Stipulated Facts and Admissions, entered on June 29, 1990. They are as follows: On January 17, 1985, Westwood Mortgage Corporation ("Westwood") loaned $800,000 to Orel and Mildred Hershiser ("the Hershisers") upon execution of a promissory note and a Mortgage, Security Agreement, Assignment of Rents and 541 Leases and Financing Statement covering certain real property located in Southfield, Michigan. On May 29, 1985, the principal amount of the loan was increased to $10.5 million. At the same time, the Hershisers and Westwood executed a new promissory note ("Note") and an amendment to the Mortgage, Security Agreement, Assignment of Rents and Leases and Financing Statement ("Amended Mortgage"). On March 25, 1988, the Hershisers assigned all of their rights and obligations under the Note and Amended Mortgage to Hershiser Signature Properties. Concurrently, defendants Orel Hershiser, Robert Forte, Seymour Mandell and the Orel Hershiser Trust, jointly and severally, executed the Guaranty. The parties also executed a full and complete release of any and all claims existing against Westwood, its successors and assigns arising out of Westwood's handling of the Note (the "Release"). In June 1988, Westwood's interest in the Hershiser Note was assigned to Western Federal Savings and Loan Association ("Western Federal"), Westwood's parent institution. In August 1988, Western Federal was declared insolvent and the Federal Savings and Loan Insurance Corporation ("FSLIC") was appointed receiver of its assets. FSLIC transferred Western Federal's assets, including the Hershiser Note, to Sunbelt Savings ("Sunbelt"). On November 10, 1988, the entire unpaid balance of the Note became due and owing. Defendant Hershiser Signature Properties failed to pay the amount due. On December 30, 1988, Sunbelt assigned the Note to FSLIC in its corporate capacity. FSLIC thus became the holder of the Note and Amended Mortgage, acquiring the right to enforce the obligations due thereunder. The Note was subsequently transferred to the FSLIC Resolution Fund by operation of law. FDIC brings this action as the managing agent for the FSLIC Resolution Fund. The parties have stipulated that "FDIC paid value for and is the holder of the Note and Amended Mortgage, is the real party-in-interest to bring this action, and has standing to enforce collection of the Note and Guaranty and to foreclose the Amended Mortgage." Consent Order Regarding Stipulated Facts and Admissions, June 4, 1990, para. 17. The Note remains due and owing in the amount of $10,334,143.97 in principal and over $2,800,000 in interest. II. ANALYSIS In order to prevail on its motion for summary judgment on Count II, Plaintiff must show that, examining all facts in a light most favorable to defendants, there is no genuine issue as to any material fact and it is entitled to judgment on the Guaranty as a matter of law. Federal Rule of Civil Procedure 56(f); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). I find that plaintiff has met that burden. Defendants concede by way of stipulation that: (1) Hershiser Signature Properties has defaulted on a $10.5 million Note now held by FDIC; (2) defendants Hershiser, Forte, Mandell and the Orel Hershiser Trust executed the Guaranty, rendering them jointly and severally liable in the event of such default; (3) FDIC paid value for and is the holder of the Note and Amended Mortgage, having the right to enforce both it and the Guaranty; and (4) on March 25, 1988, the parties did execute the Release. Thus, FDIC is entitled to summary judgment on the Guaranty unless defendants can raise some question of material fact as to a valid defense to its enforcement arising from the conduct of someone other than Westwood. Defendants claim that the banking institutions and agencies involved in this transaction specifically Westwood and FSLIC have acted wrongfully or negligently in administering the underlying loan, and that such conduct forms a defense to enforcement of the Note and Guaranty. However, defendants released Westwood, its successors and assigns from any liability arising from Westwood's administration of the loan. Thus, defendants are barred from raising Westwood's conduct as a defense to enforcement. As to FSLIC, the only wrongful conduct alleged by defendants is standard institutional delay 542 in gaining approval of action on the Note. Defendants rely on an Internal Report of Comerica Bank, dated August 31, 1989, which states that "Part of the problem was FSLIC which was slow to adopt procedures to approve action on Westwood's troubled loans." However, that document refers to a proposed extension and restructuring of the loan in December 1986, which was not completed because the partnership never signed the commitment letter. That document points out that: "Also, Mandell and Forte slowed progress by constant renegotiation. We later discovered that probably the main reason for the delay was that there were negotiations underway to remove Gadient from the partnership. Gadient proved very difficult to contact to conclude the negotiations so eventually the other three formed a new partnership called Hershiser Signature Properties." (emphasis added). Thus, any alleged delay by FSLIC is insufficient to defeat enforcement of the Guaranty. Defendants also assert by way of affidavit that at times they did not know whom to contact regarding their loan. See Affidavit of Seymour Mandell, para 18. However, defendants do not specifically allege any wrongdoing on the part of FSLIC. Rather they assert their own confusion about the status of the Note as justification for defeat of the Guaranty. In fact, defendants fail to allege wrongdoing by the FSLIC with any specificity whatsoever. Defendants' vague allegations of delay and confusion are simply not sufficient to raise a question of material fact as to any defense to the enforcement of the Guaranty. Even if defendants could raise questions of material fact as to some defense to enforcement arising out of the conduct of FDIC's predecessors in interest, I find that FDIC is effectively a holder in due course of this Note. The United States Court of Appeals for the Sixth Circuit has repeatedly held that FDIC is the equivalent of a holder in due course of notes it acquires in purchase and assumption transactions in good faith, for value and without actual notice of any defenses against the notes. See, e.g., FDIC v. Wood, 758 F.2d 156, 161 (6th Cir.1985), cert. denied 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 286 (1985); FDIC v. Aetna Casualty & Surety Co., 947 F.2d 196 (6th Cir.1991). The parties have stipulated that FDIC took the Note for value as part of a purchase and assumption transaction and is the holder of the Note and Amended Mortgage. Defendants argue however, that the Holder in Due Course doctrine does not apply here because the Note contains a variable interest rate and, hence, is non-negotiable. I note again, that the United States Court of Appeals for the Sixth Circuit has held that based on the objectives of the national banking insurance system, when FDIC acquires notes in purchase and assumption transactions it is entitled to status equivalent to that of a holder in due course. See, e.g., Wood, 758 F.2d at 161. Thus, it is not clear that application of holder in due course principles to this case depends on a finding that the Note is negotiable. Even should some distinction be warranted, however, I find that for these purposes the Note is a negotiable instrument. To be a negotiable instrument under Article Three of the Uniform Commercial Code, the Note must contain a promise or order to pay a "sum certain" in money. Defendants argue that a variable interest rate renders the amount of the Note uncertain. I disagree. The purpose of requiring that the amount to be repaid be a "sum certain" that is, calculable from the terms of the note is to ensure that strangers to the transaction are not disadvantaged, thus protecting the commercial value of the note. The United States Court of Appeals for the Sixth Circuit has not addressed whether a variable rate note is a negotiable instrument. However, given the court's reasons for providing FDIC with status equivalent to that of a holder in due course, see, e.g., Wood, 758 F.2d at 159-161, I find that where, as here, the variable interest rate is tied to a readily ascertainable commercial or financial index by way of a specific 543 formula such that the interest owed can be readily calculated, the Note does contain a promise to pay a "sum certain." Defendants cite a case from the United States Court of Appeals for the Fifth Circuit, Sunbelt Savings v. Montross, 923 F.2d 353 (5th Cir.1991), in which the court held that a variable rate interest loan was not negotiable. However, upon rehearing en banc, the court took no position on the effect of the variable interest rate on the negotiability of the note, and pointed out that, "The maker of the note gave other reasons for the note being non-negotiable, and the case was presented on the appeal with both parties accepting the non-negotiability of the note." 944 F.2d 227 (5th Cir.1991). Here, the parties do not accept that the Note is non-negotiable, and there is no reason offered for reaching such a conclusion other than the variable interest rate. Thus, Montross does not lend any authority to defendants' assertions in this case. Defendants also argue that FDIC cannot be a holder in due course, because it acquired the Note with knowledge of preexisting defenses. Even if defendants were able to establish that they have some defense precluding enforcement of the Note arising out of conduct by someone other than Westwood, they have not produced any evidence showing that FDIC had actual knowledge of such defense at the time it entered into the purchase and assumption agreement. Wood, 758 F.2d at 162. FDIC is presumed to have no knowledge of any defenses when it acquired the Note. Wood, 758 F.2d at 162; FDIC v. Armstrong, 784 F.2d 741, 745 (6th Cir. 1986). Further, FDIC cannot be deemed to have actual knowledge based merely on information that could have been found in the banking files. Wood, 758 F.2d at 162; FDIC v. The Cremona Co., 832 F.2d 959 (6th Cir.1987). The execution of the Release eliminated any defenses arising out of Westwood's conduct in administering the loan. Given that the Release was executed only a short time before FDIC acquired the Note, and that defendants make only vague allegations as to any wrongdoing by FSLIC, there is no evidence that FDIC had any knowledge of any defenses at the time it acquired this Note. III. CONCLUSION In sum, it is beyond dispute that Hershiser Signature Properties was assigned and did assume the obligations of a valid $10.5 million Note and Amended Mortgage; that such Note has become due and owing; that defendant Hershiser Signature Properties has defaulted on the Note; and that defendants Hershiser, Forte, Mandell and the Orel Hershiser Trust did jointly and severally execute a Guaranty of Payment on the Note. Further, inasmuch as defendants have failed to raise any question of material fact as to any defense to enforcement of the Note or Guaranty, plaintiff is entitled to summary judgment on Count II for the full amount of the Note, principal and interest, now due and owing. For the foregoing reasons, plaintiff's motion for summary judgment on Count II of the complaint is hereby GRANTED. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260021/	491 Pa. 516 (1980) 421 A.2d 664 Susan M. SHANAMAN, James H. Cawley, Michael Johnson and Linda C. Taliaferro, Commissioners of the Pennsylvania Public Utility Commission, Appellant, v. YELLOW CAB COMPANY OF PHILADELPHIA, Appellee. Supreme Court of Pennsylvania. Argued September 29, 1980. Decided October 31, 1980. 517 Joseph J. Malatesta, Jr., Chief Counsel, Daniel P. Delaney, Harrisburg, Mark C. Stephenson, Asst. Counsel, Philadelphia, for appellant. Nathan L. Posner, Jeffrey B. Albert, Fox, Rothschild, O'Brien & Frankel, Philadelphia, for appellee. OPINION OF THE COURT LARSEN, Justice. On June 19, 1980, Act 69 of 1980 (an act amending the Public Utility Code, 66 Pa.C.S. § 1103) was signed into law 518 by Governor Thornburgh and took effect on that date. Act 69 was intended to increase, in expedited fashion, the availability of taxicab service in "cities of the first class," i.e., Philadelphia. The legislature found the present service in Philadelphia "wholly inadequate" (Preamble to Act 69) to meet present needs, and gave the Pennsylvania Public Utility Commission (PUC), the appellant, the authority to grant, without hearing, immediate temporary operating certificates of public convenience for taxicab service, subject to further investigation before a permanent certificate would be granted. 66 Pa.C.S. § 1103(c)(4). Additionally, Act 69 provides: The transfer of a certificate of public convenience, by any means or device, shall be subject to the prior approval of the commission which may in its sole or peculiar discretion as it deems appropriate, attach such conditions, including the appropriate allocation of proceeds, as it may find to be necessary or proper. (emphasis added) 66 Pa.C.S. § 1103(7). On July 10, 1980, a joint application for the transfer of a certificate of public convenience to operate a taxicab in Philadelphia was filed by Yellow Cab of Philadelphia, appellee, and Duke Cab Company. The application requested the PUC to expedite the approval of the transfer of the right to operate one taxicab (Yellow Cab has authority to operate 800 taxicabs in Philadelphia) to Duke Cab Company. Only eight days later, on July 18, 1980, Yellow Cab initiated the instant proceeding by filing with the Commonwealth Court a complaint in equity requesting that court, inter alia, to direct the PUC to process the transfer application on an expedited basis. A hearing on this complaint was held on July 22, 1980, following which the Commonwealth Court issued the following preliminary injunction: NOW July 22, 1980, it is hereby ordered as follows: 1. The Pennsylvania Public Utility Commission shall, on or before September 1, 1980, enter its decision on the application of Yellow Cab Company of Philadelphia to transfer one operating right or certificate to Duke Cab Company, Inc. 519 2. In all other respects, Yellow Cab Company of Philadelphia's motion for preliminary injunction is denied. The PUC has appealed this order. For the reasons stated below, we reverse that order and dissolve the injunction. Our standard of review of preliminary injunctions is well settled. As a preliminary consideration, we recognize that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor. . . . In order to sustain a preliminary injunction, the plaintiff's right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.. . . Bell v. Thornburgh, 491 Pa. 263, 267, 420 A.2d 443, 445 (1980). (citations omitted). Further, a mandatory preliminary injunction, such as is involved here, "should be used only in rare cases and certainly more sparingly than one which is merely prohibitory." Roberts v. School Board of the City of Scranton, 462 Pa. 464, 469-70, 341 A.2d 475, 478 (1975). Also, the mandatory preliminary injunction is designed to restore the status quo to the "last actual, peaceable [and] noncontested status which preceded the pending controversy." Commonwealth v. Coward, 489 Pa. 327, 342, 414 A.2d 91, 99 (1980) (quoting Commonwealth v. Cohen, 150 Pa.Super. 487, 489, 28 A.2d 723, 724 (1942)). Applying these principles to the instant case, it is apparent the preliminary injunction was improper. The Commonwealth Court made no finding with respect to Yellow Cab's, the plaintiff's, right to relief (i.e., the legal right to expedite their application for transfer). If no 520 such right exists, the preliminary injunction should not have been granted. No such right exists.[1] Act 69 gave the PUC broad discretion to approve or disapprove the transfer of a certificate of public convenience. Certainly nothing in the language of section 7, 66 Pa.C.S. § 1103(c)(7), see text supra, can be read to place time constraints on PUC proceedings on transfer applications. Act 69 does contemplate that the PUC will give priority generally to the taxicab service in Philadelphia, but it does not purport to, or even suggest that, transfer applications should receive priority over new applications for certificates. Rather, Act 69 directs the PUC to "issue promptly such additional certificates as are necessary to insure that 1,400 taxicabs have authority to operate. . . ." To achieve this goal, the PUC has decided to process applications, whether for new certificates or for transfer, on a chronological basis in order of filing. Some applications date back to 1975. This agency decision is an eminently reasonable one, and Yellow Cab has not introduced one iota of evidence to indicate their transfer application should receive special consideration over all other previous applications. Yellow Cab and the PUC stipulated that Yellow Cab would suffer immediate and irreparable harm if the preliminary injunction were not granted, but there has been no attempt to demonstrate that any such harm would be unique to Yellow Cab. It can be reasonably assumed that similar harm would attend delays in processing for all applicants and that the harm would be proportionate to the time period elapsed between filing of an application and final PUC action upon it. From the foregoing, Yellow Cab has failed to demonstrate any legal or factual right to the relief requested. Moreover, as noted, the purpose of a mandatory preliminary injunction is to restore the status quo to the last 521 actual and noncontested status which preceded the pending controversy. Despite Yellow Cab's protestations to the contrary, the preliminary injunction herein has disrupted, rather than restored, the status quo. The status quo is: Yellow Cab holds a certificate of public convenience, wishes to transfer that certificate to Duke Cab Company, and must pursue normal PUC procedures for transfer. The preliminary injunction has imposed a duty on the PUC to accelerate its procedure for one particular application, thus granting that application exalted status as compared with all other applications. It is fiction to suggest, as does Yellow Cab, that the mandatory preliminary injunction "restored the status quo." Yellow Cab has also cited numerous federal court cases for the proposition that "a party may obtain relief against undue or improper delay in the action of an administrative agency." Brief for Appellee at 13, citing, e.g., Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 46 S.Ct. 408, 70 L.Ed. 747 (1926). We have no quarrel with this argument, but find it impossible on this record to establish any delay, let alone any undue or improper delay. Yellow Cab filed its complaint in equity a mere 8 days after the joint application for transfer was filed. The hearing on the complaint was held only 12 days after the joint application was filed. It is simply unreasonable for Yellow Cab to expect to have their application considered within 12 days of its filing, especially in light of the hundreds of applications which preceded its own. Accordingly, the order of the Commonwealth Court is reversed and the preliminary injunction is dissolved. NIX, J., filed a dissenting opinion. KAUFFMAN, J., filed a dissenting opinion. NIX, Justice, dissenting. This appeal raises two fundamental questions: a) what is the legal right protected by the court below in its issuance of the preliminary injunction under review, and b) what is the 522 status quo to be maintained pending final adjudication of this equity claim. The preliminary injunction granted by the Commonwealth Court addresses an extraordinary situation. Yellow Cab Company of Philadelphia (Yellow Cab), appellee, is the largest taxicab company operating in the first class city of Philadelphia. Shanaman, et al, Commissioners of the Pennsylvania Public Utility Commission (PUC), appellant, has been given the duty to decide whether or not a transfer of a certificate of public convenience for the operation of a taxicab in first class cities may be made.[1] PUC, under that enabling section, has broad discretion in the imposition of conditions for the granting of approval. On July 10, 1980 appellee and its proposed transferee, Duke Cab Co. (Duke), formally requested appellant to approve the transfer of one certificate of public convenience (sometimes called an "operating right"). Yellow Cab has some eight hundred certificates and is presently a debtor-in-possession pursuant to Chapter XI of the Federal Bankruptcy Act.[2] After appellant refused to docket the application, appellee filed a complaint in equity against appellants in the Commonwealth Court seeking a preliminary and permanent injunction directing appellant to process the transfer application and to immediately issue temporary operating authority to Duke. The Commonwealth Court issued an order requiring PUC to enter its decision on the application for approval of transfer on or before September 1, 1980. All other relief requested by Yellow Cab was denied. Appellant appealed to this 523 Court and an order was entered by this writer extending the date for action by the PUC to October 1, 1980. On October 2, 1980, after oral argument before this Court, the order of the Commonwealth Court was stayed until further order of this Court with leave for the PUC to proceed on the merits of the application to transfer. To our knowledge, PUC has taken no action on the merits of the application for approval of transfer to date. This case contains no controversy regarding the existence of irreparable harm to appellee. Appellant stated the PUC would not contest the issue of irreparable harm (R 82a) and subsequently stipulated that immediate and irreparable harm exists (R 130a). The $15,000.00 sale price of the certificate of public convenience, determined to have a value of from $14,000.00 to $16,000.00 by appraiser, George I. Bloom, former Chairman of the Public Utility Commission of Pennsylvania (R 112a), diminishes in value as the administrative process is delayed (R 117a). This reduces the monetary value of appellee's assets[3] and adversely affects its ability to reorganize under the supervision of the Bankruptcy Court.[4] Conversely, an effectuated sale would further 524 the prospects of Yellow Cab's rehabilitation (Order of July 8, 1980 by Bankruptcy Judge King, paragraph 6, R 17a, 18a). 525 Further, during oral argument, counsel for appellant admitted the PUC will not say when the approval process will begin. Thus, it is clearly established that irreparable harm exists. It is also not in issue how the PUC should decide the application for approval of transfer. The result of that discretionary function is not before this Court, nor is this Court asked to direct appellant in the details of processing an application under section 1103(c)(7). What is at issue is whether the Commonwealth Court had the power to mandate appellant to begin processing an application for approval of transfer and to proceed with reasonable diligence in processing it. The majority would reverse the Commonwealth Court and dissolve the injunction through an artful schema grounded in a distortation of the standard of review, misidentification of the right to be enforced and an erroneous definition of the status quo to be preserved. The standard of review is as follows: `The scope of review on an appeal from a decree either granting or denying a preliminary injunction is to examine the record only to determine if there were any apparently reasonable grounds for the action of the court below. . .' Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, 123 A.2d 626, 627 (1956). (Emphasis supplied). Summit Township v. Fennell, 392 Pa. 313, 140 A.2d 789 (1958). Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 215, 189 A.2d 180, 181 (1963). New Castle Orthopedic Assoc. v. Burns, 481 Pa. 460, 463-64, 392 A.2d 1383, 1385 (1978), citing John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977). The language of Roberts v. School District of Scranton, 462 Pa. 464, 341 A.2d 475 (1975), cited by the majority, sets forth the same standard. Yet the majority applies it in such an unintended and restrictive manner as to produce a new requirement of intense scrutiny of the action of the court 526 below. This constitutes a radical departure from the accepted principle of review enunciated by this Court in such cases and facilitates a most inequitable result, for now appellee is held to have no right to relief from the established and conceded irreparable harm. The majority says the right in controversy is the right to expedite the application for transfer to first position in a lengthy queue of applicants for PUC action.[5] Such a characterization of the right is misleading because it (1) co-mingles applications for certificates of public convenience with applications for approval of transfer of previously issued certificates of public convenience, (2) perceives the relief granted by the court below as expediting the application for approval over other applicants and (3) identifies the right in question as a mixture of the two. This was advanced by appellant,[6] adopted by the majority opinion and is palpable error. The right in question is the right to have PUC procedure begun. This right should not be lumped with applications for issuance of certificates of public convenience under section 1103(c)(1). To deny the existence of such a right is to empower the PUC to effectively deny an application without employing the processes mandated by the Legislature.[7] To protect such a right does not expedite appellee over other long-suffering applicants under section 1103(c)(1). More pointedly, the failure to docket and begin to process the application for approval of transfer without any rational explanation therefor[8], given the necessity for prior approval by the PUC and the diminution of monetary value of the certificate due to delay, is tantamount to a confiscation of property. Cf. Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 46 S.Ct. 408, 70 L.Ed. 747 (1926); 527 White v. Matthews, 559 F.2d 852 (2nd Cir.), cert. denied sub nom. Califano v. White, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978). Such lack of diligence at the initial stages of the proceedings, at least, is totally impermissible.[9] There is no reason or logic in requiring an applicant for approval of transfer to wait until all pending applications for initial issuance of certificates of public convenience are determined. The application for approval of transfer filed July 10, 1980 had not been given a number or docketed as of July 22, 1980 (R 38a, 39a), a date could not be given when the application for transfer would be processed (R 63a), yet William H. Stouch, Director of the Bureau of Non-Rail Transportation of the PUC testified he could get a [docket] number for an application "today" (R 76a) and also could delay getting the number (R 77a). Under the facts of this case to hold there was no delay because of the time lapse between the presentation of the application of transfer to the PUC and the filing of the complaint in equity is sheer sophistry. Lastly, the majority states that the status quo to be maintained by a preliminary injunction is the "last actual, peaceable [and] noncontested status which preceded the pending controversy." For this proposition they cite Commonwealth v. Coward, 489 Pa. 327, 414 A.2d 91 (1980). What they ignored is that Coward qualified that statement by providing that it should be the lawful status not merely the de facto status. In Commonwealth v. Cohen, 150 Pa.Super. 487, 489, [28 A.2d 723] (1942) the Court said: "The rule is `that the status quo which will be preserved by preliminary injunction is the last actual, peaceable (and, we may add, lawful) 528 noncontested status which preceded the pending controversy'." Id. [356 Pa.] at 407, 52 A.2d at 321. See also Roberts v. School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975). (Emphasis supplied). It is the fact that the status the majority seeks to sustain is unlawful that justified the Commonwealth Court in issuing a mandatory preliminary injunction.[10] Mandatory preliminary injunctions "although more sparingly granted, may be ordered where the rights of the plaintiff are clear or `the defendant must change the status of the parties while the result is pending'." Coward, supra, at 99. (Emphasis supplied). The status quo to be mandated here is the employment of lawful, normal process by the PUC in its treatment of appellee's application for approval of transfer. Appellant must change the treatment given appellee's application while the result is pending if the court is not to promote and exacerbate the inequity it was called upon to redress. Lex reprobat moram. Accordingly, the PUC should have at least been required to docket this application and to expeditiously process it. KAUFFMAN, Justice, dissenting. The Yellow Cab Company of Philadelphia ("Yellow Cab"), operating as a debtor-in-possession under Chapter XI of the Federal Bankruptcy Act, received permission from the Bankruptcy Court to sell one of its operating certificates. On July 9, 1980, Yellow Cab entered into an agreement of sale to transfer the certificate to Duke Cab Company ("Duke"). One day later, a joint application was filed with the Public Utility Commission ("P.U.C."), requesting (1) approval by expedited review of the transfer of operating rights, and (2) temporary authority for Duke to operate under one of Yellow Cab's certificates pending final decision by the P.U.C. Through its counsel, the P.U.C. refused to 529 state when the application would be considered or acted upon. On July 19, 1980, Yellow Cab filed a complaint in equity in the Commonwealth Court requesting a mandatory preliminary junction ordering the P.U.C. to: (1) immediately issue temporary operating authority to Duke, and (2) process the application for transfer of operating rights in an expedited fashion.[1] The Commonwealth Court issued an injunction requiring only that the P.U.C. make a decision on the application to transfer operating rights by September 1, 1980.[2] "The scope of review on an appeal from a decree either granting or denying a preliminary injunction is to examine the record only to determine if there were any apparently reasonable grounds for the action of the court below. . . ." New Castle Orthopedic Association v. Burns, 481 Pa. 460, 463-64, 392 A.2d 1383, 1385 (1978) (citations omitted). Proper disposition of the matter before us requires adherence to this very limited scope of review. For a preliminary injunction to be appropriate, it must be established: first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; 530 second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. . . . And unless the plaintiff's right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded. Id. (Citations omitted) Irreparable harm was stipulated by the parties in Commonwealth Court. It was thus conceded by the P.U.C. that Yellow Cab had no adequate remedy at law. If denied injunctive relief, Yellow Cab effectively had no means of ensuring that the transfer would be considered at any particular time in the future, and no means of obtaining compensation for damages resulting from delay. Implicit in the above is satisfaction of the second requirement, that refusal of the injunction would cause substantially greater harm than the grant thereof. For the P.U.C., an expedited review would cause, at worst, administrative inconvenience. Even this is speculative since the P.U.C. failed to introduce any evidence of harm that it might suffer if the preliminary injunction were granted. The majority makes no suggestion that any substantial harm, much less irreparable harm, would result from a grant of injunctive relief. Yellow Cab offered uncontradicted evidence that if Duke were not granted temporary operating rights in the interim, any delay in administrative proceedings would cause a corresponding decrease in the value of the certificate. The majority blithely assumes that "similar harm would attend delays in processing for all applicants . . ." (Majority opin. p. 666). It is irresponsible, however, to ignore Yellow Cab's critical financial condition. A solvent business, or one about to begin operation, can and ordinarily does allow for bureaucratic delay in licensing and other matters as a cost of doing business. The orderly function of the business enterprise can, in fact, be staggered to accommodate delays of this nature so that they cost little or nothing. Yellow Cab, however, is in no position to make allowances for the unhurried pace of the P.U.C.'s administrative proceedings. As 531 Yellow Cab is currently operating under Chapter XI of the Federal Bankruptcy Act, the continuous decline in the value of one of its principal assets may threaten its status as an ongoing business entity, to the extreme detriment not only of the company but of the public as well. Yellow Cab has no means of suspending the decline in value of the certificate in order to preserve its own financial condition while awaiting the deliberations of the P.U.C. The P.U.C. refused to make any assurance whatsoever of any specific limit on the time required to process the applications. It is possible, if not probable, that Yellow Cab's ability to reorganize under the supervision of the Bankruptcy Court would collapse long before the P.U.C. finds the opportunity to render a decision. In consequence, and contrary to the simplistic assertion of the majority, it is far from "fiction" to suggest that a mandatory preliminary injunction would restore or maintain the "status quo," the third requirement for the issuance of injunctive relief. The order was designed to forestall any further wasting of Yellow Cab's assets attributable to administrative delay. It was the only way to ensure that Yellow Cab's viability would not be adversely affected thereby. The "status quo" is altered with each day that passes while Yellow Cab's resources dwindle unchecked. If Yellow Cab is no longer in existence when the P.U.C.'s decision is rendered, the "status quo" will have been effectively destroyed. The narrow view of the majority simply ignores the fiscal background against which this transfer application occurred. To evaluate the "status quo" by focusing solely on routine administrative transactions is hopelessly short-sighted. The majority summarily dismisses the pertinence of authority to the effect that a party may obtain relief against undue or improper delay in the action of an administrative agency, reasoning that Yellow Cab could not have suffered undue delay in view of the fact that it filed its complaint in equity only 8 days after the joint application for transfer.[3]532 An injunction, however, is always prospective in effect. It is always a prophylactic measure, whether or not the harm in question includes past activity. The very purpose of its availability is the avoidance of harm which has not yet occurred but which, as here, is determined by a Court in Equity to be inevitable in the absence of prospective relief. Moreover, under the reasoning of the majority's opinion, it would not matter in the slightest whether Yellow Cab had waited 8 weeks or even 8 months. The opinion notes, in support of the supposed fairness of the P.U.C.'s approach to the matter at hand, that some applications date back to 1975. It is thus hard to imagine when, if ever, Yellow Cab would be able successfully to assert a claim of unreasonable delay under the rationale of the majority. The P.U.C. made it abundantly clear that Yellow Cab's application would not be considered before the end of 1980, and made no guarantee that it would be processed soon thereafter. In the face of its own financial deterioration, Yellow Cab had no choice but to initiate immediate remedial procedures necessary to prod the P.U.C. into acting without delay. The very promptness of Yellow Cab's action lends credence to the urgency of the situation, and supports, rather than weakens, the complaint in equity. It evidences the fragile nature of the "status quo" from Yellow Cab's viewpoint. Surely, the majority would not suggest that Yellow Cab should wait until it teeters on the brink of disintegration before praying for relief. In view of the fact that irreparable harm was stipulated by the parties, a mandatory injunctive remedy would be useless unless invoked by immediate, preventive action. The premise which underlies the majority's entire argument is that Yellow Cab made no demonstration of a "right to relief," which, although not an enumerated requirement, is a linchpin for the availability of an injunctive remedy. But a "right" to relief in equity is frequently evanescent. It is, by definition, not an explicit legal right. It need not be 533 found in an external source such as statutory or common law. The "right" to injunctive relief can grow out of the circumstances by which the enumerated requirements are satisfied. The majority, however, comes to the unacceptable conclusion that the complainant in equity here must suffer irreparable harm, the existence of which has been stipulated, without a remedy. I would concede that in the present case Yellow Cab has requested extraordinary treatment. The case for a "right" to such treatment can only be made out of the potential consequences flowing from the denial thereof. The P.U.C. is not, of course, responsible for the current insolvency of Yellow Cab. But as the agency legislatively designated responsible for the improvement of taxicab service in Philadelphia, the P.U.C. would clearly fail in its mandate if it were to expedite the demise of the largest cab company in the city. In truth, the remedy obtained below should have been unnecessary. The P.U.C.'s inexplicable intransigence in the face of Yellow Cab's financial difficulties, however, effectively passed responsibility for the adequacy of Philadelphia's taxi service into the hands of the Commonwealth Court. The Court's only means of fulfilling that responsibility was to find a right to relief and fashion an equitable remedy, consisting of nothing more than an order ensuring review within a reasonable time. The majority pays lip service to the extremely narrow scope of our review of such an order, but has evaluated Yellow Cab's claim as if de novo. The Commonwealth Court, in considering the full scope of this matter, decided that the case for relief was sufficient to make its order proper and necessary. Whether any member of this Court would have found otherwise in similar circumstances is not the question here. If we can find any reasonable grounds for the decree, we must not interfere with the decision of the lower court. The Commonwealth Court made a realistic and fair assessment of the competing interests here. As the basic requirements for injunctive relief are clearly present, under our 534 narrow standard of review, the wisdom of the Commonwealth Court should remain undisturbed. Accordingly, I would affirm the order below.[4] NOTES [1] Of the three requisite elements, the Commonwealth Court made a finding of only the irreparable harm and immediate need for relief, but failed to even discuss Yellow Cab's right to the requested relief. [1] 66 Pa.C.S.A. § 1103, as amended by Act 69 of 1980 provides: (c) Taxicabs. ..... (7). The transfer of a certificate of public convenience, by any means or device, shall be subject to the prior approval of the commission which may, in its sole or peculiar discretion as it deems appropriate, attach such conditions, including the appropriate allocation of proceeds, as it may find to be necessary or proper. [2] Appellee was granted permission by the Bankruptcy Court to sell one of its eight hundred operating rights by order dated July 8, 1980 of bankruptcy Judge William A. King, Jr. in the United States District Court for the Eastern District of Pennsylvania, in Chapter XI, No. 78-422 (WK). [3] At that appraisal, eight hundred certificates of public convenience equal $270,000.00. [4] The substance of the testimony of James P. Sinnott, an employee of Yellow Cab Company of Pittsburgh (a wholly owned subsidiary of Checkers Motors Corporation), presently advising and serving as a management consultant with Yellow Cab of Philadelphia for Checkers Motor Sales Corporation (a creditor whose claim is secured by some of the certificates or operating rights) is as follows: BY MR. POSNER: Q What I am trying to find out from you, sir, is, what is the situation if we leave this court room today without any relief insofar as the position of Yellow Cab Company, and what is the position of Yellow Cab Company that we have relief here today? A If Yellow Cab Company has no temporary relief from the court room today, they will be unable to continue more than two to two and a half weeks. Q Why, sir? A They are out of cash, they cannot get cash, they are operating at a deficit of three to four thousand dollars a day. There are people who are willing, if these transfers are put through, to come forth and advance money to see that this company prosper. The company can prosper if they are able to sell off the two to three hundred certificates. Q Now, sir, what is the prevalent feeling concerning the attitude of the P.U.C., if you know, concerning the transfer of rights? MR. MALATESTA: Objection, Your Honor. THE COURT: I will sustain the objection. Before me, Mr. Posner, is only one certificate, concerned with one certificate here. MR. POSNER: That is right, sir. THE COURT: You are getting into a lot of other matters not before me. His testimony is if you don't sell two or three hundred you are in bad shape. MR. POSNER: I am going to lead up to that, sir. THE COURT: But there is only one MR. POSNER: That is right, this one case if approved. BY MR. POSNER: Q What would the effect of one case being approved have upon the Yellow Cab situation, sir? A I guess I should have stated really the one case, this test case, would be the case that would release and bring some money for continued operation and support this company and enable it to be a viable company. Without approval of this one test case, everybody is going to think that there is no chance of Philadelphia Yellow Cab ever coming out of this situation. THE COURT: We are getting back into irreparable harm now. MR. POSNER: Beg your pardon? THE COURT: We are getting back into irreparable harm now. MR. POSNER: I wanted to show how immediate THE COURT: It has been stipulated to, sir. MR. POSNER: Then I will stop at that point, sir, if Your Honor feels that is sufficient for your purposes. Forgive me, I have been reminded that I have to ask concerning one item. BY MR. POSNER: Q It has been testified here today, I imagine you heard it, sir, that insurance on Yellow Cab of Philadelphia expires this Thursday I do believe. A I heard that. Q Can you tell the Court anything regarding that insurance and the likelihood and the possibilities concerning its renewal and under what circumstances you think it might be renewed? A The renewal depends upon money, and the only way they are going to get additional monies is to get this test case approved, where they can go out and secure additional monies to help support and pay for the possible value of those claims. Q Well, obviously it can't be transferred by Thursday. Any action by this Court directing an immediate hearing have that effect? A Favorable action by this Court would certainly open the door to change the attitude of the insurance company. MR. POSNER: Thank you, sir. Cross examination. MR. MALATESTA: No questions. (Emphasis supplied). (R 130a, 131a, 132a and 133a). [5] Appellee's use of the word "expedite" does not include being placed ahead of other applicants for approval of transfer. [6] Brief of appellant p. 19. [7] See e.g., 66 Pa.C.S. §§ 331, 332, 333, 334 and 335. [8] There are approximately 280 or 290 applications for taxicab rights in Philadelphia presently pending with appellant, as opposed to the one application for approval of transfer (R 48a, 73a, 76a) [9] In the recent case of Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980) we said, "Such [lengthy] delays are unconscionable and irreparably rip the fabric of public confidence in the efficiency and effectiveness of our judicial system." One of the purposes of administrative agencies generally is to avoid delays that would be incurred in comparable judicial proceedings. Landis, The Administrative Process: The Third Decade, 47 A.B.A.J. 135, 138 (1961). The length of time constituting unconscionable delay, of course, turns on the facts of the particular case. [10] "All injunctions are generally processes of mere restraint. An injunction which goes beyond restraining and commands that acts be done or undone is termed `mandatory'." 18 P.L.E., Injunctions § 102. [1] Yellow Cab averred in its complaint that it contemplated selling, with the permission of the Bankruptcy Court, up to 300 additional operating rights in order to raise immediate operating capital and to satisfy existing creditors. The operating rights were appraised at the hearing to have a value of $14,000 to $16,000 each. Uncontradicted testimony in the record indicated that without a rapid and substantial infusion of cash, Yellow Cab could not continue in operation. Extension of credit and other financial relief were, however, asserted to be forthcoming if the transfer in this test case was approved. It was represented at oral argument and substantiated by testimony at the hearing that Yellow Cab's creditors and lienholders regarded the disposition of the matter before us as a test case. Without expedited approval of the transfer herein, it was assumed that the diminished likelihood of Yellow Cab's survival would preclude the release of further operating funds, thus virtually ensuring its demise. [2] An application for Stay was brought to this Court by the P.U.C. In order to permit consideration of this matter by the full Court, Mr. Justice Nix extended the date for P.U.C. action until October 1, 1980. On October 2, 1980 we extended the Stay until further order, with leave for the P.U.C. to proceed on the application in the interim. [3] This analysis overlooks the fact that prior to Yellow Cab's efforts to obtain injunctive relief, the P.U.C. rejected its reasonable requests to adopt a definite schedule for the consideration and disposition of its application. [4] Testimony in the record indicated that the time required to process a similar application ordinarily would be no more than 47 days and, as the actual substantive review requires only 4 to 6 days, could be significantly reduced with little difficulty. The Commonwealth Court Order was filed July 22, well over 47 days ago, and the P.U.C. has been free to begin its disposition of this matter. As the deadlines for decision imposed by both the initial order and our original extension, respectively September 1 and October 1, have now passed, I would at this time mandate complete review of Yellow Cab's application within 30 days of the date of this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3085935/	Hays Street Bridge Restoration Group, et. Fourth Court of Appeals San Antonio, Texas February 9, 2015 No. 04-14-00886-CV CITY OF SAN ANTONIO, et. al., Appellants v. HAYS STREET BRIDGE RESTORATION GROUP, et. al., Appellees From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-19589 Honorable David A. Canales, Judge Presiding ORDER On January 26, 2015, Appellant City of San Antonio filed a docketing statement objecting to being referred to mediation by this court. On January 28, 2015, Appellee Hays Street Bridge filed a motion requesting this matter be referred to mediation. Because this matter has not yet been formally mediated by the parties, this court has determined that this dispute is appropriate for referral to an Alternative Dispute Resolution (ADR) procedure. See TEX. CIV. PRAC. & REM. CODE ANN. § 154.021 (West 2011). All further communications with this court by the parties regarding ADR shall be directed to the Clerk of the Court for any assistance in the mediation process. All parties are ORDERED to respond in writing by February 23, 2015, stating: (1) the name, address, and fee schedule of the mediator of their choice; or (2) that they cannot agree on a mediator, in which case the court will appoint one. It is FURTHER ORDERED that mediation shall commence at such place as the Mediator may designate and proceed in accordance with the schedule set by the Mediator until completed, but in any event, the mediation shall be completed no later than forty-five days from the date this court receives notice of the parties’ choice of mediator. The Mediator shall file with the Clerk of Court, within three days of the completion of the mediation, a written report concerning the disposition of this appeal. It is FURTHER ORDERED that the Mediator shall be compensated and that parties in this cause shall be equally responsible for its share of this obligation. Mediation fees shall ultimately be taxed as costs of court. See id. § 154.054. It is FURTHER ORDERED that all parties to this cause are directed to attend the Mediated Settlement Conference with their counsel of record. The corporate party representative in attendance and the individual party representatives shall have full authority to settle up to and including the judgment amount. To facilitate this procedure, the Mediator shall encourage and assist, but will not compel or coerce the parties in reaching a settlement of the dispute. Unless the parties otherwise agree, all matters, including the conduct and demeanor of the parties and their counsel during mediation, shall remain confidential and shall never be disclosed to anyone, including this Court. See id. § 154.053. Provided the parties are able to settle all matters related to this appeal, the parties are directed to file a joint motion requesting an appropriate disposition of this appeal within thirty days of the date of mediation. _________________________________ Patricia O. Alvarez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 9th day of February, 2015. ___________________________________ Keith E. Hottle Clerk of Court	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1311118/	73 Wis.2d 250 (1976) 243 N.W.2d 404 TOWN OF WASHINGTON, and others, Appellants, v. CITY OF ALTOONA, and another, Respondents.[] No. 75-10. Supreme Court of Wisconsin. Argued May 4, 1976. Decided June 30, 1976. 251 For the appellants there were briefs by Thomas Kent Guelzow and Guelzow & Aubry, Ltd., of Eau Claire, and oral argument by Jerold E. Aubry. There was a joint brief for the City of Altoona by Betz, LeBarron & Poquette of Eau Claire, and oral argument by Frank Betz; for respondent Roger Grimh by Garvey, O'Brien, Anderson & Kelly of Eau Claire, and oral argument by David G. Anderson. On motion for rehearing: For the appellants there was a brief by Thomas Kent Guelzow and Guelzow and Aubry, Ltd., of Eau Claire. There was a joint brief for the City of Altoona by 252 Frank E. Betz and Betz, LeBarron & Poquette of Eau Claire, and for Roger Grimh by David G. Anderson and Garvey, Anderson, Kelly & Ryberg, S. C. of Eau Claire. HEFFERNAN, J. This case presents the question of whether, in a district required by sec. 6.27 (1), Stats., to keep a registry of voters, nonregistered but otherwise qualified electors are permitted to vote in an annexation referendum. The trial court concluded that registration was not required and, accordingly, set aside an annexation referendum at which the officials of the town of Washington refused to permit nonregistered electors to vote. We conclude that an annexation referendum is an election, and in districts where sec. 6.27 (1), is mandatory voters must be registered. This litigation arose out of the passage of an ordinance by the city of Altoona annexing to it certain lands that lay in the adjacent town of Washington in Eau Claire county. The passage of that ordinance on November 6, 1974, was preceded by the circulation of an annexation petition, the sufficiency of which is not questioned in these proceedings. Under sec. 66.021 (5), Stats., the annexation is, nevertheless, subject to a referendum procedure. That statute provides that the referendum "shall be held at some convenient place within the town" (sec. 66.021 (5) (a)), and the referendum shall be conducted by the town officials (sec. 66.021 (5) (d)). A notice of the referendum to be held on December 16, 1974, was published and circulated by the town of Washington. That notice contained the language: "All qualified registered electors residing in the territory proposed for annexation shall be entitled to vote in the referendum." On December 16, 1974, the circuit court enjoined the election scheduled to be held that day on the ground that registration of electors was not required. Subsequently, 253 the town published and circulated a new notice of referendum to be held on December 30, 1974. The town officials complied with the order of the circuit court in that the notice omitted all reference to the ineligibility of nonregistered voters. However, at the referendum election, election officials of the town of Washington refused to permit "some" otherwise qualified electors to vote on the ground that they were not registered. At that election 124 ballots were cast. Thirty-six favored an annexation and 88 were against. Hence, under the terms of sec. 66.021 (5) (g), Stats., the territory would revert to the town of Washington. Subsequently, an action was brought to set aside the referendum on the ground that qualified but nonregistered electors had been improperly excluded. On February 3, 1975, the circuit court held that the purported annexation referendum of December 30, 1974, was null and void. The town of Washington was ordered to conduct a new referendum in which qualified voters were to be permitted to vote although they were not registered. It is from this order that the town of Washington appeals. It is conceded that the town of Washington, under the terms of sec. 6.27 (1), Stats., is a municipality with a population of over 5,000. Sec. 6.27 (1) provides: "(1) Every municipality over 5,000 population shall keep a registry of electors. Where used, registration applies to all primaries and elections." Sec. 66.021 (5) (d), Stats., provides: "(d) How conducted. The referendum shall be conducted by the town election officials but the town board may reduce the number of such officials for that election. The ballots shall contain the words 'For annexation' and `Against annexation' and shall otherwise conform to the provisions of s. 5.64 (2). The election shall be conducted as are other town elections in accordance with chs. 6 and 7 insofar as applicable." (Emphasis supplied.) 254 It would appear, therefore, reading sec. 6.27 (1), Stats., in conjunction with sec. 66.021 (5) (d), that a referendum, which is denominated therein as an "election," is to be conducted in conformance with the registration provisions of sec. 6.27. The trial judge, however, relied upon the provisions of sec. 66.021 (6), which deals specifically with qualifications of persons entitled to vote in a referendum election. That statute provides: "(6) QUALIFICATIONS. Qualifications as to electors and owners shall be determined as of the date of filing any petition, except that all qualified electors residing in the territory proposed for annexation on the day of the conduct of a referendum election shall be entitled to vote therein. Residence and ownership must be bona fide and not acquired for the purpose of defeating or invalidating the annexation proceedings." The trial judge emphasized that this latter statute provides: ". . . that all qualified electors residing in the territory proposed for annexation on the day of the conduct of a referendum election shall be entitled to vote therein." From this he concluded that registration was unnecessary and that bona fide residence on the day of the referendum was sufficient. In addition, the trial judge and the city of Altoona in its brief expressed doubt that an annexation referendum is an election in the sense referred to in sec. 6.27, the registration statute. [1, 2] We conclude that this doubt is without basis in the law. Sec. 66.021 (5) (d), Stats., specifically referes to a referendum as an "election." Moreover, this court, since at least 1906, has held that a referendum is an election and that, whether a vote involves a choice of candidates or a choice of policy, a voting procedure under the statutes is an election. Hall v. Madison (1906), 128 Wis. 132, 107 N. W. 31; Vulcan Last Co. v. State (1928), 194 Wis. 636, 217 N. W. 412. 255 Holding, as we do, that a referendum is an election, the question remains whether the provisions of sec. 66.021 (6), Stats., have the effect of mandating that all electors who are "qualified" shall have the right to vote whether registered or not. The Wisconsin Constitution, as now amended, provides that every person of the age of eighteen or upwards residing in the state for six months preceding any election who resides in an election district shall be deemed a qualified elector, provided, however, that the legislature may set a residence requirement in the voting district not to exceed thirty days.[1] This constitutional direction is implemented by sec. 6.02 (1), Stats., which provides that any person who has resided in an election district for ten days before an election is an "eligible" elector. Sec. 6.02 (2), Stats., further demonstrates the legislature's interpretation of the constitutional provision. That statute gives to a state resident eighteen years or older the right to vote in the district in which he was last "qualified" as an elector although he may not vote in his district of residence because of inability to fulfill the ten-day requirement. Sec. 6.10 (3) has an analogous provision. It is thus apparent that the constitution and the statutes use the term "qualified elector" and "eligible elector" interchangeably. The terms are synonymous. The 256 effect of the constitutional provision is to give the legislature the prerogative of setting the election district residence requirement, but conditions that grant of power by stating that in no case shall more than thirty days residence be required by the legislature. [3, 4] Under the Constitution, any person whose voting rights are established in accordance with that constitutional mandate is a qualified voter; and, accordingly, those persons who are categorized as eligible electors under sec. 6.02 (1) are qualified electors under the Constitution. The city of Altoona argues that Cross v. Hebl (1970), 46 Wis. 2d 356, 174 N. W. 2d 737, made a distinction between eligible electors and qualified electors, but we fail to see that such distinction was made therein. In any event, the case is not controlling of the instant one, for in Cross this court dealt with the eligibility of one who would not reach the age of qualification for office holding until after the earliest time for the circulation of nomination papers. It should also be pointed out that, although the caption to sec. 6.02, Stats., refers to "Qualifications, general," the terminology in sec. 6.02 (1) is that of "eligible elector." This court is unable to see any situation in which, under the Constitution and the pertinent statutes, there can be a distinction between an eligible elector and a qualified elector. It is clear that, to be a qualified elector under the Constitution, an elector must reside in the election district ten days prior to the election. While it is apparently the view of the city of Altoona that one can be a qualified elector without fulfilling the legislature's residence requirement, such view is not supported by the statutes or the Constitution, for under the Constitution a qualified elector must comply with the legislatively imposed residence requirements. An eligible elector and a qualified elector are identical. 257 In supporting its position that registration was not required in a referendum, the trial judge relied upon the interrelationship between sec. 66.021 (6), Stats., and the registration provision, sec. 6.28. He points out that qualified electors residing in the district on the day of the election shall be entitled to vote. He also stated that, where an earlier registration had not been made, under sec. 6.55 (2) (a), an affidavit of late registration must be executed at the latest on the day before the referendum election. The trial judge concluded that, therefore, if a person fulfilled the requirements of the statute by 5 p.m. on the day before, he would be permitted to vote, but if the ten-day residence requirement were not fulfilled until the day of the referendum, the right to vote would be denied. Thus, the trial judge concluded that to require registration would defeat the clear statutory language of sec. 66.021 (6) that the entitlement to vote applies to electors residing in the district on the day of the election. This interpretation, we believe, is contrary to the intent of the statute, for the affidavit of registration, set forth in sec. 6.33 (2), Stats., requires, not that the voter shall reside in the voting district for at least ten days on the date of the signing of the affidavit, but that the voter will have resided in the district ten days on the date of the election. The city of Altoona also argues that to require registration could work an absurd result, because it would be possible for a petition for a referendum to be signed by the requisite number of electors under sec. 66.021 (2) (b), Stats., none of whom were registered to vote. From this it could be argued, contends the city, that a referendum could be ordered where no one was eligible to vote. Such result is possible, and it is possible that the 20 percent of the electors signing the petition might all be unregistered. We think, however, that this contingency is too remote to deserve serious consideration. 258 See: State on Complaint of Doerflinger v. Hilmantel (1867), 21 Wis. 574 (566), 585 (578). Any elector residing in the district who has signed a petition would be eligible for registration. All that is required is the initiative to register. Moreover, it would be absurd to conclude that no one in the district, where registration is required, would be registered. Certainly it is not asking too much to expect those who force the municipality to the expense of a referendum by signing a petition to take the personal step of registering. We see no inconsistency between the registration requirements and the fact that one need not be a registered voter to qualify as an elector in signing a petition for annexation. But, if such an unregistered elector wishes to vote in a referendum which he helped to initiate, he must be registered. Additionally, there is a substantial difference between the signing of a referendum petition and voting in an election. A petition for referendum merely requests that governmental conduct be subjected to the scrutiny of the voters. The signing or filing of a petition is not a part of a final governmental act, but is merely in furtherance of the citizen's right of petition so that public policy may be ratified or rejected at a formal election. There is no danger of election fraud in the signing of a petition, at least insofar as that document affects the final determination of government policy. If one who signs a petition is not registered and does not register, no substantial harm has been done to democratic process, as those voters who are registered will eventually decide the merits of the proposal. An election, on the other hand, is intended to be final. [5, 6] The purpose of requiring registration prior to an election has repeatedly been held as a legislative imperative to "guard against the abuse of the elective franchise, and to preserve the purity of elections." State on Complaint of Doerflinger, supra, page 579 259 (572). The purpose is to protect the rights of duly qualified, registered electors to prevent fraud and abuse of the elective franchise and to preserve the integrity of the ballot. See: State ex rel. O'Neill v. Trask (1908), 135 Wis. 333, 115 N. W. 823; State ex rel. Tank v. Anderson (1927), 191 Wis. 538, 211 N. W. 938; State ex rel. Wood v. Baker (1875), 38 Wis. 71; State ex rel. Cothren v. Lean (1859), 9 Wis. 254 (279); State ex rel. Symmonds v. Barnett (1923), 182 Wis. 114, 195 N. W. 707. In view of the principles of public policy set forth in the above cases, it is apparent that the need for controls upon the actual voting process is much more compelling than the need for controls on the petition process. The city of Altoona claims that it is absurd to require that those who vote be registered but not those who petition. This situation is not unique to annexation referenda. Art. XIII, sec. 12, of the Wisconsin Constitution provides that officers of the state may be subject to recall upon the filing of a petition by qualified electors. Neither that constitutional provision nor sec. 9.10, Stats., requires that such petitioners be registered voters. Yet it is clear beyond all argument that, in the event a special election is subsequently held as a consequence of the recall petition, only registered voters, if registration is required in the district, may participate. This procedural distinction between the right to petition and the right to vote has long been accepted as proper. [7, 8] We conclude that public policy as set forth by the legislature mandates registration procedures to be used in any municipality which has a population of over 5,000. There is no inconsistency between sec. 66.021 (5) (d) and sec. 66.021 (6), Stats. Sec. 66.021 (5) (d) merely explains sec. 66.021 (6) by pointing out that qualified electors residing in the territory proposed for annexation on the day of the referendum are entitled to vote, but only in accordance with the provisions of ch. 6, which are clearly applicable. Registration does not constitute 260 the qualification of an elector but merely constitutes the legislatively mandated proof that one who seeks to vote is qualified. A voter otherwise qualified must be registered if he wishes to vote in an annexation referendum. While the city of Altoona has posed other arguments in support of the trial judge's order, we conclude that they are not relevant or persuasive. [9] The question remains whether a new referendum should be ordered. The trial judge ordered a new election on the grounds that eligible voters were turned away from the polls. If the record showed clearly that all nonregistered voters were denied access to the referendum ballot, we would conclude that the election was conducted properly and reverse the trial judge's order. However, the record and stipulation before us only show that "some" unregistered voters were turned away. Under this stipulation, it is not clear that the correct standards for voting were applied with uniformity. Accordingly, we conclude that the election was invalid and that a new election should be ordered. We need not, however, conclude that the entire annexation proceedings are totally vitiated, but only the results of the election. The trial judge properly ordered the town of Washington to conduct a new election and to publish a new notice of election. We conclude, however, that that portion of the order which provided that the notice of referendum shall contain the language, "that all qualified electors may vote in said referendum, whether registered or not registered," was erroneous and must be reversed. That portion of the order which restrained the town of Washington and its officers from limiting the right to vote at a subsequent annexation referendum to registered voters is reversed. *261 That portion of the order which directed that another annexation referendum be conducted on the same question as the referendum election of December 30, 1974, is affirmed. By the Court.Order reversed in part and affirmed in part; cause remanded for further proceedings not inconsistent with the opinion herein. The following opinion was filed August 23, 1976. PER CURIAM. (On motion for rehearing.) A new election in this case should be conducted by the Town of Washington among those qualified persons residing in the subject area who are eligible to vote on the date of the new election. Motion for rehearing is denied. NOTES [] Motion for rehearing denied, without costs, on August 23, 1976. [1] Art. III, sec. 1, Wis. Constitution, provides in part: "Every person, of the age of twenty-one years [the age requirement is now 18 years pursuant to the 26th Amendment to the United States Constitution and sec. 6.02 and sec. 6.05, Stats.] or upwards, belonging to either of the following classes, who shall have resided in the state for one year [the residency requirement has been changed to six months pursuant to sec. 6.02] next preceding any election, and in the election district where he offers to vote such time as may be prescribed by the legislature, not exceeding thirty days, shall be deemed a qualified elector at such election."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311145/	243 N.W.2d 172 (1976) Liane CUNNINGHAM et al., Plaintiffs and Respondents, v. WESTERN CASUALTY & SURETY COMPANY, a Corporation, Defendant and Appellant. No. 11740. Supreme Court of South Dakota. Argued March 16, 1976. Decided June 23, 1976. T. F. Martin of McCann, Martin & Mickelson, Brookings, for plaintiffs and respondents. Timothy J. Nimick of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant. DUNN, Chief Justice. This declaratory judgment action on an insurance policy was commenced May 6, 1974. It deals with the question of whether or not insured parties covered by uninsured motorist coverage as to two different cars but by one insurance policy can recover damages up to the total limit arrived at by allowing claims under each uninsured motorist provision. The lower court found that such stacking or pyramiding was appropriate. We disagree. In August of 1973, Alease B. Pittenger and her husband Kenneth Pittenger were involved in an automobile accident with an uninsured motorist in the state of Arizona; the accident resulted in the death of Alease Pittenger and injury to Kenneth Pittenger. At the time of the accident, Kenneth Pittenger had in full force and effect an insurance policy, No. H 414 29 30, with defendant. That policy, in section III, included protection against uninsured motorist accidents and specifically covered two different vehiclesa 1973 Chevrolet ½ ton pickup and a 1969 Rambler four-door sedanowned by Kenneth Pittenger. Separate premiums, equal in amount, were paid for uninsured motorist coverage for each vehicle. Following the initiation of this action in Brookings County, Kenneth Pittenger died 173 from causes unrelated to the accident in question. Liane Cummingham and Ronald Pittenger as co-executors of the estates of Kenneth and Alease Pittenger were substituted as plaintiffs. The case was submitted to the court on a stipulation of facts. It was agreed that damages to Alease Pittenger would be in the sum of $25,000 and damages to Kenneth Pittenger would be in the sum of $5,000, which damages are exclusive of damages to personal property involved in the accident and exclusive of doctor, medical and funeral bills. The policy in question provides coverage of $15,000 per person and $30,000 per accident as to uninsured motorist coverage. Plaintiffs contend that since the one policy covered two vehicles and since separate premiums were charged for uninsured motorist coverage on each vehicle "stacking" of coverage is in order and the effective limit of the uninsured motorist coverage is $30,000 per person and $60,000 per accident. Defendant insurance company asserts that stacking is prohibited by the specific terms of the policy and that its liability is limited to $15,000 per person and $30,000 per accident. This is a case of first impression in South Dakota. In Westphal v. Amco Insurance Co., 1973, 87 S.D. 404, 209 N.W.2d 555, this court held that an "other insurance" provision did not preclude a person from collecting from his own insurance policy if his total damages exceeded the policy limits for the automobile in which he was riding when his injuries occurred. This is an entirely different situation from the case at bar where plaintiffs are attempting to stack the uninsured motorist limits of one vehicle onto the limits of the vehicle in which their decedents were actually riding when the accident occurred. While the holding in Westphal is sound and is followed by the majority of jurisdictions, we do not believe that it should be extended to the facts of this case. Defendant is not seeking to avoid paying the amounts required by SDCL 58-11-9. That statute as it was then in effect stated: "No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in § 32-35-70, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom." And SDCL 32-35-70 provided in pertinent part: " * * fifteen thousand dollars because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, thirty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and ten thousand dollars because of injury to or destruction of property of others in any one accident." Defendant acknowledged its liability for the amount required by the statute and sought to limit its liability to that amount in clear and unambiguous terms in the policy. Condition 5. "Coverage K: The limit of liability for coverage K stated in the declarations as applicable to `each person' is the limit of The Western's liability for all damages because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to `each accident' is the total limit of The Western's liability for all damages because of bodily injury sustained by two or more persons as the result of any one accident." While it is true that the decedents paid a separate premium for the uninsured motorist coverage on each vehicle, there is an 174 increased risk because both vehicles could be traveling the highways at the same time. Further, we see nothing in SDCL 58-11-9 which requires the stacking of the policy coverages for two separate vehicles. The insureds got exactly what the policy said they would. The accident happened while they were driving the Rambler, and they can receive the policy limits that apply to the Rambler. Had both the Pittenger vehicles been involved in accidents involving uninsured drivers, the policy would allow recovery up to the limits on each vehicle. In Allstate Insurance Company v. McHugh, 1973, 124 N.J.Super. 105, 304 A.2d 777, the court considered a case with facts almost identical to those presented here. The court stated: "It is conceivable that Frank McHugh could be operating one vehicle with multiple passengers therein, his wife operating the second vehicle with multiple passengers therein. All the passengers in both vehicles are covered under Coverage S. This increased risk provides sufficient consideration and justification for charging a separate premium at the same rate for additional cars on the same policy." (emphasis theirs) 304 A.2d at 778. Although there is a split of authority, appeal courts in other states have not allowed this type of stacking in the following cases: Holland v. Hawkeye Security Insurance Company, 1975, Iowa, 230 N.W.2d 517; Weschester Fire Insurance Company v. Tucker, 1974, Tex., 512 S.W.2d 679; Allstate Insurance Company v. McHugh, supra; Castle v. United Pacific Insurance Group, 1968, 252 Or. 44, 448 P.2d 357; Otto v. Allstate Insurance Company, 1971, 2 Ill. App.3d 58, 275 N.E.2d 766; Doerpinghaus v. Allstate Insurance Company, 1971, 124 Ga. App. 627, 185 S.E.2d 615; and Morrison Assurance Company, Inc. v. Polak, 1969, Fla., 230 So.2d 6. It is interesting to note that the Texas Supreme Court before deciding Tucker, supra, had previously held that stacking of uninsured motorist policies was allowed where an "other insurance" provision was involved. However, in Tucker, the court held that stacking coverage on two separate vehicles would not be permitted. We do not believe that the Westphal decision needs further expansion by this court. Nor can we see where a different result is required by SDCL 58-11-9. We think that the insurance policy should be interpreted as it is written with the applicable limits being $15,000/$30,000 for the vehicle involved in the accident. Reversed. WOLLMAN and COLER, JJ., concur. WINANS, J., dissents. WINANS, Justice (dissenting). Although this is a case of first impression for this court, it is not the first time we have been called upon to construe the provisions of our uninsured motorist law as found in SDCL 58-11-9. In Westphal v. Amco Insurance Co., 1973, 87 S.D. 404, 209 N.W.2d 555, we found that SDCL 58-11-9 requires a minimum uninsured motorist coverage to be offered with each policy and that the insurer could not escape the mandate of the statute with an "other insurance" provision. We recognized that stacking of applicable uninsured motorist coverages was permissible to achieve the required minimum coverage. In my opinion the majority opinion today undermines what this court recognized as proper in Westphal because the effect of the decision is to allow the insurer to limit its liability to less than the minimum required by statute. In Westphal, supra, this court allowed the passenger in a car struck by an uninsured motorist to recover from his own insurer, even though he was also covered by the driver's uninsured motorist provision. We held that the limitation provided in the "other insurance" clause of the policy was invalid as an attempt to avoid the minimum uninsured motorist coverage mandated by statute. We adopted as our own the rule in Safeco Ins. Co. of America v. Jones, 1971, 286 Ala. 606, 614, 243 So.2d 736, 742, as set out in Blakeslee v. Farm Bureau Mutual Ins. Co. of Mich., 1971, 388 Mich. 464, 201 N.W.2d 786, when we said: 175 "`We hold that our statute sets a minimum amount for recovery, but it does not place a limit on the total amount of recovery so long as that amount does not exceed the amount of actual loss; that where the loss exceeds the limits of one policy, the insured may proceed under other available policies; and that where the premiums have been paid for uninsured motorist coverage, we cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.'" By statute, no automobile liability insurance policy for any vehicle registered or principally garaged in South Dakota shall be issued without uninsured motorist coverage as to each vehicle insured. "No policy * * * shall be delivered or issued for delivery * * * with respect to any motor vehicle * * * unless coverage is provided therein * * * for the protection of persons insured thereunder * ." SDCL 58-11-9. I understand this to be mandatory language requiring that uninsured motorist coverage in the minimum limit set out by statute be provided not collectively for all cars covered by the policy but separately as to each and every vehicle listed therein. The analogy to Westphal is clear. In that case two separate policies of insurance covered the same accident. The passenger's insurance provided for coverage when the insured was in other than the vehicle described in the policy, but sought to limit its liability by use of the "other insurance" clause. This we held to be invalid as an attempt to avoid the minimum coverage mandated by statute. Premiums had been paid on both policies and the injured passenger was entitled to stack the coverage of the two policies to recover up to the actual loss suffered. Here we are faced with one policy providing uninsured motorist coverage for two described vehicles owned by the same individual. The policy provides identical coverage to the insured for each described vehicle. Uninsured motorist coverage is extended to the insured for any accident when the insured is in an "insured vehicle." As defined by the policy, "insured vehicle" is a term that applies to both of the covered vehicles. Because the plaintiff was injured while operating an insured vehicle, it seems logical that both policies would afford him protection. The insurer seeks to avoid this result by placing the following limitation in its policy: Condition 18. Other Automobile Insurance in The Western: "With respect to any occurrence, accident or loss to which this and any other automobile insurance policy issued to the named insured by The Western also applies, the total limit of The Western's liability under all such policies shall not exceed the highest applicable limit of liability under any one such policy." It is clear that by the above provision the insurer intends to limit its liability to a minimum. Westphal makes clear that the minimum cannot fall below the amount dictated by statute, and yet in this instance that is exactly what the majority allows the insurer to do. SDCL 58-11-9 demands a minimum of uninsured motorist coverage on each vehicle insured and the consequence of such a mandate is that the purchaser of insurance must receive at least that much coverage. The Pittengers were covered by the uninsured motorist provisions for Auto No. 1 for which a premium was paid and by the uninsured motorist provisions for Auto No. 2 for which a separate premium was paid. Our law required that the insurers offer this coverage; once offered, it could not be diminished by limiting clauses in the policy which were an attempt again to supply less than the statute called for. Were I to accept the insurer's position I would in effect be saying that where more than one vehicle is insured, less uninsured motorist coverage is required than what the statute demands. This I cannot do. Plaintiff was injured while in an insured vehicle. Compensation should be afforded 176 under both coverages, just as coverage was afforded under both policies in Westphal. I can see no distinction merely because the coverage extended in this case is provided by one policy covering two insured vehicles while in Westphal two separate policies provided coverage. Separate premiums have been paid for both coverages, just as they had been paid on both policies in Westphal. Condition 18, which seeks to limit the insurer's liability in this case, is simply an "other insurance" clause as was invalidated in Westphal, the only distinction being that the other insurance in this case is provided by the same insurer. It constitutes an attempt to provide less coverage than is demanded by statute. The insurer contends that Plaintiffs are entitled to no more recovery by virtue of the double premium they have paid for coverage the insurer was required to offer than they would have been entitled to had they insured only one vehicle and paid only one premium. In this regard it has been well stated: "[w]hen we pay a double premium we expect double coverage. This is certainly not unreasonable but, to the contrary, is in accord with general principles of indemnity that amounts of premiums are based on amounts of liability. Defendant argues that what plaintiff is seeking amounts to pyramiding coverage but nothing is said about pyramiding the premiums which effectuate the coverages. We would not be understood as implying that an injured insured can pyramid separate coverages in the same policy so as to recover more than his actual loss." Sturdy v. Allied Mutual Insurance Company, 1969, 203 Kan. 783, 457 P.2d 34. Because I see little difference between one policy on several vehicles when separate premiums are paid and separate policies on those vehicles by different insurers, at least with regard to the impact of their uninsured motorist provisions, I think it appropriate to echo again the words of Mr. Chief Justice Knutson of the Minnesota Supreme Court in a case concerning four policies with uninsured motorist provisions: "[T]he fact that the legislature required an uninsured-motorist provision in all policies, added to the fact that a premium has been collected on each of the policies involved, should result in the policyholder's receiving what he paid for on each policy, up to the full amount of his damages. It is true that such holding results in permissible recovery exceeding what he would have received if the uninsured motorist had been insured for the minimum amount required under our Safety Responsibility Act. But if the question must be resolved on the basis of who gets a windfall, it seems more just than the insured who has paid a premium should get all he paid for rather than that the insurer should escape liability for that for which it collected a premium." Van Tassel v. Horace Mann Insurance Company, 1973, 296 Minn. 181, 207 N.W.2d 348. The public policy expressed in our uninsured motorist statute requires that coverage, in minimum amounts at least, be provided as to each car, or "with respect to any motor vehicle" covered by the policy. One who pays double premiums expects double coverage. As the New Jersey Supreme Court has held: "When members of the public purchase policies of insurance they are entitled to the broad measure of protection necessary to fulfill their reasonable expectations. They should not be subjected to technical encumbrances or to hidden pitfalls and their policies should be construed liberally in their favor to the end that coverage is afforded `to the full extent that any fair interpretation will allow.'" Kievit v. Loyal Protective Life Ins. Co., 1961, 34 N.J. 475, 170 A.2d 22 (emphasis ours). In Barbin v. United States Fidelity and Guaranty Co., 1975, La., 315 So.2d 754, the Louisiana Supreme Court considered an issue quite similar to the one before the court now, and held: "[T]he clear intent of Graham [v. American Casualty Co., 261 La. 85, 259 So.2d 22], Deane [v. McGee, 261 La. 686, 260 So.2d 669] and the other cited cases is to 177 the effect that if a plaintiff is issued insurance on two or more automobiles, pays premiums for two or more different uninsured motorist coverages, and sustains damages thereunder in excess of the mandatory minimal coverage, he can `stack' coverages and recover his damages. * * This intent should not be circumvented merely because separate vehicle coverages are placed in one policy, rather than in multiple policies." In my opinion to disallow stacking of coverages in this situation is to diminish the effect of our ruling in Westphal. Appellant contends that the principle I propose today would create astronomical liability for insurance companies in direct relation to the number of vehicles covered by any one insurance policy. Appellant suggests that a fleet of ten vehicles, all covered by one policy, might be on the road at the same time and each might be involved in an accident. The result would be to multiply each of the ten recoveries claimed by ten uninsured motorist policy coverages. This might well be true in the abstract but I am cognizant of the fact that the laws of probability rule against such an unfortuitous concatenation of circumstances. It is, after all, the likelihood that certain events will or will not transpire that is calculated when premium rates are fixed and I deem such hypothetical situations to be most unlikely. Even should the foregoing be within the range of possibility it must be borne in mind that the recovery of the insured is still limited by the actual damages. My rationale does no more than to provide for the indemnification of the insured within the combined limits of the stacked policies. Should he be covered by ten uninsured motorist clauses, allowing an aggregate coverage of $150,000 for one person, and his damages are only $25,000 then $25,000 will be the limit of his recovery. Along these lines I note with Prof. Widiss: "that if this approach to indemnification is adopted, an insured who is covered by more than one uninsured motorist endorsement will be better off than he would have been had he been injured by a negligent motorist carrying the minimum coverage specified by the financial responsibility laws. However, the conclusion which insurance companies draw from thisthat they should be allowed to reduce their liabilitydoes not necessarily follow. A premium has been paid for each of the endorsements and coverage has been issued. It seems both equitable and desirable to permit recovery under more than one endorsement until the claimant is fully indemnified." Widiss, A Guide to Uninsured Motorist Coverage, 1969, § 2.70, p. 112. It is my opinion that the cases allowing stacking in this type of instance represent the preferred approach. Our ruling in Westphal as well as SDCL 58-11-9 dictates that the coverages in this case should be stacked and recovery allowed up to the actual loss. Therefore, I would affirm the decision of the trial court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311162/	589 S.E.2d 616 (2003) 263 Ga. App. 849 BRIDGES v. The STATE. No. A03A0866. Court of Appeals of Georgia. October 31, 2003. Smith & Cannon, Chester L. Cannon, Jr., Vidalia, for appellant. Timothy G. Vaughn, Dist. Atty., Russell P. Spivey, Asst. Dist. Atty., for appellee. RUFFIN, Presiding Judge. Following a bench trial, the trial court found Wade Bridges guilty of possessing methamphetamine, driving under the influence, operating a motor vehicle without proof of insurance, and failing to wear a seat belt. On appeal, Bridges contends the trial court 617 erred in excluding certain evidence and in concluding that his car was properly stopped. As Bridges' contentions lack merit, we affirm. Viewed in a light most favorable to the verdict,[1] the evidence demonstrates that on April 3, 2002, Deputy John Mabry of the Bleckley County Sheriff's Office saw Bridges, who was not wearing a seat belt, drive by in a car. Thus, Mabry decided to pull Bridges over for a traffic violation. After Mabry stopped Bridges, he walked up to the car and asked Bridges for his license and insurance. According to Mabry, Bridges was unable to provide proof of valid insurance for the car that he was driving. Mabry testified that Bridges' "eyes were extremely red and glossy [sic]" and that he was reaching down under the car seat. To ensure his safety, Mabry had Bridges exit the car, and he asked Bridges if he could pat him down. Bridges agreed, and Mabry discovered a knife in his back pocket. At that point, Mabry arrested Bridges and placed him in the patrol car. Mabry then had a K-9 unit perform a free air search of the car, and the dog alerted. A subsequent search of the car yielded a bag containing methamphetamine. Bridges was then tested for drug use, and he tested positive for methamphetamine. 1. Bridges proceeded pro se at trial, and he attempted to question Bleckley County Sheriff Harold Lancaster about a drug investigation involving Bridges' brother. When the State objected on relevancy grounds, Bridges asked if he could "enter some exhibits." Apparently, Bridges believed that Mabry pulled him over for a reason other than the seat belt violation. According to Bridges, the exhibit, which apparently was a police report regarding a drug raid at his shop, would have called Mabry's credibility into question regarding his true reason for stopping Bridges. Because Sheriff Lancaster had not authored the report and Bridges was unable to lay a foundation for its admissibility, the trial court excluded the document. By way of explanation, the trial court told Bridges that "[h]earsay, the words of someone else, ... is not admissible in court." On appeal, Bridges contends that the trial court erred in excluding the evidence as hearsay. Specifically, Bridges argues that he did not attempt to enter the report "to prove the truth of the matter asserted in the report[ ], but to show that this event occurred at approximately the same time a short distance from the stop of the Appellant." We find Bridges' argument unpersuasive for multiple reasons, three of which we shall mention here. First, we note that, when he attempted to tender the police report, Bridges did not argue that it came within any exception to the hearsay rule. Thus, Bridges raises this argument for the first time on appeal, which precludes our review of the argument.[2] Second, the reason Bridges attempted to introduce the reportto show when the drug raid took placeis hearsay. Contrary to Bridges' contention on appeal, he did offer the report for the truth of the matter asserted; namely, that the raid took place. Accordingly, the trial court did not err in excluding the document.[3] Third, the trial court excluded the report on two bases: hearsay and lack of foundation. Although Bridges challenges the hearsay ruling, he does not contend that he laid a proper foundation for the admission of the report. And where, as here, no foundation is laid, the trial court does not err in excluding the report.[4] It follows that this enumeration of error presents no basis for reversal. 2. In his second enumeration of error, Bridges contends that "the trial court erred in ruling that the State proved [his guilt] beyond a reasonable doubt ... when the initial traffic stop was improper." Bridges further maintains that, because the stop was improper, all evidence obtained after the stop should have been excluded. 618 However, our review of the record discloses that Bridges neither filed a pre-trial motion to suppress, nor otherwise objected to the admission of the inculpatory evidence. Thus, he has waived any allegation of error in this regard.[5] Judgment affirmed. SMITH, C.J., and MILLER, J., concur. NOTES [1] See Gibbs v. State, 257 Ga.App. 38(1), 570 S.E.2d 360 (2002). [2] See Waddell v. State, 224 Ga.App. 172, 174(2), 480 S.E.2d 224 (1996). [3] See Roseberry v. State, 251 Ga.App. 856, 857(2), 554 S.E.2d 816 (2001). [4] See Jenkins v. State, 219 Ga.App. 339, 341-342(2), 465 S.E.2d 296 (1995). [5] See Pippins v. State, 204 Ga.App. 318, 319(2), 419 S.E.2d 28 (1992) ("By electing not to pursue [a] motion to suppress prior to trial, and failing to thereafter raise it or otherwise object to the evidence sought to be excluded, the defendant waived any objection to the evidence on grounds that it was the fruit of an illegal arrest."); see also Vasquez v. State, 182 Ga.App. 850, 851(1), 357 S.E.2d 302 (1987) (defendant waived objection to allegedly suggestive photographic lineup by failing to either file a motion to suppress or object at trial).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311163/	243 N.W.2d 31 (1976) CITY OF MAHTOMEDI, Respondent, v. Dominic SPYCHALLA, Appellant. No. 45489. Supreme Court of Minnesota. May 21, 1976. 32 Lais, Bannigan & Ciresi and Donald L. Lais, St. Paul, for appellant. Eckberg, Lammers, Briggs & Wolff and Robert G. Briggs, Stillwater, for respondent. Heard before KELLY, MacLAUGHLIN, and SCOTT, JJ., and considered and decided by the court en banc. PER CURIAM. Appellant appeals from a judgment of the district court (1) enjoining him from operating a junkyard on certain described premises; and (2) ordering him to remove junk material from such premises within 60 days of the date of the judgment. We affirm. The facts are undisputed and may be summarized as follows: The town of Lincoln brought a proceeding against appellant on September 18, 1968, charging that his operation of a junkyard was in violation of an ordinance. During trial, the parties reached an agreement under which the town agreed to dismiss the action and appellant agreed, among other things, to "terminate the operation of such junk yard on or before December 11, 1973." The town of Lincoln was annexed by the city of Mahtomedi on January 12, 1972. On September 12, 1972, Mahtomedi adopted an ordinance which permitted the continuation of existing uses. On January 17, 1974, the city served appellant with a notice to cease operation of his junkyard within 30 days. Appellant did not comply and this action followed. Three issues are raised on appeal: (1) Was the agreement superseded by the city's subsequent ordinance? (2) Was there an adequate remedy at law? (3) Did the trial court err in requiring appellant to remove junk material when he had not specifically agreed to do so? 1. Appellant apparently conceded below and in his brief here that (1) the agreement between appellant and the town 33 of Lincoln was validly entered into;[1] (2) that agreement clearly provides for termination of his junkyard in December 1973; and (3) the city of Mahtomedi is the successor to the rights of the town of Lincoln under the agreement.[2] The dispute is whether that agreement was superseded by the adoption of Mahtomedi Ordinance No. 209 on September 12, 1972, since that adoption occurred before the December 11, 1973, termination date set forth in the agreement. The critical section of the ordinance, § 402.01, provides: "Any structure or use lawfully existing upon the effective date of this Ordinance may be continued at the size and in a manner of operation existing upon such date, except that no structural alteration shall be made." (Italics supplied.) Appellant argues that his junkyard was a lawfully existing use on the effective date of the ordinance (December 20, 1972) by virtue of the agreement. The city maintains that (1) the "lawful existence" of the junkyard was conditioned by the requirement that it terminate by December 11, 1973; and (2) § 401.02 of the ordinance provides that if conditions imposed in "regulation[s] of any kind" [e. g., by agreement] are stricter than the ordinance, those conditions are to be given effect. We agree with the city's arguments. First, the junkyard did not lawfully exist by reason of the new ordinance, but rather by virtue of the agreement. In the ordinance-violation proceeding, appellant had the right to attempt to establish lawful existence continuing beyond the date set in the agreement, but elected instead to continue his operation under the terms of the agreement. Since the legal status of appellant's junkyard was finally and completely dealt with by that agreement, it is not within the scope of the ordinance. Second, the agreement was a regulation under § 401.02 in that it involved the town as a party and specifically governed the use of appellant's property. Moreover, in this case the city moved promptly against appellant when he failed to terminate his junkyard by giving him notice to do so approximately one month after his breach. In this situation, there is no evidence that the city intended to abrogate the agreement by passage of the new ordinance. While the city could have, as appellant argues, specifically mentioned appellant's use in the ordinance, it could likewise have reasonably concluded that such a reference was unnecessary because of the agreement. 2. Appellant argues that the city did not show that it had no adequate remedy at law. Appellant suggests that the city did have an adequate remedy at lawa further ordinance. The words "at law" do not refer to legislation, but to an action at law for damages. Damages are certainly not an efficient and practical remedy available to a municipality seeking to require a property owner to comply with zoning regulations and agreements. See, 9A Dunnell, Dig. (3 ed.) § 4472, note 48. Cf. County of Freeborn v. Claussen, 295 Minn. 96, 203 N.W.2d 323 (1972); 17 McQuillin, Municipal Corporations (3 ed.) §§ 49.57 to 49.59. 3. Appellant's final argument is that the district court went too far in requiring *34 him to remove junk materials as well as terminate operation of the junkyard. Appellant is correct in that the agreement does not contain any provision specifically allowing this part of the injunction. As a practical matter, however, storage of junk materials is an integral part of the operation of a junkyard within the contemplation of the agreement. Any other construction would be unreasonable and would thwart the spirit of the agreement. Affirmed. NOTES [1] We have found no case in Minnesota or elsewhere which expressly upholds the powers of a municipality to make such an agreement. The right of a municipality to condition an exception for a nonconforming use on an agreement to eventually terminate or not expand the use has been upheld in another jurisdiction. Edmonds v. Los Angeles County, 40 Cal.2d 642, 255 P.2d 772 (1953). See, also, Bringle v. Board of Supervisors of County of Orange, 54 Cal.2d 86, 4 Cal.Rptr. 493, 351 P.2d 765 (1960); Nathanson v. D. C. Board of Zoning Adjustment, 289 A.2d 881 (D.C.App.1972). It would seem that such power is inherent in a municipality's authority to broadly regulate zoning and land-use planning in the public interest, see Minn.St. c. 462, especially Minn.St. 462.351, and to carry on, settle, and compromise litigation conducted within the scope of its powers. See, Oakman v. City of Eveleth, 163 Minn. 100, 203 N.W. 514 (1925). [2] An annexing city acquires all "money, claims, or properties" possessed by a town, and these things become the property of the annexing municipality "with full power and authority to use and dispose of the same for public purposes as the council or new annexing municipality may deem best." Minn.St. 414.067, subd. 2.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311168/	915 P.2d 1116 (1996) 81 Wash.App. 599 Rodney DALE and Shelley Dale, Husband and Wife, Respondents, v. Dietrich E. BLACK and Gwen A. Black, Husband and Wife, and Their Marital Community, Appellants, v. Jeri Lynn PURVIS; Sandra L. Youngren and John Doe Youngren, Her Husband and the Marital Community Composed Thereof; Youngren & Assoc., Respondents. No. 34613-0-I. Court of Appeals of Washington, Division 1. May 6, 1996. 1117 Charles Stephen Ferguson, Seattle, for appellants. Joel Evans Wright, John Robert Zeldenrust and Lee Smart, Cook, Martin & Patterson, P.S. Inc., Seattle, for respondent Youngren. C. Thomas Moser II, Mount Vernon, for respondent Dale. BAKER, Chief Judge. Gwen and Dietrich Black appeal summary judgment dismissing their claims against the sellers and sellers' agent regarding their purchase of a Diet Center business. They argue that issues of material fact exist regarding whether the sale involved the transfer of a franchise, and whether it was an isolated transaction. We hold that this sale was indisputably an isolated transaction. Because the Blacks have failed to allege facts necessary to establish a fraud claim under the Franchise Investment Protection Act (FIPA), it is unnecessary to determine whether the transaction was the sale of a franchise. The Blacks have not established an issue of material fact, and the court did not err by dismissing their claims. FACTS In September 1990 the Blacks executed a purchase and sale agreement with Shelley and Rodney Dale regarding "the business commonly known as Diet Center" in Mount Vernon. Sandy Youngren was the selling and listing agent. This transaction was the only time the Dales ever sold a Diet Center business, and involved the only Diet Center business the Dales ever owned. In conjunction with the transaction, the Blacks executed a promissory note for $37,500 in favor of the Dales. 1118 In October 1990 the Blacks executed a franchise sub-license agreement with the subfranchisor, J.L. Purvis, regarding the operation of the franchise. A condition of the purchase and sale agreement with the Dales had been Purvis's approval. Two years later the Dales sued the Blacks for defaulting on the promissory note. The Blacks counterclaimed against the Dales, alleging violations of FIPA (RCW 19.100.170,.020),[1] fraud, violation of the Consumer Protection Act (CPA) (RCW 19.86), and breach of contract. The Blacks also brought the FIPA, CPA, and fraud claims against Youngren and Purvis as third party defendants. Gwen Black alleged that Shelley Dale and Youngren both represented that the transaction was the sale of a franchise business, that she would be a subfranchisee, and that Purvis was the subfranchisor. Black also alleged that Dale did not provide her with any information about the franchise, and assured her she would have a successful business. The trial court granted the Youngrens' motion for summary judgment, dismissing all of the Blacks' claims against both the Youngrens and the Dales. DISCUSSION The Blacks' only arguments on appeal are that their transaction with the Dales was the sale of a franchise, and that it was not an isolated transaction. The Blacks' franchise claims were based on violations of the registration (RCW 19.100.020) and antifraud (RCW 19.100.170) provisions of FIPA. Whether or not the transaction involved the sale or transfer of a franchise, the transaction is exempt from the registration requirements of FIPA because it was isolated.[2] The Blacks argue that whether a transaction is isolated is a question of fact which cannot be determined on summary judgment. However, a question of fact can be determined on summary judgment where, as here, reasonable minds could not differ. An isolated transaction logically refers to a transaction that is not common or repeated by either party.[3] A transaction cannot be isolated if the seller is engaged in the business of that type of transaction.[4] But the Dales were not engaged in the business of conducting this type of transaction, and sold only the one Diet Center business. There simply is no indication that this was anything other than an isolated transaction. The Blacks also argue that this transaction was not isolated because it involved the subfranchisor Purvis. However, even the authority the Blacks rely on supports the conclusion that this was an isolated transaction within the meaning of the applicable exemption.[5] Professor Chisum criticized the former provision because it excluded isolated sales even if the franchisor was involved.[6] The new provision, not applicable here, appears to have been drafted to address the concern about the earlier provision, because it provides that a transfer or sale by a franchisee is not exempt if the franchisor is involved in the transaction.[7] Nor does the fact that this sale was effected through an agent preclude the logical conclusion that it was an isolated transaction. An analogous section of the Securities Act recognizes that a transaction can be isolated even if accomplished through a broker-dealer.[8] Even though the transaction was isolated, if it was the sale of a franchise it would *1119 not be exempt from the antifraud section of the act.[9] We need not determine whether the sale involved a franchise, however, because the Blacks have not established an issue of material fact regarding whether the Dales violated that provision. The antifraud section prohibits any false statement or omission of material fact in connection with the sale of a franchise.[10] Although argued in the pleadings, the Blacks did not allege, by sworn testimony, that any of the statements made to them were false, or that any information was withheld which would have influenced their decision to purchase the business. Affirmed. KENNEDY and AGID, JJ., concur. NOTES [1] All citations to FIPA are to the pre-1991 Act unless otherwise indicated. [2] RCW 19.100.030(1). [3] Cf. State v. Smith, 60 Wash.App. 592, 602, 805 P.2d 256 (criminal casecontrasting a continuing course of conduct with a single, isolated occurrence), review denied, 116 Wash.2d 1031, 813 P.2d 582 (1991). [4] See Miller v. Badgley, 51 Wash.App. 285, 291-92, 753 P.2d 530 (UCC casefinding a one-time private sale not exempt because one of the sellers was a merchant), review denied, 111 Wash.2d 1007 (1988). [5] See Donald S. Chisum, State Regulation of Franchising: The Washington Experience, 48 Wash. L.Rev. 291 (1973). [6] Chisum, 48 Wash. L. Rev at 348. [7] See RCW 19.100.030(1) (1992). [8] RCW 21.20.320(1). [9] RCW 19.100.170; Chisum, 48 Wash. L.Rev. at 351. [10] E.g., RCW 19.100.170(2).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260151/	178 Cal.App.4th 735 (2009) ALISSIA MYERS, Plaintiff and Appellant, v. TRENDWEST RESORTS, INC., Defendant and Respondent. No. C058411. Court of Appeals of California, Third District. October 26, 2009. CERTIFIED FOR PARTIAL PUBLICATION[] 738 Law Offices of Stephan Williams, Stephan C. Williams; Law Offices of Daniel Bartley and Daniel R. Bartley for Plaintiff and Appellant. Curiale Hirschfeld Kraemer, John F. Baum and Felicia R. Reid for Defendant and Respondent. OPINION SIMS, Acting P. J. This is the second appeal by plaintiff Alissia Myers in an action against defendant Trendwest Resorts, Inc. (Trendwest), for sexual harassment in employment under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA). In the prior appeal, we reversed the summary judgment in favor of Trendwest on Myers's FEHA causes of action as well as her claim for punitive damages. We affirmed the dismissal of Myers's common law causes of action relating to her allegations of sexual harassment. (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1439 [56 Cal.Rptr.3d 501] (Myers I).) After remand, the case proceeded to jury trial on the FEHA claims for sexual harassment (Gov. Code, § 12940, subd. (j)(1)), and failure to take all reasonable steps to prevent harassment (Gov. Code, § 12940, subd. (k)). The jury found that Myers had not been subjected to unwanted harassment. On appeal, Myers contends the trial court erred by (1) failing to grant judgment notwithstanding the verdict (JNOV) because Trendwest's statement of undisputed factsmade for purposes of summary judgmentadmitted she had "suffered severe sex harassment," (2) failing to grant JNOV based on insufficiency of the evidence in support of the verdict, (3) disallowing her expert witnesses from testifying after she filed a tardy expert witness disclosure list, (4) excluding testimony from her treating physician about the cause of her mental distress, (5) excluding the testimony of her human resources expert to bolster Myers's credibility, (6) excluding testimony from Myers's mother and friend about her mental state shortly after her first hospitalization, (7) excluding evidence of other sexual harassment lawsuits against Trendwest, (8) denying Myers's midtrial motion to amend the complaint to state a claim for disability discrimination under FEHA (Gov. Code, § 12940, subd. (k)), and (9) denying her motion for new trial based on jury misconduct. 739 In the published portion of the opinion, we explain why a statement in Trendwest's statement of undisputed facts, submitted in its summary judgment motion, cannot be used against Trendwest at trial as an admission. We also explain why Myers has waived her claim that no substantial evidence supports the defense verdict. We also commend the trial judge, the Honorable Brian R. Van Camp. In the unpublished portion of the opinion, we reject Myers's remaining contentions of prejudicial error. We shall therefore affirm the judgment. FACTUAL AND PROCEDURAL HISTORY A In every appeal, "the appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment. (Foreman & Clark Corp. v. Fallon [(1971)] 3 Cal.3d [875,] 881 [92 Cal.Rptr. 162, 479 P.2d 362].) Further, the burden to provide a fair summary of the evidence `grows with the complexity of the record. [Citation.]' (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290 [130 Cal.Rptr.2d 436].)" (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658 [26 Cal.Rptr.3d 638], italics added.) Myers's statement of facts gives the impression that little else occurred at trial other than her direct examination during her case-in-chief. Trendwest asserts, "The statement of facts in Appellant's Opening Brief . . . focuses exclusively on the evidence Myers submitted at trial in support of her claims. It ignores completely the evidence favorable to Trendwest, including evidence that directly contradicted Myers's evidence." Having perused the lengthy record in this appeal, we agree with Trendwest's characterization of Myers's factual recitation. In setting forth the facts, we shall highlight a few of the most glaring omissions from Myers's statement of facts. Evidence Presented at Trial Myers was the victim of sexual abuse while growing up. In 2001, Trendwest hired Myers to work in its Walnut Creek office selling vacation timeshares. She was about 20 years old at the time. Ayman 740 Damlakhi was her immediate manager until he was transferred to Trendwest's Roseville office. In August 2002, Myers also began working at the Roseville office. Myers's statement of facts fails to discuss the following additional testimony at trial: At age six or seven, she was sexually molested by a group of older boys who lived in the neighborhood. When Myers was 13 years old, she left California to live with her friend's family in Arkansas. Over the course of 12 to 18 months, she was sexually molested by her foster father and physically abused by her foster mother. After her experiences with the foster family in Arkansas, Myers experienced panic attacks and took antianxiety medications. Her treating psychiatrist, Dr. Michael Wright, testified that she probably developed posttraumatic stress syndrome and borderline personality disorder during her teenage years. Expert testimony explained that the hallmarks of a borderline personality disorder are: recounting only the facts in favor of the person's story, exaggeration, denial of personal responsibility, and manipulative behaviors. When Myers began working at Trendwest, Damlakhi served as a mentor. She enjoyed working and joking with him. When Damlakhi became manager of Trendwest's Roseville office, Myers begged to be transferred to that location. The River Rock Bar Incident Myers testified that she joined a group of employees at the River Rock Bar in late November 2002. Myers stated that, in the presence of the other employees, Damlakhi told her that she had nice breasts and that he tried to grope her when the employees later went dancing. According to Myers, Damlakhi asked her for a lap dance, which offended her. Myers's recitation of the facts fails to mention the following additional evidence about the River Rock incident: Myers chose to sit next to Damlakhi and had two or three glasses of wine. She tried to hand feed him from a plate of food she got for him. Damlakhi denied commenting on her breasts or making any other sexual comments to her. Damlakhi reluctantly went along to the dance club, which Myers had recommended. Myers caught a ride with 741 Damlakhi, who stopped at his house to change. They then went to Myers's apartment so that she too could change her clothes. Myers and Damlakhi then drove to the club together where they danced with several other Trendwest employees. Myers continued to drink. Myers pulled Damlakhi away from the others and started "dirty dancing." Damlakhi found it embarrassing and announced that he was going to leave since his friend refused to show up at the dance club. Damlakhi never asked Myers for a lap dance. One of the Trendwest employees who was at the dance club with them testified that Myers did not give the impression that she was uncomfortable around Damlakhi that night. To the contrary, Myers danced with him in a provocative and flirty manner while Damlakhi "danced like Pee Wee Herman, kind of goofy." Damlakhi stated that Myers later grabbed his fingers and began sucking on them. Myers told him, "I'll rock your world." Damlakhi pulled away, and Myers responded, "You don't know what you're missing." A Trendwest employee who had not been to the dance club testified that Myers told him the next day that she "had a good time" at the club. Invitation to Las Vegas Myers testified that she felt harassed by Damlakhi's frequent telephone calls and dinner invitations after the dance club incident. Myers stated she felt especially uncomfortable about Damlakhi's offer to give her $50,000 to let him take her to Las Vegas for the weekend. Myers's statement of facts fails to mention evidence unfavorable to her characterization of the Las Vegas invitation. On cross-examination, Myers acknowledged agreeing, at least momentarily, to accompany him because she wanted to use the money as a downpayment on a house. Damlakhi denied ever offering to take Myers to Las Vegas. Instead, he invited his coworker, Rob Tyler, to go with him. Myers spoke up and said that she wanted to go with him. Damlakhi stated she would have to sleep on the suite's sofa while he got the bed. He said that he did not want a sexual harassment lawsuit. Myers jokingly replied, "I need someone to sue." Damlakhi and Myers never went to Las Vegas together. Driving for Dollars "Driving for dollars" referred to a tactic in which sales representatives accompanied potential buyers back to their homes to retrieve the initial 742 payment on a timeshare. Myers claimed she suffered two sexual assaults while she and Damlakhi were driving for dollars. Myers testified that Damlakhi accompanied her in following a customer home in March 2003. Myers stated that Damlakhi insisted on going with her even after she strongly objected. After Myers and Damlakhi received the customer's payment, he started questioning her about her sex life. She testified that Damlakhi told her he could satisfy her sexually. He pulled the car off the road, kissed her neck, and fondled her legs. She testified that he succeeded in putting his hand down her pants and groping her breasts despite efforts to fend him off. After she convinced him to drive her back to the office, Damlakhi put her hands in his groin "to tell [her] how hard he was and how much he wanted [her]." When they arrived at the office, Damlakhi apologized and said he was "a little lonely right now." Myers testified that the second sexual assault by Damlakhi occurred in May 2003, when he again insisted on accompanying her in driving for dollars. After securing payment from the customer, Damlakhi drove Myers back to his house. He pulled the car into the garage and shut the garage door by remote control. Damlakhi then put his hand up her dress and tried to kiss her. When she got out of the car, he pushed against her to simulate sexual intercourse while undoing her bra and groping her breasts. Myers broke free and ran out the side door. Damlakhi ran after her, apologized, and drove her home. Myers's recitation of the facts fails to mention the following additional evidence about the "driving for dollars" incidents: Damlakhi denied ever asking about Myers's sex life. Although Damlakhi admitted he went "driving for dollars" with Myers in March 2003, he denied touching her or making any detour on the way back to the office from the customer's house. Being close to midnight when Myers secured the payment, Damlakhi wanted to get back to the office where other employees were waiting to complete the paperwork. As to the incident in May 2003, Damlakhi denied taking Myers to his house or touching her on the way back to the office. Myers admitted that she never told anyone at Trendwest about the assaults while she was employed there. She testified that she told her coworker, Daniel Henry, that she was "scared" of Damlakhi and asked Henry to accompany her and Damlakhi during the March 2003 drive. Henry testified he was asked to accompany them, but recalled that Myers did not want to drive for dollars because everyone hated the sales tactic and the hour was late. Henry never saw Damlakhi engage in any inappropriate conduct with Myers. 743 Myers's First Hospitalization In June 2003, Myers was hospitalized for two weeks at Sutter Center for Psychiatry. At trial and on appeal, Myers claims she suffered an emotional and mental collapse due to Damlakhi's sexual harassment. However, Myers fails to acknowledge important additional evidence. Myers's admission chart indicated a host of factors as precipitating her nervous breakdown including being molested as a child by neighborhood boys, being abused by her foster father and brothers, her belief that her mother was trying to kill her, relationship difficulties with her boyfriend, and her "feeling" that she was being sexually harassed by Damlakhi. The progress notes indicated that Myers's main goal upon discharge was to separate from the boyfriend with whom she lived. The June 2003 hospitalization records indicate that she was feeling anxious and suicidal without knowing the cause. Although the records of her hospitalization and subsequent therapy indicated abuse by her childhood attackers as well as her foster father and brothers, no mention is found of sexual assault by Damlakhi. Myers fails to note that the trial court expressly found that her hundreds of pages of medical records "were devoid of any reference by her to" sexual assaults by Damlakhi. Christine McGowan, Trendwest's Roseville officer manager, testified that she and Damlakhi visited Myers in the hospital. Myers jumped out of bed and told Damlakhi she was glad he had come to visit. She further testified Myers gave both of them big hugs, saying, "she missed being at work and couldn't wait to get back." She had already talked to someone about buying a timeshare and was excited to get back to work. During the visit, Myers asked Damlakhi for money so that she could move out of the apartment she shared with her boyfriend. Damlakhi ended up advancing her $1,500. Lake Tahoe Ski Trip In November 2003, Myers returned to work. That month, some of the sales representatives from the Roseville office went on an annual skiing trip to Lake Tahoe. Myers testified that shortly after arriving at the slopes, Damlakhi grabbed her arm and smacked her on the buttocks. She exclaimed, "Don't touch me. Don't touch me. You said you weren't going to touch me." Myers ran to tell her friend, Felicia Torrez. Myers also told Torrez that Damlakhi had tried to get her to go to the hotel room with him. 744 Myers's factual recount fails to acknowledge the following additional evidence regarding the Tahoe incidents: Myers testified that she also told coworkers Steve Wilcox and Al Catlin about being smacked on the buttocks as soon as she got to the top of the ski slope. Both Wilcox and Catlin testified that Myers never told them about the incident or any other sexual harassment by Damlakhi. Moreover, neither saw Damlakhi inappropriately touch Myers at any time. Damlakhi denied ever smacking Myers on the buttocks. He explained that he had playfully pushed Myers's back because everyone was playing and falling in the snow when they arrived at Lake Tahoe. Myers's claim that Damlakhi invited her to the hotel room refers to her testimony that Damlakhi was cold and wanted to leave the ski slopes because he was not a good skier. When Myers refused to leave, Damlakhi asked for the keys to the car so he could return to the hotel room. Damlakhi did not have his own room, but slept on the sofa of the suite in which all of the employees were staying. In the suite, Myers and Torrez shared their own room. Catlinwhom Myers acknowledged to be honesttestified that he observed Myers the next morning climb on top of a sleeping Damlakhi and stick her tongue in his ear to wake him up. This visibly upset Damlakhi. Myers's Second Hospitalization In December 2003, Myers was hospitalized after she cut her wrists and burned herself. Myers told a coworker from Trendwest that her hospitalization was due to childhood abuse. The discharge summary indicates that Myers claimed symptoms of depression and suicidal thoughts "following sexual harassment at work." The documents for the hospitalization indicate that she reported "her supervisor has been sexually harassing her at work, has been physically very inappropriate." Also in December 2003, Trendwest terminated Myers's employment due to the length of her medical leave. In January 2004, Myers learned of Trendwest's "Integrity Hotline" and called to complain about (1) being dismissed when she had only been on medical leave for four months, and (2) sexual harassment by Damlakhi. Myers was assured that the complaints would be investigated and she would be informed of the outcome within a few days. Two weeks later, Myers again called the Integrity Hotline and was told that there was no record of her prior call. B Any impartial reader who approaches Myers's briefs unfamiliar with the testimony at trial must come away with a sense of bafflement as to why 745 the jury and trial court did not decide in her favorespecially given the seemingly uncontradicted testimony regarding the sexual assaults leading to her mental distress. Only upon perusing the record does it become clear that the trial court found Myers's credibility to be problematic. The trial court, in ruling on her motion for JNOV, considered testimony that she flirted with Damlakhi, "dirty danc[ed]" with him, agreed to go to Las Vegas with him, woke him during the ski trip by climbing on top of him and sticking her tongue in his ear, and the fact that her hundreds of pages of medical records fail to contain a single mention of sexual assault by Damlakhi. Myers offers no discussion of these facts unfavorable to her arguments. (1) Professional ethics and considerations of credibility in advocacy require that appellants support their arguments with fair and accurate representations of trial court proceedings. (Cal. Rules of Court, rule 8.204(a)(2); Rules of Prof. Conduct, rule 5-200.) As we have previously explained, "it behooves counsel to comply with the rules in order to be better advocates for their clients. We are a busy court which `cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his brief makes no reference to the pages where the evidence on the point can be found in the record.'" (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113 [113 Cal.Rptr.2d 90], disapproved on another ground as recognized in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42 [34 Cal.Rptr.3d 520], quoting Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199 [214 P.2d 603].) Myers's opening and reply briefs fall far short of complying with the rules regarding statements and discussions of evidence adduced at trial. C Procedural History In February 2005, Myers filed her third amended complaint against Damlakhi and Trendwest to allege causes of action for sexual harassment arising under FEHA and common law. The trial court granted summary judgment in favor of Trendwest. Myers appealed, and we reversed as to the FEHA and punitive damages claims. (Myers I, supra, 148 Cal.App.4th at p. 1439.) After remand, the case proceeded against Damlakhi and Trendwest. At the start of trial, Myers announced that she had settled with Damlakhi. Trial ended with the jury's verdict that Myers had not been "subject to unwanted harassing conduct because she was a woman." The court polled the jury, revealing a 10 to two vote in favor of the verdict. Judgment was entered in favor of Trendwest. 746 Myers filed motions for JNOV and for new trial, which the trial court denied. DISCUSSION I Estoppel Based on the Statement of Undisputed Facts Accompanying a Motion for Summary Judgment Myers argues the trial court erroneously denied JNOV on the issue of liability because Trendwest was estopped from denying Damlakhi sexually harassed her. Myers relies on Trendwest's statement of undisputed facts accompanying the motion for summary judgment as a judicial admission of the facts contained therein. The argument is without merit. (2) Judicial admissions may be made in a pleading, by stipulation during trial, or by response to request for admission. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 452, p. 585; Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1578 [25 Cal.Rptr.2d 354], disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977, 983, fn. 12 [90 Cal.Rptr.2d 260, 987 P.2d 727].) Facts established by pleadings as judicial admissions "`are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted, by the party whose pleadings are used against him or her.' (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) ¶ 10:147, p. 10-49; Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3 [31 Cal.Rptr.2d 525]; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146 [142 Cal.Rptr. 46].) `"[A] pleader cannot blow hot and cold as to the facts positively stated."' (Brown v. City of Fremont, supra, at p. 146.)" (St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248 [4 Cal.Rptr.3d 416] (St. Paul Mercury), italics omitted.) (3) Not every document filed by a party constitutes a pleading from which a judicial admission may be extracted. Code of Civil Procedure section 420 explains that pleadings serve the function of setting forth "the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court." (Code Civ. Proc., § 420.) "The pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints." (Code Civ. Proc., § 422.10.) When these pleadings contain allegations of fact in support of a claim or defense, the opposing party may rely on the factual statements as judicial admissions. (St. Paul Mercury, supra, 111 Cal.App.4th at p. 1248.) 747 (4) In moving for summary judgment, a party may rely on the doctrine of judicial admission by utilizing allegations in the opposing party's pleadings to eliminate triable issues of material fact. (St. Paul Mercury, supra, 111 Cal.App.4th at p. 1248.) However, neither a motion for summary judgment nor its accompanying statement of undisputed facts constitutes pleadings within the meaning of Code of Civil Procedure section 422.10. Motions for summary judgment do not serve the same purpose as pleadings in setting forth factual allegations. To the contrary, motions for summary judgment by defendants seek to show that they are entitled to dismissal as a matter of law. (Code Civ. Proc., § 437c; Myers I, supra, 148 Cal.App.4th at p. 1409.) Trendwest's motion for summary judgment argued that it was entitled to dismissal of Myers's case even if her allegations regarding Damlakhi's conduct were true. In our prior decision, we noted: "Trendwest accepted as undisputed fact for summary judgment purposes that Damlahki made sexual advances to plaintiff on two `driving for dollars' trips in March and May 2003." (Myers I, supra, 148 Cal.App.4th at p. 1412, italics added.) Trendwest's summary judgment motion gave every indication that the factual admissions concerning Damlakhi's conduct toward Myers were made solely for the purpose of seeking a dismissal as a matter of law. (5) That Myers focuses on facts set forth in the statement of undisputed facts rather than in the memorandum of points and authorities makes no difference. As a leading treatise explains, "The agreement in the separate statement that a fact is `undisputed' is a concession only for purposes of the summary judgment motion. It is not evidence (because not under oath or verified); nor is it a judicial admission." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 10:194, p. 10-71 (rev. # 1, 2009), citing Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1224 [63 Cal.Rptr.2d 422] (Wright).) In Wright, defendants sought to defeat a products liability claim by making "a great deal out of the fact that plaintiffs responded `Undisputed' to [a] separate statement of fact. . . ." (Wright, supra, 54 Cal.App.4th at p. 1224, fn. 2.) On appeal, the defendants argued that the plaintiffs' failure to contest a statement of undisputed fact amounted to a judicial admission that the product was not defective. (Id. at p. 1225.) The Court of Appeal rejected the defendant's argument, holding that the defendants "fail[ed] to establish that plaintiffs' response to their separate statement of undisputed facts [should have been] accorded the same effect as a judicial admission in a pleading." (Ibid.) The Wright court held that separate statements of undisputed facts in support of a motion for summary judgment or adjudication make no binding judicial admissions. (Ibid.; Code Civ. Proc., § 422.10.) 748 Myers's cited cases do not hold to the contrary. Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264 at page 1271 [127 Cal.Rptr.2d 436], does hold that admissions in pleadings conclusively bind the pleaderas Myers contends. However, that case involved admissions made in an actual pleading: an answer to a cross-complaint. (Ibid.; Code Civ. Proc., § 422.10.) Valerio offers no support for holding that summary judgment motions constitute pleadings for purposes of judicial admissions. (Valerio, supra, at p. 1271.) The remainder of Myers's cited cases considered the impact of admissions and failures to dispute facts at the summary judgment stage. (Leep v. American Ship Management (2005) 126 Cal.App.4th 1028, 1039 [24 Cal.Rptr.3d 463] [reversing summary judgment when issue of material fact existed regarding actual period of employment of seamen by vessel's owner]; Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 71-73 [50 Cal.Rptr.3d 149] [affirming summary judgment after the trial court properly exercised its discretion to strike portions of the plaintiffs' separate statement that did not conform to the Code of Civil Procedure]; Stanton Road Associates v. Pacific Employers Ins. Co. (1995) 36 Cal.App.4th 333, 345 [43 Cal.Rptr.2d 1] [affirming summary judgment in favor of insurers because contamination manifested after the policies had lapsed]; People ex rel. Dept. of Transportation v. Ad Way Signs, Inc. (1993) 14 Cal.App.4th 187, 200-201 [17 Cal.Rptr.2d 496] [reversing summary judgment because issue of material fact existed as to whether a permit for roadside billboard had been revoked].) None of these cases considered whether admissions or failures to contest facts at the summary judgment stage later estopped a party from presenting contrary evidence at trial. Accepting Myers's argument would require us to force defendants to play a risky game of roulette whenever moving for summary judgment. To secure dismissals for lack of triable issues of material fact, defendants would have to conclusively surrender the chance to contest facts they might believe themselves able to disprove. Unsuccessful summary judgment motions would leave defendants bound by judicial admissions regarding facts only because they sought judgment as a matter of law. Motions for summary adjudication of less than all causes of action would necessarily be unwise because a defendant would be certain to face trial on at least one cause of action while bound by all facts deemed undisputed in moving for summary adjudication. (6) Summary judgment provides "courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal.Rptr.2d 841, 24 P.3d 493].) We will not undermine the value of this procedural vehicle for ascertaining whether 749 triable issues of fact exist by holding that the separate statements of undisputed fact can haunt unsuccessful movants if the case goes to trial. There is no merit to Myers's contention that Trendwest's statement of undisputed facts made for purposes of summary judgment constituted judicial admission of facts contained therein. II Insufficiency of the Evidence Myers contends the trial court erred in denying her motion for JNOV. (7) Myers argues no substantial evidence supports the defense verdict. However, this claim is waived because, as we have recounted at length above, Myers has failed to set out all the evidence that supports the defense verdict. "[I]f . . . `some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.'" (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) By failing to recount much defense evidence, plaintiff Myers has waived her claim of lack of substantial evidence to support the verdict.[1] The trial court did not err in denying her motion for JNOV. III-VIII[] IX Commendation of Trial Judge We commend the trial judge, the Honorable Brian R. Van Camp, for doing an exemplary job on a case presenting some difficult legal issues. 750 DISPOSITION The judgment is affirmed. Trendwest shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).) Robie, J., and Cantil-Sakauye, J., concurred. NOTES [] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts III through VIII, inclusive, of the Discussion. [1] We say Myers "waived" her claim because that is the terminology used in 1971 in Foreman & Clark. Modern usage would say Myers has "forfeited" her claim. (See, e.g., Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265 [92 Cal.Rptr.3d 862, 206 P.3d 403]; People v. Stowell (2003) 31 Cal.4th 1107, 1114 [6 Cal.Rptr.3d 723, 79 P.3d 1030].) [*] See footnote, ante, page 735.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/738664/	110 F.3d 60 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Carol C. KIGER, individually; Carol C. Kiger, Executrix ofthe Estate of Brian F. Kiger, Plaintiffs-Appellants,v.The CINCINNATI INSURANCE COMPANY; John Doe, Defendants-Appellees,andGeneral Motors Corporation, a Delaware corporation doingbusiness in the State of West Virginia, Defendant. No. 96-1313. United States Court of Appeals, Fourth Circuit. Argued Jan. 28, 1997.Decided March 31, 1997. ARGUED: Scott Steven Blass, BORDAS, BORDAS & JIVIDEN, Wheeling, West Virginia, for Appellants. Dara A. DeCourcy, ZIMMER KUNZ, P.C., Pittsburgh, Pennsylvania, for Appellees. ON BRIEF: James B. Stoneking, James G. Bordas, Jr., BORDAS, BORDAS & JIVIDEN, Wheeling, West Virginia, for Appellants. George N. Stewart, ZIMMER KUNZ, P.C., Pittsburgh, Pennsylvania, for Appellees. Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION PER CURIAM: 1 Carol Kiger (Kiger) sued Cincinnati Insurance Company and an unknown motorist for uninsured motorist coverage under West Virginia Code § 33-6-31. Kiger appeals from district court orders granting the defendants' motion to dismiss. We affirm. I. 2 Kiger's husband, Brian Kiger (Mr. Kiger), died in an automobile accident on June 20, 1991, at 2:45 a.m. on Interstate 70 near Wheeling, West Virginia. Mr. Kiger was driving east in the far left lane of three lanes. His car drifted off to the left onto the center median, then returned onto the highway and rolled over several times, crossing the eastbound lanes and coming to rest against the guardrail. Witnesses told police a second car, which was traveling in the center lane, left the scene. The police treated the accident as a "single vehicle accident." 3 In 1993 Kiger sued General Motors Corporation for product liability, claiming that a product defect in the axle shaft caused Mr. Kiger to lose control of the company car (a 1991 Oldsmobile Bravada) he was driving. In subsequent depositions, witnesses to the accident said that the second car may have run Mr. Kiger's car off the road. In September 1994 Kiger amended her complaint to include as defendants the unknown driver of the second car (John Doe) and Mr. Kiger's insurance company, Cincinnati Insurance Company (Cincinnati). Kiger claimed that John Doe negligently caused the accident and that Cincinnati was liable to her under her husband's policy for uninsured motorist coverage. Kiger ultimately settled her claim with General Motors. 4 West Virginia Code § 33-6-31 provides for uninsured and underinsured motorist coverage. Motor vehicle insurance policies in West Virginia must contain a provision "undertaking to pay the insured all sums which he shall be entitled to recover as damages from the owner or operator of an uninsured motor vehicle...." See W. Va.Code § 33-6-31(b). Section 33-6-31 also provides that a "motor vehicle shall be deemed to be uninsured if the owner or operator thereof be unknown...." See id. § 33-6-31(c). In accordance with the statute Mr. Kiger's policy provided: "[w]e will pay all sums the 'insured' is legally entitled to recover as compensatory damages from the owner or driver of an 'uninsured' or 'underinsured motor vehicle.' " The policy also provided: " '[u]ninsured motor vehicle' means a land motor vehicle or trailer ... [w]hich is a hit-and-run vehicle and neither the driver nor owner is identifiable." 5 In her amended complaint Kiger contends that under Mr. Kiger's policy Cincinnati must pay all sums she is entitled to recover as compensatory damages from John Doe. Cincinnati filed a motion to dismiss in its own right and on behalf of John Doe. In its motion Cincinnati first argued that Kiger cannot sue Cincinnati directly until she obtains a judgment against John Doe. The district court agreed and dismissed the action as to Cincinnati. Cincinnati next argued that the two-year statute of limitations for personal injury actions barred the action against John Doe. Kiger argued in response that the action was a contract dispute with Cincinnati and that the ten-year statute of limitations for contract actions applied. The district court held that the John Doe action was a personal injury action and dismissed the case. We affirm. II. A. 6 The district court properly relied on Davis v. Robertson, 332 S.E.2d 819, 826 (W.Va.1985), to dismiss the direct action against Cincinnati. In Davis the West Virginia Supreme Court held that the West Virginia uninsured motorist coverage statute "does not authorize a direct action against the insurance company providing uninsured motorist coverage until a judgment has been obtained against the uninsured motorist." Id. The Davis court reasoned that the John Doe provisions of the statute, which allow the plaintiff to proceed against a fictional person, would be unnecessary if the insured could directly sue the insurer. 7 Postlethwait v. Boston Old Colony Ins. Co., 432 S.E.2d 802, 807 (W.Va.1993), created a narrow exception to the Davis rule against direct actions. In Postlethwait the tortfeasor was known but was underinsured. The plaintiffs settled with the tortfeasor's insurance company for the full amount of the tortfeasor's liability coverage, and the plaintiffs' insurance company waived its subrogation rights against the tortfeasor. The plaintiffs then sued their own insurance company directly for underinsured motorist coverage. The Postlethwait court held that (1) if the plaintiff has settled with the tortfeasor's liability carrier for the full amount of the policy and (2) if the plaintiff's insurance company has waived its right of subrogation against the tortfeasor, then the plaintiff may bring a direct first-party action against its own insurance company. The court reasoned that the purpose of the Davis rule was to consolidate the liability action against the tortfeasor and the coverage action against the plaintiff's insurance company into one judicial proceeding. In Postlethwait the settlement had already determined the tortfeasor's liability to the plaintiff. And the plaintiff's insurance company had waived its right to subrogation, which eliminated the possibility of a subsequent trial against the tortfeasor. Coverage was the only remaining issue, and "to require the Postlethwaits to take the additional step of getting a judgment against the tortfeasor flies in the face of concepts of judicial economy." Postlethwait, 432 S.E.2d at 806. 8 The Postlethwait exception does not apply to this case. Judicial economy dictated the Postlethwait exception: if the plaintiff settles with the tortfeasor and the plaintiff's insurance company waives its subrogation rights, then there is no reason to require the plaintiff to obtain a judgment against the tortfeasor. In this case, however, Kiger has not established the liability of the tortfeasor. Nor has Cincinnati waived its subrogation rights. So if Kiger sues Cincinnati directly and wins, Cincinnati could then sue John Doe (if he was found) in a separate judicial proceeding. Section 33-6-31 contemplates a direct action against the tortfeasor only, unless a judicial economy exception applies. No such exception applies to this case. We therefore agree with the district court that Kiger may not maintain a direct action against Cincinnati.* B. 9 The district court also properly dismissed the action against John Doe, reasoning that the two-year statute of limitations for personal injury actions applied. See W. Va.Code § 55-2-12(b). The accident occurred on June 20, 1991. Kiger moved to amend her complaint to sue John Doe on September 28, 1994, more than two years after the date of the accident. The district court held that personal injury liability is the issue in the John Doe action and therefore the two-year limit applies. We agree. West Virginia law treats John Doe actions for uninsured motorist coverage as tort actions. See Perkins v. Doe, 350 S.E.2d 711, 713 (W.Va.1986) ("The 'John Doe' suit initiated by the Perkins is an action in tort."). 10 Kiger argues that a John Doe suit for uninsured motorist coverage is a contract action subject to a ten-year limit. The first case she relies on is Lee v. Saliga, 373 S.E.2d 345, 349 (W.Va.1988). West Virginia law requires that in uninsured motorist cases the uninsured vehicle must make physical contact with the insured vehicle. In Lee the court considered whether physical contact was a condition precedent to coverage when the accident occurred in West Virginia but the insured's policy was issued in Pennsylvania. The court found that the question was a dispute over policy coverage between the insured and the insurer rather than a dispute over liability. As such, it was a contract question for purposes of conflicts-of-law analysis. Id. The result was that Pennsylvania law applied, and there was no physical contact requirement. The holding in Lee--that the physical contact requirement is a contract question for conflicts-of-law purposes--does not help Kiger. The Lee court reasoned that it was a contract question because the dispute centered on coverage, not liability. Lee, 373 S.E.2d at 349-50. In this action against John Doe, the question is whether John Doe is liable. It is not a contract dispute over the extent of coverage. 11 The second case Kiger relies on is Plumley v. May, 434 S.E.2d 406, 411 (W.Va.1993). In Plumley the court held that a direct action against an uninsured motorist carrier sounds in contract and is governed by the ten-year limitation. The court explicitly distinguished John Doe actions, however. "Obviously, such a'John Doe' action is designed to represent a plaintiff's suit against an actual tortfeasor and therefore sounds in tort." Id. at 410. 12 The threshold question in the John Doe action is liability. Cincinnati gets the same protection from the two-year personal injury statute of limitations when it stands in Doe's shoes as the tortfeasor himself would if he appeared. Kiger amended the complaint to name John Doe and Cincinnati in September 1994, more than two years after the June 1991 accident. 13 The district court also held that Kiger failed to give timely notice to Cincinnati after the accident. See W. Va.Code § 33-6-31(e) (notice must be given within sixty days of accident). Kiger relies on State Auto. Mut. Ins. Co. v. Youler, 396 S.E.2d 737 (W.Va.1990), to argue that the notice provision does not apply to this case. Because we affirm the district court on the grounds that the John Doe action is barred by the two-year statute of limitations, we need not reach the issue of timely notice. III. 14 In sum, we agree with the district court that Kiger cannot bring a direct action against Cincinnati because Kiger has not obtained a judgment against John Doe. We also agree that the Postlethwait exception does not apply. As to the John Doe action, we agree with the district court that the action is a personal injury action barred by the two-year statute of limitations. Accordingly, the judgment of the district court is 15 AFFIRMED. * Kiger also argues that she can bring a direct action because she meets the only precondition to suit against Cincinnati--"full compliance" with the terms and conditions of the policy. But the policy limits uninsured motorist claims to the amount which the insured is "legally entitled to recover." Until Kiger obtains a judgment against John Doe, she is not "legally entitled" to recover. See Davis, 332 S.E.2d at 826. Therefore, she has not met a condition that the policy requires before she can sue Cincinnati for coverage	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/109597/	429 U.S. 651 (1977) CONCERNED CITIZENS OF SOUTHERN OHIO, INC., ET AL. v. PINE CREEK CONSERVANCY DISTRICT ET AL. No. 76-667. Supreme Court of United States. Decided February 22, 1977. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO. PER CURIAM. Chapter 6101 of the Ohio Revised Code establishes procedures for the organization and governance of conservancy districts, political subdivisions of the State invested with the power to carry out flood prevention and control measures. The statute provides for the creation of a conservancy court each time that a petition is duly filed to propose the creation of a new district. It is the conservancy court's responsibility first to evaluate the desirability of establishing the proposed district and then, if it decides to create the district, to assume the ultimate responsibility for administering the district. A conservancy district may include territory from one or more counties, and the conservancy court is composed of one judge from the court of common pleas in each county having territory within the conservancy district. In 1966 the Pine Creek Conservancy District was established in accordance with the procedures set forth in chapter 652 6101. Appellants, who collectively are residents, property owners, and taxpayers in the Pine Creek District, brought the present action, seeking declaratory and injunctive relief and alleging, inter alia, that chapter 6101 is unconstitutional. Appellants leveled three constitutional challenges against the statute in the District Court, and those claims have been renewed in the instant appeal. First, they argue that it violates due process for the conservancy courts to make the decision as to whether the conservancy districts that they will administer should be formed. Since the judges of the conservancy courts are entitled to special compensation for their work on those courts, appellants contend that they have a financial incentive to declare the proposed districts organized and that, therefore, persons objecting to the formation of a district are deprived of a hearing before an impartial judicial officer. See Ward v. Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio, 273 U.S. 510 (1927). Second, appellants contend that the composition of the conservancy courts violates the one-man, one-vote principle of Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533 (1964), because the judges on those courts are selected without regard to the size of the population that they represent. Third, appellants argue that chapter 6101 permits the disenfranchisement of freeholders affected by the decision to create a conservancy district because the statute creates a presumption that a local political body, such as a township, represents the views of all persons within its jurisdiction whenever it supports a petition proposing the creation of a conservancy district. A three-judge court rejected all of these claims on the single ground that they were foreclosed by Orr v. Allen, 248 U.S. 35 (1918), aff'g 245 F. 486 (WD Ohio 1917), a case in which we rejected a due process and equal protection attack on the statute challenged here. No. C-1-75-5 (WD Ohio, July 6, 1976). None of the issues presented in this case was raised or 653 passed upon in Orr. The appellant in Orr presented four issues to this Court, none of which had anything to do with the issues presented here. The appellant argued that the challenged statute denied him judicial review, that it authorized an impairment of existing contracts, that it improperly conferred legislative powers on the judiciary, and that it authorized a taking without compensation. Our three-page memorandum opinion in Orr did not purport to go beyond the issues raised by the appellant in that case. By no stretch of the imagination can our decision in Orr be thought to have silently dealt with issues which arose and were decided in later cases such as Ward, Tumey, and Reynolds v. Sims. Because the court below gave no independent consideration to the issues raised by appellants and relied exclusively on Orr, although that case considered none of the issues now presented, it is apparent that the merits of appellants' claims have never been fully considered by any federal court. Without offering any view as to the relative merit of appellants' contentions, it is fair to say that they are not insubstantial. We therefore reverse the decision below and remand for a full consideration of the issues presented by appellants. So ordered. THE CHIEF JUSTICE would note probable jurisdiction and give plenary consideration to this appeal. MR. JUSTICE REHNQUIST, with whom MR. JUSTICE POWELL and MR. JUSTICE STEVENS join, dissenting. The action the Court takes today in this appeal is unexplained and very likely inexplicable. The three-judge District Court heard the case and rendered a final decision on the merits. It concluded that our affirmance in Orr v. Allen, 248 U.S. 35 (1918), and principles of stare decisis, compelled rejection of the constitutional challenges. 654 The opinion of the District Court sets forth every one of the challenges detailed by the Court today, and it is clear from its opinion that each of these claims was considered and rejected by it. On appeal here from such a decision, in the absence of relevant intervening circumstances, see, e. g., Guste v. Jackson, ante, p. 399; Town of Lockport v. Citizens for Community Action, 423 U.S. 808 (1975); Weinberger v. Jobst, 419 U.S. 811 (1974), or procedural irregularities in the District Court's consideration of the case, e. g., Westby v. Doe, 420 U.S. 968 (1975), this Court ordinarily either affirms, modifies, or reverses the judgment of the District Court. But in this case it has chosen none of these courses. Disagreeing with the District Court as to the scope of Orr v. Allen, it remands for "full consideration" of claims based on cases decided since Orr, in the teeth of the obvious fact that the District Court did consider these claims and rejected them.[1] I agree with the Court that Orr does not afford an adequate basis for our affirming the District Court, although I am not nearly as certain that it was not an adequate basis for the District Court's decision. But even though the Members of this Court are agreed that Orr is not authority for rejecting appellants' claims based on Baker v. Carr, 369 U.S. 186 (1962), and Tumey v. Ohio, 273 U.S. 510 (1927), that amounts to nothing more than a disagreement with the reasoning of the District Court on the merits of the case. We should treat those claims here now, rather than "remanding" to the District Court as if we were editing a law student's first draft of a law review note.[2] 655 Believing as I do that we should reach and decide these claims, I shall state briefly my reasons for concluding that they are not sufficiently substantial to warrant setting the case for argument, and that the judgment of the District Court should be affirmed. Appellants raise three constitutional objections. Two of them are connected in the sense that they do not relate to the operation of the Pine Creek Conservancy District, but, rather, are objections solely to the formation of that district.[3] The first of these contentions is that persons objecting to the formation of a district are deprived of a hearing before an impartial judicial officer.[4] The second is that chapter 656 6101 of the Ohio Revised Code permits disenfranchisement of freeholders to object to the formation of the district if the local political body supported the petition. The district was formed in 1966, and these two objections were fully available to be raised at that time. This lawsuit was not filed until 1975. Absent some persuasive demonstration of a reason for such delay, I would view such a leisurely attack on the formation of a governmental body as barred by laches. "There must be conscience, good faith, and reasonable diligence, to call into action the powers of the court." McKnight v. Taylor, 1 How. 161, 168 (1843). The appellants seek not merely a reapportionment of the voting population of the district, but a judicial declaration that its formation was a nullity. Surely an attack on the formation of an organ of government is one of the situations where "both the nature of the claim and the situation of the parties was such as to call for diligence." Benedict v. City of New York, 250 U.S. 321, 328 (1919). There has been no such diligence here, and neither the pleadings nor the proof intimates any excuse for the delay. These two challenges, I believe, fare no better on the merits. The first, again, challenges the constitutionality, under Tumey v. Ohio, supra, of having court of common pleas judges decide whether the district should be formed, since, under § 141.07 of the Ohio Revised Code Ann. (Page 1975 Supp.), they will receive extra compensation if such district is formed. Neither Tumey nor Ward v. Monroeville, 409 U.S. 57 (1972), has any direct bearing on the constitutionality of the Ohio procedure for forming a conservancy district. As Tumey and Ward made clear, those cases involved quintessentially judicial functions, see, e. g., Tumey, supra, at 657 522.[5] Here, however, the determinations, although made by judges, are essentially legislative in nature. As Mr. Justice Holmes recognized, the determination of legislative facts does not necessarily implicate the same considerations as does the determination of adjudicative facts. Londoner v. Denver, 210 U.S. 373 (1908); Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441 (1915). Since I know of no constitutional objection to the formation of such districts through legislative or executive actionwithout giving opposing citizens a chance to air their objections, see Houck v. Little River Dist., 239 U.S. 254, 262 (1915)I see no constitutional objection to the procedures followed here. Those procedures simply insured an additional check on the process of formation, already petitioned for by the town governments, and the fact that they may not have been before an "impartial" judicial officer offends no constitutional right of appellants. The second "formation" challenge, as presented by appellants, raises the following issue: "Section 6101.05, Ohio Revised Code, submits the first decision in the creation of a conservancy district to the freeholders, who must petition for its creation. This is the only step in the entire procedure which calls for any participation in support or opposition, by the residents or landowners, to the creation of the district or the execution of its projects. . . . Section 6101.05, Ohio Revised Code, provides that the petition may be signed by the governing body of any public corporation in the proposed district. When such a public corporation signs 658 the petition, all freeholders within it are conclusively presumed to favor creation of the district. In effect, all persons living in the three townships and one village which signed the petition who opposed the district were deprived of the right to oppose the district." Jurisdictional Statement 13-14. This constitutional challenge is wholly insubstantial. I know of nothing, and appellants suggest nothing, which would even arguably make the issue one that freeholders were constitutionally entitled to vote on. Thus, had the statute simply allowed the governing bodies of the respective townships to form such a district, there is surely no constitutional objection simply because the populace did not vote, Houck v. Little River District, supra, at 262, 264. To the extent the claim here protests the "discrimination" against the freeholders in a town whose governing body signs the petition, in that they "were deprived of the right to oppose the district," it is simply wrong on the facts. There is no conclusive presumption, when the governing body signs a petition, that "all freeholders . . . favor creation of the district." Rather, opposing freeholders in such towns remain as free as opposing freeholders in towns where petitions are circulated, to appear before the conservancy court and "object to the organization and incorporation of said district . . . ." Ohio Rev. Code Ann. § 6101.08 (Page 1975 Supp.). They are entitled to no more under the Constitution. Appellants raise one other objection to the constitutionality of the statutory scheme, although not limited exclusively to the formation of the district. This is the claim that the selection of judges for the conservancy court violates the one-man, one-vote principle of Baker v. Carr, supra, and its progeny. But the one-man, one-vote decisions do not apply to the selection of judges, Wells v. Edwards, 347 F. Supp. 453 (MD La. 1972), aff'd, 409 U.S. 1095 (1973). As the majority of the functions of the conservancy court are admittedly 659 judicial, see Ohio Rev. Code Ann. §§ 6101.07, 6101.28, 6101.33 (Page 1975 Supp.), the majority of such a one-man, one-vote challenge has already been squarely rejected by Wells. With respect to the remaining functions, essentially legislative or executive in nature, the scope of powers granted to a conservancy district itself are so narrowly confined as not to call into play the strict application of one-man, one-vote doctrines. Conservancy districts, established solely for flood prevention and control, do not exercise "general governmental powers," as that phrase was defined in Avery v. Midland County, 390 U.S. 474 (1968). Rather, flood control is a "special limited purpose," much like that found in Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719 (1973), and, likewise, "the popular election requirements enunciated by Reynolds [v. Sims, 377 U.S. 533 (1964)] and succeeding cases are inapplicable. . . ." Id., at 730. In such a situation, where both counties have an interest, and there is no evidence of discrimination against any group, see Williams v. Rhodes, 393 U.S. 23 (1968), such a selection process is permissible, Salyer Land Co. v. Tulare Water Dist., supra; cf. Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).[6] As I am unable to conclude that the decision to have one judge for each affected county is "wholly irrelevant to achievement of the regulation's objectives," Kotch v. River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947), I would also reject this challenge and affirm the judgment of the District Court. NOTES [1] Appellants' reply brief before the District Court amply argues that Orr was not controlling because that case concerned other constitutional challenges. Thus, the District Court was aware of the arguments this Court now relies on for a remand. [2] The judgment order entered in the case states: "This matter came on for hearing by agreement of the parties upon the briefs of the parties on the issues of constitutionality of various sections of Chapter 6101 of the Ohio Revised Code dealing with Conservancy Districts." The District Court thus did canvass the contentions going to the merits, and decided the issue, albeit on a ground not favored by the majority of this Court. But there can be no contention that appellants were precluded from entering relevant evidence into the record, or precluded from presenting a pertinent legal argument. Both parties, in essence, presented all they wished to on the constitutional issues to the District Court. Nor is there any hint that the factual record is in such a shape as to preclude determination of the issues by this Court. I am simply at a loss to explain this Court's curious remand. [3] None of the named plaintiffs allege in their complaint that they were residents at the time of the formation of the Conservancy District, although there are recitations in the body of the complaint that might indicate that at least some were residents at that time. Because of the failure to allege residency in 1966, their standing to raise such contentions is questionable. [4] Once the district is formed, the conservancy court has no incentive to decide a particular fact situation one way or another, as their pay remains the same in either case. The Jurisdictional Statement of appellants, however, suggests another, related attack: "To receive payment of this per diem, of course, the treasury of the district must be full. The income of the district comes from assessments based on appraisals which the court must approve or disapprove . . . ." Yet this challenge is to the remote impact on funding from full town coffers, raised and rejected in Dugan v. Ohio, 277 U.S. 61 (1928). The payments are paid out of assessments, which are the responsibility, in the first instance, of the board of directors of the district, not the conservancy court, see Ohio Rev. Code Ann. §§ 6101.45, 6101.48 (Page 1975 Supp.). This issue surely raises no further challenge not worthy of a summary affirmance. [5] In Gibson v. Berryhill, 411 U.S. 564, 579 (1973), where the proceeding was adjudicative in nature, but not criminal, we discussed whether the "pecuniary interest of the members . . . had sufficient substance to disqualify them . . . ." (Emphasis supplied.) Here, of course, the proceeding is more legislative than adjudicative, and is neither criminal nor stigmatizing. [6] We are told that the Pine Creek Conservancy District lies partially in Lawrence County and partially in Scioto County. We are told that the 1970 population was 56,868 and 76,951, respectively. We are also told that "[i]n neither instance is the entire county included in the district." We are not told, however, how much of either county is in the district, nor how many freeholders reside in either county. It would seem to follow that appellants fail in their burden of showing that "the voting power of the judges" has not been approximated "to the number of people they represent, or to the land or people within the district which they represent."	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/2259966/	167 Cal.App.4th 531 (2008) STONEHOUSE HOMES LLC, Plaintiff and Appellant, v. CITY OF SIERRA MADRE et al., Defendants and Respondents. No. B195552. Court of Appeals of California, Second District, Division Eight. October 9, 2008. 534 Greenberg Glusker Fields Claman & Machtinger and Garrett L. Hanken for Plaintiff and Appellant. Colantuono & Levin, Sandra J. Levin and Holly O. Whatley for Defendants and Respondents. OPINION FLIER, J. Stonehouse Homes LLC (Stonehouse) appeals an order (judgment) of dismissal entered after the trial court sustained a demurrer to Stonehouse's complaint for declaratory relief with leave to amend, and Stonehouse declined to amend. Stonehouse seeks a declaration that resolution No. 06-024 (moratorium resolution) was enacted by respondents the City of Sierra Madre (City) and the Sierra Madre City Council (city council) in violation of Stonehouse's constitutional and statutory rights, and it is therefore facially invalid. Stonehouse contends its complaint adequately alleged an actual and present controversy with respondents, and there exists possible evidence to support declaratory relief in this case. We affirm, finding the case is not yet ripe. FACTS Respondent City is located in the steep hillsides of the San Gabriel Mountains northeast of Pasadena. Stonehouse is a developer of real estate and the owner of about 103 acres of land on Stonehouse Road in Sierre Madre. Part of Stonehouse's property lies within the Hillside Management Zone (HMZ). Stonehouse seeks to develop the southerly 25 acres of its property, a portion of which is located within the HMZ, and has in process vesting tentative tract map and conditional use permit applications through the City. The HMZ provisions impose specialized requirements for areas north of an established HMZ boundary line. HMZ provisions include a requirement for lot sizes under a formula based on the severity of the slope of the land. On August 8, 2005, respondent city council adopted ordinance No. 1237 U (moratorium ordinance) as an urgency measure and later extended the ordinance on September 15, 2005. The moratorium ordinance covers an area that includes the entirety of Stonehouse's property and essentially requires property developers of land falling within the moratorium area to comply with HMZ provisions. 535 Implementing the moratorium ordinance, on November 22, 2005, the city council adopted resolution No. 05-086 (advisory committee resolution), which appointed an HMZ ad hoc committee (HMZ advisory committee) to study and provide preliminary input regarding potential revisions to the HMZ provisions, focusing on 11 areas of concern. Among other things, the resolution asked the HMZ advisory committee to consider a recommendation that lot sizes in the HMZ area be increased, noting "[l]imits as high as 1 house per acre might be entirely appropriate." The resolution set a schedule for the HMZ revision process. The HMZ advisory committee was directed to hold twice-monthly public sessions starting in January 2006, to issue its recommendations in June 2006 and to present final recommendations to the planning commission in November 2006. An "Environmental Impact Report" was to be initiated in December 2006, leading to review of any proposed revisions to the HMZ by the city council in July 2007. Subsequently, on January 19, 2006, Stonehouse submitted two applications to the City for single-family residential development of Stonehouse's property: (1) a vesting tentative tract map proposed to subdivide and develop about 25 acres of the southerly portion of the property into single-family residential lots, with the remaining portion of the property to be deed restricted to relinquish development rights, and (2) an application for a conditional use permit sought approval for development under HMZ provisions. Although most of the 25 acres proposed for development were located within a different zone, the applications treated the entire property as if it fell within the HMZ. Stonehouse prepared and submitted numerous technical reports required under the HMZ provisions. On February 15, 2006, Stonehouse received a letter from the City stating its applications were not complete. The letter listed 16 items that Stonehouse needed to address, including a prefiling meeting. About the time of this meeting, which took place on March 28, 2006, the City allegedly "clarified and narrowed" the requirements of the incomplete items, and it also allegedly agreed to "check off" immediately the incomplete items as Stonehouse submitted additional materials despite a statutory 30-day waiting period. Stonehouse purported to complete the incomplete items on April 17, 2006, and it confirmed the revised requirements by a letter dated April 18, 2006. In the interim, on April 6, 2006, the City had published a notice in the local newspaper to initiate the preparation of an ordinance to amend the HMZ provisions. The notice stated the city council was considering a moratorium resolution directing the planning commission, in conjunction with the HMZ advisory committee and city staff, "to prepare an ordinance amending the zoning ordinance regarding minimum lot size and lot dimensions for new subdivisions in the [HMZ]." (Capitalization omitted.) The published notice 536 specified the contents of the ordinance to be prepared, such as density reduction standards. The published notice further stated, "The proposed ordinance will be brought back to the City Council along with the necessary environmental documentation pursuant to CEQA [California Environmental Quality Act (see Pub. Resources Code, § 21000 et seq.)] for review at a future date." On April 18, 2006, the city council held a hearing on the moratorium resolution, which passed on a vote of three to two. On May 17, 2006, 30 days after Stonehouse submitted its additional materials, the City notified Stonehouse the additional materials were insufficient. In the notice of incompleteness, the City purported to require items that were in addition to or inconsistent with the clarifications and modifications agreed upon during the prefiling meeting. Stonehouse's appeal to the city planning commission was denied. Stonehouse filed the present action for declaratory relief on July 17, 2006. At the time Stonehouse filed its complaint, it was in the process of appealing the planning commission decision to the city council. The complaint alleged an actual and present controversy existed between Stonehouse and respondents "concerning the legal rights and duties of the parties as they relate to the validity of [the moratorium resolution] and its effect upon the ordinances, policies, and standards that may lawfully be applied to [Stonehouse's] [a]pplications." Stonehouse contended the moratorium resolution was enacted in violation of its constitutional and statutory rights of substantive and procedural due process of law, and its right to equal protection of the laws, and it is therefore invalid on its face. The resolution, Stonehouse further alleged, is "arbitrary, capricious, entirely lacking in evidentiary support, unlawfully and procedurally unfair, unfairly singles out Stonehouse ... to bear the burden of governmental action, and unfairly seeks to punish Stonehouse ... for other development activity in the City." The complaint in addition claimed that the moratorium resolution "unduly constrains residential development and therefore violates California housing laws." PROCEDURAL HISTORY Respondents filed a general demurrer to the complaint. Among other things, respondents argued the complaint sought to have the court rule on the validity of a resolution that "enacts no legislation, imposes no obligation on Stonehouse or anyone else, but rather contains only notice of potential changes to the City's zoning regulations to be considered some time in the 537 future." Among other things, respondents argued the City has not amended any zoning regulations referenced in the resolution, and it could do so only after noticed hearings before both the planning commission and the city council, at which hearings Stonehouse would have the right to be heard. In essence, respondents asserted, Stonehouse was seeking an advisory ruling because it was plain from the allegations of the complaint that the City had taken no action actually affecting Stonehouse beyond the mere fact of giving notice to the public of legislation it might pursue in the future. The trial court sustained respondents' demurrer with leave to amend.[1] The court ruled the complaint did not state facts sufficient to constitute a cause of action. The court reasoned Stonehouse was contending the City was attempting to deprive Stonehouse of a safe harbor provision of the Subdivision Map Act (Gov. Code, § 66474.2, subd. (a)).[2] The complaint alleged the City proposed to employ the procedure set forth in section 538 66474.2, subdivision (b) to trump rights Stonehouse claims it would otherwise have under section 66474.2, subdivision (a). The court concluded the City's alleged acts appeared to be "precisely what the statute [i.e., § 66474.2] visualizes." The trial court further decided that Stonehouse was seeking an advisory decision in a controversy not yet ripe; the complaint neither asserted a takings claim nor alleged ultimate facts showing that the moratorium resolution is facially invalid or in violation of Stonehouse's due process rights or state housing laws; and Stonehouse failed to allege ultimate facts showing its application for a tentative map is complete or that the City has determined the application is complete. Stonehouse received leave from the trial court to amend its complaint to address the defects noted by the court. Stonehouse elected not to amend its complaint. The court therefore issued an order of dismissal of the action. This timely appeal followed. CONTENTIONS Stonehouse contends the demurrer should have been overruled because (1) the complaint challenges the validity of the moratorium resolution and therefore declaratory relief is appropriate, (2) there is no administrative remedy available that Stonehouse was required to exhaust, (3) its request for declaratory relief is ripe, (4) the complaint adequately alleges a claim the moratorium resolution is facially invalid, and (5) the City's motive may be considered when a substantive due process or equal protection claim is alleged. For the reasons discussed below, we conclude the complaint does not adequately allege an actual and present controversy and declaratory relief is not appropriate. STANDARD OF REVIEW Our standard of review of an order of dismissal following the sustaining of a demurrer is well established. We treat the demurrer as admitting all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].) We also consider matters that may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) We give the complaint a reasonable interpretation, reading the complaint as a whole and 539 its parts in context. (Ibid.) When a demurrer is sustained with leave to amend but the plaintiff elects not to do so, we presume the complaint states as strong a case as the plaintiff can muster. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091 [32 Cal.Rptr.3d 483, 116 P.3d 1162]; see Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 312 [70 Cal.Rptr. 849, 444 P.2d 481].) We will affirm if the trial court's decision to sustain the demurrer was correct on any theory. (Hendy v. Losse (1991) 54 Cal.3d 723, 742 [1 Cal.Rptr.2d 543, 819 P.2d 1]; Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808 [50 Cal.Rptr.2d 736].) The parties agree that, on appeal from a dismissal after an order sustaining a demurrer, the appellate court reviews the order de novo, exercising its independent judgment whether the complaint states a cause of action as a matter of law. (See McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415 [106 Cal.Rptr.2d 271, 21 P.3d 1189]; Montclair Parkowners Assn v. City of Montclair (1999) 76 Cal.App.4th 784, 790 [90 Cal.Rptr.2d 598].)[3] DISCUSSION THE COMPLAINT DOES NOT PRESENT A JUSTICIABLE CONTROVERSY Respondents contend the trial court properly sustained the demurrer on the ground the complaint failed to state facts sufficient to state a cause of action against respondents, and the court's ruling was correct because a claim for declaratory judgment regarding the moratorium resolution was not ripe and did not present a justiciable controversy. We agree. (1) A declaratory relief action may be brought under Code of Civil Procedure section 1060, which provides that in cases of "actual controversy" relating to the legal rights and duties of the respective parties, a person who desires a declaration of his or her rights or duties with respect to property may bring an original action in the superior court for a declaration of his or her rights and duties in the premises. The court has discretion to refuse to entertain claims for declaratory relief when its declaration or determination is not necessary or proper at the time under the circumstances. (Code Civ. Proc., § 1061.) 540 (2) Whether a case is founded upon an "actual controversy" centers on whether the controversy is justiciable. "The principle that courts will not entertain an action which is not founded on an actual controversy is a tenet of common law jurisprudence, the precise content of which is difficult to define and hard to apply. The concept of justiciability involves the intertwined criteria of ripeness and standing. A controversy is `ripe' when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made." (California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22-23 [61 Cal.Rptr. 618] (California Water), fns. omitted; see also Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 [188 Cal.Rptr. 104, 655 P.2d 306] (Pacific Legal).) (3) "The ripeness requirement ... prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion...." (Pacific Legal, supra, 33 Cal.3d at p. 170; see Coral Construction, Inc. v. City and County of San Francisco (2004) 116 Cal.App.4th 6, 25-26 [10 Cal.Rptr.3d 65].) (4) To determine if a controversy is ripe, we employ a two-pronged test: (1) whether the dispute is sufficiently concrete that declaratory relief is appropriate; and (2) whether withholding judicial consideration will result in the parties suffering hardship. (Pacific Legal, supra, 33 Cal.3d at pp. 171-173; Stewart, supra, 126 Cal.App.4th at p. 59.) "Under the first prong, the courts will decline to adjudicate a dispute if `the abstract posture of [the] proceeding makes it difficult to evaluate ... the issues' [citation], if the court is asked to speculate on the resolution of hypothetical situations [citation], or if the case presents a `contrived inquiry' [citation]. Under the second prong, the courts will not intervene merely to settle a difference of opinion; there must be an imminent and significant hardship inherent in further delay. [Citation.]" (Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 502 [74 Cal.Rptr.2d 75]; see Stewart, supra, at p. 64.) In this case, the trial court correctly concluded the alleged controversy is not justiciable because Stonehouse's claims fail both prongs of the ripeness test. Under the first prong, a declaration of "the legal rights and duties of the parties as they relate to the validity of the [moratorium resolution]" would require us, and would have required the trial court, to speculate about hypothetical future actions by the City, the city council and planning commission. 541 Stonehouse contends the moratorium resolution was an "unequivocal instruction to prepare an ordinance" that was "required to include specific zoning" substantially conforming to limitations expressed in the resolution. (Italics added.) In support of its argument, Stonehouse claims the moratorium resolution essentially comprised legislation by stating: "The City Council ... hereby directs the Planning Commission ... to prepare an ordinance ... that includes specific zoning ... which substantially complies with the following specifications...." (Boldface omitted, italics added.) But the resolution does no such thing. Stonehouse has only partially quoted the relevant language of the city council's resolution, which actually states: "the City Council of the City of Sierra Madre hereby directs the Planning Commission, in conjunction with the [HMZ advisory committee], to prepare an ordinance, as part of the final recommendations for amending the [HMZ], that includes specific zoning and lot dimensions for new subdivisions in the [HMZ], which substantially complies with the following specifications: [listing specifications]." The operative language of the moratorium resolution directs the planning commission and HMZ advisory committee to prepare final recommendations for an ordinance. The moratorium resolution thus merely gave notice to the public of potential legislation that might be adopted in the future with respect to HMZ provisions. The adoption of the resolution alone implicated no rights of Stonehouse. The resolution was not an ordinance that amended the HMZ provisions. Nor did it require the planning commission to recommend adoption of such an ordinance. The moratorium resolution simply requested preparation of final recommendations regarding potential amendments to the HMZ provisions and provided notice to the public about changes under consideration. Under the city council's directives, the HMZ advisory committee was empowered to make recommendations regarding the listed concerns and was not restricted from submitting recommendations regarding additional concerns. The resolution did not refer to any development application of Stonehouse and could not have any consequence for such an application unless and until legislation is proposed, reviewed under CEQA, subjected to public hearings and formally adopted. (5) Under the allegations of the complaint, final recommendations have yet to be made by the planning commission or the HMZ advisory committee. At this stage, the court must speculate as to what legislation, if any, the City might adopt and whether and how that legislation might be applied to Stonehouse's property. "[A]n action for declaratory relief `must be based on an actual controversy with known parameters. If the parameters are as yet unknown, the controversy is not yet ripe for declaratory relief. [Citation.]' [Citation.]" (PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1218 [13 Cal.Rptr.3d 630].) The abstract posture of this case renders it too uncertain for a justiciable controversy. Stonehouse's complaint fails to 542 establish the alleged dispute is "sufficiently congealed to permit an intelligent and useful decision to be made." (California Water, supra, 253 Cal.App.2d at p. 22; see also Pacific Legal, supra, 33 Cal.3d at p. 171.) (6) Under the second prong, moreover, the trial court also correctly concluded the complaint failed to allege facts showing "`an imminent and significant hardship inherent in further delay.'" (Stewart, supra, 126 Cal.App.4th at p. 64.) Besides the absence of concrete legal issues, the particular factual context has yet to be fully developed. Stonehouse contends the issue presented is whether its applications are protected by an alleged "safe harbor" provided by section 66474.2, subdivision (a) or whether the moratorium resolution takes its pending applications out of that safe harbor provision and subjects them to rezoning under section 66474.2, subdivision (b). The problem with Stonehouse's contention is that any alleged entitlement to a safe harbor is purely conjectural absent a final application, a newly adopted HMZ ordinance and application of such an ordinance to Stonehouse. Section 66474.2 defines the ordinances, policies and standards a city must apply in approving or denying a completed application. However, section 66474.2, subdivision (a) applies only after a city deems a subdivision application is complete, and Stonehouse admits the City had not determined its applications were complete as of the time of the filing of its complaint. (7) The mere fact that Stonehouse and respondents disagree over the resolution's meaning and application does not create a justiciable controversy. Courts may not render advisory opinions on disputes which the parties anticipate might arise but which do not presently exist. (Teachers' Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1043-1044 [65 Cal.Rptr.3d 326]; Stewart, supra, 126 Cal.App.4th at p. 78.) For declaratory relief, the party must show it has either suffered or is about to suffer an injury of "sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented." (California Water, supra, 253 Cal.App.2d at p. 23.) (8) Supposedly, unless the resolution is declared invalid at this point, Stonehouse would suffer "[a] loss of the certainty that [section 66474.2, subdivision (a)] was enacted to provide." Such uncertainty is not the type of justiciable controversy contemplated by the existing precedents. Stonehouse cannot demonstrate the resolution has resulted in any concrete effects upon it.[4] 543 DISPOSITION The order of dismissal is affirmed. Respondents are to recover costs on appeal. Cooper, P.J., and Rubin, J., concurred. NOTES [1] The court granted respondents' request to take judicial notice of the moratorium resolution at issue. (Evid. Code, §§ 452, subd. (b), 453; see Shapiro v. Board of Directors (2005) 134 Cal.App.4th 170, 174, fn. 2 [35 Cal.Rptr.3d 826] [taking judicial notice of municipal resolution]; City of Modesto v. National Med, Inc. (2005) 128 Cal.App.4th 518, 524, fn. 1 [27 Cal.Rptr.3d 215] [same].) [2] All further statutory references are to the Government Code unless otherwise indicated. Section 66474.2, subdivision (a) reads: "(a) Except as otherwise provided in subdivision (b) ..., in determining whether to approve or disapprove an application for a tentative map, the local agency shall apply only those ordinances, policies, and standards in effect at the date the local agency has determined that the application is complete pursuant to Section 65943 of the Government Code." Subdivision (b) of section 66474.2 states: "Subdivision (a) shall not apply to a local agency which, before it has determined an application for a tentative map to be complete pursuant to Section 65943, has done both of the following: [¶] (1) Initiated proceedings by way of ordinance, resolution, or motion. [¶] (2) Published notice in the manner prescribed in subdivision (a) of Section 65090 containing a description sufficient to notify the public of the nature of the proposed change in the applicable general or specific plans, or zoning or subdivision ordinances. [¶] A local agency which has complied with this subdivision may apply any ordinances, policies, or standards enacted or instituted as a result of those proceedings which are in effect on the date the local agency approves or disapproves the tentative map." Section 65943 requires a public agency to determine in writing within 30 days whether an application for a development project is complete, to notify an applicant of the manner in which an application can be made complete and to provide a process for the applicant to appeal if the applicant's resubmission of an application is determined in writing by the agency not to be complete. Unless the agency makes its written determinations within 30 days, the application shall be deemed complete as a matter of law. (See § 65943, subds. (a), (b).) Section 65943, subdivision (c), provides that "[a] city or county shall provide that the right of appeal is to the governing body or, at their option, the planning commission, or both." Section 65090, subdivision (a) provides in part that notice of public hearing "shall be published ... in at least one newspaper of general circulation within the jurisdiction of the local agency which is conducting the proceeding at least 10 days prior to the hearing...." [3] In any case, whether the appropriate standard of review is de novo or abuse of discretion makes no difference in the particular circumstances of this case, as we find the trial court's ruling correct under either standard. (See City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 58-59 [24 Cal.Rptr.3d 72] (Stewart).) [4] Our holding that the issues are not yet ripe should not be used by respondents as justification to drag their feet on Stonehouse's applications.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2259980/	175 N.J. Super. 624 (1980) 421 A.2d 616 TOWNSHIP OF BURLINGTON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. MIDDLE DEPARTMENT INSPECTION AGENCY, INC., GARDEN STATE ELECTRIC INSPECTION SERVICE, INC., BUILDING INSPECTION UNDERWRITERS, INC., MIDDLE ATLANTIC ELECTRIC INSPECTION, INC. AND GENERAL INSPECTION SERVICES, INC., CORPORATIONS OF THE STATE OF NEW JERSEY, AND STATE OF NEW JERSEY, DEFENDANTS. Superior Court of New Jersey, Law Division Burlington County. Decided August 28, 1980. 627 Frederick W. Hardt for plaintiff (Sever and Hardt, attorneys). Richard A. Levao for defendant Middle Department Inspection Agency, Inc. (Shanley and Fisher, attorneys). Robert G. Holston for defendant General Inspection Services, Inc. (Holston, Holston and MacDonald, attorneys). Peter E. Markens, Deputy Attorney General, for defendant State of New Jersey (John J. Degnan, Attorney General, attorney). GOTTLIEB, J.J.D.R.C. (temporarily assigned): This declaratory judgment action squarely presents the issue of whether a municipality which chooses to administer the State Uniform Construction Code by contracting with an approved agency for electrical subcode inspection and enforcement services is required to award such a contract by competitive public bidding. Plaintiff Township of Burlington submits that bidding is not required since the inspection services are either "professional services" or are "extraordinary unspecifiable services" ("EUS") under the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq. Before reaching the merits of the issue, one procedural problem must be discussed. One of the stipulated facts is that the cost of the services will exceed $2,500. Since N.J.S.A. 40A:11-3 permits contracts to be entered into by a contracting unit without public advertising for bids when the cost does not exceed $4,500 in the fiscal year, it would seem that there may not exist a justiciable controversy so that this court ought not to act. In acting on causes asserted under the Uniform Declaratory Judgment Act, N.J.S.A. 2A:16-50 et seq., the court must be mindful that the act "cannot be used to decide or declare rights or status of parties upon a state of facts which are future, contingent and uncertain." Lucky Calendar Co. v. Cohen, 36 N.J. Super. 300, 304 (Law Div. 1955), aff'd 20 N.J. 451, 454 (1956). In this case the court cannot be certain that the $4,500 has or will be reached during the fiscal year and, absent more, would 628 decline to render an advisory opinion. However, under N.J.S.A. 40A:11-6.1, contracts which do not meet the $4,500 threshold are not to be awarded until the contracting agent has solicited quotations, whenever practicable, where "the estimated cost or price of which is $500 or more" and the award is to be made "on the basis of the lowest responsible quotation received, which quotation is most advantageous to the contracting unit, price and other factors considered." This latter statute does, nevertheless, exempt contracts calling for "the performance of professional services." It is clear, therefore, that since the $500 level has already been reached, the township is presented with a justiciable problem: to assert that the inspection services are "professional services" and relieved of the quotation requirements of N.J.S.A. 40A:11-6.1 or concede that inspection services do not qualify as "professional services" and subject them to the procedures mandated by N.J.S.A. 40A:11-6.1. In recognition of the determination that the Uniform Declaratory Judgment Act is "remedial in nature and entitled to liberal construction and administration," Union Cty. Freeholder Bd. v. Union Cty. Park Comm'n, 41 N.J. 333, 336 (1964), and, as such, is to be construed as "afford[ing] relief from uncertainty to a person's rights," N.J. Home Bldrs. Ass'n v. Civil Rights Div., 81 N.J. Super. 243, 251 (Ch.Div. 1963), this court will exercise its discretion and hear the matter. Passaic Valley Sewerage Comm'n v. Paterson, 113 N.J. Super. 148, 151 (App.Div. 1971). "[T]he remedy [of a declaratory judgment] should not be denied lightly, and where a complaint discloses a justiciable controversy within the statute normally it ought to be entertained." Condenser Serv. & Engin. Co., Inc. v. American Mut. Liab. Ins. Co., 45 N.J. Super. 31, 43 (App.Div. 1957). Under the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq., municipalities are required to administer and enforce the Code. N.J.S.A. 52:27D-126. They can implement this function in one of three ways: (1) by employing a qualified construction official and subcode officials, N.J.S.A. 52:27D-126(a); (2) by using an approved inspection authority, N.J.S.A. 629 52:27D-126(a); or (3) by requesting that the Department of Community Affairs assume the task, N.J.S.A. 52:27D-128. Of course, there are many variations possible; since there are many subcodes constituting the Uniform Construction Code-the building, plumbing, electrical, energy, fire prevention, mobile home and mechanical subcodes, N.J.S.A. 52:27D-123(b)-a municipality may choose, for example, to employ qualified personnel to administer and enforce all of the subcodes except plumbing and electrical, and use an approved inspection authority for those two codes. In Burlington Township's particular case it has determined that it would perform the administration and enforcement of the entire code by employees save for the electrical code. In regard to the electrical code, it has determined to contract with an approved inspection agency to administer and enforce that code. The township is also in receipt of certain rules promulgated by the Division of Local Government Services essentially providing that, as relevant, contracts with approved inspection agencies are not contracts for "professional services" or an EUS. As such, they are not exempt from the competitive public bidding process or the quotation process required under N.J.S.A. 40A:11-4 or 6.1. The Division of Local Government Services is directly empowered by N.J.S.A. 40A:11-5(1)(a)(ii) to adopt rules and regulations administering the implementation of EUS contracts by local units. Under the Local Fiscal Affairs Law, N.J.S.A. 40A:5-1 et seq., the Division of Local Government Services receives and reviews the annual fiscal audit of a local unit, which audit is to report on and make recommendations concerning compliance by the local unit with applicable statutes and regulations. Nevertheless, the Division's rules pertaining to what qualifies as a "professional service" are not binding on a municipality. This was recognized by the Division itself when it issued its "Local Public Contract Guidelines and Local Public Contract Regulations" (1977), which indicates on the introductory page that the guidelines are "advisory" while the regulations are "mandatory." 630 The township is of the opinion that the contract for electrical subcode administration and enforcement by an approved inspection agency is not subject to competitive public bidding or, at least, quotation. Hence, this declaratory judgment action was instituted so that the township might have its rights and obligations judicially determined. See, N.J.S.A. 2A:16-53; Bergen Cty. v. Port of N.Y. Auth., 32 N.J. 303, 307 (1960); and Registrar and Transfer Co. v. Division of Tax. Director, 166 N.J. Super. 75, 78 (App.Div. 1979). The various defendants include the State of New Jersey and the approved electrical inspection authorities providing services in Burlington County. Both the township and the State have moved for summary judgment. All of the facts have been stipulated so the motions are ripe for decisions. R. 4:46-2. The court must determine whether the inspection services to be performed by an approved authority are either "professional services" or EUS. If they are professional services, the contracts are not subject to competitive public bidding. However, if the court determines that they are properly characterized as being EUS, then their award would be subject to N.J.S.A. 40A:11-6.1. If they are neither, then their contracts must be awarded in compliance with the Local Public Contracts Law by competitive public bidding (if exceeding $4,500) or the obtaining of quotations (if between $500 and $4,500). "Professional services" are defined in N.J.S.A. 40A:11-2(6) as: [S]ervices rendered or performed by a person authorized by law to practice a recognized profession, whose practice is regulated by law, and the performance of which services requires knowledge of an advanced type in a field of learning acquired by a prolonged formal course of specialized instruction and study as distinguished from general academic instruction. Professional services may also mean services rendered in the performance of work that is original and creative in character in a recognized field of artistic endeavor. Excluding for purposes of this discussion that aspect of the definition relating to creative work (for example, a playwright, a composer, a sculptor, etc.), it is clear that there are three components for qualification as a "professional service," all of which must be fulfilled. These are that (1) the services are to be rendered or performed by a person authorized by law 631 to practice a recognized profession; (2) that person's practice is regulated by law and (3) the performance of the services requires knowledge of an advanced type in a field of learning acquired by a prolonged formal course of specialized instruction and study as distinguished from general academic instruction or apprenticeship and training. It is appropriate to now examine the statutes and regulations concerning electrical subcode officials to attempt to ascertain if these three definitional features are met. The statutes and regulations unfortunately do not define "profession." However, guidance is provided by various court decisions. For example, "the practice of law is a profession and not a business," In re Rothman, 12 N.J. 528, 548 (1953); as is also medicine, Auerbacher v. Smith, 19 N.J. Super. 191, 195 (Ch.Div. 1952). An auditor, Heston v. Atlantic City, 93 N.J.L. 317, 319 (Sup.Ct. 1922), and an architect, Furlong v. Newark Housing Auth., 132 N.J. Eq. 341, 343 (Ch.Div. 1942), are also professionals. On the other hand, an undertaker or funeral director is not a professional, but is engaged in a business. Frizen v. Poppy, 17 N.J. Super. 390, 393 (Ch.Div. 1952). As noted in Atlantic Mut. Ins. Co. v. Continental Nat'l Amer. Ins. Co., 123 N.J. Super. 241, 246 (Law Div. 1973), the essence of a professional service is that it involves "specialized knowledge, labor or skill and the labor or skill is predominantly mental or intellectual, rather than physical or manual." (Emphasis in original). Fulfilling the logic of this distinction is Autotote Ltd. v. N.J. Sports Auth., 171 N.J. Super. 480, 491 (App.Div. 1979), which held that the installation and servicing of betting machines was not a "professional service." While present-day society is not at all reluctant to generally accord most individuals functioning in the community with a professional-sounding title in order to afford them a greater personal feeling of dignity and self-esteem, this worthy motive cannot serve to alter the basic definition of "profession." A "profession" inherently requires attainments in special knowledge as distinguished from mere skill. Without demeaning an electrical subcode official, I cannot agree with the township that this core definitional standard is satisfied. 632 Indeed, this conclusion is reinforced by considering the third of the other two components of the statutory definition of "professional services." Although it is true that an electric subcode official is licensed, see N.J.S.A. 52:27D-124(g)(2) and N.J.A.C. 5:23-5.1 et seq., nonetheless it cannot similarly be concluded that the third element is met. N.J.A.C. 5:23-5.5(b)(2) delineates the qualifications to be attained: Subcode officials: A candidate for a license as a building, electrical, fire protection or plumbing subcode official H.H.S., I.C.S. or R.C.S. shall meet the following qualifications: i. Possession of the qualifications established herein for a technical inspector license in at least the same specialty as the subcode official license being applied for; and ii. Successful completion of an approved subcode official educational program established in N.J.A.C. 5:23-5.6 prior to application; and iii. Completion of such additional experience as may be required, beyond that needed for licensure as a technical inspector, to provide at least the following total experience: (1) Ten years in construction, design or supervision as a journeyman in a skilled construction trade currently regulated by the Uniform Construction Code; or ten years as a technical inspector; or ten years as a construction contractor in a field of construction currently regulated by the construction code; or (2) Five years of experience in construction, design or supervision as an architect or engineer engaged in building construction work, provided that such person possess at least a bachelor's degree in architecture or engineering from an accredited institution of higher education; or (3) Three years of experience in construction, design or supervision as a licensed engineer or registered architect, provided that such person possess a license as an engineer or architect issued by the State of New Jersey at the time of application. Subsection (ii) refers to an educational program established in N.J.A.C. 5:23-5.6. N.J.A.C. 5:23-5.6(d)(11) requires that a candidate meet an educational requirement of at least 45 contact hours in the areas of administration, legal aspects of code enforcement and related legislation. Realistically, 45 contact hours of instruction cannot be said to be a "prolonged formalized course of specialized instruction and study." Comparing it to courses taught at the undergraduate level, it would be the equivalent of less than ten college credits, which generally require at least 20 contact hours for three credits. The other qualifications essentially relate to attainment of skills as opposed to specialized knowledge. Of course, any but the most 633 fundamental skills requires that a certain amount of intellectual activity be utilized. But where the stress is on the practical skill, as opposed to the more abstract conceptual knowledge, it cannot be said that it meets the statutory standard. While the State has embarked upon the laudable road toward upgrading of the quality of code enforcement officials, this has not resulted in making their services "professional services" in nature. It would be inappropriate to subvert the policy in favor of competitive public bidding on this basis. There is nothing inherent in this process which would nullify or detract from the quality of the services being sought. Capasso v. Pucillo, 132 N.J. Super. 542, 550 (Ch. and Law Divs. 1974). Accordingly, I conclude that the position of electrical subcode official, when sought to be filled by an approved inspection agency, is not a "professional service" within the intent of the Local Public Contracts Law. Although the court might decline to discuss the question of whether the position qualifies under the EUS provision because N.J.S.A. 40A:11-6.1 would not be applicable, I will exercise my discretion and proceed on. I am reluctant to restrict myself to give merely half of an answer solely because that is all that is really a justiciable controversy. It seems incongruous to the court to be so limited in light of the statutorily expressed purpose of the Uniform Declaratory Judgments Law: "to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." N.J.S.A. 2A:16-51. I am mindful of the public importance of having this issue resolved and conclude that I should so exercise my discretion. Having concluded that the electric subcode inspection services are not a "professional service" and, thus, exempt from competitive public bidding under N.J.S.A. 40A:11-5 or from the solicitation of quotations under N.J.S.A. 40A:11-6.1, the next point to be considered is whether they qualify as an EUS. The term EUS is defined in N.J.S.A. 40A:11-2(7) as "services which are specialized and qualitative in nature requiring expertise, extensive training and proven reputation in the field of endeavor." 634 N.J.S.A. 40A:11-5(1)(a)(ii) requires that "[t]he application of this exception [from competitive public bidding] shall be construed narrowly in favor of open competitive bidding, where possible" and authorizes the Division of Local Government Services "to adopt and promulgate rules and regulations limiting the use of this exception in accordance with the intention herein expressed." As noted before, the Division has promulgated these regulations which, under the authority of N.J.S.A. 40A:11-5, are binding upon local agencies and the court. N.J.A.C. 5:30-14.2 contains the rules and regulations implementing N.J.S.A. 40A:11-5(1)(a)(ii). The township submits that since the regulations impose requirements in addition to those provided by statute, the regulations are invalid. This argument is premised upon the contention that the statutory definition establishes three elements characterizing an EUS while the regulations assertedly use four. Thus, N.J.S.A. 40A:11-2(7) indicates the meaning as "services which are specialized and qualitative in nature requiring expertise, extensive training and proven reputation in the field of endeavor" while N.J.A.C. 5:30-14.2(b)(4) indicates that "[i]f specifications can be drafted covering the services, then they must be bid, notwithstanding that the other criteria of the definition may be met." The township contends that this is an impermissible administration expansion of a declared legislative policy, that policy being memorialized in the statutory definition. While the courts have not been reluctant to preclude administrative agencies from occasional sallies beyond declared statutory policy (see, for example, In re Increase in Fees by N.J. St. Bd. of Dentistry, 166 N.J. Super. 219, 223 (App.Div. 1979), and Jaffe, Judicial Control of Administrative Action (1965)), I cannot conclude that that situation exists here. N.J.S.A. 40A:11-5(1)(a)(ii) expressly directed the Division of Local Government Services to adopt regulations limiting the use of the EUS exception to competitive public bidding in accordance with the intention that it be "construed narrowly in favor of open competitive bidding." The *635 restriction contained in N.J.A.C. 5:30-14.2(b)(4) is not a part of the definition of an EUS. Rather, it is an attempt to limit the use to encourage competitive public bidding. The regulation does not contravene a legislative policy, it implements it as directed. This is borne out by the statutory definition which uses the term "qualitative." "Qualitative" intrinsically means that it is not capable of measurement, of accurate written expression. Thus, if specifications can be drafted properly, the service cannot be said to be "qualitative." The services are specifiable if they can be reflected precisely in exact specifications. As such, they are not "unspecifiable." The regulation solely clarifies and construes the exemption, but does not alter it. In regard to the inquiry whether specifications can be drafted covering the services, the township candidly agrees that this can be accomplished. Indeed, there has been submitted an affidavit from the supervising program development specialist in the Division of Local Government Services indicating a number of municipalities in this State-Cherry Hill Township, Pennsauken Township, Ridgewood Village, White Township, Willingboro Township and Winslow Township-have prepared specifications and have publicly bid the technical inspection services in issue. The court has received copies of these specifications; it is beyond question that they can be drafted. The township does not dispute this conclusion. Accordingly, I also conclude that the function of an electrical subcode official which is to be conducted by an approved agency is not an "extraordinary unspecifiable service." As such, it is subject to the competitive bidding process if it exceeds $4,500 or the quotation process if it exceeds $500 but not $4,500. Summary judgment will be granted in favor of defendant State; however, under the circumstances, I will not also allow costs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1743081/	289 Wis. 2d 551 (2006) 710 N.W.2d 725 2006 WI App 31 CITY OF EAU CLAIRE v. JERRAM. No. 2005AP001969. Court of Appeals of Wisconsin. January 18, 2006. Unpublished opinion. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260007/	777 F.Supp. 29 (1991) SARATOGA DEVELOPMENT CORPORATION, Plaintiff, v. UNITED STATES of America, et al., Defendants. Civ. A. No. 90-0474. United States District Court, District of Columbia. October 31, 1991. 30 Bruce A. Baird, Covington & Burling, Washington, D.C., for plaintiff. Richard N. Reback, Asst. U.S. Atty., Washington, D.C., for defendants U.S. and Pennsylvania Ave. Development Corp. Steven W. Widerman, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., for defendants intervenors Delta Partnership and Federal Triangle Corp. MEMORANDUM OPINION JOHN H. PRATT, District Judge. Before the Court are plaintiff Saratoga Development Corporation's motion for partial summary judgment, defendant United States' motion for summary judgment, their respective replies, and defendant-intervenor Delta Partnership's opposition to plaintiff's motion. I. The parties do not dispute the following facts. This is a "disappointed bidder" case in which plaintiff Saratoga Development Corporation ("Saratoga") challenges the decision of the Pennsylvania Avenue Development Corporation ("PADC") selecting Delta Partnership ("Delta") to develop the Federal Triangle site. The PADC is a wholly-owned government corporation created by Congress. 40 U.S.C. §§ 871-85. Its mandate is to ensure the suitable development, maintenance, and use of Pennsylvania Avenue and the area adjacent to the Avenue between the Capitol and the White House. The Federal Triangle Development Act, 40 U.S.C. § 1101-09, added the Federal Triangle site to the PADC development area and directed the PADC to prepare a proposal for development of that site in consultation with the General Services Administration ("GSA") and the International Cultural and Trade Center Commission ("ICTCC"). The Act authorized the construction on the Federal Triangle site of a new federal office building, second in size only to the Pentagon, to house an International Cultural and Trade Center ("ICTC") and to consolidate a number of agencies currently scattered in various locations throughout the Washington Metropolitan area. In addition, the Federal Triangle Project is expected to house exhibits, performing arts theatres, retail space, and conference areas. 31 The PADC began soliciting proposals to develop the Project in November, 1988. Administrative Record ("AR"), tab 2. The PADC issued an elaborate Prospectus for the Federal Triangle Project that set forth eight bid criteria and building requirements. These criteria were: (1) responsiveness of the design to the goals and objectives of the development program; (2) responsiveness of the design to the urban design objectives, architectural criteria, and historic preservation considerations; (3) a schedule that allowed for completion of the facade by January 1993, and completion of the entire project by 1994; (4) the experience, capability, and resources of the development team; (5) the financial experience, resources, and commitment of the developer; (6) the projected costs; (7) project management experience; and (8) an affirmative action plan. AR, tab 20(a) at 29-30. Seven development teams submitted proposals by the June 1, 1989 cut-off date. Each development team then gave an oral presentation of its proposal to the PADC Board of Directors (the "Board"), the PADC staff, and representatives of the GSA and the ICTCC. AR, tab 39. In addition, the PADC engaged both its staff and teams of outside consultants to assist it in reviewing and evaluating the proposals. Extensive reviews ensued, which included numerous written questions to each development team to obtain information for the purpose of clarifying and explaining the given proposal. See, e.g., AR, tabs 22(b), (d), (e). On October 18, 1989, the PADC Board convened to select the development team for the Federal Triangle Project. It initially met in executive session with its staff, the Mayor of the District of Columbia, the Administrator of the GSA, and the Chairman of the ICTCC. After the executive session was concluded, the Board opened its meeting to the public. Before it proceeded to vote on which proposal to select, however, the Board adopted two resolutions concerning the Federal Triangle Project. First, a resolution eliminating the financial experience, resources, and commitment criteria from the Prospectus was proposed.[1] AR, tab 16. Without discussion, the resolution was adopted. AR, tab 40 at 126. The second resolution which the Board considered before the selection vote concerned affirmative action. The resolution called for the following: (1) incorporation into the development agreement with the PADC of documented evidence that the selected developer will reach all affirmative action goals required by the Prospectus; (2) the PADC's encouragement of the selected developer to enhance minority participation by recruiting minorities listed in unsuccessful proposals; (3) an agreement for so-called "first source" employment with the District of Columbia Department of Employment Services; and (4) the establishment of a quarterly affirmative action reporting system. AR, tab 17. The resolution was passed unanimously. AR, tab 40 at 130. The Board then proceeded to the vote on whom to select for the Federal Triangle Project. After brief discussion, the Board, voting by secret ballot, selected the defendant-intervenor Delta. AR, tab 18. The tally was Delta, seven votes; BPT, three votes; Great Plaza, two votes; and Prentiss, one vote.[2] AR, tab 40 at 142. Delta having received the necessary majority, the Board then formally adopted a resolution selecting it as the developer for the Federal Triangle Project. AR, tab 18. Approximately one week later, Saratoga sent a letter to the PADC "tak[ing] exception to the outcome of the competition and the manner in which it was reached." Memorandum in Support of Saratoga's Motion for Partial Summary Judgment and in 32 Opposition to Defendants' Motions to Dismiss and for Summary Judgment, exhibit B, tab 2 ("Saratoga Motion"). On November 8, 1989, the Chairman of the PADC responded by referring Saratoga to the selection criteria in the Prospectus and stating that "each proposal was carefully reviewed, analyzed and considered in light of the stated criteria." Id. By letter dated November 22, 1989, Saratoga replied by again stating its position that it believed "the PADC ha[d] departed, both obviously and materially, from its own articulated criteria." Id.[3] Ultimately, on March 1, 1990, Saratoga filed this cause of action seeking judicial review of the PADC's actions in connection with the award of the Federal Triangle Project. II. As a preliminary matter, defendants raise numerous procedural defenses. Defendants assert that plaintiff lacks constitutional and prudential standing, that plaintiff has failed to join an indispensable party, that the complaint is barred by laches, and that the PADC's action in this case is unreviewable as a matter of law. We will discuss these in turn. A. Constitutional Standing Defendants assert that plaintiff lacks constitutional standing because it was not a bidder in this instance. While defendants admit that it is well-settled that a disappointed bidder who can show injury in fact can have standing to challenge the award of a government contract, Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), defendants analogize the instant dispute to the facts of Control Data Corp. v. Baldrige, 655 F.2d 283, 292 (D.C.Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981), where the plaintiff was not a bidder. Defendants argue that plaintiff in this cause of action does not satisfy the test for constitutional standing because plaintiff did not submit a bid for the development. Instead, plaintiff was merely half of a team (along with James Crozier & Company) that submitted a bid as co-developers. Control Data does not so limit Scanwell Laboratories. In Control Data, plaintiff was not part of a bid team; it was a nonbidder claiming the right to challenge rules promulgated by the Secretary of Commerce. Indeed, Control Data was not a "disappointed bidder" case at all because there was no contract at issue being bid upon. Saratoga, unlike the plaintiff in Control Data, was a bidder. Control Data does not stand for the proposition that every member of a bid team must be a party to an action for constitutional standing to exist, nor have defendants cited to any cases which so hold. Plaintiff here has constitutional standing as a "disappointed bidder" under Scanwell Laboratories. B. Prudential Standing Defendants also argue that plaintiff lacks standing on prudential grounds because it was not within the "zone of active consideration." National Fed'n of Fed. Employees v. Cheney, 883 F.2d 1038 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3214, 110 L.Ed.2d 662 (1990). The court in National Federation stated that Not every bidder in a solicitation may assert disappointed bidder standing, otherwise nuisance suits could handicap the procurement system. Rather, standing is conferred only to those bidders who are "`within the zone of active consideration' for the bid's award." Id. at 1053 (quoting National Maritime Union of Am. v. Commander, Military Sealift Command, 824 F.2d 1228, 1237-38 n. 12 (D.C.Cir.1987); other citations omitted). The language of National Maritime makes it apparent that this doctrine should be invoked sparingly. It is designed to weed out those cases where the "bidder ... believed that it would have no significant 33 likelihood of obtaining the bid," but nonetheless brings suit "for its nuisance value." National Maritime, 824 F.2d at 1237 n. 12. As the Federal Circuit stated in an opinion cited to approvingly in National Maritime, a disappointed bidder need not show that the activity it complains about was the but for cause of its failure to procure the contract, only that it had a "substantial chance" of receiving the award. CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1574 (Fed.Cir.1983). In CACI, the Court found that the plaintiff was within the zone of active consideration (having satisfied the "substantial chance" test) where it was one of six companies that qualified to submit a best and final offer, and its score on the offer placed it second to the awardee. Id. at 1575. In determining if a bidder falls within the zone of active consideration, a court is not concerned with which bidder had the "best" proposal, or who "should" have won the contract. Such determinations are best left to the expertise of agencies like the PADC. The question when deciding whether to invoke this prudential standing doctrine is merely whether the bidder's proposal was strong enough that a reasonable selection body could have picked it. The record in this case is rife with evidence that Saratoga was within the zone of active consideration for the Federal Triangle Project contract. Of the relatively few comments made by Board members at the PADC meeting of October 18, 1989 before balloting occurred, one specifically singled out Saratoga for its "intrigu[ing]" proposal while also alluding to a possible drawback of the plan. AR, tab 40 at 138. Most proposals were not commented upon at all. In addition, the District of Columbia stated that Saratoga was "one of the three [development teams] with the most merit among the competitors," Saratoga Motion, exhibit H at 10, whereas the ultimate awardee, Delta, was "not among the top contenders." Id. at 7. It is also significant that by the PADC staff's own estimates given to the Board immediately before the vote, Saratoga was the low bidder. AR, tab 35 at 8. While this obviously was not merely a "low bid" contract, the fact that Saratoga's proposal was the least expensive is persuasive evidence that it had a substantial chance of receiving the award. Defendants argue that Saratoga's failure to receive any of the 13 votes cast by PADC Board members demonstrates that Saratoga was not within the zone of active consideration. Defendants cite to no cases which hold that a bidder who receives no votes in the award balloting is not within the zone of active consideration, and we decline to so hold. Indeed, a bidder could be every board member's second choice, but they could split in a close vote on who the top choice is. Certainly such a bidder is within the zone of active consideration. Instead of a simplistic "no votes" method of determining whether a bidder was in the zone of active consideration, we will follow the courts' approach in CACI which was to view the totality of the circumstances and determine whether the bidder had a "substantial chance" of receiving the award. Based upon the facts stated above, we believe that plaintiff had such a chance and was within the zone of active consideration. C. Failure to Join Indispensable Party Defendants argue that this complaint should be dismissed under Rule 19 of the Federal Rules of Civil Procedure ("FRCP") for failure to join an indispensable party, namely Saratoga's co-developer, James Crozier. Dismissal is not required because Crozier is not an indispensable party under FRCP 19(a)(1) or (2). A person is an indispensable party under FRCP 19(a)(1) where complete relief cannot be accorded in that person's absence. Complete relief, such as ordering the contract to be rebid, could, however, be accorded here with or without Crozier. FRCP 19(a)(2) states that a person should be joined if he claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a 34 substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Any potential problem under FRCP 19(a)(2) was disposed of by the affidavit submitted by Crozier waiving all right to pursue his interest in this matter against the government in subsequent litigation. Saratoga Motion, exhibit G. The waiver of rights unmistakably demonstrates that Crozier does not feel prejudiced by the continuation of this litigation in his absence and will not pursue an independent claim thereby prejudicing defendants. Dismissal of this case is thus not required. D. Laches The equitable doctrine of laches provides an affirmative defense where there has been an inexcusable delay in asserting a claim and the delay prejudices the defendant. Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C.Cir. 1982). Here, there was no such lack of diligence. As our Circuit has pointed out, laches reflects the principle that equity does not aid "those who slumber on their rights." Id. (quoting Powell v. Zuckert, 366 F.2d 634, 636 (D.C.Cir.1966)). While it is true that Saratoga did not file its complaint until four-and-a-half months after the contract had been awarded, it cannot be said that Saratoga was slumbering on its rights. Instead, as stated earlier, Saratoga protested the award almost immediately and filed suit only after it had vigorously pursued other avenues of complaint. It would be foolish to penalize a party for making a good faith effort at resolving a dispute through extra-judicial channels before turning to the over-burdened court system. See id. at 844 ("it would be an injustice to unsuccessful bidders [to] penalize[] them [by invoking the doctrine of laches] merely for exhausting ... administrative remedies"). The cause of action, therefore, is not barred by laches because there was no inexcusable delay in asserting a claim. Defendants state in the alternative that plaintiff should be barred from asserting its argument regarding the severing of the financing criterion because plaintiff had the option during its oral presentation before the Board to object to the action. Having failed to do so at that time, defendants argue, plaintiff should not now be heard to complain about the deletion. This argument does not persuade the Court. Failure on the part of Saratoga to state its opposition to the deletion of a selection criterion was not a waiver by it of the ability to contest whether the deletion was handled in accordance with the applicable laws and regulations. At the time of the oral presentations, defendants had not yet deleted the criterion. Thus Saratoga was not at that time "slumbering on its rights" because no claim had arisen. See Rozen v. District of Columbia, 702 F.2d 1202, 1203-04 (D.C.Cir.1983). E. Reviewability of PADC Action The last of defendants' procedural defenses is that the PADC's action in this case is unreviewable as a matter of law. Defendants assert that this Court must dismiss plaintiff's lawsuit because the PADC's actions at issue here are committed to the agency's discretion. Under 5 U.S.C. § 701(a)(2), an agency's actions will be found to be "committed to agency discretion by law," and hence unreviewable, where "statutes are drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court reaffirmed the holding of Overton Park and stated that "if no judicially manageable standards are available for judging how and when an agency should exercise its discretion" then § 701(a)(2) precludes review. Id. at 830, 105 S.Ct. at 1655. As the Court has noted, however, § 701(a)(2) "is a very narrow exception." Overton Park, 401 U.S. at 410, 91 S.Ct. at 820; see also Chaney, 470 U.S. at 838, 105 S.Ct. at 1659. Defendants point out that Congress provided the PADC with substantial latitude in the discharge of its responsibilities generally, 35 40 U.S.C. § 875(1) (granting the PADC "all necessary and proper powers for the exercise of the authorities vested in it"), and with regard to the Federal Triangle Project specifically. 40 U.S.C. § 1101(b)(2) (allowing the PADC to "exercise such power [over the Federal Triangle Project] as may be necessary to further the public interest"). In addition, defendants highlight the portion of the Federal Triangle Development Act relating to the selection process for the Project. The law states that the competition for the Federal Triangle Project contract "shall be conducted in accordance with the existing policies and procedures of the [PADC]." 40 U.S.C. § 1104(a)(3). While defendants acknowledge that the complete absence of any law against which to judge an agency action is rare, they argue that this is such an instance because the PADC's authority to "exercise such power as may be necessary to further the public interest" deprives the court of any meaningful benchmark against which the agency's action can be measured. This is not so. The agency's actions may be measured against the judicially manageable standards of applicable federal procurement law. See 41 U.S.C. §§ 251-60. While the language of the PADC's enabling legislation and the Federal Triangle Development Act is broad, this breadth does not give the PADC carte blanche to ignore all other laws. This case is easily distinguishable from other instances where judicial review has been denied under § 701(a)(2). Chaney, for example, involved an agency's refusal to take action, not an affirmative act, and the holding was so limited. 470 U.S. at 831, 105 S.Ct. at 1655. Another such case, Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), was decided against the unique backdrop of national security concerns, a realm in which courts have traditionally shown greater deference. See CIA v. Sims, 471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985); Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980). Webster involved a challenge to a decision by the CIA to remove an employee who informed it that he was a homosexual. The statute at issue there explicitly stated that the "Director of Central Intelligence may, in his discretion, terminate the employment of any ... employee...." 50 U.S.C. § 403(c) (emphasis added). That unequivocal and complete grant of discretionary power truly left the Court with no law to apply as required by Overton Park. No such language exists in the statutes at issue here and judicially manageable standards clearly exist in the guise of the federal procurement laws. In addition, several decisions by our Circuit Court cited to by defendants are inapposite. For instance, Slyper v. Attorney General, 827 F.2d 821 (D.C.Cir.1987), cert. denied, 485 U.S. 941, 108 S.Ct. 1121, 99 L.Ed.2d 281 (1988), involved a provision of the Immigration and Nationality Act which allowed the Director of the United States Information Agency to recommend waiver of a statutory requirement that foreign medical students first return to their country of origin before being allowed to apply for residency status in the United States. 8 U.S.C. § 1182(e). The statute merely provided that waiver required the "favorable recommendation" of the Director, and the applicable regulations only stated that the Director "will review the policy, program and foreign relations aspects of the case." 22 C.F.R. § 514.32(a). Concluding that both the statute and the regulation were "equally devoid of meaningful direction," the Court found that there was "no standard against which to assess the Director's exercise of discretion," and hence it was unreviewable. 827 F.2d at 824. Accord Dina v. Attorney General, 793 F.2d 473 (2nd Cir.1986); Abdelhamid v. Ilchert, 774 F.2d 1447 (9th Cir.1985); contra, Chong v. Director, USIA, 821 F.2d 171 (3rd Cir. 1987). In another § 701(a)(2) case cited to by defendants, the Circuit Court held that a decision of the Department of Justice not to provide legal representation for a federal employee sued in her individual capacity was committed to agency discretion by law and hence unreviewable. Falkowski v. EEOC, 764 F.2d 907 (D.C.Cir.1985), reh'g denied, 783 F.2d 252 (D.C.Cir.1986), cert. 36 denied sub nom. Falkowski v. United States Dep't of Justice, 478 U.S. 1014, 106 S.Ct. 3319, 92 L.Ed.2d 727 (1986). The Court concluded that 28 U.S.C. § 517, which empowered the Attorney General to send a lawyer into court "to attend to the interests of the United States" did not provide a sufficiently meaningful standard to allow review. Stressing that the Attorney General "acts in the context of a lengthy history of discretionary authority" and that there was "no colorable claim that the Department's refusal to furnish appellant with a lawyer transgresses any constitutional right," the Court concluded that the determination not to provide counsel was unreviewable. 783 F.2d at 253-54. See also United States Information Agency v. Krc, 905 F.2d 389 (D.C.Cir.1990) (broad termination provision in the Foreign Service Act, 22 U.S.C. §§ 4131 et seq., provides no judicially manageable standards); National Federation of Federal Employees v. United States, 905 F.2d 400 (D.C.Cir.1990) (no judicially manageable standards for review of decision of Secretary of Defense to close certain military bases). These cases are distinguishable from the case sub judice. First, as noted earlier, the context for a holding of non-reviewability in this Circuit has usually been in cases involving national security or national defense related agencies and issues, an area in which courts usually show greatest deference. In addition, none of these cases arose against the backdrop of such a judicially manageable set of standards as the federal procurement laws. In each of these cases, the principal statute at issue contained no such standards and the Court was left with no other statute to rely upon to supply a standard for review. Here, although the PADC enabling legislation and the Federal Triangle Development Act are written in broad terms, the Court has available to it the judicially manageable standards of the procurement laws to supply a means of review for the PADC's actions. As this Circuit has stated, The mere fact that a statute gives broad discretion to an agency does not render the agency's decisions completely non-reviewable under the "committed to agency discretion by law" exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised. Robbins v. Reagan, 780 F.2d 37, 45 (D.C.Cir.1985) (emphasis added). It cannot be said that this statutory scheme taken together with other relevant materials, such as the federal procurement laws, provides absolutely no guidance as to how the PADC may exercise its discretion here. The instant case is more analogous to CC Distributors, Inc. v. United States, 883 F.2d 146 (D.C.Cir.1989), where the Court found that § 701(a)(2) did not bar judicial review of the Air Force's decision to take procurement of certain materials in-house. Specifically, the Court found that although § 1223 of the National Defense Authorization Act for Fiscal Year 1987, Pub.L. 99-661, 100 Stat. 3816, 3977 (1986), did not provide a meaningful standard against which to judge the agency's exercise of discretion, certain Defense Department procurement regulations did provide standards suitable for judicial review. CC Distributors, 883 F.2d at 153-56. The same situation exists here. Although the PADC enabling legislation and the Federal Triangle Development Act may not provide manageable judicial standards for review, the federal procurement laws do, as they have in innumerable cases since Scanwell Laboratories. We remind defendants that this Circuit has reiterated that the § 701(a)(2) exception is still a "very narrow" one, Falkowski, 783 F.2d at 253, and that there is still a "strong presumption" in favor of judicial review of administrative actions. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986); Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450, 2456, 81 L.Ed.2d 270 (1984); Armstrong v. Bush, 924 F.2d 282, 290 (D.C.Cir.1991). Defendants have cited to nothing that causes us to believe that this presumption has been overcome here. 37 III. Plaintiff's fundamental assertion is that the PADC made substantial changes in two of its eight criteria for the Federal Triangle Project without revising its solicitation or allowing for amended proposals, and that this constitutes a violation of federal procurement law. The question this Court has before it is whether the PADC committed "a clear and prejudicial violation" of the procurement laws. BMY, A Div. of Harsco Corp. v. United States, 693 F.Supp. 1232, 1238 (D.D.C.1988) (quoting Kentron Hawaii Ltd. v. Warner, 480 F.2d 1166 (D.C.Cir.1973)). Our role is a limited one, circumscribed by the deference due to the agency and its expertise. Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 203-04 (D.C.Cir.1984) ("procurement decisions [are] ... be[st] left to the expertise of an executive agency") (citations omitted). The Administrative Procedure Act ("APA") provides that "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings and conclusions found to be ... without observance of procedure required by law." 5 U.S.C. § 706(2). The applicable law here, the Competition in Contracting Act ("CICA"),[4] requires that "[a]n executive agency shall evaluate ... competitive proposals based solely on the factors specified in the solicitation," 41 U.S.C. § 253b(a), and that it "award a contract ... to the responsible source whose proposal is most advantageous to the United States, considering only price and the other factors considered in the solicitation." 41 U.S.C. § 253b(d)(4). Similarly, regulations implementing the procurement laws require that "[a]n agency ... evaluate competitive proposals based solely on the factors specified in the solicitation." 48 C.F.R. § 15.608(a). In addition, regulations require that "[i]f a change is so substantial that it warrants complete revision of a solicitation, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition." 48 C.F.R. § 15.606(b)(4). A "contracting officer shall not award a contract unless any amendments made to an RFP have been issued in sufficient time to be considered by prospective offerors." 48 C.F.R. § 15.410(b). The PADC made a significant change in at least one of its eight criteria. Minutes before its final vote, PADC passed a resolution deleting its financing criterion. In doing so, the PADC altered the factors specified in the solicitation such that bidders were not evaluated according to the factors they relied upon in making their proposals. The Prospectus stated unambiguously that the financing criterion was of substantial importance. "Financial experience, resources, and commitment," the Prospectus stated, "are essential elements that the [PADC] will evaluate." AR, tab 20(a) at 30. 38 The change in another of the eight selection criteria was more subtle. At the same time that the financing criterion was deleted, the PADC passed a resolution requiring the selected developer to "make an extended, documented, good faith effort to include minority and women business participants from the development teams that were not selected." AR, tab 17. Defendants argue that the resolution did not in any way affect the weight to be given to the affirmative action criterion. While defendants are correct that the resolution did not explicitly change or delete the affirmative action criterion, there can be little doubt that the effect of the resolution was to devalue the weight of this criterion. If the selected developer may "cherry pick" from unsuccessful proposals, it is clearly less significant whether or not a given team submitted a proposal which excelled in the affirmative action criterion, because that team could simply enhance its program with personnel from its competitors. The question before the Court, therefore, is whether the procedures under which the two changes in the selection criteria were made violated these statutes or regulations. While it is true that "[c]ontracting agencies have broad discretion to amend terms of a solicitation," when such a departure from the original selection criteria occurs, all offerors should be informed of the change and provided with an opportunity to restructure their proposals in light of the new evaluation scheme. Superior Engineering and Electronics Co., 89-2 CPD ¶ 574 at 2 (Dec. 20, 1989) (citations omitted). However, a protest on this basis will only be sustained where the changes in question "affected the selection decision or otherwise was prejudicial to the protestor." FKW Incorporated Systems; ColeJon Mechanical Corp., 89-2 CPD ¶ 370 at 5 (Oct. 23, 1989) (citations omitted). Numerous opinions of the Comptroller General have sustained protests of the award of contracts where the offerors were given no opportunity to respond to the deletion or relaxation of selection criteria. In TMC, Inc., 88-1 CPD ¶ 492 (May 24, 1988), for example, the Department of Agriculture materially modified the evaluation criteria for two requests for proposals after the submission of initial proposals, but made the award on the basis of the initial proposals without allowing amended offers. The protest was sustained because "all offerors within the competitive range should [have] be[en] given an opportunity ... to revise their proposals accordingly." Id. at 2. Accord Cylink Corp., 91-1 CPD ¶ 384 (April 18, 1991); Local Terracom; Marconi Italiana, 87-1 CPD ¶ 182 (Feb. 18, 1987). Each of the changes complained of in the instant action was made minutes before the final vote on the Federal Triangle Project contract. Obviously, no entrant had the time or opportunity to consider these amendments to the selection criteria before the contract was awarded. Under these cases, therefore, the contract was awarded to Delta in violation of the federal procurement laws. In addition, 48 C.F.R. § 15.410(b), which provides that a "contracting officer shall not award a contract unless any amendments made to an RFP have been issued in sufficient time to be considered by prospective offerors," was violated. Here, the selection criteria were the functional equivalent of a "request for bid." In addition, it is of no consequence when the PADC first discussed the possibility of these amendments, because they were not issued until moments before the vote. This analysis, however, only goes to the first prong of the test. Not only must plaintiff show that the law was violated, but in order to prevail, plaintiff must also show that it was prejudiced by the violations. BMY, 693 F.Supp. at 1238. The test for prejudice in this context is whether the "protestor would have altered its proposal to its competitive advantage had it been given the opportunity to respond to an altered requirement." Warren Electrical Construction Corp., 90-2 CPD ¶ 34 at 9 (July 16, 1990). Plaintiff has not alleged or shown any such prejudice. Plaintiff complains strenuously that it was prejudiced by the deletion of the financing criterion and in the change 39 in the affirmative action criterion because plaintiff ranked highly in these discrete categories and was therefore lowered in the overall rankings by these changes. Such allegations, however, do not make out a showing of prejudice. Nowhere does plaintiff assert that had it been given the opportunity to respond to the altered selection criteria, it would have altered its proposal to its competitive advantage. Instead, plaintiff states that the changes in and of themselves prejudiced its position relative to its competitors. This is obviously insufficient to make out a showing of prejudice. The government is permitted to make whatever changes in the selection criteria it wishes; all that it must do is ensure that the offerors have sufficient opportunity to respond to the changes. There is nothing in the record to suggest that Saratoga would have responded to the changes with any amendments to its proposal which would have been to its competitive advantage. Therefore, no prejudice to plaintiff has been shown. IV. Plaintiff's remaining claim is that the PADC's award of the Federal Triangle Project contract to Delta violates the APA because it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Our standard for the review of such claimed violations is limited and narrow. We are not authorized to conduct a de novo review of the facts or to substitute our judgment for that of the agency. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-24. In the field of government contracts in particular, the Court of Appeals for the D.C. Circuit has cautioned that the prohibition against "improperly intruding into the agency's decisionmaking process ... has special force." Delta Data, 744 F.2d at 203-04 (internal quotations and citations omitted); see M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1298-99 (D.C.Cir.1971) ("In the field of government procurement the courts must be sedulous to [exercise its authority] with restraint less the courts fall into the error of supposing that they may revise action simply because [they] happen to think it ill-considered, or to represent the less appealing alternative solution available.") (internal quotations and citations omitted). Finally, in addition to failing to show prejudice, plaintiff has not carried its burden of showing that the PADC's award violated this provision of the APA. Plaintiff's evidence appears to be the following: (1) the administrative record is "laden with suggestions that Delta's selection as the winning team in this competition owed more to influence peddling than to the superior merits of its proposal," Saratoga Motion at 48-49; (2) the cost criterion was minimized; (3) other flaws in Delta's proposal were overlooked; and (4) the administrative record is incomplete and does not reflect contemporaneous reasons for the PADC's decision. We can dispose of the first allegation quickly. Plaintiff cites to no material to substantiate its charge. Such a bald, conclusory statement without facts to back it up does not deserve to be taken seriously, much less responded to. Saratoga's second allegation is equally without merit. As stated earlier, this was not a "low bid" competition. Cost was but one of eight equally weighted factors in the original competition, and one of seven factors considered before the final vote. See AR, tab 20(a) at 29-30 (setting out the selection criteria and stating that the PADC would pick the developer who "best satisfies all of the ... criteria"). The PADC assessed project cost not in a vacuum, but in relation to its determination of the quality of the Project to be created. While plaintiff may have thought that it could win this contract merely by submitting the low bid, it can point to absolutely nothing in the Prospectus or elsewhere as support for that view. Plaintiff in its third and fourth allegations asks this Court to second guess the *40 substance of the PADC's decision. We will decline this invitation. As we have already discussed, APA review is deferential to agency expertise and discretion. Saratoga has given us no reason to intrude on the PADC's decision in this instance. Saratoga highlights only three "flaws" in Delta's proposal, Saratoga Motion at 59-61, and asks the Court to find that this proves that the PADC decision was arbitrary and capricious. It is clear from the voluminous administrative record, however, that no proposal was perfect. The PADC staff's final report, in fact, stated that Saratoga's architectural design "result[ed] in disjointed and confusing space," and that Saratoga's development team generally had "limited or no experience" developing projects of this type. This decision was a question of judgment where not every factor that was considered could be quantified. In such a setting, "we must be chary of substituting our own evaluation for that of the agency." Braniff Airways, Inc. v. CAB, 379 F.2d 453, 463 (D.C.Cir.1967); see also Black Citizens for a Fair Media v. FCC, 719 F.2d 407, 417 (D.C.Cir.1983) ("greater deference is given administrative bodies when their decisions are based upon `judgmental or predictive' conclusions"), cert. denied, 467 U.S. 1255, 104 S.Ct. 3545, 82 L.Ed.2d 848. Instead, "the proper inquiry under the arbitrary and capricious standard is `whether a reasonable person, considering the matter on the agency's table, could arrive at the judgment the agency made.'" New York State Comm'n on Cable Television v. FCC, 749 F.2d 804, 813 (D.C.Cir.1984) (quoting World Communications, Inc. v. FCC, 735 F.2d 1465, 1476 (D.C.Cir.1984)). In selecting between imperfect proposals, the PADC was well within the bounds of its discretion when it decided that, upon balancing the various flaws against one another, Delta's was superior to the competition. Courts are ill-equipped to second guess the agency's exercise of discretion. CONCLUSION For the reasons stated above, plaintiff's motion for partial summary judgment is denied, and defendants' motion for summary judgment is granted. Judgment is entered for defendants and this case is dismissed. NOTES [1] The PADC had previously written to each team to advise them to be prepared during their oral presentations to address the issue of decoupling the financing criteria from the development competition. AR, tab 11. Saratoga at that time did not state its opposition to this idea. AR, tab 11(a). [2] When at full strength, the PADC Board consists of 15 voting members. The 13 ballots cast in this vote reflect the fact that one Board member had recused himself and there was one vacancy on the Board. AR, tab 40 at 1. [3] In addition, Saratoga at this time made a request for documents from the PADC pursuant to the Freedom of Information Act. Saratoga Motion, exhibit B, tab 4. This facet of the dispute is not relevant to resolving the motions being decided here. [4] CICA applies to all conduct related to procurement by an executive agency except for limited types which are statutorily excluded (and not relevant here) and "in the case of procurement procedures otherwise expressly authorized by statute." 41 U.S.C. § 253(a)(1). PADC is a wholly owned government corporation, 31 U.S.C. § 9101, and thus falls within the definition of executive agency. 40 U.S.C. § 472. While the Federal Triangle Development Act states that the Federal Triangle Project competition "shall be conducted in accordance with existing policies and procedures of the [PADC] for a development competition," 40 U.S.C. § 1104(a)(3), such a grant of authority does not exclude the PADC from the federal procurement laws such as CICA. Express authorization is required by the statute and caselaw. See, e.g., Andrus v. Glover Construction Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910-11, 64 L.Ed.2d 548 (1980) (where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied in the absence of a contrary legislative intent); Yosemite Park v. United States, 217 Ct.Cl. 360, 582 F.2d 552, 558-59 (1978); Design Pak, Inc. v. Baker, 639 F.Supp. 301, 302 (D.Mass.1986). In Design Pak, for example, the applicable statute provided: "No provision of law governing procurement or public contracts shall be applicable to the procurement of goods or services necessary for carrying out the provisions of this title...." 639 F.Supp. at 302 (quoting Statute of Liberty-Ellis Island Commemorative Coin Act, Title I, P.L. 99-61, § 107, 99 Stat. 113 (1985)). The statute at issue here does not so expressly exempt the PADC from the federal procurement laws. It merely states that the PADC shall use its adopted procedures, not that the PADC shall not also follow the generally applicable procurement laws. The two should not be mutually exclusive. There being no explicit exemption from CICA and the other procurement laws, they apply.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260018/	120 N.H. 665 (1980) FREEMAN CORSON v. BROWN PRODUCTS, INC. No. 79-243. Supreme Court of New Hampshire. October 2, 1980. 666 Kahn, Brown & Bruno, of Nashua (Kenneth M. Brown orally), for the plaintiff. Wadleigh, Starr, Peters, Dunn & Kohls, of Manchester (James S. Yakovakis orally), for the defendant. BROCK, J. This workmen's compensation case presents three issues. First, does RSA 281:37-a require that an employee who prevails upon appeal to the superior or supreme courts be awarded attorney's fees for the recovery of medical benefits under RSA 281:21 when reasonable counsel fees have already been awarded to him for his successful suit on causation. Second, whether attorney's fees awarded in connection with the recovery of a scheduled impairment award, RSA 281:26, are payable in one lump sum. Third, are the benefits awarded under RSA 281:26 (Scheduled Permanent Impairment Award) payable in one lump sum to plaintiff's dependents upon the death of the plaintiff. See RSA 281:26 V (Supp. 1975). In January, 1979, this court ruled that the plaintiff was entitled to a permanent impairment award under RSA 281:26 (Supp. 1975). See Corson v. Brown Prods., Inc., 119 N.H. 20, 23-24, 397 A.2d 640, 642-43 (1979). We remanded the case to the superior court for a determination of whether additional counsel fees should be awarded in connection with the recovery of medical benefits under RSA 281:21 and reasonable attorney's fees for the recovery of RSA 281:26 benefits. Prior to the hearing in the superior court, plaintiff's attorney filed a motion requesting that the scheduled permanent impairment award be paid to the plaintiff's dependents in one lump sum because the plaintiff had since died. Following the hearing, the Trial Court (King, J.) determined that counsel fees in the amount of one-quarter (25%) of the scheduled impairment benefits awarded by this court were reasonable, but denied additional fees for recovery of medical benefits. Plaintiff's exceptions are now before us. The plaintiff first argues that the trial court incorrectly denied him additional attorney's fees for recovery of medical benefits under RSA 281:21. He contends that he has never been awarded counsel fees related to the recovery of medical benefits and that he is entitled to them under RSA 281:37-a. We do not agree. [1] When this case was first before us, we observed that "[t]he medical benefits were necessarily part and parcel of the suit for causation. . . ." Corson v. Brown Prods., Inc., 119 N.H. 20, 27, 397 A.2d 640, 644 (1979). At that time, however, the incomplete record compelled us to remand the case to the trial court to consider 667 whether additional attorney's fees should have been awarded. We now have the benefit of a complete record before us which clearly shows that the trial court considered and applied all the applicable factors set forth in Couture v. Mammoth Groceries, Inc., 117 N.H. 294, 371 A.2d 1184 (1977), to the "whole situation" of the case. See Corson v. Brown Prods., Inc., supra at 26, 397 A.2d at 644. The trial court specifically found that: "[P]laintiff's attorney has already received a substantial sum for his services in earlier stages of this litigation in which it was decided that Mr. Corson's injuries were work-related. Recovery of medical benefits necessarily resulted from this finding, and this court finds that claimant's attorney has already been adequately compensated for his services in this regard." On the basis of this record, we do not find an abuse of discretion in the court's finding that the attorney has been adequately compensated. In this case the total attorney's fees awarded approximate $70,000. We expressly reject the plaintiff's counsel's suggestion that the contingent fee arrangement which he entered into with his client controls the amount of recoverable attorney's fees. The controlling factors are those set forth in Couture, and here the court has made a determination of attorney's fees pursuant to RSA 281:37-a (Supp. 1975). That determination controls and, thereby, the contingent fee agreement does not bind any of the parties. The plaintiff further argues that the attorney's fees awarded in connection with recovery of the scheduled impairment award should be payable in one lump sum. We agree with this contention. The law applicable to attorney's fees under New Hampshire's workmen's compensation statute is set forth in RSA 281:37-a (Supp. 1975), "[I]n any dispute over the amount of benefits payable under this chapter which is appealed to the superior or supreme courts, the employee, if he prevails, shall be entitled to reasonable counsel fees as approved by the court . . . ." [2] As the amount of the permanent impairment award is determined and set at the time entitlement to it is established, it is at this point that total attorney's fees incurred are due and owing. See generally 3 LARSON WORKMEN'S COMPENSATION LAW § 83.13 (1976). It makes little sense to interpret RSA 281:37-a to force an attorney to receive compensation for services already rendered over what may conceivably amount to an extended and 668 unreasonable period of time. Such an interpretation would countermand the public policy reasons behind RSA 281:37-a and discourage attorneys from handling workmen's compensation claims. See Couture v. Mammoth Groceries, Inc. supra. Plaintiff next argues that RSA 281:26 V requires the defendant to pay the award to plaintiff's dependents in one lump sum. We agree. It is well established that the intention of the legislature expressed in the words of the statute provide the touchstone to its meaning. Corson v. Brown Prods., Inc., 119 N.H. 20, 23, 397 A.2d 640, 642 (1979). With regard to a scheduled impairment award, RSA 281:26 V (Supp. 1975) provides that: "[T]he balance of unpaid weekly scheduled award shall, upon the death of the employee, be paid directly to his dependents, or to his legal representative in the absence of dependency. . . ." We note that the Legislature has significantly amended this statute since this action commenced. See RSA 281:26 V (Supp. 1979). In determining whether the defendant is required to pay the award to plaintiff's dependents in one lump sum, it is important to distinguish the purpose of a scheduled permanent disability benefit provided under RSA 281:26 from disability benefits provided under RSA 281:23. While disability benefits under RSA 281:23 are intended to compensate for loss of wages, a scheduled benefit under RSA 281:26 contemplates additional compensation regardless of whether there is a loss of wages. A scheduled impairment award creates a right of compensation separate and independent of rights provided by the disability provisions of the statute. [3, 4] A permanently disabled employee has an independent right to these benefits regardless of wages lost, but on his death, his dependents, or his estate in absence of proof of dependency, are entitled to the balance of his award. Balance refers to the total amount of the unpaid compensation award remaining or due which the claimant would have received in scheduled payments were it not for his death. See In re Henderson's Case, 333 Mass. 491, 131 N.E.2d 925 (1955). Such interpretation is consistent with analogous provisions contained in workmen's compensation statutes of other jurisdictions. See, e.g., ME. REV. STAT. ANN. tit. 39 § 56; MASS. GEN. LAWS ANN., ch. 152 § 36A (West). Accordingly, we order that the defendant shall pay all sums due to the plaintiff's dependents and counsel in one lump sum. The 669 case is remanded to the trial court for timely proceedings consistent with this decision. Remanded. KING, J., did not sit; the others concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260051/	777 F. Supp. 43 (1991) UNITED STATES of America v. Anthony McDONALD. Crim. No. 91-502. United States District Court, District of Columbia. November 6, 1991. Vincent Jankowski, Washington, D.C., for Anthony McDonald. Kirby Behre, Asst. U.S. Atty., Washington, D.C., for U.S. MEMORANDUM OPINION THOMAS F. HOGAN, District Judge. The defendant in this case, Anthony McDonald, is charged in count I with possession with intent to distribute five or more grams of crack cocaine and in count II with possession with intent to distribute crack cocaine within 1,000 feet of a public elementary school. Because of a conflict over appropriate jury instructions, the Court writes briefly to rule on the issue. In its proposed jury instructions, the government has asked that the Court not include the quantity of crack cocaine as an element of the offense of possession with intent to distribute. The government also asks that the amount be redacted from the indictment so that no reference is made to the quantity at issue. The defendant opposes the government's request, arguing that the jury must be specifically instructed that they must unanimously find, beyond *44 a reasonable doubt, that the defendant possessed five grams or more of crack cocaine. The substantive statute that defendant is charged under is found at 21 U.S.C. § 841(a). This statute makes is unlawful for any person to "knowingly or intentionally ... manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). The act described in the statute is unlawful regardless of the amount of the controlled substance manufactured, distributed, or possessed with intent to distribute. The quantity of the controlled substance becomes relevant only with respect to subsection (b) of the statute, which prescribes penalties. That subsection of the statute provides that any person who violates subsection (a) by possessing five or more grams of a mixture that contains cocaine base shall be sentenced to a mandatory minimum term of imprisonment of five years. 21 U.S.C. § 841(b)(1)(B). Virtually every circuit court that has addressed the issue has held that the quantity of drugs involved in an offense under 21 U.S.C. § 841(a) is relevant only to the sentence that will be imposed and is not an element of the offense. See e.g., United States v. McHugh, 769 F.2d 860, 868 (1st Cir.1985); United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.1990); United States v. Gibbs, 813 F.2d 596, 599 (3d Cir.), cert. denied, 484 U.S. 822, 108 S. Ct. 83, 98 L. Ed. 2d 45 (1987); United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989); United States v. Brown, 887 F.2d 537, 540 (5th Cir.1989); United States v. Hodges, 935 F.2d 766, 769 (6th Cir.1991); United States v. Acevedo, 891 F.2d 607, 611 (7th Cir.1989); United States v. Padilla, 869 F.2d 372, 381 (8th Cir.), cert. denied, 492 U.S. 909, 109 S. Ct. 3223, 106 L. Ed. 2d 572 (1989); United States v. Normandeau, 800 F.2d 953, 956 (9th Cir.1984); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir.1989).[1] The only court to reach an arguably different result is the Eleventh Circuit. In United States v. Alvarez, 735 F.2d 461, 468 (11th Cir.1984), decided well before the rest of the circuits had occasion to address the issue, the Eleventh Circuit held that a defendant may not be sentenced to a mandatory minimum pursuant to 21 U.S.C. § 841(b)(1)(B) unless the indictment charged the defendant with possessing a specific minimum quantity of drugs. This court and others have distinguished Alvarez as being founded on a need to give the defendant notice of the potential for an enhanced penalty rather than on a holding that quantity is an issue that the jury must determine as an element of an offense under § 841(a). Moreover, the courts in Powell and Hodges specifically noted that quantity is an issue for the district court to determine based on a preponderance of the evidence standard. 886 F.2d at 85 and 935 F.2d at 770. Thus, in accordance with a plain reading of the substantive statute and with the authority cited above, this Court holds that the quantity of cocaine base possessed by the defendant is not an essential element of the crime of possession of a controlled substance with intent to distribute. Accordingly, the Court will grant the government's request to eliminate quantity as an essential element of the offense in its instruction to the jury. The Court will briefly reserve ruling on the issue of whether to redact the quantity from the indictment. NOTES [1] To date, the District of Columbia Circuit has not ruled on the issue.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260085/	167 Cal. App. 4th 1099 (2008) SHERYL GRAY et al., Plaintiffs and Appellants, v. COUNTY OF MADERA et al., Defendants and Respondents. MADERA RANCH QUARRY, INC., et al., Real Parties in Interest and Respondents. No. F053661. Court of Appeals of California, Fifth District. October 24, 2008. 1103 Law Offices of Donald B. Mooney, Donald B. Mooney, Marsha A. Burch; Koczanowicz & Donaldson and Martin D. Koczanowicz for Plaintiffs and Appellants. David A. Prentice, County Counsel, and Douglas W. Nelson, Assistant County Counsel, for Defendants and Respondents. Law Office of Thomas H. Terpstra and Thomas H. Terpstra for Real Parties in Interest and Respondents. OPINION ARDAIZ, P. J. INTRODUCTION Sheryl and Bruce Gray appeal from the dismissal of their petition for writ of mandate and complaint for injunctive declaratory relief. For the following reasons, we reverse. STATEMENT OF THE CASE Sheryl and Bruce Gray (Petitioners or Appellants) filed a petition for writ of mandate challenging the decision of the County of Madera and the Madera County Board of Supervisors (collectively the County or Respondents) to issue a conditional use permit and a mining permit, to approve a rezoning, to 1104 certify an environmental impact report (EIR) in connection with the proposed Madera Ranch Quarry Project (the Project), and to approve the cancellation of a Williamson Act (Gov. Code, § 51200 et seq.) contract for part of the site. In their petition, they contended that Respondents abused their discretion and failed to act in accordance with the applicable laws. Specifically, Petitioners alleged that Respondents' actions violated the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA) and CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), the Madera County General Plan and Madera County Code, and the Surface Mining and Reclamation Act of 1975 (SMARA), Public Resources Code section 2710 et seq. On April 27, 2007, Petitioners filed their opening trial brief. The County filed its response to opening trial brief on May 29, 2007. Petitioners filed their reply brief on June 8, 2007. On July 25, 2007, the trial court issued its judgment on petition for writ of mandate, denying the petition. On August 10, 2007, the County filed a notice of entry of judgment on petition for writ of mandate. Appellants timely appealed. FACTS Aggregate is material that is "necessary for a wide range of public works and private-sector construction projects." A 1999 report by California's Department of Conservation, Division of Mines and Geology, projected that demand for aggregate in the Fresno Production-Consumption (P-C) Region, which includes the County of Madera, would be 528 million tons, of which 50 percent or 264 million tons must be of portland cement concrete (PCC) quality. The 1999 report estimated that there were only 93 million tons of presently permitted PCC-grade aggregate resources within the Fresno P-C Region. The report noted that in early 1998, PCC-grade aggregate was being imported from Coalinga. According to the report, Coalinga "has enough aggregate reserves to last well over 100 years at the present rate of production and may be able to serve as an alternative resource for several decades beyond the depletion date of the present Fresno P-C Region reserves. However, the additional haulage distance would add nearly $50 million annually starting in the year 2012the year after the projected depletion of Fresno P-C Region aggregate reserves." According to Respondents, the State of California "mandates that a County have mapped enough aggregate resource to meet its needs." However, "[c]urrently Madera County does not have an approved aggregate source. The 1105 County is hauling aggregate in from Coalinga, and Le Grand." According to Respondents, the project at issue sought to meet the need for a local source of aggregate by providing about 10 percent of the projected regional demand for aggregate. I CEQA PROJECT In 2000, real parties in interest, Madera Ranch Quarry, Inc., and W. Jaxon Baker (collectively Baker) began looking for an aggregate reserve site in Madera County. They settled on the Project site in 2002, purchased the property, and applied for conditional use permit (CUP) 2002-20, a hard rock mining permit. The CUP would allow Baker to develop a hard rock quarry, the Madera Ranch Quarry. The Madera Ranch Quarry site is located on approximately 125 acres of the 540-acre Madera Ranch. "The Project site is located in central Madera County, California, about two miles west of State Route (SR) 41, four miles north of SR 145, and 16 miles northeast of the City of Madera." The Madera Ranch is subject to a Williamson Act contract. The Williamson Act, Government Code section 51200 et seq., is a legislative effort to preserve agricultural land. (Gov. Code, § 51220.) Baker filed a notice of nonrenewal of the Williamson Act contract for the Project site in 2003. As part of the Project approval application, Baker proposed to cancel the Williamson Act contract on the Project site and to place 132 acres that is to the north of the Project site into a conservation easement. Before approval, the Project area was zoned for agriculture use ("Agricultural, Rural, Exclusive-40 acres" or ARE-40) and was used for grazing and wildlife habitat. With the approval of a CUP, mining is an allowed use for areas zoned ARE-40. However, Baker, at the request of the County, applied for a zoning change to a "Quarry, Mining, Drilling" (QMD) designation to address potential land use compatibility issues relating to the proposed construction and use of a hot-mix asphalt batch plant. Areas zoned as QMD are permitted accessory uses such as a hot-mix asphalt plant with a CUP. As part of the project, Baker also applied for CUP 2006-001, which would permit the building of a 35-acre hot-mix asphalt batch plant. The Project thus includes the excavation pit which could encompass 86 acres of the site upon completion and the construction and operation of "an aggregate processing facility, hot mix asphalt plant, administration complex, parking areas, on-site access road, and various other stockpile and processing areas. The Project would also include construction of a two-lane paved access 1106 road from the process area west about a quarter of a mile out to County Road 209. As proposed, the Project also would include substantial upgrading and realignment of [County] Road 209 to meet County and Caltrans's Standards." Baker would be permitted to mine 900,000 tons per year of aggregate material for the next 50 years, through two mining phases. "A total of about 45 million tons ... of marketable material would be mined over the life of the Project." The Project will allow up to 320 truck round trips per day to deliver the mined aggregate, and will result in estimated water consumption of 72,000 gallons per day. "At the conclusion of aggregate production, a three-year final reclamation phase would extend the total Project lifespan to about 53 years. Certain reclamation activities would be ongoing throughout the operational life of the Quarry." On October 24, 2006, the County granted Baker's application for CUP 2002-20 (hard rock mining permit) and CUP 2006-001 (hot-mix asphalt plant), rezoning of the Project area, and cancellation of a Williamson Act contract. Although the Project site contains aggregate, it has not been classified by the State Geologist into mineral resources zones, as required by SMARA, Public Resources Code section 2761 et seq. The Project site also includes areas that can serve as habitats for a number of special-status species. Three known populations of Ewan's larkspur exist near the quarry pit, and habitats for the western pond turtle and California tiger salamander exist along County Road 209 and at the mine site. The area surrounding the Project is "zoned agriculturally and [is] and will continue to be used primarily for cattle grazing." Also, there are dozens of residences and 55 domestic wells within one mile of the Project. In its May 25, 2006 staff report, the County of Madera Planning Commission stated that "[t]here is concern that over the life time of the mine[,] surrounding property owners might suffer declined well pumping rates caused by the mining operation." II CEQA PROCESS The County, as the lead agency for the CEQA project, prepared an initial study for the Project to identify issues to be evaluated in the draft EIR (DEIR). After the DEIR for the Project was completed, the County circulated the DEIR between June 24, 2005, and August 15, 2005, for public comment. During that time period, the County received approximately 175 timely letters 1107 from various government agencies and members of the public who commented on the DEIR. The comment letters identified or alleged numerous deficiencies in the document, including its failure (1) to accurately describe the Poject, or (2) to adequately analyze the impacts of the Project on water supply, water quality, noise, air quality, traffic, endangered species habitat, aesthetics, and impacts to land use. For example, the California Regional Water Quality Control Board (RWQCB) submitted two comment letters. In the August 5, 2005 letter, the RWQCB warned that certain activities on the Project would require compliance with various laws and regulations and water quality control plans. The August 18, 2005 letter identified certain concerns that the agency had with the mitigation measures. California's Department of Fish and Game commented in detail on the adequacy of mitigation measures to protect biological resources. With respect to the California tiger salamander, the agency recommended "the applicants retain a qualified biologist to conduct a complete site assessment for the salamander at the appropriate time of year using the methodology prescribed in the joint California Fish and Game-U.S. Fish and Wildlife Service (Service) `Interim Guidance on Site Assessment and Field Surveys for Determining Presence or a Negative Finding of the Tiger Salamander' (October 2003)." Many neighboring property owners submitted comments describing the impacts to their property value that would occur as a result of the Project. Petitioners submitted a 16-page letter with detailed comments about the DEIR within the 45-day comment period. In their letter, Petitioners alleged that the Project did not comply with the County's general plan, and that the DEIR did not adequately analyze cumulative impacts, traffic, hydrology/water, aesthetics, air quality, endangered species habitat, and feasibility and effectiveness of proposed mitigation measures. The DEIR author prepared responses to these comments, including a detailed response to concerns regarding the California tiger salamander, and only made minor revisions to the text of the DEIR. Collectively, the comment letters, the responses to the comments and the minor revisions to the DEIR as shown by a black-lined version of the DEIR comprised the final EIR (FEIR), which was released on February 15, 2006. The planning commission held its first public hearing on the Project on February 22, 2006. The hearing was continued until March 28, 2006. On March 22, 2006, Petitioners sent a letter to the planning commission with additional comments on the Project. They attached a March 19, 2006 opinion letter from their expert, Dr. Robert J. Sterrett, on the inadequacy of the analysis of hydrology/water in the DEIR and FEIR (the Sterrett Letter). 1108 The planning commission held the March 28 hearing, at which it heard hours of public testimony on the project. On May 25, 2006, the planning commission voted four to one to approve the CUP's and to recommend that the board of supervisors approve the requested rezoning application and the cancellation of the Williamson Act contract. On June 1, 2006, Petitioners appealed the planning commission's determination to the board of supervisors (Board). On July 11, 2006, Petitioners submitted further comments on the FEIR, arguing that the FEIR did not adequately respond to the deficiencies in the DEIR identified by the agencies and the public during the review process. Petitioners also attached a July 10, 2006 noise study report prepared by the Morro Group. Respondents have contended and are contending that both of Petitioners' expert opinions, but especially the "Morro Group Report," are untimely. On July 17, 2006, the Board held a public hearing on the Project. On September 11, 2006, the Board held another public hearing on the Project. Finally, on October 24, 2006, the Board considered and denied the appeal, approved the Project, certified the EIR for the Project, and adopted its CEQA findings of fact, mitigation and monitoring program and statement of overriding considerations. The Board rejected the Sterrett Letter and Morro Group Report as untimely, and in the alternative, considered and rejected them. DISCUSSION On appeal, Petitioners challenge the County's approval of the CUP's on both CEQA grounds and non-CEQA grounds. We discuss the issues on appeal related to CEQA first. I. CEQA ISSUES ON APPEAL A. STANDARD OF REVIEW Public Resources Code sections 21168 and 21168.5 provide the standard of review applied by courts in "[a]ny action or proceeding" challenging an agency decision under CEQA. Under both sections, a court's review of that agency decision is limited to two questions: (1) Whether there is any substantial evidence in light of the whole record to support the decision; and 1109 (2) whether the agency abused its discretion by failing to proceed in the manner required by law. (Pub. Resources Code, §§ 21168, 21168.5;[1]Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376, 392, fn. 5 [253 Cal. Rptr. 426, 764 P.2d 278].) Thus, "[i]n reviewing challenges to the certification of an EIR or approval of a CUP, the court must determine whether the lead agency abused its discretion by failing to proceed in a manner required by law or by making a determination or decision that is not supported by substantial evidence." (Association of Irritated Residents v. County of Madera (2003) 107 Cal. App. 4th 1383, 1390 [133 Cal. Rptr. 2d 718] (Irritated Residents); see § 21168.5.) "A court's proper role in reviewing a challenged EIR is not to determine whether the EIR's ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document. [Citation.] Substantial evidence is defined as `enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.' [Citations.]" (Irritated Residents, supra, 107 Cal.App.4th at p. 1391.) (1) "When assessing the legal sufficiency of an EIR [as an informational document], the reviewing court focuses on adequacy, completeness and a good faith effort at full disclosure. [Citation.] `The EIR must contain facts and analysis, not just the bare conclusions of the agency.' [Citation.] `An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.' [Citation.] Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible. When experts in a subject area dispute the conclusions reached by other experts whose studies were used in drafting the EIR, the EIR need only summarize the main points of disagreement and explain the agency's reasons for accepting one set of judgments instead of another. [Citations.]" (Irritated Residents, supra, 107 Cal.App.4th at pp. 1390-1391.) "As frequently occurs, many of the disputes in this case center on the question whether relevant information was omitted from the [EIR]. Noncompliance with CEQA's information disclosure requirements is not per se reversible; prejudice must be shown. ([Pub. Resources Code,] § 21005, subd. (b).) This court has previously explained, `[a] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.' [Citations.]" (Irritated Residents, supra, 107 Cal.App.4th at p. 1391.) 1110 "`Provided the EIR complies with CEQA, the [b]oard may approve the project even if it would create significant and unmitigable impacts on the environment.'" (Irritated Residents, supra, 107 Cal.App.4th at p. 1390.) The appellate court reviews the administrative record independently; the trial court's conclusions are not binding on it. (Ibid.) B. CEQA ISSUES ON APPEAL Appellants make several general challenges to the County's approval of the Project. Specifically, Appellants contend that the EIR (collectively the DEIR and FEIR) failed to fulfill CEQA's requirement as an informational document and violated CEQA by failing to take into consideration the "whole of the project." Appellants, however, provide no specific arguments or record citations to support these two general challenges. Rather, it appears that these two challenges are incorporated into Appellants' more specific arguments on appeal. Thus, we will address the specific issues raised by Appellants on this last contention, and where appropriate, we will also consider the general challenges. We will also consider the general challenge based upon the informational nature of the EIR when analyzing whether any errors are prejudicial. 1. Adequacy of Response to Comments Appellants contend that the FEIR failed to adequately respond to comments on the DEIR that were submitted by the public and government agencies. Under CEQA, the County is required to evaluate comments to the DEIR and prepare written responses. (§ 21091, subd. (d); CEQA Guidelines, § 15088.) However, Appellants rely upon several comments that were submitted after the 45-day comment period for the DEIR. For example, Appellants rely upon an untimely expert opinion, the Sterrett Letter, to attack the DEIR's conclusions about impacts on surface water and groundwater. The Sterrett Letter was submitted on March 22, 2006, to the planning commission, well after the 45-day comment period for the DEIR. The Board rejected the Sterrett Letter as untimely. (2) Under CEQA, the lead agency may, but is not required to, respond to late comments. (§ 21091, subd. (d)(1); CEQA Guidelines, § 15088; Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal. App. 4th 911, 925, fn. 10 [45 Cal. Rptr. 3d 102].) Courts have found that the Board's 1111 approval of a CEQA project can be supported by substantial evidence found in the responses to late comments. (See, e.g., Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 567-568 [276 Cal. Rptr. 410, 801 P.2d 1161] [holding that a reviewing court may consider the administrative record, instead of the EIR, when assessing whether substantial evidence supports the board's findings].) However, because the Board never had a legal duty to respond to late comments, the inadequacy of the Board's responses to the late comments is not sufficient to render approval of the CEQA project ineffective or contrary to law. To hold otherwise could discourage lead agencies from addressing and considering late comments. However, although the Sterrett Letter and Morro Group Report are untimely, we will address those allegations of errors that were identified in the untimely expert opinions, as well as in any other late comments, that bear upon the issue of whether there is substantial evidence to support the County's decision to approve the CEQA project because the County has the burden of showing that there is substantial evidence to support its decision. (See Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 568 [holding that failure to make a timely comment does not excuse the lead agency from providing substantial evidence to fulfill its duty to identify and discuss project alternatives].) With respect to whether the County adequately responded to timely comments from the public and governmental agencies, our review of the record indicates that the County did adequately respond to all of the timely comments. However, whether those responses are sufficient to satisfy the County's burden of proof to show that there is substantial evidence supporting its findings and its decision to approve the CEQA project is an issue that will be discussed when we address Appellants' other challenges to the EIR. 2. Impacts to Surface Water and Groundwater Appellants contend that the EIR did not adequately analyze the Project's impacts on surface water and groundwater. They also take issue with the proposed mitigation measures. Finally, they raise concerns about the failure to recirculate the EIR because of an amended mitigation measure and to analyze economic impacts related to the water issues. We address these issues in turn. a. Factual Background The DEIR concluded that the Project could cause three potentially significant impacts and two less than significant impacts to surface water and 1112 groundwater. First, the Project could cause the water levels and pumping rates in adjacent private wells to decline during the operational life of the quarry. To mitigate this problem, "Mitigation Measure" 3.9-1 requires semi-annual monitoring of water levels and, if an impact is found, replacement of water for nonconsumptive use from existing Madera Ranch wells. Consumptive use would have to come from the remaining production in the private well, or if inadequate, from Mitigation Measure 3.9-1b. That mitigation measure requires Baker to "provide the affected party, or parties, with bottled water or potable water from some other source that is verified to meet state and federal drinking water standards." Similarly, the Project could cause declines in water levels and pumping rates in adjacent private wells to decline after the operational life of the quarry. To mitigate this problem, there will be semiannual monitoring after the completion of quarry operations. If an impact is found, Baker would provide affected well owner(s) with replacement water, and if necessary, bottled or potable water. Finally, the Project could cause degradation of groundwater and/or surface water quality from operations. To mitigate this problem, Baker is required to comply with the RWQCB, and to place all fuel and chemical storage areas and all equipment maintenance areas on bermed concrete surfaces. The DEIR also concluded that the Project would not cause significant impacts to surface water runoff and had no cumulative impacts. The RWQCB submitted two comment letters that detailed its concerns about the hydrology/water impact portion of the DEIR. In the August 5, 2005 letter, the RWQCB warned that certain activities on the Project would require compliance with various laws and regulations and water quality control plans. The August 18, 2005 letter identified certain concerns that the agency had with the mitigation measures. In response to the letters, the FEIR concluded that many of RWQCB's concerns are addressed by the fact that the conditions of approval for the CUP's would require Baker to submit a report of waste discharge to the RWQCB. For example, the report of waste discharge would provide technical information on how Baker planned to produce and manage the discharge of process wastewater. The FEIR also concluded that many of the RWQCB's other concerns were unfounded because the aquifer was confined. The FEIR also stated that providing replacement water is an effective mitigation measure. The FEIR similarly responded to the comments by the Department of Conservation and the Department of Fish and Game that raised similar concerns. 1113 The RWQCB submitted a response to the FEIR on March 6, 2006, in which it stated that "[s]imply providing replacement water is not, in our professional judgment, an effective or acceptable mitigation measure." The RWQCB also believed that once the excavation pit is deepened, it would function as a well that could connect the production wells with neighboring wells, thus breaking the confined nature of the aquifer. It recommended that there be additional monitoring beyond that listed in the mitigation measure. Finally, the RWQCB restated its belief that certain technical information about the use of water in the various mining and operation processes should not be deferred to the report of waste discharge application but should be included in the DEIR. When the Board approved the Project, it modified and clarified Mitigation Measure 3.9-1b to impose a stricter water well monitoring system. Also, "[t]he Board of Supervisors further clarifie[d] Mitigation Measure 3.9-1b, to require the Board of Supervisors to conduct a public meeting if the hydrology in the immediate area has been compromised. If the neighboring wells along Road 406 are adversely affected by the project, the Board of Supervisors will require a hydrology study, and possible water system constructed under federal, state, and county guidelines or any other mechanism for addressing and remediating the problem at applicant's expense." It is this later amendment to Mitigation Measure 3.9-1b that is the basis for several of Appellants' arguments on appeal. b. Adequacy of Analysis In their opening brief, Appellants spend much of their time attacking the DEIR for improperly relying upon a groundwater analysis prepared by Cleath and Associates (the Cleath Report). The Cleath Report tested eight wells on the Project site to determine the impacts on groundwater. Three wells, "Well #1," "Well #4," and "Well #5," were tested individually as production wells. The Cleath Report concluded that the three production wells "appear to tap distinctly different fracture zones and little or no interference between the zones was evident during the pumping tests. The fluoride concentrations in Wells #1 and #5 are high enough to be of concern for use as a drinking water supply but would be an excellent source of water for industrial or agricultural purposes. Well #4 has excellent water quality for drinking water purposes. The recommended discharge rates for the three production wells is 140 gpm for Well #1, 35 gpm for Well #4, and 40 gpm for Well #5; a combined flow of 215 gpm. This combined flow rate, produced on a continuous basis, exceeds the demand for the proposed rock plant." 1114 Appellants alleged the following errors with the Cleath Report: "The pumping rates that are being assumed for various wells are inconsistent with the report of data provided by the Project applicant. Variations of over 100 gallons per minute (`gpm') may be noted. The Cleath Report states that additional investigation is necessary due to the presence of springs and seeps that could be impacted on the property. The EIR, however, states that the aquifer is `confined' and that the mining activities will not result in the impacts predicted by Dr. Sterrett, the USFWS[[2]] and the RWQCB." Thus, according to Appellants, the two errors that undermine the Cleath Report are: differential pumping rates and whether the aquifer is confined. However, a review of the Cleath Report and the cited page from the Sterrett Letter does not support Appellants' argument. First, Sterrett himself states that the applicant failed to follow the recommendations in the Cleath Report to pump 140 gpm (gallons per minute) from Well #1 and 40 gpm from Well #5, but would instead draw 250 gpm from Well #1 and 60 gpm from Well #5. This is not a criticism of the Cleath Report; rather, it is a criticism of the applicant's planned water use. The Cleath Report actually did pumping tests at 250 gpm for Well #1 and 60 gpm for Well #5. Moreover, Sterrett neglects to mention that the Cleath Report recommended a draw of 35 gpm from Well #4, a production well that has "excellent water quality," and "[t]he only source which could have some impact on non-project wells...." It thus appears that not drawing from Well #4, but drawing more heavily from Well #1, would be beneficial to nearby residents and future owners of the Project site. Further, the Cleath Report does not say that the aquifer is not confined or that further investigations are necessary. Rather, the Cleath Report states: "All of the production wells are located in the proximity of seeps and springs. Some of these are intermittent and others flow year round. The operation of the wells will lower ground water levels and probably decrease some of this flow. During the pumping tests, no reduction in spring flow was observed, but it is difficult to quantify any such impacts when flow is low or intermittent." From these statements, we can infer that Cleath believes that the seeps and springs may be impacted, but that it found no evidence from its tests; however, we cannot infer that Cleath believes that more investigations would be able to determine whether there would or would not be an impact. In any event, whether or not the seeps and springs would be impacted does not lead to a conclusion that the aquifer is not confined. The Cleath Report states that it believes that the three production wells tap distinctly different fracture zones that, with the possible exception of Well #4, do not impact neighboring 1115 private wells. That is substantial evidence to support the conclusion of the FEIR that Wells #1 and #5 are part of a confined fractured granitic bedrock. In their reply brief, Appellants also contend that the County is being disingenuous about whether the aquifer providing water to the Project wells is confined or not confined. However, our review of the record indicates that the County has always considered the aquifer to be confined as a whole. The evidence indicates that the aquifer is not a solid body of water but is instead a group of fractures in granitic bedrock containing water. The group of fractures is self-contained and does not connect to another water system or aquifer. Thus, the County could conclude that the aquifer is confined. Appellants next contend that the County should have done additional testing because it would have been feasible to do additional testing and the Cleath Report recommended additional testing. However, the feasibility of additional testing is not sufficient to require the County to do additional testing. Rather, the additional testing is required only if the initial testing is insufficient. As this court has stated, "CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does not mean that they are required." (Irritated Residents, supra, 107 Cal.App.4th at p. 1396.) Here, we have rejected Appellants' attacks on the Cleath Report. Thus, there is no need for additional testing based upon Appellants' arguments. However, additional testing may be required to address some of the concerns that we will raise in this opinion. c. Adequacy of Mitigation Measures Appellants further contend that the proposed mitigation measures are inadequate to address the potential and significant impacts of the Project on water resources. We agree that there is no substantial evidence to support the EIR's conclusion that the proposed mitigation measures are adequate. Mitigation Measure 3.9-1a provides that in the event of an adverse impact on water levels of neighboring private wells, Baker will have three mitigation options: (1) rehabilitate or deepen the private wells; (2) provide incremental replacement water by providing a connection to the water system of the Project; or (3) provide full replacement water by providing a connection to the water system of the Project. Mitigation Measure 3.9-1b originally provided that, if Mitigation Measure 3.9-1a does not supply a sufficient amount of water for consumptive use, 1116 Baker would have to supply replacement water for consumptive use in the form of bottled water or "potable water from some other source that is verified to meet state and federal drinking water standards." The record indicates that Baker also was willing to supply large water tanks filled with potable water. It is unclear why the Board did not include this mitigation option in its conditional approval of the Project. Rather, the Board amended the measure to require a hydrology study and to allow the option of building a "water system constructed under federal, state, and county guidelines" to supply potable water to affected neighbors. The record does not indicate that this mitigation option was ever extensively discussed with County staff or with Baker. This mitigation option also was never discussed in the DEIR or FEIR, and thus there was no analysis of this mitigation option. Appellants contend that Mitigation Measures 3.9-1a and 3.9-1b are inadequate because (1) they are not fully enforceable, (2) there is no substantial evidence that the measures are feasible or effective, (3) impacts associated with the implementation of the measures themselves were not analyzed in the EIR, and (4) Mitigation Measure 3.9-1b, as amended, improperly defers formulation of specific mitigation strategies until after Project approval. We disagree with Appellants on their first argument, but agree with them on their remaining arguments. The mitigation measures are enforceable because they were incorporated as part of the conditional approval for the CUP's. (See § 21081.6, subd. (b) [requiring mitigation measures to be "fully enforceable through permit conditions, agreements, or other measures"].) Appellants' argument appears to be that the mitigation measures are too vague to be enforceable. However, the mitigation measures are not so vague as to be unenforceable. There is no need, as Appellants would require, for the mitigation measures to specify the exact amount of bottled water required per person per day. The fact that the mitigation measures require replacement water sufficient for consumptive use is sufficiently specific for the mitigation measures to be legally enforceable. However, the vagueness of the mitigation measures impacts our analysis of their viability and effectiveness. We agree with Appellants that there is no substantial evidence that the mitigation measures are feasible or effective in remedying the potentially significant problem of decline in water levels of neighboring wells. In order to mitigate this problem into a less than significant problem, Baker must present a viable solution that can effectively replace the decline in the water available to the neighboring residents. Although Respondents contend that we should defer to the Board's finding that the mitigation measures are effective, we decline to do so where the Board's findings are not supported by substantial evidence or defy common sense. Law is not required to abandon 1117 common sense. Here, our common sense informs us that the mitigation measures will not effectively replace the water that could be lost by the neighboring landowners. It is true that the mitigation measures will provide a replacement for the lost amount of water. However, neither Mitigation Measure 3.9-1a nor Mitigation Measure 3.9-1b will provide neighboring residents with the ability to use water in substantially the same manner that they were accustomed to doing if the Project had not existed and caused a decline in the water levels of their wells. Mitigation Measure 3.9-1a provides that Baker could rehabilitate or deepen the neighboring wells to provide additional water. But there is no substantial evidence to conclude that the neighboring wells would provide additional potable water. Mitigation Measure 3.91a also would, as the RWQCB has stated and the DEIR acknowledges, permit Baker to replace the lost water by providing a connection to the Project wells. The DEIR concedes that water from the Project wells is not acceptable for consumptive uses, and already provides that water for consumptive use would come from the remaining production in private wells, or through Mitigation Measure 3.9-1b. Thus, the neighboring residents would have to change their water usage to use the water from their private wells for consumptive purposes only and the water from the Project wells for other uses. Besides this inconvenience, neighboring landowners may also need to comply with regulatory oversight because of their use of the nonpotable water, for example in landscape irrigation, which may require the neighboring landowners to mitigate and remediate any degradation to underlying groundwater. In the FEIR, the County contends that the DEIR "demonstrates that the water-bearing fractures beneath the area are under confined conditions and that surface water does not locally recharge." Thus, according to the County, neighboring landowners would not have to comply with any regulatory oversight because the runoff from the use of nonpotable water would not interact with the confined aquifer supplying drinking water. We are unclear on whether the County's interpretation of when regulatory oversight would apply is correct. However, of more concern is that there is no substantial evidence to conclude that the aquifer that supplies water to the Project and to the neighboring wells, which is currently confined, would remain confined over the operational life of the Project. According to the RWQCB, as the pit is excavated, it may function as a well that could connect the production wells with neighboring wells. Thus, the neighboring landowners could be subject to regulatory oversight in the future. The County has stated that the Project well water could be treated to make it potable, but the mitigation measure does not require Baker to treat the water. Therefore, Mitigation Measure 3.9-1a is not viable because it does not replace the lost water from private wells with a substantially similar quality of water. Similarly, Mitigation Measure 3.9-1b is not viable. We agree with the RWQCB that providing replacement water through bottled water is not a 1118 viable or effective mitigation measure. It defies common sense for the County to conclude that providing bottled water is an effective mitigation measure. As presented, Mitigation Measure 3.9-1b does not explain how and in what amount the bottled water will be delivered to the neighboring landowners. The measure requires replacement at least equal to the lost amount of water production from the landowners' wells. However, some if not all of the landowners will have fluctuating water usage. In some weeks, they may use a lot of water because of drought conditions, extra guests, or farming needs. In other weeks, landowners may use very little water. Often, landowners will be unable to predict their amount of water needs in advance. It is also unlikely that neighboring landowners have water meters that will help them to calculate their water usage. Mitigation Measure 3.9-1b does not explain how it will address the issue of fluctuating water usage by supplying bottled water. A water system, as proposed by the Board, could solve this problem. However, the proposal for a water system was never studied by the County staff. Thus, there is no substantial evidence that it is feasible to build a water system. Therefore, Mitigation Measure 3.9-1b does not present viable mitigation options. Furthermore, the EIR does not address the potentially significant impacts associated with Mitigation Measure 3.9-1a and Mitigation Measure 3.9-1b. For example, the EIR fails to explain how the use of nonpotable water to irrigate the land, which Baker is permitted to supply to the neighboring landowners under Mitigation Measure 3.9-1a, would have an impact on livestock, wildlife and habitats. With respect to Mitigation Measure 3.9-1b, the EIR does not explain how the water bottles that are used will be replaced or recycled. The EIR also fails to examine whether building a new water system would cause significant environmental impacts. Finally, we conclude that Mitigation Measure 3.9-1b improperly defers formulation of specific mitigation strategies. "Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. [Citation.]" (Defend the Bay v. City of Irvine (2004) 119 Cal. App. 4th 1261, 1275 [15 Cal. Rptr. 3d 176].) According to Respondents, there is no improper deferral because the County has committed to a mitigation goal of remedying the decline in water levels of private wells and has listed various mitigation alternatives that can address this problem. Respondents contend that CEQA does not require that they specifically detail the mitigation alternatives. (See, e.g., Sacramento Old City Assn. v. City Council (1991) 229 Cal. App. 3d 1011, 1028-1029 [280 Cal. Rptr. 478] ["`[F]or [the] kinds of impacts for which mitigation is known to be feasible, but where practical considerations prohibit devising such measures early in the planning process (e.g., at the general plan amendment or rezone stage), the agency can commit itself to eventually devising measures that will satisfy 1119 specific performance criteria articulated at the time of project approval. Where future action to carry a project forward is contingent on devising means to satisfy such criteria, the agency should be able to rely on its commitment as evidence that significant impacts will in fact be mitigated. [Citations.]'"].) While we generally agree that CEQA permits a lead agency to defer specifically detailing mitigation measures as long as the lead agency commits itself to mitigation and to specific performance standards, we conclude that here the County has not committed itself to a specific performance standard. Instead, the County has committed itself to a specific mitigation goalthe replacement of water lost by neighboring landowners because of mine operations. However, this goal is not a specific performance standard such as the creation of a water supply mechanism that would place neighboring landowners in a situation substantially similar to their situation prior to the decline in the water levels of their private wells because of the mining operations, including allowing the landowners to use water in a substantially similar fashion to how they were previously using water. Moreover, the listed mitigation alternatives must be able to remedy the environmental problem. We have concluded that the listed mitigation alternatives, except for the building of a new water system, cannot remedy the water problems because they would not place neighboring landowners into a situation substantially similar to what the landowners experienced prior to the operation of the mine. And the option to build a water system, which is the only effective mitigation measure that was proposed if it was feasible, was never studied or examined. Thus, the County is improperly deferring the study of whether building such a system is feasible until the significant environmental impact occurs. The County could have approved the Project even if the Project would cause significant and unavoidable impacts on water despite proposed mitigation measures if the County had adopted a statement of overriding considerations that made such findings. However, the County did not do so. Rather, the County concluded that the proposed mitigation measures rendered the water issues less than significant. We are rejecting the County's conclusion on the water issues because we have concluded that the mitigation measures that were proposed to address the potentially significant adverse impacts on the water levels of private wells of neighboring landowners are not viable or effective. The mitigation measures do not allow the landowners to use water in a substantially similar manner to how the landowners are currently using water because the mitigation measures (1) would allow Baker to replace potable water with nonpotable water, (2) could expose the landowners to new regulatory oversight in the use of their water, (3) would create a water supply system that does not reliably provide water at the times and in the amount needed by the neighboring landowners, and (4) could cause new and potentially significant impacts on the environment. The only mitigation option that 1120 would address many of these problems is the proposal to build a new water system, but there is no substantial evidence to conclude that this option is even feasible. Thus, the mitigation measures are inadequate under CEQA. d. Recirculation of EIR (3) Appellants further contend that the County failed to comply with the procedural mandates of CEQA by failing to recirculate the EIR despite the emergence of significant new information, which was the amendment to Mitigation Measure 3.9-1b. "If significant new information is added to an EIR [or to the administrative record], the lead agency must issue a new notice and recirculate the EIR for comments and consultation." (Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2005) § 16.15, p. 786 & § 16.16, pp. 790-791; see also § 21092.1; CEQA Guidelines, § 15088.5.) Given that there was no analysis done on whether the option to build a water system is a feasible mitigation measure, we conclude that the portion of the EIR addressing water concerns should have been recirculated. e. Economic Impacts Finally, Appellants contend that the County failed to adequately address the economic impacts on neighboring landowners due to the potentially significant impact on the water levels in their private wells as required by CEQA. We disagree that CEQA imposes such a requirement, and Appellants cite no authority that supports this position. (4) Section 21061.2, cited by Appellants provides: "`Land evaluation and site assessment' means a decisionmaking methodology for assessing the potential environmental impact of state and local projects on agricultural land." We cannot interpret a duty to evaluate economic impact from that section. CEQA Guidelines, section 15064, subdivision (c), also cited by Appellants, provides: "In determining whether an effect will be adverse or beneficial, the lead agency shall consider the views held by members of the public in all areas affected as expressed in the whole record before the lead agency. Before requiring the preparation of an EIR, the lead agency must still determine whether environmental change itself might be substantial." Again, we cannot discern how this supports Appellants' position. Rather, CEQA requires that the lead agency analyze any significant physical changes that 1121 may be caused by social or economic impacts that are the result of the Project. (Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 13.24, p. 634.) Economic and social effects may be considered, but by themselves, are not treated as significant effects on the environment. (CEQA Guidelines, § 15131, subd. (a).) Here, Appellants present no evidence that any significant physical changes to the environment will result from any loss in the property value of neighboring lands that will arise from a potential decline in water levels in private wells. Thus, the County was not required to address the economic impacts of the Project. 2. Impacts to Traffic Appellants contend that the EIR failed to adequately analyze the Project's impacts on traffic because it improperly deferred mitigation measures relating to traffic. We agree. The DEIR concludes that the Project could result in increased vehicle trips or traffic congestion, including substandard level of service. To address this problem, Mitigation Measure 3.12-1a requires Baker to construct intersection improvements with oversight by Caltrans (Dept. of Transportation), or to pay Caltrans to construct the intersection improvements. The mitigation measure lists four specifically required improvements. Baker also is required to post signs specifying designated haul routes for all transporters and delivery vehicles. The DEIR also concludes that the Project could increase vehicle trips or traffic congestion during the reconstruction of County Road 209. The mitigation measures to address this problem require Baker to complete reconstruction of County Road 209 within two years and implement specified traffic control. Finally, the DEIR requires Baker to "[c]ontribute an equitable share of the cost of construction of future improvements if requested by Caltrans or Madera County" and to pay a long-term maintenance fee based upon annual aggregate tonnage mined. (See Mitigation Measure 3.12-3a.) The DEIR provides a formula for calculating the equitable share percentage but no formula for the maintenance fee. Appellants contend that this last mitigation measure violates CEQA because (1) it is not enforceable; (2) it illegally defers development of the details and performance standards; and (3) no substantial evidence supports the conclusion that the "fair share" fees will actually be spent on mitigation. 1122 In support of these three suppositions, Appellants complain that "[t]here is nothing in the mitigation measures that requires Caltrans or Madera County to actually impose impacts fees." Also, "[t]he EIR fails to include any discussion of how or when the possible mitigation fees would be collected or spent, nor does it identify the extent to which the mitigation measure would alleviate the traffic impacts if some fair share fees were ultimately imposed." Finally, "the County made no finding regarding the limitation or the feasibility of the County guaranteeing funding for roadway improvement." We generally agree. (5) Assessment of a traffic impact fee is an appropriate form of mitigation when it is linked to a reasonable plan for mitigation. (Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 14.14, p. 700; Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal. App. 4th 99, 141 [104 Cal. Rptr. 2d 326].) Here, the assessment of an equitable share of costs of construction of future improvements and of a maintenance fee is deferred to the future. "Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. [Citation.]" (Defend the Bay v. City of Irvine, supra, 119 Cal.App.4th at p. 1275.) According to Respondents, the record, through two Caltrans letters, shows that "while Caltrans has not identified a specific plan for the Highway 41 improvements, there is a clear methodology for collecting fees from the Madera Quarry project and other affected projects, and a sufficient commitment to completing the improvements." We disagree. The letters show intent to make improvements but no definite commitment on when the improvements will take place. Moreover, there is no substantial evidence that Caltrans is committed to scheduling the improvements to State Route 41 in a way that would mitigate the increase in vehicle traffic, for example by scheduling the improvements earlier and more often. Furthermore, there is no evidence that the County has a mitigation plan in place involving the improvement or maintenance of the various local roadways because of the increased vehicle traffic. Thus, the mitigation measures relating to traffic impacts are inadequate. 3. Noise Impacts Appellants also contend that the EIR failed to adequately analyze the Project's impacts on noise levels because it relied upon an incorrect methodology in determining significance of noise levels. We agree. The DEIR concludes that the Project could cause an increase of offsite traffic noise. According to the DEIR, except at one residence which will be 1123 exposed to approximately 16 dBA (decibel scale, A-weighted sound level) increase in traffic noise level, "the project-related traffic noise level increase over non-project levels will be 2.1 dB or less. Because a 3-5 dB increase in traffic noise levels is commonly required to identify noise impacts, this impact is considered less than significant." With respect to the one residence, it was unclear whether any mitigation measures were feasible because the owner refused to cooperate with the County. Thus, the County concluded that the impact on this one residence was significant and unavoidable. Appellants contend that the analysis in the DEIR was erroneous based upon errors identified in the Morro Group Report. Respondents contend that the Morro Group Report was untimely submitted, and completely rebutted by County staff and the EIR author. In reply, Petitioners contend that the County improperly concluded that a 3 to 5 dBA threshold is required before noise impacts can be found to be significant. We agree with Appellants that there is no single noise increase that renders the noise impact significant. (See, e.g., Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal. App. 4th 1019, 1026 [68 Cal. Rptr. 2d 367] [holding that an increase of 2.8 dBA could be significant where the noise level around the school was already beyond a maximum safety level].) Here, the Madera County General Plan noise element establishes that for residential uses affected by transportation noise sources (offsite traffic in this case), 60 dBA Ldn (day-night average level noise descriptor) is the maximum acceptable noise level. All of the sites tested for State Route 41, however, show that existing traffic noise levels are already in excess of this amount. Thus, the EIR should consider whether the cumulative noise impact would be significant when increases of up to 2.1 dBA are added to the existing noise level. For example, even though a 2.1 dBA noise in isolation will not be noticeable, when added to an already high noise level, it could cause a tipping point of noise problems for the general public. The EIR, however, does not analyze this issue and merely concludes that it would not be significant because "[i]t is generally recognized that an increase of at least 3 dB is usually required before most people will perceive a change in noise levels." This bare conclusion cannot satisfy the requirement that the EIR serve as an informational document. Moreover, the Board's statement of overriding considerations, which explained why the Project should still be approved despite a significant impact on noise levels, does not assist the County because it only considered one residence where the noise impact is significant and unavoidable and did not consider the potentially significant impact of cumulative noise level. Thus, the EIR failed to adequately analyze the Project's impact on noise levels. 1124 4. Impacts to Biological Resources and Wildlife Habitat Appellants further contend that the EIR failed to adequately analyze the Project's impacts on the biological resources and wildlife habitat because it relied upon an incorrect methodology in determining the significance of the Project on the California tiger salamander. We disagree. The DEIR concludes that there were potentially significant impacts on the valley elderberry longhorn beetle, the three known populations of Ewan's larkspur, the western pond turtle, the golden eagle, the red tail hawk, protected species of nesting birds, protected species of migratory birds, "waters of the U.S.," and special-status plants including native oak trees. The DEIR also described mitigation measures to address these potential impacts. The DEIR did not include a section on the California tiger salamander because "it was determined that the Project would not adversely impact the California tiger salamander (CTS)" based upon "a report ... prepared by Mr. Michael Baumgardner following a one day biological resources assessment of portions of the Project Area." California's Department of Fish and Game (CDFG) submitted a comment letter stating that the report by Baumgardner which found that there were no California tiger salamanders (CTS) did not comply with "methodology prescribed in the joint California Fish and GameU.S. Fish and Wildlife Service (Service) `Interim Guidance on Site Assessment and Field Surveys for Determining Presence or a Negative Finding of the Tiger Salamander' (October 2003)." In response to the CDFG letter, "supplemental biological surveys were conducted regarding the Project's potential for impacts on CTS. These supplemental evaluations supported the EIR's earlier conclusions regarding potential impacts on CTS." The supplemental evaluations consisted of a survey of an additional seven perennial ponds that were not addressed in the Baumgardner report. Evidence from these surveys indicated the presence of creatures that are implicated in the extirpation of CTS. "Furthermore, legal access as obtained on December 30, 2005 to the private pond in which CTS had previously been documented in 1973. [The County] was subsequently able to also document presence of introduced predatory fishes (black bass and bluegill) in this pond. Thus, the available evidence suggests that none of the ponds within 1.3 miles of the mine site is considered suitable as aquatic breeding habitat for CTS." 1125 (6) On appeal, Appellants contend that these biological surveys are inadequate. Rather, the only adequate study was the one recommended by the CDFG in its comment letter, which would require that "at sites that contain both upland habitat and potential breeding habitat, sampling must occur during two breeding seasons and a drift fence study during the intervening winter." We disagree that CEQA requires the County to follow the study protocols suggested by the interim guidance. As this court has stated, "CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does not mean that they are required." (Irritated Residents, supra, 107 Cal.App.4th at p. 1396.) Here, the biological surveys that were carried out are sufficient to constitute substantial evidence to support the finding that there would be no significant impacts on CTS. Moreover, requiring a study that takes place over two winters could conflict with the requirement that EIR's for private projects be prepared and certified within one year. (§§ 21100.2, 21151.5; CEQA Guidelines, § 15108.) 5. Impacts to Air Quality Appellants also contend that the EIR failed to adequately analyze the Project's impacts on air quality because it relied upon an incorrect methodology. We disagree. The DEIR concludes that the Project would generate, from excavation activities and associated traffic, particule matter (PM-10), oxides of nitrogen (NOx) and reactive organic compounds (ROG's) emissions, and that the emissions would be significant and unavoidable. Nevertheless, the DEIR provides seven mitigation measures to reduce or limit these project emissions. The DEIR also concludes that the Project, in combination with other cumulative development, would not significantly increase toxic air contaminant from diesel-powered engines. Appellants contend, however, that the EIR erred in reaching its conclusion that the Project would not significantly increase toxic air contaminant from diesel-powered engines because it did not include diesel emissions from transport trucks that occurred offsite and many miles away (that is, secondary emissions). Respondents contend that the EIR did contain such data, and that the exclusion of secondary emissions occurred with the EIR's health risk assessment. In reply, Appellants contend that the EIR could not properly exclude secondary emissions in its health risk assessment. 1126 (7) We have previously held that health impacts associated with increased air pollution should be analyzed in an EIR. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal. App. 4th 1184, 1219 [22 Cal. Rptr. 3d 203].) Here, we conclude that there is substantial evidence to support the decision to exclude secondary emissions in the health risk assessment because the model used to calculate health risk uses an air dispersion model. Secondary emissions would result in a lower concentration of toxic air contaminants as the diesel emissions would be averaged over a larger area. Thus, we reject Appellants' challenge on this issue. 6. Impacts to Aesthetics Appellants further contend that the EIR failed to adequately analyze the Project's impacts on aesthetics because it improperly deferred a mitigation measure relating to lighting and glare. We disagree. The DEIR concludes that the Project could potentially generate extended lighting and glare from nighttime loading and hauling operations. The DEIR notes that mining operations will generally only occur during daytime hours. However, there may be occasions where loading and hauling will occur at night to meet the demands of Caltrans and other agencies. In addition, nighttime operations may be required because Pacific Gas and Electric could restrict operations during daytime peak power periods. To mitigate lighting and glare problems on these occasions, the DEIR provides that: "Exterior lighting shall be designed and maintained in a manner such that glare and reflections are contained within the boundaries of the parcel, and shall be hooded and directed downward and away from adjoining properties and public rights-of-way. The use of blinking, flashing or unusually high intensity or bright lights shall not be allowed. All lighting fixtures shall be appropriate to the use they are serving, in scale, intensity and height. Further, all exterior lighting will be designed, installed and operated as required by the Planning Director." (Italics omitted.) Appellants contend that this mitigation measure is inadequate because it "does not define the level of lighting, the nature or type of lights, any limitations on how frequently the lights may be used and impermissible [sic] defers development of a lighting plan to the future." We disagree that there was improper deferral. Here, the mitigation measures show that the County has committed itself to mitigation and to specific performance standards. Specifically, the mitigation measure requires that Project lighting be hooded 1127 and directed away from adjacent properties and towards the Project site. More specific details of the lighting plan may be deferred until the quarry and its required buildings and plants are built and the placement of lights is determined. (See, e.g., National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal. App. 4th 1341, 1366 [84 Cal. Rptr. 2d 563] [holding that the lead agency could defer determination of placement of desert-tortoise-protecting fences until further study on migration patterns during operation of the project].) 7. Cumulative Impacts Appellants contend that the EIR failed to adequately analyze the Project's cumulative impacts. We agree. According to the DEIR, "[t]he County Planning Department was contacted for other projects for which applications have been filed, or which have been recently approved, but not yet constructed through June 1, 2004. CEQA establishes that the environment for which the Project is evaluated is established at the time of issuance of the Notice of Preparation (Guidelines Section 15130(b)), which was issued February 10, 2003." "The County Planning Department does not identify any newly permitted or proposed projects in the vicinity that could result in cumulative impacts when considered in concert with the proposed Project. Therefore, the cumulative impacts analyses provided in each section of this Draft EIR focuses [sic] on past projects as well as planned growth as outlined in applicable planning documents (e.g., Madera County General Plan.)" (8) Appellants contend that this is error because "[t]he County was aware of the expansion plans for the Chukchansi Casino, the River Ranch Development, Gateway Village, and a number of other projects." However, mere awareness of proposed expansion plans or other proposed development does not necessarily require the inclusion of those proposed projects in the EIR. Rather, these proposed projects must become "probable future projects." (CEQA Guidelines, § 15130, subd. (b)(1)(A).) As noted in San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal. App. 3d 61, 74 [198 Cal. Rptr. 634], "probable future projects" can be interpreted as reasonably probable future projects. The court found that projects that are undergoing environmental review are reasonably probable future projects. (Ibid.) We conclude that any future project where the applicant has devoted significant time and financial resources to prepare for 1128 any regulatory review should be considered as probable future projects for the purposes of cumulative impact. Here, the County could not locate any project where an applicant has filed for review with the county planning department. That is substantial evidence to support the exclusion of any planned expansions allegedly known by the County. (9) Appellants also contend that the County could not arbitrarily choose a deadline of June 1, 2004, as the cutoff date to decide what projects to include in the cumulative analysis. However, since "Projects are constantly being fed into the environmental review process[,] [t]he problem of where to draw the line on `projects under review' that must be included in the cumulative impact analysis of a particular project could be solved by the use of a reasonable cutoff date which could be set for every project according to a standard procedure." (San Franciscans for Reasonable Growth v. City and County of San Francisco, supra, at p. 74, fn. 14.) Thus, the County had the discretion to set the date of the application for the current Project as the cutoff date to determine which projects should be included in the cumulative impacts analysis. (10) Finally, Appellants contend that the County did not follow the CEQA Guidelines in providing and specifying the location where the planning documents could be viewed by the public. (See CEQA Guidelines, § 15130, subd. (b)(1)(B) ["Any such planning document shall be referenced and made available to the public at a location specified by the lead agency."].) Here, the DEIR only referenced the Madera County General Plan. It also did not specify where the Madera County General Plan could be located. The lead agency has the duty to specify all of the planning documents that are being used in the cumulative impacts analysis, and to specify where those planning documents can be publicly viewed. Our review of the DEIR and FEIR indicates that planning documents (except for the Madera County General Plan) were not listed in the cumulative projects section or in the individual cumulative impacts sections. The lack of evidence on what planning documents were used leads us to conclude that there is no substantial evidence supporting any of the cumulative impacts analyses in the EIR. We note that we have already concluded that the cumulative impacts analyses on noise levels is inadequate on another ground. (See ante, at pt. I.B.3.) 8. Growth-inducing Impacts Finally, Appellants contend that the EIR failed to adequately analyze the Project's growth-inducing impacts. We disagree. 1129 The DEIR concludes that growth-inducing impacts of the Project would be less than significant because the Project simply would be minimizing obstacles to growth and not causing growth itself. Appellants contend that the reduction of the cost of aggregate would be a growth-inducing impact. While we agree that lowering the cost of aggregate would reduce one of the barriers to growth, the DEIR could reasonably conclude that there were other barriers to growth, including the zoning of the lands surrounding the Project site. Thus, we conclude that the EIR adequately analyzed growth-inducing impacts. 9. Whether the Errors in the EIR were Prejudicial (11) We have concluded that there were errors with the EIR's analysis of the following issues: (1) adequacy of mitigation measures to address impacts on water; (2) adequacy of mitigation measures with respect to traffic; (3) cumulative impact on noise levels; and, (4) cumulative impacts in general. These errors preclude "`informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.'" (Irritated Residents, supra, 107 Cal.App.4th at p. 1391.) Thus, the errors were prejudicial. II. NON-CEQA ISSUES ON APPEAL A. Consistency with General Plan and/or County Ordinances Appellants contend that the Project is inconsistent with the Madera County General Plan because the Project exceeds the general plan's noise standard in policy 7.A.2. They also contend that the Project violates Madera County Municipal Code section 18.92.030 because the CUP's approved by the County will cause "a substantial adverse effect upon property values and general desirability of the neighborhood surrounding the Project area." (Italics omitted.) (12) It is well settled that a county is entitled to considerable deference in the interpretation of its own general plan. (Sierra Club v. County of Napa 1130 (2004) 121 Cal. App. 4th 1490 [19 Cal. Rptr. 3d 1].) Likewise, this deference should apply to the county's interpretation of its own local zoning ordinances. Here, the DEIR concluded that the Project was consistent with the general plan and the county zoning ordinance, except for significant and unavoidable impacts on air quality and noise. The Board concluded, in its statement of overriding considerations, that the Project should be approved despite these inconsistencies with the general plan. Because the statement of overriding considerations did not properly consider the inconsistency of the Project's cumulative noise impacts, see ante, part II.B.3, we conclude that the Project was incorrectly approved. The Board also found that "the proposed project (request) will not for any reason cause a substantial, adverse effect upon the property values and general desirability of the neighborhood or the County." (Italics omitted.) There is substantial evidence in the record, in the form of a study about the values of neighborhoods near a Colorado quarry, that there would not be a substantial adverse effect upon property values. With respect to the general desirability of a neighborhood, we defer to the County's finding that the general desirability of the neighborhood or of the county will not be adversely impacted because "[t]he project site is a remote large parcel surrounded by similarly large parcels." B. SMARA The DEIR contained a reclamation plan, which the FEIR noted was not up to date. The FEIR, in Appendix C, contains the current reclamation plan for the Project as required by SMARA. Appellants complain that the DEIR's reclamation plan does not meet the requirements of SMARA because the manner in which affected streambed channels and streambanks will be rehabilitated is not specifically described but instead is deferred to a later time. (See § 2772, subd. (c)(8) [requiring that the reclamation plan provides "[a] description of the manner in which reclamation, adequate for the proposed use or potential uses will be accomplished, including both of the following: [¶] (A) A description of the manner in which contaminants will be controlled, and mining waste will be disposed. [¶] (B) A description of the manner in which affected streambed channels and streambanks will be rehabilitated to a condition minimizing erosion and sedimentation will occur."].) Since this complaint is about the former reclamation plan, we decline to conclude that the current reclamation plan does not satisfy SMARA. Our 1131 brief review of the reclamation plan indicates that Baker has a revegetation plan to minimize erosion. Appellants also contend that the County violated SMARA by approving the reclamation plan even though it failed to incorporate the classification of mineral lands into its general plan within 12 months of receiving the information from the State Geologist. However, there is substantial evidence that the State Geologist has not classified the Project site into mineral resources zones. Thus, the County did not fail any duty to incorporate mineral land classifications into its General Plan within 12 months of receiving the classification from the State Geologist. C. Senate Bill No. 610 (13) Finally, Appellants contend that the County violated Water Code sections 10910-10914, otherwise known as Senate Bill No. 610 (2001-2002 Reg. Sess.) (Senate Bill 610) by failing to prepare a water supply assessment for the Project. Senate Bill 610, however, requires a water supply assessment only if a "public water system" is impacted by the Project. A "public water system" is defined to mean "a system for the provision of piped water to the public for human consumption that has 3000 or more service connections." (Wat. Code, § 10912, subd. (c).) Here, the water that will be used for the mine is not part of a public water system. Appellants also contend that the amendment to Mitigation Measure 3.9-1b, which could require the construction of a water system for use by affected neighbors would require a water supply assessment under Senate Bill 610. We agree. Previously, we concluded that building a new water system is the only effective mitigation measure that was proposed to address the significant adverse impacts on water levels in neighboring private wells. As the California Supreme Court has explained, Senate Bill 610 requires the lead agency to identify likely water sources for a project. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 434 [53 Cal. Rptr. 3d 821, 150 P.3d 709].) "An EIR evaluating a planned land use project must assume that all phases of the project will eventually be built and will need water, and must analyze, to the extent reasonably possible, the impacts of providing water to the entire proposed project. [Citation.]" (Id. at p. 431.) Here, the County has failed to analyze the impacts of providing water to the proposed water system. Thus, the County must do a water supply assessment or provide substantial evidence to explain why it did not have to comply with Senate Bill 610. 1132 DISPOSITION The judgment is reversed. Costs to appellants. Wiseman, J., and Levy, J., concurred. NOTES [1] All further section citations are to the Public Resources Code, unless otherwise indicated. [2] Although it does not change our analysis, we note that the USFWS (U.S. Fish and Wildlife Service) did not comment; rather, California's Department of Fish and Game commented, with a carbon copy of the comment letter sent to the USFWS.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311260/	589 S.E.2d 99 (2003) 277 Ga. 380 KNOTT v. KNOTT. No. S03F1027. Supreme Court of Georgia. November 17, 2003. 100 Banks, Stubbs, Neville, & Cunat, Robert S. Stubbs, III, Cumming, for appellant. Dupree, Poole, & King, Russell D. King, Marietta, for appellee. FLETCHER, Chief Justice. In September 1999, Kenneth and Kathryn Knott entered into a separation and property settlement agreement that was incorporated into a final judgment of divorce. The agreement provided for the disposition of certain property acquired during the marriage, including a condominium in Hawaii. When a dispute arose concerning the sale of that property, both parties asked the Superior Court to hold the other in contempt of the final judgment of divorce. Kenneth Knott appeals the order of the trial court finding him in contempt of that judgment and ordering him to pay all accrued taxes on the Hawaii property out of his share of the proceeds from the sale of that property. Because the divorce agreement evidences an intent by the parties to evenly share the burden of taxes that accrued on the Hawaii property before the divorce, we reverse. In 2002, Husband filed a motion for contempt against Wife, alleging that Wife was violating the parties' divorce agreement by interfering with Husband's attempts to sell the Hawaii property. Wife counterclaimed against Husband, claiming that the settlement agreement requires Husband to pay all accrued taxes on the Hawaii property out of his share of the sale proceeds, and that Husband had violated the divorce agreement by failing to disclose the existence of a tax lien filed by the State of Hawaii in February, 1999. The Superior Court agreed with Wife and ordered Husband to pay all accrued taxes on the Hawaii property out of his share of the sale proceeds. Husband was also ordered 101 to pay Wife's attorney fees as a sanction for being in contempt of the final judgment of divorce. 1. The first issue is whether the trial court correctly concluded that Husband violated the divorce agreement by failing to disclose in the agreement the existence of the tax lien filed by the State of Hawaii. The tax lien was filed by Hawaii for unpaid general excise and transient accommodation taxes between 1988 and 1996. The divorce agreement states that "each party represents and warrants that he or she has made a full and fair disclosure to the other of all of his or her property interests ... and that such property is subject to no ... lien ... except those which are disclosed herein." The trial court concluded that Husband violated this provision by failing to disclose the existence of the 1999 tax lien on the Hawaii property at the time the divorce agreement was entered. "In order for one to be held in contempt, there must be a willful disobedience of the court's decree or judgment."[1] The undisputed evidence in the record shows that both Husband and Wife knew before the divorce that there was an existing tax claim attached to the Hawaii property. There is no evidence that either party had actual knowledge that the tax claim had been reduced to a certificate of state tax lien or recorded as a lien on the property at the time the divorce agreement was entered, and both parties are charged equally with constructive knowledge of the recorded lien.[2] Since there is no evidence that Husband intentionally avoided any investigation into the tax claim, precluded Wife from learning about the tax lien, or otherwise willfully violated the final judgment of divorce, the trial court erred by holding Husband in contempt. Accordingly, the trial court's order holding Husband in contempt for violating the divorce agreement is reversed. Because the trial court's decision to award attorney fees to Wife was based on its erroneous finding that the Husband had willfully violated the divorce agreement, that decision is also reversed. 2. The next issue is whether the tax lien should be satisfied from Husband's portion of the sale proceeds from the Hawaii property, or if Husband and Wife should share the tax burden equally. Contractual interpretation is generally a matter of law to be decided by the court,[3] and this Court subjects a lower court's conclusions with respect to matters of law to de novo review.[4] The cardinal rule of contractual construction is to ascertain the intent of the parties.[5] This Court agrees with Husband that the divorce agreement evidences an intent to share the burden equally, because requiring Husband to bear the entire burden of the tax lien would render certain provisions of the divorce agreement meaningless.[6] The divorce agreement states that "until the property mentioned herein [including the Hawaii property] is sold, it is the responsibility of Husband to continue all payment associated with these property [sic], including payment of any ... taxes." The same section of the divorce agreement also declares that "as [the Hawaii] property is sold, all expenses of sale, including without limitation... liens ... shall be deducted from the sales price" and that the remainder of the sales price would be split equally between *102 the parties. These two aspects of the divorce agreement must be read in conjunction with one another.[7] Read together, these two sections clearly impose upon Husband the obligation to pay all taxes that accrue on the Hawaii property from the date of the divorce agreement forward, but contemplate that all pre-existing liens on the property will be satisfied from the sale proceeds and borne equally by the parties. Wife's claim that Husband should be required to pay all pre-existing tax liens on marital property would render meaningless the section of the divorce agreement that contemplates deducting liens from the sales price, and such an interpretation is not favored.[8] Accordingly, the trial court erred in ordering Husband to bear the entire burden of the pre-existing tax lien from his share of the proceeds. Those taxes accrued while Husband and Wife were still married, and it is the clear intent of the divorce agreement that both parties should share the burden of those taxes equally. The agreement thus provides that when the property is sold, the parties shall deduct from the sales price the amount of the tax lien for pre-divorce taxes, and any accrued interest. The remaining proceeds shall be divided equally between the parties. Judgment reversed. All the Justices concur. NOTES [1] Gallit v. Buckley, 240 Ga. 621, 626, 242 S.E.2d 89 (1978). [2] Cummings v. Johnson, 218 Ga. 559, 560-561, 129 S.E.2d 762 (1963) ("[a] duly filed and recorded deed to secure debt is notice ... to the world"). [3] OCGA § 13-2-1. [4] Irvin v. Laxmi, Inc., 266 Ga. 204, 205, 467 S.E.2d 510 (1996); Northen v. Tobin, 262 Ga. App. 339, 342, 585 S.E.2d 681 (2003). [5] OCGA § 13-2-3; McVay v. Anderson, 221 Ga. 381, 385, 144 S.E.2d 741 (1965); Hull v. Lewis, 180 Ga. 721, 724, 180 S.E. 599 (1935). [6] See Paul v. Paul, 235 Ga. 382, 384, 219 S.E.2d 736 (1975) ("that construction will be favored which gives meaning and effect to all of the terms of the contract over that which nullifies and renders meaningless a part of the language therein contained"). [7] See OCGA § 13-2-2(4) ("construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part"); McCann v. Glynn Lumber Co., 199 Ga. 669, 674, 34 S.E.2d 839 (1945) ("intention of the parties is determined from a consideration of entire contract; and, if possible, all of its provisions should be interpreted ... to harmonize with each other"). [8] Paul, 235 Ga. at 384, 219 S.E.2d 736.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311300/	257 Ga. 481 (1987) 361 S.E.2d 154 THOMPSON v. THE STATE. 44743. Supreme Court of Georgia. Decided October 8, 1987. Henry G. Bozeman, for appellant. Beverly B. Hayes, Jr., District Attorney, Samuel A. Hilbun, Edwin J. Wilson, Assistant District Attorneys, Michael J. Bowers, Attorney General, Dennis R. Dunn, Assistant Attorney General, for appellee. WELTNER, Justice. Rooney Thompson shot and killed Richard Jenkins with a handgun. He was convicted of malice murder and sentenced to life imprisonment.[1] 482 1. The record contains a full account of hostility between Thompson and the victim, arising from Thompson's relationship with the victim's sister. On one occasion, the two men exchanged gunfire. Shortly before the killing, Thompson was heard to say "[T]his is not over with yet . . . `cause I'm going to get him `cause he ain't got no business hitting me with that iron pipe... I'm going down here and I'm going to kill him." 2. On the night of the killing, Thompson approached the victim at a tavern, and gunfire erupted. Thompson pursued the victim, firing his handgun. The victim ran and returned the fire. Jenkins died from a wound to the back. Thompson was shot in the chest. Thompson testified that the victim fired first. One witness testified that Thompson first brandished his handgun. Others testified they did not know which of the two men was the aggressor. 3. Thompson contends the trial court erred in not granting his motion for a directed verdict of not quilty, and in refusing to grant a new trial. He further contends the state failed to prove beyond a reasonable doubt that he did not act in self-defense. From the evidence in the case, a rational trier of fact could have found Thompson guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 4. The trial court instructed the jury as to self-defense and voluntary manslaughter. Thompson contends the trial court erred in refusing to give his requested charge on involuntary manslaughter. His sole defense was justification. We observed in Saylors v. State, 251 Ga. 735, 737 (309 SE2d 796) (1983), that a "defendant who seeks to justify homicide under the `self-defense' statute, OCGA § 16-3-21 . . . is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, (OCGA § 16-5-3 (b) . . .) whatever the implement of death. For if he is justified in killing under OCGA § 16-3-21 ... he is guilty of no crime at all. If he is not so justified, the homicide does not fall within the `lawful act' predicate of OCGA § 16-5-3 (b) ... for the jury, in rejecting his claim of justification, has of necessity determined thereby that the act is not lawful." 5. The trial court instructed the jury: "I charge you that evidence of prior difficulties between the defendant and the alleged victim has been admitted for your consideration solely and only for the purpose 483 of illustrating, if it does so illustrate, the state of feelings between the defendant and the alleged victim and the bent of mind and course of conduct on the part of the accused. Now this evidence is admitted for your consideration only as it may illustrate such matters and for no other purpose. Whether this evidence illustrates such a matter is solely for you to determine, but you are not to consider such evidence for any other purpose." Thompson asserts that this charge prohibited the jury from considering the victim's alleged aggressive conduct toward Thompson, and from inferring a motive on the part of the victim to shoot Thompson twice, and before Thompson could defend himself. Evidence of a prior aggravated assault by the victim upon Thompson was admitted without objection. The charge was not error. 6. The trial court instructed the jury: "I charge you that you may infer that a person of sound mind and discretion intends to accomplish the natural and probable consequences of his intentional act, and if a person of sound mind and discretion intentionally, and without justification, uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being you may infer the intent to kill." Thompson contends the charge was burden-shifting because it was not followed immediately by an instruction that it is within the discretion of the jury to determine whether an inference of guilt should be drawn. We note that this charge is contained in Suggested Pattern Jury Instructions, Volume II, Criminal Cases, published by the Council of Superior Court Judges of Georgia (page 92). While it would be desirable to include language reaffirming that it is within the jury's discretion whether or not it will draw such an inference, the charge considered in its entirety was not burden-shifting. The trial court instructed the jury as to the presumption of innocence, and that there is no presumption of criminal intent. Further instructions were given concerning the definitions of murder and malice. We hold that reasonable jurors would not have construed the charge as one that compelled a finding of guilt. Wilson v. Jones, 251 Ga. 23 (302 SE2d 546) (1983). Judgment affirmed. All the Justices concur. NOTES [1] The killing took place on April 13, 1986. Thompson was indicted on May 20, 1986. On June 26, 1986, he was convicted and sentenced. On February 10, 1987, the trial transcript was filed. On July 18, 1986, Thompson's motion for new trial was filed, and it was argued and denied on May 5, 1987. The notice of appeal was filed on June 4, 1987. This appeal was docketed on June 10, 1987, and the appeal was submitted without oral argument on July 24, 1987.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311302/	546 S.E.2d 819 (2001) 248 Ga. App. 406 In the Interest of B.N.A., a child. No. A00A1933. Court of Appeals of Georgia. March 5, 2001. 820 Michael J. Tuck, for appellant. Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, Dalton, for appellee. RUFFIN, Judge. The biological father of B.N.A. appeals the juvenile court's order terminating his parental rights. The father asserts that there is insufficient evidence supporting the court's order and that there is no evidence establishing he was properly served with a notice to legitimate the child. For reasons that follow, we reverse. 1. Due process under the Fourteenth Amendment requires that "before a state may sever the rights of a parent in his natural child, the state must support its allegations of the parent's unfitness `by at least clear and convincing evidence.'"[1] This right of due process extends to an unwed father "who demonstrates a commitment to parenthood by participating in the life of his child."[2] Though, on appeal from a juvenile court's order terminating parental rights, we review the evidence in the light most favorable to the state, we still must determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights to custody should have been terminated.[3] We do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the trial court's factfinding and affirm unless the appellate standard is not met.[4] Viewed in the light most favorable to the state, the evidence shows that, approximately one year before B.N.A. was born, the mother and father began living together. At the time, the father was on five years probation for a 1994 conviction of violating the Georgia Controlled Substances Act. B.N.A., who was born prematurely on August 27, 1998, suffered from infantile asthma and chronic ear infections. Due to B.N.A.'s respiratory problems, the mother and father were advised to put her on an apnea monitor. The parents, however, failed to heed this 821 advice. After learning of the situation, the Department of Family & Children Services (DFACS) became involved and developed a protective case plan for both parents. The plan required the parents to address B.N.A.'s medical needs, to cooperate with DFACS, and to improve their parenting skills with the help of a parenting aide. The mother and father complied with the case plan, and DFACS closed the file. In June or July 1999, the father and mother separated. The father attributed the separation to the mother's drug problem. He explained that because the mother would leave and "stay gone a while," he figured she was abusing drugs. The father's suspicions were well founded. In July 1999, police found cocaine on a mirror in a hotel room were the mother and B.N.A. were staying. The mother was incarcerated after her arrest and subsequently pled guilty to violating the Georgia Controlled Substances Act. Following the mother's arrest, DFACS took temporary custody of B.N.A. A caseworker testified that, at that time, the father went to DFACS and asked "what he could do to visit with the child." The DFACS caseworker informed the father that "he would need to legitimate the child and then work on a case plan." On August 3, 1999, the juvenile court conducted a deprivation hearing and found that B.N.A. was deprived. The court awarded temporary custody of B.N.A. to DFACS and, in a written order entered September 8, 1999, ordered the department to establish a reunification plan for the father. The court also required DFACS to establish a visitation schedule for the father. Although DFACS implemented a plan for the mother, it failed to establish either a reunification plan or a visitation schedule for the father. According to a DFACS caseworker, the department did not comply with the order because of its policy to not provide a putative father with a case plan until he legitimates the child. On December 22, 1999, approximately four months after DFACS took temporary custody of B.N.A., the agency petitioned the juvenile court to terminate the mother's and father's parental rights. On March 7, 2000, the juvenile court conducted an evidentiary hearing on the petition. The mother and father were represented by counsel, and the child was represented by a guardian ad litem. The transcript of the termination hearing shows that from June 1999, when the mother and father separated, until the March 7, 2000 termination hearing, the father provided only limited financial support for B.N.A. Specifically, the evidence showed that, although the father was gainfully employed, he gave the mother only approximately $100 for B.N.A.'s support. A caseworker testified that the father was never instructed to pay child support, and when asked why he never provided any further support for the child, the father responded that he "wasn't sure [he] was supposed to." Similarly, the father explained that he had failed to legitimate B.N.A. up to that time because he "thought [he] was going to be told when to start doing things that [he] was supposed to do, like parenting classes, stuff like that." As for the father's personal contact with the child, the evidence showed that he accompanied the mother on five visits with B.N.A. and that he appeared for two visits when B.N.A. was not there. According to a caseworker, "although the father would make attempts to interact with [B.N.A.] and she would ... respond to that," he usually just sat and watched the child play by herself. As a consequence, B.N.A. appeared unenthusiastic about seeing the father, and there was no apparent bonding between the father and the child. Again, however, DFACS never established a visitation schedule for the father as ordered by the court, and the father never contacted DFACS to request his own visits with the child. The evidence also showed that the father lacked stable housing. During the eleven months preceding the hearing, the father lived in four different residences, and before that he "moved in and out with [his] mom." At the time of the hearing, the father was again living with his mother and had criminal charges pending against him related to drug distribution and shoplifting. A DFACS caseworker testified that B.N.A. is currently living with a foster family who 822 has voiced their intent to adopt her if she is placed for adoption. According to the DFACS caseworker, B.N.A. has bonded with the family. When asked why she acted so quickly to terminate the mother's and father's parental rights, the caseworker responded: "My job as a caseworker is to find permanency for this child." Finally, the child's guardian ad litem testified that it was a close call, but recommended that the court terminate the father's parental rights. Based on this evidence, the juvenile court terminated both parents' rights in B.N.A. As for the father, the court found that he caused B.N.A. to be deprived and that the deprivation was likely to continue because he failed to legitimate the child, failed to support the child, and failed to visit and bond with the child. In its order, the court attributed DFACS's failure to establish a reunification plan to the father's failure "to legitimate [B.N.A.] in a timely manner." Although the court stated that it had informed the father that DFACS's "policy was that it would not offer him a [reunification plan] until he legitimated the child," the court inexplicably failed to mention that it had expressly and unconditionally ordered DFACS to "develop a case plan for reunification with the father of [B.N.A.]" Likewise, the court faulted the father for failing to ask DFACS for "instructions as to what he needed to do to get his child returned to him" and for failing to ask DFACS "for any visits on his own." Again, the court failed to mention its unconditional written order that "a visitation schedule be established by the Department providing for visitation between the father and B.N.A." Georgia law requires a court to conduct a two-step analysis to determine whether a parent's rights to his or her child should be terminated.[5] First, a court must determine whether the state has met its burden of presenting "clear and convincing evidence of parental misconduct or inability."[6] Second, if the court finds such evidence, it must then determine whether "termination of parental rights is in the best interest of the child."[7] To satisfy the first part of this inquiry, the evidence must establish that (i) the child is deprived, (ii) the parent's lack of proper parental care or control is causing the deprivation, (iii) this cause is likely to continue or will not be remedied, and (iv) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.[8] In this case, B.N.A.'s deprivation was established by the juvenile court's unappealed deprivation order.[9] Of greater concern, and what was not established by clear and convincing evidence, is whether the father's lack of proper parental care or control is causing the deprivation. In making this determination, the juvenile court was required to consider several factors which could negatively impact on the father's ability to care for the child, such as a drug abuse problem, imprisonment for a felony conviction, emotional neglect, and other past or present egregious conduct toward the child.[10] In addition, where the child is not in the father's custody, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.[11] Although a juvenile court is not required to focus exclusively on the latter factors 823 when a child is not in the custody of the parent,[12] the court should remain mindful that "`the time limitation in OCGA § [15-11-94](b)(4)(C)... is designed to give the parent whose rights are subject to termination sufficient time and opportunity to demonstrate his or her ability to comply with the terms of the court's order.'"[13] In this case, there is not clear and convincing evidence that the father's lack of proper parental care or control is causing B.N.A.'s deprivation. Most troubling is the fact that only six months elapsed between the time the juvenile court entered its order requiring DFACS to establish a reunification plan and visitation schedule for the father and the time of the termination hearing. During this time, the father had no opportunity to comply with the court-ordered plan designed to reunite him with B.N.A., because DFACS never established a plan. Had DFACS established the court-ordered plan, the father would have had a "clear description of the specific actions to be taken by [him] and the specific services to be provided by [DFACS]... in order to bring about the identified changes that must be made in order for [B.N.A.] to be safely returned home."[14] Similarly, if DFACS had complied with the court's order to establish a visitation schedule, then perhaps the father would have had a better opportunity to form a more meaningful relationship with B.N.A. We are not saying that the father is without fault. Evidence shows that the father was previously convicted of a drug offense and is currently charged with committing other offenses.[15] Other evidence shows that the father could have taken greater initiative in reuniting himself with B.N.A. However, under the circumstances of this case, such evidence alone does not constitute clear and convincing evidence that the father is causing, and will continue to cause, B.N.A. to be deprived. We are concerned that DFACS acted so expeditiously to completely sever the father's parental relationship with B.N.A., while at the same time ignoring the juvenile court's unqualified written order to establish a reunification plan and visitation schedule. We are equally concerned that the juvenile court permanently terminated the father's parental rights, while completely disregarding DFACS's failure to comply with its order aimed at reunifying the father with B.N.A. For these reasons, the order of the juvenile court terminating the father's parental rights in B.N.A. is reversed. 2. In light of our conclusion in Division 1, it is unnecessary to address the father's other enumeration of error. Judgment reversed. ANDREWS, P.J., and ELLINGTON, J., concur. NOTES [1] Thorne v. Padgett, 259 Ga. 650, 651, 386 S.E.2d 155 (1989) (quoting Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). [2] Id. [3] See In the Interest of L.S., 244 Ga.App. 626-627, 536 S.E.2d 533 (2000). [4] See id. [5] See OCGA § 15-11-94(a); In the Interest of K.A.C., 229 Ga.App. 254, 255(3), 493 S.E.2d 645 (1997). [6] OCGA § 15-11-94(a). See Thorne, supra at 651, 386 S.E.2d 155. [7] Id. [8] OCGA § 15-11-94(b)(4)(A). [9] See In the Interest of D.H., 243 Ga.App. 778, 782, 534 S.E.2d 466 (2000). [10] See OCGA § 15-11-94(b)(4)(B). [11] OCGA § 15-11-94(b)(4)(C). [12] See In the Interest of A.M.B., 219 Ga.App. 133, 135-136, 464 S.E.2d 253 (1995). [13] In the Interest of K.A.C., supra at 254, 493 S.E.2d 645 (quoting In the Interest of B.L., 196 Ga.App. 807, 808(1), 397 S.E.2d 156 (1990)). [14] OCGA § 15-11-58(c)(3). [15] The transcript reveals that, when asked about the charges, the father invoked his Fifth Amendment privilege against self-incrimination. This constitutes "`an implied admission that a truthful answer would tend to prove that [he] had committed the act.'" In the Interest of S.B., 242 Ga.App. 184, 186-187(1), 528 S.E.2d 278 (2000).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311307/	546 S.E.2d 74 (2001) 248 Ga. App. 316 WILLIAMS v. The STATE. No. A00A2193. Court of Appeals of Georgia. February 28, 2001. 77 Derek H. Jones, Decatur, for appellant. Patrick H. Head, District Attorney, Eleanor A. Kornahrens, Maria B. Golick, Bruce D. Hornbuckle, Assistant District Attorneys, for appellee. 75 76 ELLINGTON, Judge. A Cobb County jury found Wallace James Williams guilty of aggravated assault with intent to rape, OCGA § 16-5-21(a)(1), aggravated battery, OCGA § 16-5-24(a), child molestation, OCGA § 16-6-4(a), and cruelty to children, OCGA § 16-5-70(b). Wallace appeals from the order denying his motion for new trial, challenging his aggravated battery conviction, the court's admission of certain evidence, the jury charge, the court's merging of offenses, and his trial counsel's effectiveness. Because the evidence was insufficient to support Williams' aggravated battery conviction, we must reverse that conviction. Viewed in the light most favorable to the jury's verdict, the evidence shows that Williams attacked 13-year-old C.T. when she was alone at her uncle's house. Williams knocked at the door and asked to speak with C.T.'s uncle. When C.T. said her uncle was not home, Williams asked to use the telephone. Although C.T. did not know Williams, she let him into the house and handed him the telephone. Williams made two calls, then handed the phone back to C.T. He then asked C.T. if she was scared of him. C.T. asked Williams to leave; instead, he approached her, grabbed her arm, and touched her thigh. Williams chased C.T., grabbed her by the shoulders, and wrestled her into her uncle's bedroom. Once there, Williams pushed C.T. to the floor and tried to pull her shorts down. C.T. testified that she thought Williams was also trying to remove his pants. Williams called C.T. a "whore," yelled at her to shut up, felt C.T.'s legs and inner thigh, and stuck his fingers in C.T.'s mouth. When C.T. bit Williams, Williams retaliated by stepping on her face with his foot so hard that it left an imprint of his shoe's tread on her skin. During this struggle, C.T. grabbed the phone and acted as if she were going to call the police. Williams fled. C.T. locked herself in the house and waited for her uncle to come home. When the uncle returned, he called the police. When C.T. told the responding detective that her attacker was short, very dark-skinned, and "cock-eyed," the uncle thought he knew who the man might be. Based on information from the uncle, the detective put together a photographic lineup and C.T. selected Williams' photo from it immediately. Later that evening, the detective arrested Williams at his home. Williams smelled of an alcoholic beverage and appeared intoxicated. The detective noted that Williams' face and knees were scratched and that he looked like he had "been in a fight." The tread on Williams' tennis shoes was consistent with the marks on C.T.'s face. At trial, Williams admitted he drank a quart of beer that evening. He also admitted he struggled with C.T., but that it was in self-defense because C.T. had "lost all self-control" and attacked him. C.T. testified that the bruises and scratches to her face healed completely within a month and left no scars. The photographs of C.T.'s face taken after the attack do not show any bleeding wounds or swelling. C.T. testified that after the attack, her face started "stinging real bad." However, the evidence shows that C.T. did not require immediate medical attention. In fact, she did not go to the hospital until several hours after the attack. The State adduced no evidence 78 showing that C.T. needed or received any diagnostic tests, like x-rays; medical treatment, like anti-inflammatory drugs, bandages, or ice packs; or minor surgery, like stitches. 1. Williams argues that the evidence adduced was insufficient to support his conviction for aggravated battery. We agree. The aggravated battery statute provides, in relevant part, that a "person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by ... seriously disfiguring his or her body or a member thereof." (Emphasis supplied.) OCGA § 16-5-24(a). "Black's Law Dictionary defines disfigurement as that which impairs or injures the appearance of a person, and defines serious as grave, or great. Baker v. State, 246 Ga. 317, 318(2), 271 S.E.2d 360 (1980)." (Punctuation omitted.) In the Interest of H. S., 199 Ga.App. 481, 405 S.E.2d 323 (1991). "To constitute the crime of aggravated battery, there is no requirement that, in addition to being `serious,' the disfigurement of a victim be permanent." Id. This Court has never attempted to illustrate what is meant by the term "seriously" in the "seriously disfiguring" element of aggravated battery, and the trial court is not required to give a charge explaining that term. See, e.g., Perkins v. State, 269 Ga. 791, 796(5), 505 S.E.2d 16 (1998); Levin v. State, 222 Ga.App. 123, 127-128(7), 473 S.E.2d 582 (1996); Miller v. State, 155 Ga. App. 54, 55-56(4), 270 S.E.2d 466 (1980). Because the circumstances of each aggravated battery vary, whether disfigurement is serious is best resolved by the factfinder on a case-by-case basis. Consequently, what constitutes serious disfigurement is almost always a question for the jury. Silvers v. State, 245 Ga.App. 486(1), 538 S.E.2d 135 (2000). That does not mean, however, that no threshold exists for determining whether disfiguring injuries meet the requisite level of seriousness for an aggravated battery charge. The legislature has created three distinct categories of battery: simple battery, OCGA § 16-5-23 (offensive touching or physical harm); battery, OCGA § 16-5-23.1 (substantial physical harm or visible bodily injury); and aggravated battery, OCGA § 16-5-24 (loss of body member or serious disfigurement). These statutes evidence a legislative intent to categorize the types of battery by the severity of the harm inflicted and to provide harsher penalties for batteries that result in more severe bodily harm. For example, a simple battery is generally punished as a misdemeanor. See OCGA § 16-5-23(b). The greater offense of battery, however, may be punished as a felony under certain circumstances and a prison sentence of up to five years imposed. OCGA § 16-5-23.1(e), (f)(2), (i), (k). Aggravated battery, the most grave of the battery offenses, carries a maximum 20-year penalty. OCGA § 16-5-24(b). Pursuant to OCGA § 16-5-23.1, a person commits a battery when he "intentionally causes substantial physical harm or visible bodily harm to another." Thus, this intermediate battery offense requires something more than simple battery's offensive touching or physical harm. The injury must be manifest, that is, "capable of being perceived by a person other than the victim." OCGA § 16-5-23.1(b). "[V]isible bodily harm," in fact, is defined to include, "but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts." OCGA § 16-5-23.1(b). It logically follows then that, although "seriously disfiguring" is not defined in OCGA § 16-5-24, it must require an injury more severe than the visible wounds used to illustrate the "visible bodily harm" required to support a battery conviction. In every aggravated battery based upon a serious disfigurement, including those in which the disfigurement was temporary, the injury inflicted was more than a superficial wound, that is, a scrape, bruise, discoloration, or swelling. See, e.g., Baker v. State, 246 Ga. at 318(2), 271 S.E.2d 360 (broken nose, deep lacerations requiring stitches, extensive bruising); Penland v. State, 229 Ga. 256, 257(1), 190 S.E.2d 900 (1972) (massive bruising, cuts, and swelling resulting from head trauma that left the victim incoherent); Ganas 79 v. State, 245 Ga.App. 645-646(1)(a), 537 S.E.2d 758 (2000) (a broken and distended finger); Silvers v. State, 245 Ga.App. at 486(1), 538 S.E.2d 135 (shattered nasal and sinus bones); Ramsey v. State, 233 Ga.App. 810-811(1), 505 S.E.2d 779 (1998) (lacerations to face, ear, and neck requiring stitches); Deal v. State, 233 Ga.App. 79, 84(15), 503 S.E.2d 288 (1998) (multiple, severe blows to the head requiring hospitalization); McClain v. State, 232 Ga.App. 282, 283(1), 502 S.E.2d 266 (1998) (gasoline burns resulting in scarring); Miller v. State, 155 Ga.App. at 56-57(4), 270 S.E.2d 466 (scarring from multiple gunshot wounds). We have found no case upholding an aggravated battery based upon injuries like those C.T. suffered. In fact, C.T.'s injuries are comparable to those found sufficient to support a conviction for battery. See Hussey v. State, 206 Ga.App. 122, 123(2), 424 S.E.2d 374 (1992) (bruising caused by forceful prodding with foot); Danzis v. State, 198 Ga.App. 136, 137-138, 400 S.E.2d 671 (1990) (red scuff marks that turned into substantial bruising). The evidence in this case is sufficient to support a finding that C.T. suffered visible bodily harm and, as a consequence of that, her appearance was temporarily impaired by scratches and bruises. However, the evidence adduced is insufficient to support a finding that the disfigurement was serious. Because the State adduced no evidence from which the jury could infer that C.T.'s injuries were more significant, grave, or severe than the superficial, visible wounds that would typically support a battery conviction under OCGA § 16-5-23.1, the State has failed to carry its burden of proving the "seriously disfiguring" element of the offense of aggravated battery. Consequently, the evidence, when viewed in the light most favorable to the verdict, is insufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Williams was guilty of aggravated battery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We must, therefore, reverse Williams' conviction for aggravated battery. 2. Williams claims the trial court erred in admitting C.T.'s statement that she believed Williams was trying to have sex with her because it went to an ultimate issue in the case. Williams, however, did not object to C.T.'s testimony on this basis. "If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground. Otherwise, this court will not consider it." (Citations and punctuation omitted.) Arnold v. State, 236 Ga.App. 380, 383(3), 511 S.E.2d 219 (1999). 3. Williams contends the court should have granted his motion for a mistrial because the State adduced testimony commenting on Williams' right to remain silent. We have reviewed the complained-of testimony and find that the State's questions focused on Williams' conduct immediately after what he claimed was an assault against him and did not inquire into his post-arrest silence. For example, because Williams testified on direct examination that C.T. attacked him, the State asked Williams on cross-examination why he did not report C.T.'s hysterical behavior and violent attack against him to anybody, including C.T.'s uncle or the police. Williams was not being impeached with his silence in the face of an accusation or with a tacit admission, but with his failure to immediately report what he claims was a crime against him. See Miller v. State, 228 Ga. App. 754, 755(2), 492 S.E.2d 734 (1997). We find no error. 4. Williams contends the court erred in failing to charge the jury on battery and simple battery as lesser included offenses of the crimes of aggravated assault with intent to rape and child molestation. The court did, however, charge on battery and simple battery as lesser included offenses of aggravated battery and cruelty to children. In Edwards v. State, 264 Ga. 131, 442 S.E.2d 444 (1994), the Supreme Court held that The complete rule with regard to giving a defendant's requested charge on a lesser included offense is: where the state's evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. 80 (Citation and emphasis omitted.) Id. at 133, 442 S.E.2d 444. Here, Williams' defense was self-defense. The State's evidence established the elements of aggravated assault with intent to rape. Contrary to Williams' argument, the evidence showed either the commission of the completed offenses of aggravated assault with intent to rape and child molestation as charged or the commission of no offense. Consequently, there was no error in the court's failure to charge the lesser offenses. See Huckeba v. State, 217 Ga.App. 472, 475-476(3), 458 S.E.2d 131 (1995) (aggravated assault with intent to rape); Ney v. State, 227 Ga.App. 496, 503(4)(g), 489 S.E.2d 509 (1997) (child molestation). 5. The trial court charged the jury that Williams had no duty to retreat before being justified in using force to defend himself. Williams contends the charge was an incorrect statement of the law. Williams, however, requested the charge as drafted. That request precludes a finding of error now because "on appeal, one cannot complain of a judgment, order, ruling, or charge that his own procedure or conduct aided in causing." (Citations and punctuation omitted.) Billingsley v. State, 220 Ga.App. 69, 70(2), 467 S.E.2d 377 (1996). 6. Williams argues that all the offenses for which he was convicted should have merged. Because the trial court merged the aggravated assault with intent to rape and the child molestation convictions, and because we reversed Williams' aggravated battery conviction in Division 1, the only merger issue before us is whether the cruelty to children conviction merges into either of the remaining convictions. Our review of the indictment reveals that different facts were alleged to support the child molestation, aggravated assault, and cruelty to children charges. Further, there was evidence from which the jury could have found that Williams committed the offenses based upon the facts alleged. Specifically, the cruelty to children charge alleged that Williams maliciously caused C.T. cruel and excessive mental pain by "biting her face and stomping on her face with his foot"an act not alleged in either the child molestation or assault with intent to rape charges. Although the various acts alleged were committed in close temporal proximity, the offenses were committed sequentially. Specifically, after Williams lay on top of C.T. and felt her thigh (the acts supporting the child molestation charge), he then bit her and stomped on her face with his shoe. Thus, the offense constituting cruelty to children was based upon and committed in a way different from the remaining offenses and was not satisfied by the introduction of the same evidence. Therefore, there was no merger and we do not find that the trial court erred in entering a separate conviction on cruelty to children. See Walker v. State, 214 Ga.App. 777, 780(6), 449 S.E.2d 322 (1994). Because the trial court merged this conviction into the aggravated battery conviction and imposed sentence for that greater, but now reversed, offense, we must remand to the trial court for sentencing on the cruelty to children conviction. 7. Williams contends he is entitled to a new trial because his trial counsel was ineffective. Williams complains that his trial counsel's performance was deficient because he failed to call a defense witness, do DNA blood testing on Williams' tennis shoes, and to introduce C.T.'s medical records into evidence. To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The first prong of this test cannot be met unless a defendant overcomes the "strong presumption" that his counsel's performance fell within the "wide range of reasonable professional conduct" and his counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The inquiry focuses on the reasonableness of counsel's conduct from counsel's perspective at the time of trial. Id. Thus, the courts will not second-guess counsel's decisions concerning matters of trial strategy and tactics. See Williams v. State, 265 Ga. 681, 682(1), 461 *81 S.E.2d 530 (1995). With regard to the second prong, Williams had to show that the alleged deficient performance actually prejudiced his case, that is, that there was a reasonable probability the jury would have reached a different verdict absent the error of counsel. See Concepcion v. State, 205 Ga.App. 138, 139, 421 S.E.2d 554 (1992). (a) The transcript of the motion for new trial hearing reveals that Williams' attorney made a tactical decision not to call defense witness Charles Zellars. Williams argues that Zellars would have testified that his knees were scratched and bruised in an incident that occurred a few nights before the events involving C.T. Williams' attorney testified that he determined Zellars' testimony was more damaging than helpful in that it would have made Williams out to be a complete drunkard and, consequently, unbelievable. Further, the attorney wanted to preserve his right to open and close final argument. "The decisions on which witnesses to call ... and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client." (Citations and punctuation omitted.) Austin v. Carter, 248 Ga. 775, 779(2)(c), 285 S.E.2d 542 (1982). "Whether an attorney's trial tactics are reasonable `is a question of law,' not fact." (Citation omitted.) Jefferson v. Zant, 263 Ga. 316, 318(3)(a), 431 S.E.2d 110 (1993). Because opening and closing argument is a valuable right, the trial court was authorized to conclude that the preservation of that tactical advantage was a reasonable strategy for Williams' defense attorney to pursue. See generally Givens v. State, 264 Ga. 522, 523(1), 448 S.E.2d 687 (1994) (recognizing that the right to open and close is important and that erroneous denial of that right gives rise to presumption of harm). We find that trial counsel's tactical decision was not deficient performance. (b) Williams complains that his attorney should have done DNA testing on Williams' tennis shoes to show that any blood on them was his and not C.T.'s. Williams' attorney testified that he saw little value in such a test when Williams admitted, as part of his defense of self-defense, that he "pried" C.T. off of him by putting his shoe to her face. Because Williams has failed to show that any deficiency so prejudiced his defense that a reasonable possibility exists that the trial's outcome would have been different but for that deficiency, we find no error. See, e.g., Milner v. State, 271 Ga. 578, 579(2)(3), 522 S.E.2d 654 (1999). (c) Finally, Williams argues that his attorney should have introduced C.T.'s medical records into evidence to show that she was not seriously injured. Because the photographic evidence and the testimony from C.T. and other State's witnesses amply revealed the limited extent of C.T.'s injuries, the medical records would have been redundant. For the reasons stated in Division 7(b), we find no error. Judgment affirmed in part, reversed in part, and remanded in part for resentencing. ANDREWS, P.J., and RUFFIN, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311311/	243 N.W.2d 846 (1976) STATE of Iowa, Appellee, v. Edward Dudley ROCKHOLD, Appellant. No. 58555. Supreme Court of Iowa. June 30, 1976. 847 Thomas C. Younggren, of Norman, Younggren & Webber, Keokuk, for appellant. Richard C. Turner, Atty. Gen., Thomas Mann, Asst. Atty. Gen., Barry M. Anderson, County Atty., and M. Carl McMurray, Deputy County Atty., for appellee. Submitted to MOORE, C. J., and MASON, RAWLINGS, REYNOLDSON and McCORMICK, JJ. RAWLINGS, Justice. Defendant, Edward Dudley Rockhold, appeals from judgment entered on jury verdict finding him guilty of possessing a controlled substance in violation of Section 204.401, The Code 1975. We reverse. May 2, 1975, an information for search warrant, executed by Detective Kenneth R. Beaird as a self-declared "credible resident of Keokuk, Lee County", was presented to Magistrate Herbert E. Sandidge, Sr. This information stated, in essence: "On the afternoon of March 7, 1975 S/A Robert Johstono conducted an undercover drug purchase from the above described residence consisting of 1/2 pound of marijuana. The affiant personally observed this undercover drug purchase from the afore described residence. "Approximately on March 14, 1975, the affiant received information from a citizen of the city who advised that marijuana was kept in the afore described residence in the false ceiling of the kitchen area." No additional supportive showing was made. The warrant promptly issued and thereafter defendant's home was searched. Prior to trial Rockhold moved to suppress evidential use of the fruits flowing from said search. He thereby asserted the aforesaid information was fatally defective because it did not allege facts sufficient to 848 establish probable cause for issuance of the controverted warrant. The suppression motion was overruled and trial ensued. At close of the State's case defendant again challenged validity of the search by a motion to dismiss (directed verdict) thereby alleging, in salient part, the ground advanced in his prior suppression motion. As previously noted, defendant was found guilty and thereupon sentenced by Judicial Magistrate Joseph L. Phelan to serve a term of "not more than six months" in the county jail and pay a $1000 fine. In support of a reversal Rockhold contends (1) the affidavit was insufficient as a matter of law to establish probable cause; (2) allegations in the affidavit regarding a marijuana purchase 56 days before issuance of the warrant was too remote in time to support a finding of probable cause; (3) the sentence of "not more than six months" is uncertain, therefore void. These assignments will not be entertained in the order set forth. I. At the outset it is parenthetically noted the adverse ruling on defendant's pretrial suppression motion served to preserve error for appellate review upon any ground asserted without renewal thereof by objection to controverted testimony in course of trial. See State v. Hilpipre, 242 N.W.2d 306 (Iowa 1976), and citations. See generally McRae v. United States, 137 U.S. App.D.C. 80, 420 F.2d 1283, 1287 (1969). II. We have further repeatedly held a defendant's motion for directed verdict, made at close of State's evidence and overruled, need not be later renewed in order to preserve error where, as here, no further evidence is introduced. See e. g., State v. Valde, 225 N.W.2d 313, 317 (Iowa 1975); State v. Dahlstrom, 224 N.W.2d 443, 446 (Iowa 1974). III. It is now equally well settled: "Probable cause exists for issuance of a search warrant if facts supplied [under oath] to the issuing officer are sufficient in themselves to justify a reasonably cautious person to believe a crime has been or is being committed. See Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 564, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971); State v. Everett, 214 N.W.2d 214, 217-218 (Iowa 1974); State v. Lynch, 197 N.W.2d 186, 191 (Iowa 1972). "For an extensive review of pertinent cases see State v. Kraft, 269 Md. 583, 307 A.2d 683, 685-698 (1973). "This court has also held validity of a search warrant is to be tested only upon information brought to attention of the issuing magistrate. See State v. Everett, 214 N.W.2d at 217; State v. Lynch, 197 N.W.2d at 191. See also State v. Liesche, 228 N.W.2d 44, 48 (Iowa 1975). "And, in order to suffice, claimed probable cause must rise above mere suspicion. See State v. Shea, 218 N.W.2d 610, 614 (Iowa 1974)." State v. Birkestrand, 239 N.W.2d 353, 356-357 (Iowa 1976). IV. As also observed in State v. Boer, 224 N.W.2d 217, 219-220 (Iowa 1974), probable cause "cannot be established unless the issuing officer has sufficient facts, as opposed to mere conclusions, to make his own determination that it exists." Further in this vein, no conclusory hearsay report by an informer will suffice absent a sworn underlying factual showing upon which a judicial officer may independently evaluate the reliability of such informant. See State v. Birkestrand, 239 N.W.2d at 358, citing State v. Johnson, 203 N.W.2d 126, 128 (Iowa 1972). V. Moreover, "All essential facts bearing on the existence of probable cause must either be included in an affidavit or affidavits presented to the issuing officer or in the issuing officer's abstract or abstracts of sworn oral testimony. The search warrant must stand or fall on the facts shown in that manner." State v. Liesche, 228 N.W.2d 44, 48 (Iowa 1975). See also State v. Easter, 241 N.W.2d 885 (Iowa 1976). Stated otherwise, any additional evidence adduced in course of a post-search hearing is not to be considered in weighing existence of probable cause for issuance of a 849 warrant. Consequently, testimony elicited at time of hearing upon defendant's pretrial suppression motion cannot augment the showing made by affidavit alone to Magistrate Sandidge. VI. "Another basic concept here involved, as stated by this court in State v. Hagen, 258 Iowa 196, 205, 137 N.W.2d 895, is that: `A search is good or bad when it starts and does not change character from its success. The results obtained are not a factor to be considered in determining reasonableness of the search. United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210; Carlo v. United States, 2 Cir., 1961, 286 F.2d 841.' That means, the vindicated anticipation of what may be revealed can not validate an otherwise illegal search. (Authorities cited)." State v. Spier, 173 N.W.2d 854, 858 (Iowa 1970). VII. Noticeably, by way of exclusion, defendant does not challenge the accuracy or truthfulness of some statements contained in Officer Beaird's affidavit. Therefore this facet of the case is not reviewed. See generally Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 828-829, 11 L.Ed.2d 887 (1964); United States v. Luna, 525 F.2d 4, 8-9 (6th Cir. 1975); United States v. Marihart, 492 F.2d 897, 899-900 (8th Cir. 1974); State v. Boyd, 224 N.W.2d 609, 614-616 (Iowa 1974); Annot., 100 A.L. R.2d 525, 543. VIII. Initially considered is Rockhold's claim to the effect the warrant-based affidavit was substantively inadequate to support a probable cause finding by Magistrate Sandidge. As heretofore indicated, he acted solely upon the basis of statements contained within the four corners of Officer Beaird's affidavit. Our review is accordingly confined. See State v. Spier, supra. Admittedly, defendant did not below specifically assert probable cause for issuance of a search warrant was lacking due to the inordinate lapse of time between Beaird's affidavit-based observation, or receipt of a "citizen's" report and submission of his affidavit for issuance of the requested warrant. Therefore, the foregoing issue would not ordinarily be accorded appellate consideration. See State v. Tech, 240 N.W.2d 658, 660 (Iowa 1976); State v. Merchandise Seized, 225 N.W.2d 921, 923 (Iowa 1975); State v. Kuchenreuther, 218 N.W.2d 621, 623 (Iowa 1974). Under the circumstances peculiar to this case, however, we entertain defendant's time-related probable cause assignment as a matter of justice and basic fairness. See State v. Wallace, 261 Iowa 104, 107-108, 152 N.W.2d 266 (1967); State v. Byrnes, 260 Iowa 765, 769, 150 N.W.2d 280 (1967); Code § 793.18; 22 Drake L.Rev. 477, 478-485 (1973); cf. United States v. Steeves, 525 F.2d 33, 37 (8th Cir. 1975). IX. It will at this point be recalled the affidavit is in two parts. As a preface to further discussion we find the second portion, i. e., Beaird's factually barren hearsay on hearsay conclusory statement as to a citizen's March 14 report, standing alone, provided no viable basis upon which the instantly involved warrant could lawfully issue. See Spinelli v. United States, 393 U.S. 410, 415-416, 89 S.Ct. 584, 588-589, 21 L.Ed.2d 637 (1969); Aguilar v. State of Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964); State v. Spier, 173 N.W.2d at 858-860. More specifically, mere reference to receipt of hearsay information from a "citizen" did not suffice because it could have been founded upon nothing more than mere rumor, speculation or surmise. In other words, trustworthiness thereof could not be independently determined. See State v. Birkestrand, 239 N.W.2d at 357, and citations. See also State v. Boer, supra. There remains, however, the first segment of the affidavit relating to Beaird's March 7 observance of an undercover marijuana purchase at the designated residence. Here we encounter a twofold obstacle in that said affidavit contained no statement whatsoever from which Sandidge could even reasonably infer (1) any March 7 850 occupant of the described premises resided there 56 days later when the May 2 warrant issued or (2) existence of a continuing illegal activity at the given address within the facially evident lengthy intervening period. Unquestionably, facts recited in support of a request for issuance of a search warrant must be so closely related to the moment of issuance as to justify a finding of probable cause at that time. See Sgro v. United States, 287 U.S. 206, 210-211, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932). It therefore follows that although time is not alone determinative it is one of several factors to be considered in ascertaining the existence or nonexistence of probable cause for issuance of a search warrant. See Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173, 176-177 (1963); State ex rel. Townsend v. District Ct. of Fourth J.D., Mont., 543 P.2d 193, 195-196 (1975); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897, 899 (1971); Stovall v. Commonwealth, 213 Va. 67, 189 N.E.2d 353, 356 (1972); State v. Spencer, 9 Wash.App. 95, 510 P.2d 833, 834 (1973), and citations; 3 Wright, Federal Practice and Procedure, § 662, n. 30 at 23; 68 Am.Jur.2d, Searches and Seizures, § 70; 79 C.J.S. Searches and Seizures § 74; Annot., 100 A.L.R.2d 525; cf. State v. Birkestrand, 239 N.W.2d at 358-359; Ashley v. State, 251 Ind. 359, 241 N.E.2d 264, 268-269 (1968); State v. Ingram, 251 Or. 324, 445 P.2d 503, 504-505 (1968); 59 Iowa L.Rev. 1308 (1974). It is to us apparent Officer Beaird's specious reference to an isolated and remote purchase at the given address created a factual vacuum which Magistrate Sandidge ostensibly filled by an impermissible bootstrap process. In brief, the affidavit read as a whole did not provide requisite probable cause upon which the controverted search warrant could properly issue. Consequently, trial court erred in overruling Rockhold's suppression motion as to fruits of the warrant-based search. Attendant introduction of same in evidence necessitates a reversal. See Saville v. O'Brien, 420 F.2d 347, 351 (1st Cir. 1969); Application of Gray, 155 Mont. 510, 473 P.2d 532, 537 (1970). X. By virtue of the above holding there is no need to discuss the indeterminate sentence here once again improperly entered by Judicial Magistrate Phelan. See State v. Hendricks, 240 N.W.2d 640 (Iowa 1976), and citations. We reverse and remand this case for a new trial before a judge of the district court. REVERSED AND REMANDED FOR A NEW TRIAL.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311323/	243 N.W.2d 129 (1976) STATE of Minnesota, Respondent, v. Thomas Chester HOUFF, Appellant. No. 45401. Supreme Court of Minnesota. May 28, 1976. 131 C. Paul Jones, Public Defender, Rosalie E. Wahl, Spec. Asst. Public Defender, Minneapolis, for appellant. Warren Spannaus, Atty. Gen., Peter W. Sipkins, Sol. Gen., Kent G. Harbison, Spec. Asst. Atty. Gen., St. Paul, Wallace C. Sieh, County Atty., Austin, for respondent. Heard before SHERAN, C. J., and ROGOSHESKE and SCOTT, JJ., and considered and decided by the court en banc. SHERAN, Chief Justice. Defendant, after being certified for prosecution as an adult, was found guilty by a Mower County District Court jury of burglary, Minn.St. 609.58, subd. 2(3), and sentenced to not to exceed 3 years in prison. On appeal, defendant contends that his conviction should be set aside because (1) he was improperly certified for prosecution as an adult; (2) evidence admitted against him at trial was obtained in violation of his Fourth Amendment rights; and (3) his conviction is not supported by sufficient evidence. For the reasons which follow, defendant's conviction is affirmed. Sometime on the night of May 30-31, 1973, the public school in Rose Creek, Minnesota, was burglarized. Various items, including padlocks, postage stamps in a plastic dispenser, and some change, mostly pennies, were taken. On the same night, a pop machine at a gas station in Brownsdale, Minnesota, was jimmied open. About 1 a. m. that night, Leon Plantz, then a resident of Brownsdale, observed two or three persons get out of a dark, older-model Dodge car and walk over to the gas station. Plantz had earlier observed that the car made a loud exhaust noise as though it had no muffler and that the car's right high-beam headlight was out. When Plantz heard banging noises coming from the direction of the gas station, he phoned law-enforcement authorities. After Mr. Plantz's phone call, Mower County sheriff's deputies investigated the Brownsdale gas station. They found the station's pop machine jimmied open, and a description of the car was broadcast over the police radio. About 3 o'clock that same night, a car matching the description of the car seen in Brownsdale was stopped by a police officer in Austin, Minnesota. The car was driven by Dale Hoy; defendant, Thomas Houff, was a front-seat passenger and Paul Lowell was riding in the back seat. The two sheriff's deputies who had investigated the Brownsdale gas station were called to the scene. One went up to the black Dodge and shone a three-cell flashlight through the windows. Because the fiberboard on the deck between the rear seat and the back window was missing, it was possible for the deputy to shine his flashlight into the trunk of the car. He did this and observed there some objects that were covered with dust and a crowbar that had no dust on it. The crowbar was taken from the car and the rest of the car was searched. The deputies discovered several items, including two padlock boxes, a roll of stamps in a plastic stamp dispenser, and $2.91 in change. The three occupants of the car were also required to empty their pockets, and each had 15 or 20 pennies. That night, only the crowbar and the $2.91 in change were seized. The Rose Creek school burglary was discovered on the morning of May 31. Subsequently defendant 132 was arrested and this prosecution resulted. 1. Defendant's first argument is that he was improperly referred for adult prosecution because no hearing was held pursuant to Minn.St. 260.125. This argument overlooks the fact that defendant waived his right to a reference hearing. When the state petitioned the juvenile court for an order referring defendant for adult prosecution, a reference hearing was scheduled for July 25, 1973. At the request of defendant's parents, the hearing was rescheduled for July 27. On July 27 defendant appeared with his mother, and the juvenile court appointed Philip Richardson as defendant's attorney. The reference hearing was postponed until defendant had had an opportunity to confer with his court-appointed counsel. The two conferred that same day, and as a result of this conference attorney Richardson phoned the juvenile court judge to inform him that defendant had decided not to oppose referral for prosecution as an adult. A letter from Richardson to the judge, dated July 30, 1973, confirmed this phone conversation.[1] Defendant's reliance on Juvenile Court Rule 1-5 for the proposition that a reference hearing may not be waived is misplaced. Rule 1-5(1) explicitly states that any right accorded a juvenile by the rules or by the Juvenile Court Act may be waived, except the child's right to counsel at a hearing to determine whether he should be referred for adult prosecution for an act which would be a felony if committed by an adult.[2] As was stated in People v. Sprinkle, 4 Ill.App.3d 6, 15, 280 N.E.2d 29, 36 (1972), "There is no authority to sustain the proposition that due process requires a [reference] hearing for all that is required is that the defendant be afforded the opportunity and right to such a hearing."[3] See, also, Haziel v. United States, 131 App.D.C. 298, 304, 404 F.2d 1275, 1281 (1968), and In re Maricopa County Juvenile Action No. J-72804, 18 Ariz.App. 560, 564, 504 P.2d 501, 505 (1972). Furthermore, defendant's waiver of the reference hearing appears to have been knowingly and intelligently made by defendant and his parent when both were fully informed of his right to the hearing. Juvenile Court Rule 1-5(2, 3); State v. Hogan, 297 Minn. 430, 440, 212 N.W.2d 664, 670 (1973). The nature of the referral hearing and the defendant's rights were explained to both defendant and his mother by both the juvenile court judge and the county attorney on July 27, 1973. Attorney Richardson presumably did likewise when he conferred with defendant on the same day. These facts take this case outside Haziel v. United States, supra, which condemned acceptance of such waivers by juvenile courts when the juvenile himself does not participate in the decision to waive. We therefore hold that defendant's waiver of his right to a reference hearing was valid and that the district court had jurisdiction to try defendant as an adult. 2. Defendant's second argument is that the trial court improperly admitted into evidence the crowbar seized on May 31, 1973, and facsimiles of the padlock box and stamp dispenser,[4] and that the court improperly permitted testimony about the pennies found on the persons of the car's occupants on the night in question. Defendant bases this argument on a contention that his Fourth Amendment rights were violated. We disagree. As to the crowbar, the deputy who shone his flashlight into the car from outside 133 the car's rear window clearly had a right to be in that place. State v. Crea, Minn., 233 N.W.2d 736 (1975). The officer's flashlight search of the car from the outside is justified because he had probable cause to believe that the occupants of the car had been involved in the Brownsdale break-in and that either an instrumentality or the fruits of that crime would be present in the car.[5] The test is not whether it would have been reasonable for the police to obtain a search warrant, but whether they acted reasonably in proceeding without one. State v. Crea, supra. We believe that this warrantless flashlight search was reasonable because it was justified by probable cause and involved minimal intrusion. We therefore hold that the officer acted reasonably in looking through the car window with his flashlight. Once the crowbar was observed, the totality of the circumstances created probable cause to justify its seizure. State v. Lee, Minn., 225 N.W.2d 14 (1975). The crowbar was the only dust-free item in the trunk. It had traces of white paint chips on one end, and the pop machine at the Brownsdale station was white. Moreover, seizing the crowbar was the only way to preserve easily disposable personal property which the officers had reason to believe was an instrumentality of the crime. Observation of the crowbar in the trunk, when combined with what the officers already knew about the Brownsdale gas station incident, created probable cause to believe that the car might contain fruits of the crime committed at Brownsdale. Therefore the search of the car subsequent to the discovery of the crowbar was justified. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Neither the fact that no warrant had been obtained nor the fact that no arrests had been made prevented the search in these circumstances. State v. Bean, 280 Minn. 35, 42, 157 N.W.2d 736, 741, certiorari denied, 393 U.S. 1003, 89 S.Ct. 493, 21 L.Ed.2d 468 (1968). While it is more difficult to justify the personal search of the occupants of the car which occurred on the night in question, we conclude that the effect on the jury, if any, of testimony concerning the discovery of pennies in the pockets of defendant and his companions was de minimis. Only one reference to the fact that pennies were found in the youths' pockets appears in the entire transcript; similarly, there is only one reference to the fact that some change, "mostly pennies," was among the items missing from the Rose Creek school. If it was error to admit the testimony about the pennies in the pockets of the defendant and his companions, it was harmless. State v. Loss, 295 Minn. 271, 204 N.W.2d 404 (1973). 3. Defendant's third argument is that his conviction is not supported by sufficient evidence. We do not agree. We review the evidence in the light most favorable to the outcome below. State v. Ellingson, 283 Minn. 208, 211, 167 N.W.2d 55, 57 (1969). The scope of our review is limited to ascertaining whether upon the evidence contained in the record the jury could reasonably find the accused guilty of the offense charged. State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 631 (1965). Defendant, Dale Hoy, and Paul Lowell all testified at the trial. Their story was that Hoy had taken defendant and Lowell to Spring Valley late in the afternoon of May 30 in the Dodge, and that defendant and Lowell had remained there until sometime after 1 o'clock that night, when Hoy returned to pick them up. Hoy and Lowell admitted stopping in Brownsdale around 2 a. m., but according to their testimony Hoy alone went to the gas station while defendant and Lowell just got out of the car to stretch their legs and walk around a bit. Defendant said he slept and did not know whether they stopped in Brownsdale or Rose Creek. Hoy admitted both break-ins, but claimed sole responsibility for both of them. 134 This testimony was undercut in several respects, however. On cross-examination, Hoy admitted that he had given false testimony on direct examination in an effort to "keep Brownsdale out" of their story, and he twice admitted that he had lied, once about having been alone when he returned to Spring Valley late on the night of May 30, and about having come straight back to Austin from Spring Valley once he got there. Cross-examination of Paul Lowell brought out a prior inconsistent statement he had given to the sheriff's department wherein he apparently stated that he alone had been the one left at Spring Valley and that both Hoy and defendant had picked him up later. It was established that only one sleeping bag and one small tent were with whoever stayed at Spring Valley.[6] Expert testimony established that the crowbar found in the black Dodge was the one used to break into the Rose Creek school. That crowbar belonged to defendant's father. Furthermore, testimony that the three youths had not been in Brownsdale until about 2 o'clock was undercut by the fact that sheriff's department telephone records logged in the call from Mr. Plantz at 12:52 on the night in question. Finally, it was shown that Hoy and defendant were best friends and that Hoy had been in the Rose Creek school only once before. The three youths did not deny that they had been in Rose Creek or Brownsdale. Rather, the question was who had been where and who had done what. We believe there was sufficient relevant evidence of probative value to justify the jury's verdict of guilty. State v. Crosby, 277 Minn. 22, 151 N.W.2d 297 (1967). For the reasons stated in this opinion, defendant's conviction is affirmed. Affirmed. NOTES [1] "Confirming my telephone call to you on the afternoon of July 27, Thomas Houff was in my office and he has decided not to oppose referral of his case to the adult court." [2] Also excepted, and therefore not subject to waiver, is the juvenile's right to nondisclosure of juvenile court records. Juvenile Court Rule 1-5(1). [3] Opportunity and right to such a hearing are afforded in Minnesota pursuant to Minn.St. 260.125, subd. 2(c). [4] Only facsimiles of these two items could be introduced, for Hoy testified that he threw the padlocks into a lagoon near Houff's house, and that he sold the stamps to a truckdriver. [5] The officer who conducted the flashlight search was also one of the officers who investigated the Brownsdale gas station incident. [6] There was a rumor of a party to be held in a field, and the camping gear was brought along because the previous parties had often lasted more than one day.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2260037/	167 Cal.App.4th 681 (2008) OMOTAYO FASUYI, Plaintiff and Respondent, v. PERMATEX, INC., Defendant and Appellant. No. A117760. Court of Appeals of California, First District, Division Two. October 15, 2008. 684 Poole & Shaffery, John Shaffery, Karl Kime and Rey S. Yang for Defendant and Appellant. Hooy & Hooy and Robert J. Hooy for Plaintiff and Respondent. 685 OPINION RICHMAN, J. The law favors resolution of cases on their merits, and because it does, any doubts about whether Code of Civil Procedure section 473[1] relief should be granted "`must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court denying relief is scrutinized more carefully than an order permitting trial on the merits.' [Citations.]" (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [35 Cal.Rptr.2d 669, 884 P.2d 126] (Rappleyea).) Justice Mosk began Rappleyea with a succinct statement of the question before the Supreme Court and its answer: "The question is whether a default must be set aside and a default judgment reversed on the ground of abuse of discretion. We conclude that they must be . . . ." (8 Cal.4th at p. 978.) The question before us is the same. And so is our answer. In August 2004, Omotayo Fasuyi was working at his place of employment when a brake-cleaning product manufactured by Permatex, Inc., dripped on him. In August 2006, some three weeks before the statute of limitations would expire, Fasuyi filed a complaint for personal injuries against Permatex. Fasuyi's counsel was having difficulty effecting service, and made contact with the legal department at Illinois Tool Works, Inc. (ITW), the parent company of Permatex, which advised him how to serve the complaint, including providing the address of its agent for service. Service was finally effected on December 4, 2006beyond the time set forth in the California Rules of Court and the case management order issued by the superior court. A paralegal at ITW promptly forwarded the summons and complaint to ITW's insurance broker, which promptly forwarded it to the appropriate insurers, which acknowledged receipt. Despite that, no response to the complaint was filed. Shortly after a response was due, Fasuyi's counsel filed a request for default, filed without any communication with anyone at ITW or anyone else. Thirteen days later, Fasuyi obtained a default judgment for $236,500, against a background that can only be described as unusual. When Permatex learned of the default judgment, it quickly retained counsel, who requested Fasuyi's counsel to voluntarily set it aside. He refused. On March 23, 2007, 15 days after it learned of the judgment, Permatex filed a motion for relief from default. The motion was denied without explanation, in a four-word order. 686 As we explain, the default judgment should probably never have been granted in the first place, which is bad enough. Worse, the trial court denied Permatex's motion for relief, this in the face of a record demonstrating that Permatex was not derelict. Such denial was a manifest abuse of discretion and prejudicial to Permatex. We thus reverse. BACKGROUND The Facts Permatex, which manufactures a "Brake & Parts Cleaner," is a wholly owned subsidiary of ITW, a diversified manufacturer of advanced industrial technology. ITW is an international business corporation with 825 decentralized business units located in 52 countries, and employs approximately 60,000 people. ( [as of Oct. 15, 2008].) Fasuyi's counsel described it at oral argument as number "175 in the Fortune 500." On or about August 25, 2004, while employed as a mechanic in Oakland, Fasuyi was underneath a vehicle performing repairs when the brake cleaner dripped onto his forehead and left hand. Fasuyi, an African-American, claimed that this caused him to develop patches of hypopigmentation, a whitening of his skin, requiring medical treatment and subjecting him to ridicule. On August 1, 2006, Fasuyi filed a complaint in Alameda County Superior Court against Permatex, seeking damages for his physical and emotional injuries, under theories of strict products liability, failure to warn, breach of warranty, and negligence. Counsel for Fasuyi was having difficulty serving the complaint. As he explained it: "Before defendant was served in December, I had multiple contacts with the legal department at [ITW] about plaintiff's case. My process server had attempted to serve plaintiff's complaint and related materials on CT Corporation Systems (CT Corp.), which refused to accept them. During one of my calls and after I explained who I was and the purpose of my call (to arrange for service of plaintiff's complaint), a representative of [ITW] confirmed that CT Corp. was the defendant's agent and confirmed the agent's address."[2] As set forth in the original "Affidavit of Service" executed by Christine Foran, on December 4, 2006, Ms. Foran served a copy of "the Summons and Complaint for Damages," "c/o CT Corporation, One Commercial Plaza, Harford, CT." The affidavit of service did not indicate that a statement of damages was also served. 687 Elizabeth Ahlman, a paralegal at ITW, testified that CT Corporation "forwarded the Summons and Complaint to [ITW]"; and that "on or about December 12, 2006, [ITW] forwarded the summons and complaint to Permatex's insurance broker, Marsh USA," requesting it to in turn forward the documents to Permatex's insurance carriers with instructions to provide a defense to the lawsuit on behalf of Permatex. Ms. Ahlman "believed that Permatex's insurance carriers would retain counsel to respond to the Complaint in a timely fashion." Jacqueline Sbarbono, as associate consultant for Marsh, confirmed that "on December 12, 2006, Marsh received the summons and complaint . . . from [ITW] with instructions for Marsh to forward the complaint" to the insurers. The next day, December 13, Sbarbono "forwarded the . . . Summons and Complaint to the claims managers at Ohio Casualty Insurance and Crum & Forster, insurers for Permatex, via Overnight Mail." And along with forwarding the summons and complaint, Sbarbono "provided said claims managers with the insured contact information and requested written confirmation of receipt of the Summons and Complaint by noting the insurers' file numbers. [Sbarbono] also instructed the claims managers to contact Permatex directly confirming the same. [¶] [Sbarbono] received said written confirmation and was under the mistaken belief that Permatex's insurers would contact Permatex directly, file an answer to the complaint on Permatex's behalf and undertake Permatex's representation in this matter." No responsive pleading was filed. As indicated ante, Fasuyi's counsel had been in contact with the legal department at ITW, which had assisted him in effecting service. Despite that, counsel did not contact anyone thereor anyone elseand instead on February 14, 2007, filed a request for entry of default, followed shortly thereafter by a default judgment. It was hardly a model of default judgment procedure, as the detailed description post makes clear. The Default Proceedings On February 14, 2007, counsel for Fasuyi filed a request for entry of default against Permatex, along with a request for court judgment, and mailed a copy of the request to Permatex's agent for service of process. The Alameda County Clerk entered the default that day. The leading practice treatise sets out the documentation required for such default: "Documentation required: The application for entry of default normally consists of the following documents: [¶] . . . Request to Enter Default form, including a declaration of mailing copies to defendant and 688 defendant's counsel if known (see ¶5:74); [¶] . . . Proof of service of summons (if the original summons has not already been returned with proof of service) or of notice of order fixing time for further response (e.g., after demurrer overruled); [¶] . . . In superior court injury or death actions, where the damage amount is not alleged in the complaint, a CCP §425.11 statement of damages and proof of service thereof (see ¶5.82)." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 5.73, p. 5-19 (rev. #1 2008).)[3] Fasuyi's request for default was on the required mandatory form (Judicial Council form CIV-100), though the section labeled "[j]udgment to be entered" was blank. There is no indication in the record that the request was accompanied by any statement of damages, let alone on the mandatory form adopted by the Judicial Council. (See Judicial Council form CIV-050 [Statement of Damages (Personal Injury or Wrongful Death)].) And as will be seen, the statement of damages Fasuyi's counsel would later claim was in fact served was not on the mandatory form. On February 28, 2007, the matter came on for what the minutes say was a "court trial." The minute order provides in its entirety as follows: "Cause called for Court Trial on February 28, 2007. "Plaintiff Omotayo Fasuyi appearing represented by Hooy, Robert J. "Defendant Permatex, Inc. not appearing. "9:35 AMOmotayo Fasuyi sworn for Plaintiff as a witness and under Direct Examination. "This cause came on for hearing this day at the request of plaintiff. "The defendant(s) hereinafter named having been personally served with summons and copy of complaint, having failed to appear and answer the complaint within the time allowed by law and in said summons specified, and 689 the default of said defendant(s) having been entered: Judgment was entered on 2/28/07 as: Judgment for Plaintiff. "Plaintiff submitted proposed Judgment for signature of Court." Of course, the proceeding was not a court trial. It was default prove-up hearing. (See Merrifield v. Edmonds (1983) 146 Cal.App.3d 336, 341 [194 Cal.Rptr. 104] [explaining distinction between default judgment and "uncontested" § 594 proceeding in that case].) But more to the point involved here, there is no indication anywhere in the record that the court had before it at that time any statement of damages. Certainly the minute order does not refer to it. That same day a "Judgment" was signed, and also a "Default Judgment (Court)" which concluded as follows: "It is hereby ordered, adjudged and decreed that: [¶] 1. Plaintiff Omotayo recover $236,500.00 against defendant Permatex, Inc., together with costs of suit of $505.00, with interest at the rate of ten percent (10%) per annum until paid." As noted, there is no indication that on February 28 the court had before it any statement of damages. And absolutely clear in the record is that there was no proof of service on Permatex of such statement of damages, a statutory prerequisite before any default judgment can be entered. As to this, the declaration of Fasuyi's counsel later filed in opposition to Permatex's motion represented that the "judgment was entered subject to plaintiff later submitting an amended proof of service of plaintiff's statement of damages on or about December 4, 2006. Plaintiff has obtained this amended proof of service and filed the same and plaintiff's statement of damages with the court along with this opposition." This second proof of service will be discussed post. The Motion to Set Aside According to paralegal Ahlman, ITW learned of the default judgment on March 7, 2007. That same day Ahlman contacted the firm of Poole & Shaffery, LLP, and retained it to represent Permatex. On March 8, 2007, Rey Yang at that firm called Fasuyi's counsel requesting that he voluntarily lift the default. Counsel refused, and Mr. Yang followed up that same day with a letter, pointing out that the judgment was invalid due to the statement of damages issue and again requesting voluntary relief from the judgment. The record reflects no response from Fasuyi's counsel. On March 23, 2007, Poole & Shaffery filed its motion to set aside and "for leave to defend itself" in the action. The motion was supported by the declaration of paralegal Ahlman, setting forth the history of the tender of 690 defense discussed ante, and the declaration of Attorney John Shaffery; it was also accompanied by the required proposed answer. The motion made two arguments: (1) the default judgment violated due process as protected by section 425.11, as Fasuyi failed to properly serve Permatex with a statement of damages prior to the entry of the default judgment; and (2) Permatex's failure to respond constituted inadvertence or excusable neglect entitling Permatex to relief under section 473, subdivision (b). On April 12, 2007, Fasuyi filed his opposition. It consisted of a memorandum, objections to evidence,[4] and the declaration of Fasuyi's counsel. As to the statement of damages issue, Fasuyi's opposition asserts this: "[i]n this case, plaintiff served his two-page Statement of Damages on defendant on December 4, 2006, by serving a copy of the same on CT Corp., defendant's agent for service of process. The proof of service, executed under penalty of perjury, is on file herein. Further defendant acknowledges receipt of a statement of damages, just not a `complete' one. Interestingly, defendant never produced a copy of the less than `complete statement of damages' it received, and there is no evidence defendant sought to discover the `complete' contents of plaintiff's Statement of Damages until defendant's counsel became involved in the matter." On April 18, Permatex filed its reply memorandum, along with the declarations of Sbarbono and Marla Almazan, an attorney at Poole & Shaffery. The motion was set for hearing on April 25, 2007, and was apparently argued that day. There is no indication the hearing was reported, and Fasuyi's brief asserts that "no transcript of the hearing was made," a fact confirmed by a call to the Alameda County Clerk.[5] 691 On April 27, a minute order was entered which reads in its entirety as follows: "The Motion to Vacate/Set Aside Default and Default Judgment filed for Permatex, Inc. was set for hearing on 4/25/2007 at 9:00 AM in Department 136 before the Honorable Winton McKibben. [¶] The matter was argued and submitted, and good cause appearing therefore, [¶] It is hereby ordered that: [¶] The motion is denied." On May 9, 2007, Permatex filed a notice of appeal from the February 28, 2007 judgment and the April 27, 2007 order. DISCUSSION The Role of the Court in Default Judgments (1) It is, of course, the case that there is no opposing party in a default judgment situation. Thus, cases properly recognize that in such situation "it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through." (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 868 [121 Cal.Rptr.2d 695]; see Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1179 [36 Cal.Rptr.3d 663].) California Judges Benchbook: Civil Proceedings Before Trial (CJER 2d ed. 2008) (Benchbook) is a treatise that "focuses on the judge's role." (Benchbook, supra, preface, p. v.) It provides "practical working tools to enable a judge to conduct proceedings fairly, correctly, and efficiently. [It is] written from the judge's point of view, giving the judge concrete advice on what to look for and how to respond." (Ibid.) (2) Chapter 16 of the Benchbook deals with defaults and default judgments, and in its second section of advice states that "[a] judge may enter a default judgment against a defendant only if the plaintiff has precisely followed certain procedures that ensure that the defendant received sufficient notice of the pending action to make an informed choice as to whether to defend or ignore the plaintiff's claims. [Citations.] When the plaintiff fails to comply with these procedures, the defendant need not suffer the consequences of a default judgment. [Citation.]" (Benchbook, supra, § 16.2, p. 371.) As the Court of Appeal put it in Lopez v. Fancelli (1990) 221 Cal.App.3d 1305, 1312 [271 Cal.Rptr. 87], the first case cited in the Benchbook: "The rules pertaining to defaults and default judgments must be precisely followed to ensure that a defaulting defendant is aware of plaintiff's claims." Those rules were not "precisely followed" here. And there apparently was no gatekeeper. 692 The Default Judgment Was Highly Irregular (3) Section 425.11 requires that before any default judgment can be entered in a personal injury case, the plaintiff must serve the defendant with a statement of damages. (§ 425.11, subds. (b), (c).) "Such notice enables a defendant to exercise his right to choose . . . between (1) giving up his right to defend in exchange for the certainty that he cannot be held liable for more than a known amount, and (2) exercising his right to defend at the cost of exposing himself to greater liability." (Greenup v. Rodman (1986) 42 Cal.3d 822, 829 [231 Cal.Rptr. 220, 726 P.2d 1295].) As noted ante, there is no indication that on February 28 the court had before it any statement of damages. And absolutely clear in the record indeed, admitted by Fasuyiis that there was no proof of service on Permatex of such statement of damages, a statutory prerequisite before any default judgment can be entered. As to this, the declaration of Fasuyi's counsel later filed in opposition to Permatex's motion represented that the "judgment was entered subject to plaintiff later submitting an amended proof of service of plaintiff's statement of damages on or about December 4, 2006. Plaintiff has obtained this amended proof of service and filed the same and plaintiff's statement of damages with the court along with this opposition." Permatex first argues that the trial court failed to properly apply section 425.11 to the facts of this case, asserting that Fasuyi failed to serve it with the complete statement of damages in advance of the default judgment and therefore the court lacked jurisdiction under section 425.11 to enter the judgment.[6] Permatex presented the trial court with evidence that the statement of damages had not been properly served, including an affidavit from Ms. Almazan at Poole & Shaffery stating that the case file she received from Permatex in early March (after entry of the default judgment) did not include the complete statement of damages but only "a single page of an incomplete document entitled `Statement of Nature and Amount of Damages,'" and that she was "informed that Permatex does not have a complete copy of plaintiff's statement of damages." On the other hand, in his opposition to Permatex's motion Fasuyi argued that the default judgment was "subject to" a later proof of service, and filed what his counsel called an "amended proof of service," though the word "amended" nowhere appears on it. This second proof of service stated that 693 Ms. Foran served "Permatex on December 4, 2006 with Statement of Damages" along with the "Summons and Complaint, Civil Case Cover Sheet, a Notice of Case Management Conference and Order."[7] What we have, therefore, is a default judgment entered "subject to" later proof, which later proof, it would develop, was a "statement of damages" not on the mandatory form, but on a pleading prepared by Fasuyi's counsel. If all that is evidence of "rules . . . [being] precisely followed" (Lopez v. Fancelli, supra, 221 Cal.App.3d at p. 1312), it comes in a novel guise. So, we have a conflict in the "evidence" as to what was in fact served by way of a statement of damages. Permatex says it received only the first page, a page which listed the damages at $31,500. Fasuyi says there was service of the complete statement of damages as claimed in the second proof of service though, Fasuyi would be forced to admit, not on the mandatory formwhich, it bears noting, has all the damages claimed on the first page. That is the record before us. What do we do with it? Permatex asserts that the trial court exceeded its authority when it allowed Fasuyi to later file an amended proof of service showing that the statement of damages had been served along with the original summons and complaint. Perhaps we should agree, and call the default judgment void. This would preclude any "subject to" default judgments to exist, assuring that all the i's are dotted and the t's are crossed, as the Benchbook dictates, and thus assuring that all rules are "precisely followed." Or perhaps we should only call the judgment irregular, as some courts have done in analogous circumstances. (See National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 416 [214 Cal.Rptr. 113] [judgment based on late return of proof of service of complaint]; Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1589 [236 Cal.Rptr. 112] [same].) We conclude we need not decide the question, as we hold that the motion to set aside had to be granted. And that not to grant it was an abuse of discretion. 694 The Trial Court Abused Its Discretion in Denying Relief Under Section 473, Subdivision (b) Section 473, subdivision (b) states that a court "may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." This part of section 473 is recognized as invoking the trial court's discretion, and the judgment of the trial court "`shall not be disturbed on appeal absent a clear showing of abuse.'" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254, 257 [121 Cal.Rptr.2d 187, 47 P.3d 1056].) (4) To obtain discretionary relief under section 473, the moving party must show the requisite mistake, inadvertence, or excusable neglect. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478 [25 Cal.Rptr.2d 278], quoting Iott v. Franklin (1988) 206 Cal.App.3d 521, 526-528 [253 Cal.Rptr. 635].) Section 473 also requires that the party diligently seek relief "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (§ 473, subd. (b).) Permatex argues that it is entitled to relief under the discretionary provision because its failure to file a response to the complaint was the result of mistake, inadvertence, or excusable neglect. Permatex demonstrated that paralegal Ahlman promptly forwarded the legal documents to the insurance broker. Permatex also demonstrated that its broker did what it was supposed to do, promptly forwarding the process to the insurers and instructing the claims managers to contact Permatex directly; and that the broker received written confirmation of that, and was under the expectation that the insurer would retain counsel and appear on Permatex's behalf. As Permatex distills it: "[Permatex] knew nothing of the default or default judgment until after receiving service of the latter in the amount of $236,500, plus $505 in costs. Something went awry after transmittal of the complaint to the insurance carrier, but precisely what is not known. This was a classic instance of mistake and inadvertencebut not on the part of [Permatex], which did what all corporations do when served with a complaint: send it to the carrier for handling. Thus . . . there are abundant grounds for reversal under [section 473, subdivision (b)] because of mistake, inadvertence and excusable neglect." We could not agree more. Twenty years ago we set out the governing principles, in McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352 [243 Cal.Rptr. 617], a case involving a dismissal of a CEQA (California Environmental Quality Act; Pub. Resources Code, § 21000 et seq.) petition for failure to timely request a 695 hearing. The trial court denied relief sought under section 473. We reversed. After first holding that section 473 relief was available in the CEQA-notice context, we went on: "The next question is whether the trial court erred in refusing to grant section 473 relief under the facts herein. Our standard of review is well articulated by the California Supreme Court in Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [211 Cal.Rptr. 416, 695 P.2d 713]: `A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. [Citations.] However, the trial court's discretion is not unlimited and must be "`exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.'" [Citations.] [¶] Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations "very slight evidence will be required to justify a court in setting aside the default." [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]'" (McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at pp. 359-360.) Last year we elaborated on the concept of abuse of discretion, in People v. Jacobs (2007) 156 Cal.App.4th 728 [67 Cal.Rptr.3d 615]. Holding that there was an abuse of discretion in denying a continuance, we ended our discussion with this observation: "In Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407, 1417 [111 Cal.Rptr.2d 511] our colleagues in Division Four of this court observed that `Abuse of discretion has at least two components: a factual component ... and a legal component. [Citation.] This legal component of discretion was best explained long ago in Bailey v. Taaffe (1866) 29 Cal. 422, 424: "The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . ."' "All this is well described in Witkin where, likewise citing the still vital Bailey v. Taaffe, supra, 29 Cal. 422, 424, the author distills the principle as follows: `Limits of Legal Discretion. [¶] The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to 696 reversal on appeal where no reasonable basis for the action is shown. (See 5 Am.Jur.2d, Appellate Review § 695.) . . .' (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 358, pp. 406-407.)" (People v. Jacobs, supra, 156 Cal.4th at pp. 737-738.) Applying that law here leads inescapably to the conclusion that the trial court abused its discretion hereall legal principles favored Permatex. (5) The most fundamental of those principles is that affirmed in Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 [90 Cal.Rptr.2d 227, 987 P.2d 697]: "`[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.'" (Citing among other cases, Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [48 Cal.Rptr. 620, 409 P.2d 700] (Weitz).) "Because the law favors disposing of cases on their merits, `any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.'" (Rappleyea, supra, 8 Cal.4th at p. 980, quoting Elston v. City of Turlock, supra, 38 Cal.3d at p. 233 (Elston).) In Witkin's typically succinct statement of the rule, the remedial relief offered by section 473 is "highly favored and is liberally applied." (8 Witkin, Cal. Procedure, Attack on Judgment in Trial Court, supra, § 152, pp. 653-654 and numerous cases there collected.) As a result of those principles, the Supreme Court has recognized that if a defendant promptly seeks relief (as Permatex did here) and there is no showing of prejudice to Fasuyi (as is the case here), "`very slight evidence will be required to justify a court in setting aside the default.'" (Elston, supra, 38 Cal.3d at p. 233.) Or as Elston put it two pages later, "[u]nless inexcusable neglect is clear, the policy favoring trial on the merits prevails." (Id. at p. 235.) There was more than slight evidence here. And no inexcusable neglect. Though admittedly arising in a setting where the trial court set aside the dismissal, Weitz, supra, 63 Cal.2d 849, is particularly persuasive. Weitz arose out of a car accident in April 1961, which occurred when the defendant, Yankosky, was hit by Weitz's car as the defendant was backing out of his driveway. The defendant reported the accident to his insurance agent, and also filed an SR-1 form with the Department of Motor Vehicles, stating he had automobile liability insurance with Trinity Universal (Trinity). In May 1961, the defendant settled a claim with Weitz's insurance carrier (Allstate) and believed the matter was resolved. It was not. 697 The next month, June, the plaintiff filed suit against the defendant and served it on him. The defendant immediately mailed the summons and complaint to Trinity at its home office in Dallas. After the defendant mailed the summons and complaint, "he made no inquiry of Trinity as to the status of the case because `I had thought I had settled with the insurance company [Allstate] and I . . . continued to believe that the insurance carrier had either disposed of the matter or was handling it without contacting [me].'" (Weitz, supra, 63 Cal.2d at p. 852.) The defendant's correspondence was never received by Trinity. And no answer was filed. (Ibid.) A request for default was filed in November 1961, and in May 1962, a default judgment obtained. (Weitz, supra, 63 Cal.2d at p. 852.) The defendant did not learn of the default judgment until March 1963 (id. at p. 853), well beyond the six-month time to seek relief under section 473, subdivision (b). A motion was finally made in August 1963, necessarily directed to the "court's inherent equity power . . . to grant relief . . . where there has been `extrinsic' fraud or mistake." (63 Cal.2d at p. 855.) The trial court granted the motion. The Supreme Court affirmed, in a unanimous opinion by Justice Peters setting forth the law controlling here: (6) "Where a default is entered because defendant has relied upon a codefendant or other interested party to defend, the question is whether the defendant was reasonably justified under the circumstances in his reliance or whether his neglect to attend to the matter was inexcusable. [Citations.] This rule has been held applicable where an insured relied upon his insurer to defend. (Pelegrinelli v. McCloud River [etc.] Co., [(1905)] 1 Cal.App. 593, 594 et seq. [82 P. 695].) [¶] With regard to whether the circumstances warranted reliance by the defendant on a third party, the efforts made by the defendant to obtain a defense by the third party are, of course, relevant. . . . [¶] In the present case defendant acted reasonably in assuming that Trinity would defend and in following the instructions in his insurance policy to mail any summons and complaint to Trinity at Dallas, and the trial court could properly conclude that the failure of these documents to arrive was neither defendant's nor Trinity's fault. There is no showing that plaintiff was in any way prejudiced by defendant's failure to answer on time. Even if the mistake were caused by some negligence on defendant's part, this negligence might be excused if it in no way prejudiced the opposing party. [Citations.]" (Weitz, supra, 63 Cal.2d at pp. 855-856.) Pelegrinelli v. McCloud River etc. Co., supra, 1 Cal.App. 593, cited in Weitz, is likewise persuasive. In June 1900 the defendant lumber mill was threatened with a possible lawsuit for a wrongful death occurring in May, though no lawsuit had yet been filed. The defendant nevertheless went about marshalling evidence, obtaining statements and photographs which it forwarded to its insurer. (Id. at p. 595.) In February 1902, a lawsuit was in fact 698 filed, and the president of the defendant company learned of it on February 7, by reading of it in a newspaper. The lawsuit had not been served. The president "immediately sent for the agent of the insurance company and informed him thereof, and with him went over the case and the matters and facts connected with it and with the defense thereto; and the said agent then and there agreed with the president that the insurance company would appear . . . through its regular attorneys on behalf of the defendant and defend the same . . . . Nothing was said between them with reference to the summons or complaint in the action, or with reference to the service of the same . . ."which, as noted, had not yet been served. Service was in fact effected on February 10, on the secretary of the defendant company, who immediately delivered the papers to the president, who put them in his drawer, never forwarding them to the insurer. (Id. at pp. 595-596.) Default and default judgment were thereafter entered. The trial court granted relief, and the First Appellate District affirmed, in language strongly supporting Permatex here: "It may be conceded that it would have been an act of prudence on [the president's] part, when he received the copy of the summons and complaint, to have delivered them to the insurance company; but if he had the right to believe and did believe that the insurance company would enter its appearance and defend the action irrespective of any service of the summons, his failure to give the copies to it cannot be held to have been attributable to any carelessness or inattention. Whatever omission there was must be regarded as an excusable neglect. `Section 473 of the Code of Civil Procedure is a remedial provision, and is to be liberally construed so as to dispose of all cases upon their substantial merits and to give to the party claiming in good faith to have a substantial defense to the action an opportunity to present it.' [Citation.]" (Pelegrinelli v. McCloud River etc. Co., supra, 1 Cal.App. at pp. 596-597, italics added.) Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816 [14 Cal.Rptr.2d 286] (Rogalski) is also compelling. Rogalski was a wrongful termination suit against Rogalski's former employers. The defendants were served and contacted their insurance broker, who forwarded the summons and complaint to their insurer. The insurer failed to make a coverage determination or to timely respond to the complaint. Meanwhile, the plaintiff's counsel wrote to the defendants that he would enter defaults if responses were not filed within five days. The insurer then contacted the plaintiff's counsel, stating that it was still investigating coverage and asking for more time to respond; counsel refused, but said that he would not file the default until noon the following day. The next morning the insurer told the defendants that it was denying coverage and would not file a response, without informing the defendants of the noon deadline. (Id. at pp. 818-819.) 699 The defendants immediately retained counsel who promptly contacted the plaintiff's counsel after the default papers were filed. When the plaintiff's counsel refused to stipulate to set aside the defaults, the defendants filed a motion to set them aside. While that motion was pending, a default prove-up hearing was held, and judgment entered against the defendants. The trial judge denied the defendants' relief under section 473, finding that the insurer's failure to file a response was not the result of mistake or neglect, but a deliberate decision. (Rogalski, supra, 11 Cal.App.4th at p. 820.) The Court of Appeal reversed, in language applicable here: "Nabers contends it reasonably believed its insurer, Golden Eagle, was handling the matter and would respond to the complaint in a timely fashion. It is uncontroverted that Golden Eagle was aware of the filing deadline and no excuse has been proffered for its failure to file a response. The trial court specifically found the failure to file a response was not the result of Golden Eagle's mistake or neglect but was a deliberate decision made by Golden Eagle. Golden Eagle may well have acted deliberately, indeed reprehensibly, in failing to either file a responsive pleading or give Nabers adequate warning that it would not do so. That does not, however, justify denying relief to this defendant, who was so obviously caught unaware by his insurer's actions. In ruling the trial court failed to consider Naber's excusable neglect in filing a response." (Rogalski, supra, 11 Cal.App.4th at p. 820.) The two insurance-company-involved cases on which Fasuyi primarily relies are distinguishable. Scognamillo v. Herrick, supra, 106 Cal.App.4th 1139, cited by Fasuyi four times, involved a situation where the plaintiff's counsel had at least three conversations with the defendant before filing the request for default. Specifically, on the day he was served the defendant called the plaintiff's counsel, thinking that settlement of a prior action (a subrogation claim) precluded the personal injury suit from proceeding. The plaintiff's counsel said no, and essentially told the defendant to forward the complaint to his insurer, which he did. That call was on March 30. (Id. at p. 1144.) On May 7, after a responsive pleading was due, the plaintiff's counsel called the defendant and "told him the time to respond to the complaint had expired" and that the defendant was in default and could have a default judgment entered against him. (Ibid.) The defendant said he had sent the matter to his insurer, and the plaintiff's counsel told him to contact the insurer again. On May 31, more than three weeks later, the plaintiff's counsel called again and told the defendant no response had been filed. The defendant repeated that the matter was in the hands of his insurer, and the plaintiff's counsel said he "would be required to enter default judgments against the defendants if he did not receive a response to the complaint immediately." (Ibid.) No response came. The plaintiff's counsel thereafter prepared and sent a statement of damages, this on June 4. Still, the plaintiff's counsel waited yet 700 another month, and finally on July 12 filed a request for default. (Scognamillo v. Herrick, supra, 106 Cal.App.4th at p. 1145.) The Court of Appeal affirmed the trial court's refusal to set aside the default.[8] And properly so, in light of the conduct there, which conduct was such as to cause Presiding Justice Vogel to comment that "a rule requiring only that the insured demonstrate reasonable reliance on its insurer `would permit the insurer to willfully or recklessly ignore filing deadlines with impunity, shielding itself behind the blamelessness of its insured while it makes a shambles of orderly procedure.'" (Scognamillo v. Herrick, supra, 106 Cal.App.4th at p. 1149.) We agree with that sentiment. But it simply does not apply here, where there was no discussion, no warning, no waiting, no nothing. The second case is Don v. Cruz (1982) 131 Cal.App.3d 695 [182 Cal.Rptr. 581], where the court affirmed a refusal to set aside the default, holding that a defendant who "alleges reasonable reliance on an insurance carrier must also establish justification for the inaction of the carrier." (Id. at p. 702.) But there is much more to the case than that, as the actual facts as developed at the prove-up hearing make clear. At the prove-up hearing, the plaintiff's counsel responded to the court's inquiry about whether there was any communication from the defense side, stating as follows: "Yes, we have [had communication], your Honor. This is a case, your Honor, that has a background of an insurance company who has had notice of this case for over eight months and takes the position that they don't have to answer this complaint. I am at this time willing to offer, put on the record, that I will give the defendant in this case a covenant not to execute against him personally in exchange for his rights against his insurance company. This is a case, your Honor, if your Honor wants to get into the background, it involves a conscious disregard of this whole system and that's the background of this case. There is insurance involved and we do not intend in any way to execute against the defendant personally." (Don v. Cruz, supra, 131 Cal.App.3d at pp. 706-707.) That is not the situation here. So, what do we have? We have a legal department at ITW which initially assisted Fasuyi's counsel in effecting service. Once that service was accomplished, the legal department immediately did what any good department would, forwarding the summons and complaint to its insurance broker for 701 appropriate handling. The broker also did what any good broker should, and immediately forwarded the complaint on to the appropriate insurers, received back the requested confirmation, and believed that the matter would be tended to.[9] Sadly, it was not. That is the record here. No lack of cooperation from the defense side. Indeed, the converse. No deception. No duplicitousness. No stonewalling. No evasion. And no disregard of any warning. In fact, no warning. It will be recalled that Fasuyi's counsel had been in contact with ITW's legal department, which, not incidentally, had helped counsel effect service by identifying the location of CT Corporation. Notwithstanding that, Fasuyi's counsel took the default without so much as a reminder, let alone a warning, about any responsive pleading. Permatex argues this was "unfair." We agree, as such warning is at the least an ethical obligation of counsel, as well described in Weil and Brown, California Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 5:68 to 5:71, pp. 5-16 to 5-17 (rev. # 1 2007): (7) "[5.68] Ethical Obligation to Warn Opposing Counsel: If plaintiff's counsel knows the identity of the lawyer representing defendant, he or she owes an ethical obligation to warn before requesting entry of defendant's default. Failure to do so is a professional discourtesy to opposing counsel that will not be condoned by the courts: `The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended.' [Smith v. Los Angeles Bookbinders Union No. 63 (1955) 133 CA2d 486, 500 [284 P.2d 194], (disapproved on other grounds in MacLeod v. Tribune Pub. Co., Inc. (1959) 52 C2d 536, 551 [343 P.2d 36])] "`Even legitimate tactics must sometimes yield to the only goal that justifies the very existence of our judicial system; i.e., the resolution of our citizens' disputes and the administration of justice.' [Brown v. Presley of So. Calif. (1989) 213 CA3d 612, 620 . . . , fn. 3 [261 Cal.Rptr. 779]the notion that ours is a `dog-eat-dog business' governed by the `law of the jungle' should be curtailed, not rewarded] "a. [5.69] No legal obligation: The duty to warn opposing counsel is an ethical rather than a legal requirement. As noted by one court, `While as a matter of professional courtesy counsel should have given notice of the 702 impending default, and we decry this lack of professional courtesy . . . counsel was under no legal obligation to do so.' [Bellm v. Bellia (1984) 150 CA3d 1036, 1038 [198 Cal.Rptr. 389] (emphasis added)] "b. [5.70] Effect of failure to warn: In the absence of a prior warning of default, courts are inclined to grant CCP §473(b) motions to set aside defaults. [Citations.] "But in the absence of an `attorney affidavit of fault' (see ¶5:292 ff.), such relief is not mandatory; and denial of relief is not necessarily an abuse of discretion. I.e., the failure to warn does not require the court to grant relief. [Bellm v. Bellia, supra, 150 CA3d at 1038 . . .] "[5.71] PRACTICE POINTER: If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so."[10] Finally, Fasuyi would not be prejudiced by the grant of relief from default. Fasuyi's only argument is delay, and there would have been none had his counsel done what he should have. Beyond that, Fasuyi waited almost two years to file his lawsuit, and took four months to serve it, beyond the time allowed. Perhaps the legal department at ITW should have calendared the matter and pestered the insurer about the time to plead. Perhaps, though that is not our experience of what necessarily occurs in the real world, whether in the world of the Fortune 500 companies or otherwise. But even if ITW should have done that, and did not, the most that can be said of its conduct is what Justice Peters said of the defendant in Weitz: "Even if the mistake were caused by some negligence on defendant's part, this negligence might be 703 excused if it in no way prejudiced the opposing party." (Weitz, supra, 63 Cal.2d at p. 856.)[11] So what are we left with to support denial of the motion to set aside? To allow us to conclude discretion was not abused? We have nothing save the principle of appellate review that we do what we can to affirm what was done belowwhich we will have to do, it must be recalled, without explanation and without analysis. (See Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal.App.4th 156, 160-161 [111 Cal.Rptr.2d 636] [absent explanation or reasoning in trial court's order, appellate court "cannot conclude . . . court's decision had any reasonable basis"].) At the end, therefore, we are left with only one principle that could possibly support affirmance here, the principle of appellate review to seek to uphold the trial court's determination. That principle, of course, directly conflicts with the principle of trial on the merits. How, therefore, do we resolve that conflict? Witkin has the answer: "Where the lower court denies relief, the two basic principles [citation] may come into conflict; i.e., the tendency to uphold the trial court's determination and the tendency to permit a trial on the merits. [¶] In borderline cases, the second principle has the greater weight, and, accordingly, the lower court's order denying relief is often reversed. . . . (See Waite v. Southern Pac. Co. (1923) 192 C. 467, 470 [221 P. 204] [`any doubts which may exist should be resolved in favor of the application, to the end of securing a trial upon the merits']; [citations].)" (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 193, p. 699.) DISPOSITION (8) We do not mean to suggest, and certainly do not hold, that a defendant who has properly involved the insurer and nevertheless ends up in default is always entitled to relief. Nor do we hold that a plaintiff's attorney must warn a defendant's attorney before taking a default. We recognize that each situation is sui generis and must be analyzed accordingly. What we holdand it is all we holdis that the totality of the circumstances here demonstrated that Permatex was entitled to relief from the default and default judgment. And that not to grant that relief was an abuse of discretion, an abuse that was prejudicial to Permatex. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) *704 The judgment and the order are reversed, with instructions that the trial court vacate the default and allow Permatex to file a responsive pleading. Kline, P.J., and Haerle, J., concurred. NOTES [1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated. [2] Counsel's declaration was not included in the clerk's transcript, but was attached to the respondent's brief. Accordingly, through the court's own motion and pursuant to California Rules of Court, rule 8.155, we deem the record augmented to include it. [3] Section 425.11 provides in relevant part as follows: "(b) When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. . . . "(c) If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken. "(d) The statement referred to in subdivision (b) shall be served in the following manner: "(1) If a party has not appeared in the action, the statement shall be served in the same manner as a summons." [4] The objections to evidence were never ruled on. [5] While Fasuyi does not urge the point, many cases hold that the absence of a transcript precludes a determination that the trial court abused its discretion. (See, e.g., Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448 [94 Cal.Rptr.2d 143]; Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [75 Cal.Rptr.3d 511].) Those cases should not apply here, where the absence of any transcript is not the fault of Permatex. As to the default proceeding, the lack of transcript was hardly the responsibility of Permatex, as there was nothing it could have done vis-à-vis the prove-up hearing, as it had no right to participate. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 386 [202 Cal.Rptr. 204].) As to the lack of transcript of the hearing on the motion, Weil and Brown has this to say, in chapter 9, part I, dealing with "Law and Motion": "d. [9.171] Court reporters: In most (but not all) courts, a court reporter is present at all law and motion hearings. [¶] If the court does not provide a reporter, its local rules must so state and spell out the procedure for obtaining a reporter (see CRC 3.1310). In such cases, parties are entitled to arrange for a reporter at their own expense (fees may be recoverable as court costs). [CRC 2.956(c).]" (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, p. 9(I)-108 to 9(I)-109 (rev. #1 2008).) We have found no such local rule, and from all indications Permatex was not even aware that there was no reporter, shown, for example, by its designation of record on appeal requesting the transcript of the hearing of the motion. [6] Permatex also argues that the court improperly entered the default judgment because Fasuyi had not filed a proof of service of the statement of damages with the court when it applied for entry of default. This argument has been rejected. (Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1147 [131 Cal.Rptr.2d 393] [failure to file proof of service was "merely an irregularity"].) We see no need to revisit it here. [7] We are constrained to make a few observations about the so-called "amended proof of service": First, we do not understand any need to file the second proof of service after the February 27 hearing, as the second proof of service purports to have been executed on December 13, 2006, over two months before the hearing. Second, if the judgment were in fact "subject to" further proof, why was such proof not forthcoming long before the opposition to Permatex's motion, especially if it had been executed on December 13, 2006? Third, the original "Affidavit of Service" executed on December 4, 2006, is on what appears to be a nonstandard form, and is executed by Christine Foran, private process server working for a client described as "Wakeman Process Service, Inc." The later "Proof of Service" is on a different form entirely, a Judicial Council form prepared by Fasuyi's counsel. And in it Ms. Foran states that she was apparently associated with Wakeman Process Service, possessed a California registration number (No. 16, issued by Alameda County), and that she is a registered California process server, independent contractor. It was, in a word, unusual. [8] Though it did reverse the default judgment for $100,000, as excessive as a matter of law. (Scognamillo v. Herrick, supra, 106 Cal.App.4th at p. 1151.) [9] An insurance broker is the representative of the insured. (Ins. Code, § 33; see Merchants Fire Assurance Corporation v. Lattimore (9th Cir. 1959) 263 F.2d 232, 240 [knowledge of broker imputed to insured].) [10] The same policy is set forth in the recently enacted (eff. July 20, 2007) California Attorney Guidelines of Civility and Professionalism, promulgated by the State Bar. These guidelines reflect that "attorneys have an obligation to be professional with . . . other parties and counsel, [and] the courts . . . ," which obligation "includes civility, professional integrity, . . . candor . . . and cooperation, all of which are essential to the fair administration of justice and conflict resolution." (Introduction, p. 3.) Section 15 of the guidelines deals with "Default," and provides in its entirety as follows: "An attorney should not take the default of an opposing party known to be represented by counsel without giving the party advance warning. [¶] For example an attorney should not race opposing counsel to the courthouse to knowingly enter a default before a responsive pleading can be filed. This guideline is intended to apply only to taking a default when there is a failure to timely respond to complaints, cross-complaints, and amended pleadings." [11] Permatex did not argue below, nor does it here, that it was entitled to mandatory relief under section 473, subdivision (b) on the grounds of attorney mistake. Thus we need not address the significance of the involvement of paralegal Ahlman, and whether she is within the ambit of section 473, subdivision (b). (See Hu v. Fang (2002) 104 Cal.App.4th 61, 64 [127 Cal.Rptr.2d 756] [mandatory relief when mistake by paralegal].)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2764109/	UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS WASHINGTON, D.C. Before J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER Appellate Military Judges UNITED STATES OF AMERICA v. DANIEL L. MOSS CULINARY SPECIALIST SECOND CLASS (E -5), U.S. NAVY NMCCA 201400286 GENERAL COURT-MARTIAL Sentence Adjudged: 2 May 2014. Military Judge: LtCol C.J. Thielemann, USMC. Convening Authority: Commander, Navy Region Northwest, Silverdale, WA. Staff Judge Advocate's Recommendation: CDR E.K. Westbrook, II, JAGC, USN. For Appellant: CDR Ricardo A. Berry, JAGC, USN. For Appellee: LCDR Keith B. Lofland, JAGC, USN; LT Ann E. Dingle, JAGC, USN. 23 December 2014 --------------------------------------------------- OPINION OF THE COURT --------------------------------------------------- THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2. PER CURIAM: A military judge sitting as general court martial convicted the appellant, pursuant to his pleas, of four specifications of violating a general order or regulation (Sexual Harassment), and four specifications of assault consummated by a battery, in violation of Articles 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 928. The military judge sentenced the appellant to twenty months’ confinement, reduction to pay grade E-1, and a bad-conduct discharge. The convening authority (CA) approved the sentence as adjudged and, except for the bad- conduct discharge, ordered it executed. Although the CA was obligated, pursuant to a pretrial agreement (PTA), to suspend all confinement in excess of nine months for the period of confinement served plus six months thereafter, and to defer automatic forfeitures pursuant to Article 58(a), UCMJ, until the date of the CA action, and then waive them for a period of six months thereafter, the CA’s action did not do either. On appeal, the appellant alleges that the CA’s action fails to implement the terms of the pretrial agreement. However, the appellant also noted in his brief that the brig is “calculating Appellant’s release date in conformity with the PTA [and that his] dependent spouse is being paid by allotment in conformity with the PTA.” Appellant’s Brief of 22 Sep 2014 at 5 n.1. After carefully considering the record of trial, the appellant's assignments of error, and the Government's response, we conclude that the findings and sentence are correct in law and fact and that following our corrective action no error materially prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ. An appellant who pleads guilty pursuant to a PTA is entitled to the fulfillment of any promises made by the Government as part of that agreement. Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); United States v. Smith, 56 M.J. 271, 272 (C.A.A.F. 2002). Here, the CA erred by failing to comply with the terms of the PTA in his action. This court has the authority to enforce the agreement and will correct the error in our decretal paragraph. United States v. Cox, 46 C.M.R. 69, 72 (C.M.A. 1972); United States v. Carter, 27 M.J. 695, 697 n.1 (N.M.C.M.R. 1988); see also United States v. Bernard, 11 M.J. 771, 772-74 (N.M.C.M.R. 1981). The findings and the sentence as approved by the CA are affirmed, but all confinement in excess of nine months is suspended for the period of confinement served by the appellant plus six months thereafter; and automatic forfeitures pursuant to Article 58(a), UCMJ, were deferred until the date of 2 the CA’s action, and waived for a period of six months thereafter. For the Court R.H. TROIDL Clerk of Court 3	01-03-2023	12-23-2014
https://www.courtlistener.com/api/rest/v3/opinions/2764110/	UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS WASHINGTON, D.C. Before J.R. MCFARLANE, K.J. BRUBAKER, P.D. LOCHNER Appellate Military Judges UNITED STATES OF AMERICA v. MATTHEW S. HINDERS CORPORAL (E-4), U.S. MARINE CORPS NMCCA 201400274 SPECIAL COURT-MARTIAL Sentence Adjudged: 25 March 2014. Military Judge: LtCol C.J. Thielemann, USMC. Convening Authority: Commanding General, 1st Marine Division (Rein), Camp Pendleton, CA. Staff Judge Advocate's Recommendation: Maj V.G. Laratta, USMC. For Appellant: Maj Michael D. Berry, USMCR. For Appellee: Mr. Brian K. Keller, Esq. 23 December 2014 --------------------------------------------------- OPINION OF THE COURT --------------------------------------------------- THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2. PER CURIAM: A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of two specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. The appellant was sentenced to four months’ confinement, reduction to pay grade E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged. Although not raised on appeal, we note an error in the record that requires corrective action. The two larceny specifications are multiplicious, requiring a consolidation of the specifications. Having considered our modified findings and the entire record of trial, we conclude that the consolidated findings are correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ. Background The appellant entered the barracks room of two fellow Marines, stealing several items of personal property belonging to Lance Corporal S and one item of personal property belonging to Private First Class S. The Government charged the larceny as thefts of personal property from the individual Marines in two separate specifications, although the theft took place at the same time and at the same location. Although neither party objected during the plea colloquy, after hearing sentencing arguments and closing for deliberation, the military judge returned and, sua sponte, raised the issue of multiplicity. Record at 90-91. Although finding that the theft was a single criminal act, the military judge did not consolidate the specifications, but merged them together “solely for sentencing purposes.” Id. at 91. Discussion When a larceny of several articles is committed at substantially the same time and place, it is a single larceny, even though the articles belong to different persons. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 46(c)(1)(i)(ii). The specifications, as alleged and pled to by the appellant, were multiplicious, as the larceny from the barracks room should properly have been charged as one offense, not two. Absent plain error, a multiplicity claim is waived by an unconditional guilty plea, as was entered in this case. United States v. Hudson, 59 M.J. 357, 358-59 (C.A.A.F. 2004) (citing United States v. Heryford, 52 M.J. 265, 266 (C.A.A.F. 2000)). Reviewing the matter for plain error and mindful of the Court of Appeals for the Armed Forces’ holding in United States v. Savage, 50 M.J. 244, 245 (C.A.A.F. 1999) (citing Ball v. United States, 470 U.S. 856 (1985)), we find there was error, 2 that it was plain and obvious, and that there was prejudice in the form of an additional convictions for larceny. Pursuant to our authority under Article 66(c) UCMJ, we grant relief by consolidation of Specifications 1 and 2 under Charge I into a single specification as follows: In that Corporal Matthew S. Hinders, U.S. Marine Corps, on active duty, did, at or near Marine Corps Base Camp Pendleton, California, on or about 21 July 2013, steal various items to include: a. MacBook Pro Laptop b. Playstation Portable Vita c. Sentry Safe d. 2006 One Dollar Coin Fine Silver e. 1991 American Silver Eagle Dollar 1 oz. silver coin f. 2002 American Silver Eagle Dollar 1 oz. silver coin g. Silver Buillon Dollar h. 1776-1976 Silver Dollar i. 925 Italy Necklace j. iPod charger k. MacBook Pro Charger l. Dark Knight Trilogy Box Set m. Wahl Clippers and Case n. Grappling Hook of a value of more than $500.00, the property of Lance Corporal J.C.S. (items a-m) and Private First Class J.S.S. (item n), U.S. Marine Corps. Since the specifications were merged for sentencing, a reassessment of the sentence is unnecessary. Conclusion As modified herein, the findings and the approved sentence are affirmed. For the Court R.H. TROIDL Clerk of Court 3	01-03-2023	12-23-2014
https://www.courtlistener.com/api/rest/v3/opinions/1311546/	257 Ga. 558 (1987) 361 S.E.2d 486 NICHOLS v. THE STATE. 44732. Supreme Court of Georgia. Decided November 4, 1987. Alice C. Stewart, for appellant. Thomas J. Charron, District Attorney, W. Thomas Weathers III, Assistant District Attorney, Michael J. Bowers, Attorney General, 560 J. Michael Davis, Assistant Attorney General, for appellee. GREGORY, Justice. Lee Curtis Nichols was convicted of malice murder and possession of a sawed-off shotgun in connection with the shooting death of Jim Fricks.[1] He received a life sentence for the murder conviction and a concurrent five years on the gun charge. We affirm. On the evening of August 31, 1985, Nichols and his girl friend, Janie Newberry, were customers of the Chile World Restaurant and Lounge in Acworth, Georgia. Nichols and several others became involved in a dice game for juke box money. During the game, Nichols began arguing with one of the other participants. At that point, the owner of the lounge, Jim Fricks, asked Nichols to leave. Nichols and Newberry then left the restaurant but Nichols returned after a few minutes saying that "he wanted to pay his tab and he wanted to pay it now." Nichols then began cursing and screaming and threw a ten dollar bill next to the cash register. Fricks refused to accept payment, stating that Nichols did not owe as much as he was offering. Nichols walked out of the restaurant and Fricks followed him in an attempt to smooth things over. When Nichols reached his car he grabbed a .12 gauge sawed-off shotgun and shot Fricks in the abdomen. At trial, Nichols and Newberry both testified that Fricks had hit Nichols several times in the parking lot prior to the shooting and that Nichols acted in self-defense. Other witnesses to the incident testified that Fricks never hit Nichols. 1. Nichols contends the trial court erred by refusing to dismiss a juror for cause, after the panel had been selected, because the juror was the spouse of the District Attorney's volunteer investigator who had worked on Nichols' case. We note that the juror in question became ill during trial and was replaced by an alternate. There was no error. 2. Nichols maintains he was denied effective assistance of counsel for three reasons. a. He argues that trial counsel was ineffective by failing to call three witnesses who would have substantiated his theory of self-defense. However, the record clearly establishes that counsel interviewed all three of the potential witnesses prior to trial and determined their testimony would not have been beneficial or would have been merely cumulative. Counsel obviously considered presenting the 559 testimony of these witnesses and made a strategic decision not to do so. Ineffective assistance is not shown under these circumstances. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). b. Nichols also claims his trial lawyer was ineffective because a bag of items went out with the jury during its deliberations. He argues that some of the items in the bag had not been identified and admitted in evidence. The record does not support this contention. c. Finally, Nichols alleges that counsel was ineffective in failing to secure the removal of the juror discussed in Division 1. But as we have stated above, the juror was later excused and no error occurred. 3. Nichols contends the trial court erred in refusing to direct the prosecution to choose between a theory of malice murder or felony murder. The prosecution is not required to make this choice. Hicks v. State, 256 Ga. 715 (352 SE2d 762) (1987). Further, Nichols argues the trial court erred in its charge regarding felony murder and the underlying felony. But we note Nichols was not convicted of felony murder and the charge in that regard, even if error, did not harm him. 4. Nichols argues that his defense was hindered because the trial court refused to admit evidence of the victim's character and of a previous altercation between the defendant and the victim in which the victim pointed a pistol at the defendant. To the contrary, the record shows that the court, after a hearing outside the presence of the jury, allowed Newberry to testify about the incident involving the pistol and that the victim had a reputation in the community for being "pretty wild." Consequently, we find no error under Morris v. State, 254 Ga. 273 (328 SE2d 547) (1985). Nichols also maintains that the trial court erred by prohibiting testimony regarding allegations that the victim sold alcohol without a license and testimony relating to the victim's sobriety. Without reaching the question of the admissibility of such testimony, we hold that no error was committed because the evidence was offered before a proper foundation had been laid and counsel subsequently failed to renew his proffer. 5. We have examined Nichol's enumerations of error regarding several jury instructions and find them to be without merit. 6. The evidence was sufficient to support the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Judgment affirmed. All the Justices concur. NOTES [1] The crime was committed on August 31, 1985. The defendant was indicted in October 1985 and trial began on March 3, 1986. A verdict was returned on March 5, 1986 and defendant was sentenced that same day. A motion for new trial was filed March 14, 1986 and the motion was denied on February 16, 1987. The transcript was certified by the court reporter on May 28, 1987 and the appeal was docketed in this court on June 4, 1987.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311553/	68 Wis.2d 276 (1975) 228 N. W. 2d 718 BODE, Plaintiff, v. BUCHMAN and another, Defendants and Third-Party Plaintiffs and Appellants: KLAMIK and another, Third-Party Defendants and Respondents. No. 422. Supreme Court of Wisconsin. Argued March 4, 1975. Decided May 6, 1975. 278 For the appellant there was a brief by Prosser, Wiedabach, Lane & Quale, S. C. of Milwaukee, and oral argument by William P. Croke of Milwaukee. For the plaintiff-respondent there was a brief by Hippenmeyer, Reilly & Arenz of Waukesha, and oral argument by William F. Reilly. For the defendants-respondents there was a brief by Lowry, Hunter & Tikalsky of Waukesha, and oral argument by James L. Steimel of Waukesha. DAY, J. Several issues are raised as grounds for reversal of the order dismissing Marilyn E. Klamik (Mrs. Klamik) as a third-party defendant prior to submission of the case to the jury and of the judgment on the verdict in favor of Jeffrey B. Bode (plaintiff) and against the Rev. Father William J. Buchman (defendant) and his insurer. In none do we find a ground for reversal. This case arises out of an auto accident involving two automobiles and a motorcycle; it occurred at the intersection of Highway 16 and Nagawicka Road, east of the city of Oconomowoc in Waukesha county. Highway 16 runs in an easterly-westerly direction at the site of the accident, with Nagawicka Road intersecting it from the south. This is a T intersection with Nagawicka Road forming the base of the T and Highway 16 forming the top. Highway 16 is a two-lane road, but at the intersection there is a passing lane on the north side of the roadway which extends about 300 feet in each direction from 279 the intersection and then tapers off for another 114 feet until the highway is again the usual two lanes. The total width of the three lanes of Highway 16 at this intersection is about 33 feet. The passing lane is about 10½ feet wide. The three vehicles involved were traveling west on Highway 16 at the time of the accident at approximately 11:10 in the morning on September 5, 1970. Traffic was heavy and the weather was good. The third-party defendant Mrs. Klamik was going to turn left, or south, onto Nagawicka Road. The testified she braked slowly and came to a gradual stop. She had turned on her left-turn signal as she passed a yellow caution sign 500 feet from the intersection. After she stopped at the intersection waiting to make her turn, she saw in her rearview mirror a light-colored car approach and make a fairly swift turn and pass her in the passing lane to her right. She then looked forward to determine whether she could make her turn. Following the light-colored car was a green Oldsmobile Toronado driven by the defendant. Following defendant were four motorcyclists, including the plaintiff, who testified he was riding in the lead position of the four motorcycles. He said they had been following the defendant's automobile for about three miles. Plaintiff testified he was going approximately 50 miles per hour and maintaining a distance of 100 to 125 feet behind the defendant's automobile. As they came within about 700 feet of the intersection, with which he said he was very familiar, he noticed Mrs. Klamik's vehicle as the light-colored car swiftly passed around to the right. He testified she had both her brake lights on and her left-turn signal and that she was either stopped or almost stopped, waiting to turn into Nagawicka Road. Plaintiff testified that the defendant's car was about 150 to 170 feet behind Mrs. Klamik. After the light-colored car had gone around Mrs. Klamik, the defendant's 280 brake lights went on and he moved out into the passing lane and had both right wheels in that lane. As the defendant moved into that lane, so did the plaintiff. He testified that he honked his horn. This was also testified to by one of the other cyclists. Plaintiff testified that by this time Mrs. Klamik had stopped completely. Then the defendant moved out of the passing lane and back into the normal westbound traffic lane behind Mrs. Klamik, braking harder while the plaintiff braked gently and down-shifted. He testified that the defendant, while in the normal westbound lane, slowed down to about 10 miles per hour and that the plaintiff slowed to about 15 miles an hour in the passing lane and was therefore gaining slightly on the defendant. As the defendant was within about 20 feet of Mrs. Klamik's stationary vehicle, he suddenly accelerated and swung out to the far edge of the passing lane, trying to pass Mrs. Klamik; he hit or brushed her right-rear fender with the left-front portion of his car and the rear of the defendant's automobile then "fishtailed" out into the passing lane and the right-rear corner slammed into the plaintiff's left leg, sending him and his motorcycle into the ditch. This testimony was supported by one of the cyclists, Mr. Dentici. The defendant gives a somewhat different account. While he testified he was familiar with the road and this intersection, he was unable to recall if there was any passing lane on the north side of the roadway at this point and whether there was an extended shoulder or whether it was graveled or paved. He did not testify that he entered the passing lane twice; he testified he was following a light-colored car and that as it slowed down, he reduced his speed; then the light-colored car swiftly went around Mrs. Klamik's car and he saw her car for the first time and her left-turn signal was on. He said he braked continuously so he was going much slower than 50 miles per hour by the time the light-colored car 281 swerved out and passed Mrs. Klamik; nevertheless, by the time that car passed and he saw Mrs. Klamik, he was not able to brake in time to avoid her so he braked and swerved into the passing lane to his right. He testified that he "brushed" her right-rear fender with the left-front of his car and came to a stop very soon, at or near where the actual impact occurred. He was unaware that there were any motorcycles behind him and admitted he probably did not signal as he swerved into the right passing lane. In a statement which he had given to the representative of his own insurance company he said that his car "fishtailed uncontrollably" just before the impact. At trial however, he said he did not understand the term "fishtail." The defendant also relies on testimony of another of the motorcyclists, Peter Nelson. Mr. Nelson did not describe two movements by the defendant into the passing lane, as did the plaintiff and Mr. Dentici; rather, he said that the defendant accelerated, swerved, and sideswiped Mrs. Klamik and the rear of his car was forced out, hitting the plaintiff who was also in the center westbound lane and who, as the collision occurred, started to cut across the defendant's right-rear bumper in an apparent attempt to avoid the accident. Mr. Nelson testified he could recall some "commotion" but could not remember how far to the right the defendant had moved. The defendant's car struck the plaintiff's left leg and hit the motorcycle at about midpoint, igniting the gas tank. The plaintiff received a severe injury to his leg, requiring a month of hospitalization and several operations. The plaintiff testified that while he was in the hospital the defendant visited him and said that the accident was the defendant's fault and that he was sorry. At the trial the defendant testified that his "present recollection" was that he did not say he was at fault. 282 In addition to striking the plaintiff, the defendant's vehicle also struck and damaged the motorcycle of Thomas Manning, the fourth cyclist. Plaintiff brought this action against the defendant and his insurer, Maryland Casualty Company, and the defendant and his insurer then filed a third-party complaint against Mrs. Klamik and her insurer Dairyland Insurance Company. After the plaintiff and the defendant had both put in their principal case, but prior to the time the plaintiff put on a final rebuttal witness, Mrs. Klamik and her insurer moved for a nonsuit, dismissing the third-party claim, which motion was granted. The jury returned its verdict on August 17, 1973, finding the defendant 90 percent causally negligent and the plaintiff 10 percent causally negligent. Damages were awarded to the plaintiff, which are not challenged on this appeal. The defendant appeals from the whole of the order dated September 21, 1973, dismissing the third-party complaint against Mrs. Klamik and from the whole of the judgment of October 1, 1973, in favor of the plaintiff. Defendant alleges it was error on the part of the trial court to fail to instruct the jury with respect to when and under what circumstances passing on the right is allowed. The defendant-appellant requested the trial court to instruct the jury on this matter.[1] The safety statute 283 referred to therein is sec. 346.08.[2] The requested instruction was in error because it failed to include sub. (2) of the cited statute. Even if this had been included, we would not regard the failure to give such instruction as error. Whether a requested instruction should be given depends entirely on the evidence adduced at trial. This court has said: "A trial court is not required to give a requested instruction unless the evidence reasonably requires it, and this is true even though the requested instruction asserts a correct rule of law." Belohlavek v. State (1967), 34 Wis. 2d 176, 179, 148 N. W. 2d 665. We have also said that the reviewing court is bound to construe the evidence in the light most favorable to the party seeking the instruction. Gage v. Seal (1967), 36 Wis. 2d 661, 667, 154 N. W. 2d 354, 155 N. W. 2d 557. There is no evidence to show that the plaintiff entered the passing lane with the intention of passing the defendant. The only testimony on the issue in the record is from three motorcyclists. The plaintiff and Mr. Dentici both testified that the defendant entered the passing lane first and plaintiff merely followed him to pass Mrs. Klamik. Mr. Nelson testified that when the defendant 284 swerved out to pass Mrs. Klamik, the plaintiff was not yet in the passing lane but still following in the center lane and that he went into the passing lane only to avoid a collision. Mr. Nelson also admitted it was possible that the plaintiff moved to the right before the defendant did but did not testify that, if so, it was being done to pass the defendant rather than to avoid a collision with him. The defendant in his brief does not point out what evidence it is that the jury could have believed that would show that the plaintiff was struck by defendant's car as he was attempting to pass it. Even if we were to make the assumption made by the defendant that the plaintiff was in fact passing the defendant, under the facts here he would not have violated the requirement of sec. 346.08, Stats., of passing "only under conditions permitting such movement in safety, . . ." because he had no reason to contemplate that the defendant would suddenly move from the regular westbound lane into the passing lane when the plaintiff was already in it. It appears from the evidence that the defendant could not pass in safety with the motorcycle behind him and his testimony was that he did not even know the motorcycles were behind him. We conclude, therefore, that the failure to give this instruction was not error. The defendant next objects to the court's instruction on the question of following too closely with respect to the plaintiff and claims it was misleading and erroneous. In its instruction whether plaintiff was following too closely, the court referred several times to the operation of "a motor vehicle" or "vehicle," but in the final sentence the trial court used the word "car" three times. The defendant had submittted an instruction on the issue using the word "motorcycle" when reference was made to the plaintiff's vehicle. In all other respects, the defendant says the instruction was identical to the one he 285 had requested. If there was error here, it is not prejudicial. There was another instruction given on following too closely, which clearly applied to the defendant and Mrs. Klamik. The instruction here in question, had reference to question 3 of the special verdict which was directed to the contributory negligence of the plaintiff. We have said many times that there is no ground for reversal where a technically incorrect instruction could not mislead the jury and where the judge's true meaning must have been apparent to the ordinarily intelligent mind. Wilson v. State (1973), 59 Wis. 2d 269, 291, 208 N. W. 2d 134. The defendant next contends there was reversible error in that the special verdict was misleading and confusing in its form because of the reference to "the accident." Defendant contends that there were really two accidents the one with Mrs. Klamik and the one with the defendant and the motorcycle. The defendant had submitted a special verdict form which distinguished between the two and raises the failure to use the requested instruction as a ground for a new trial. Counsel for the plaintiff contends there were two collisions but only one accident. Counsel for the defendant in his argument to the jury said, ". . . this accident happened just kind of bang, bang, bang . . . ." By the time the jury got the verdict, Mrs. Klamik's nonsuit had been granted and she was out of the case. Thus the negligence in "the accident" had to be the negligence of either the defendant or the plaintiff. We conclude that the special verdict's reference to one accident did not confuse, mislead, prejudice, or restrict the jury in any way, and does not constitute a basis for reversal. The defendant's contention that the trial court should have given the defendant's proposed instruction that the plaintiff was required by a safety statute to give audible warning before passing or attempting to pass a vehicle 286 proceeding in the same direction is without merit. Defendant requested an instruction based on sec. 346.07, Stats.[3] The statute plainly requires an audible warning only when passing on the left; it does not require audible warning when passing on the right. The statute was drafted intentionally that way. The committee notes for sec. 346.07 state: "Because overtaking and passing on the right will be permitted under certain circumstances if proposed sec. 346.08 is adopted, sub. (1) has expressly been limited to cases where a vehicle is being overtaken and passed on the left." 40 W. S. A. 52. To require a vehicle passing on the right to give an audible warning would be in conflict with sec. 346.07 (3) which requires the vehicle given the warning to give way to the right. The defendant next alleges error because the trial court failed to give a request instruction on a missing witness.[4]287 The defendant contends that the material witnesses were within the plaintiff's control and that it would be natural for him to call the people he was motorcycling with the day of the accident. The defendant called one of them, Mr. Peter Nelson; the plaintiff called Mr. Dentici and the third motorcyclist was not called. However, the plaintiff testified on cross-examination that he knew only one of them before the morning of the accident. He met Mr. Dentici and Mr. Manning only that morning. It also appears that the defendant had deposed all three prior to trial. However, if none of these factors had been present the instruction would have still been properly rejected. In Thoreson v. Milwaukee & Suburban Transport Corp. (1972), 56 Wis. 2d 231, 201 N. W. 2d 745, this court held that the absent-witness instruction was erroneously given where it was meant to refer to an unrelated passenger in a bus in an action where the defendant bus company did not call the passenger. The court said it could not be assumed that the passenger was a material witness; he may not have seen the accident. The court said that "material" in this context means capable of supplying information of a strong probative value, not merely cumulative testimony. Further, the court said that a special availability (more natural for one party to call the witness) cannot be presumed unless there is some special relationship like employer-employee or a familial relationship. None of these was present here. In Schmiedeck v. Gerard (1969), 42 Wis. 2d 135, 166 N. W. 2d 136, this court held the instruction not to be required even where the absent witness was the defendant's brother who was a passenger in the car at the time of the accident which gave rise to the suit. And in Ballard v. Lumbermens Mut. Casualty Co. (1967), 33 Wis. 2d 288 601, 615, 616, 148 N. W. 2d 65, cited by appellant, this court said: "A party to a lawsuit does not have the burden, at his peril, of calling every possible witness to a fact, lest his failure to do so will result in an inference against him. The requirements of the absent material witness instruction should be narrowly construed to be applicable only to those cases where the failure to call a witness leads to a reasonable conclusion that the party is unwilling to allow the jury to have the full truth." Failure to give this requested instruction was not error. The defendant next contends that it was prejudicial error for the trial court to give an instruction on deviation with respect to the defendant. The trial court instructed the jury that, as required by a safety statute, no one may deviate from a direct course of travel unless and until such movement can be made with reasonable safety. The driver of the deviating vehicle must exercise ordinary care in so deviating. The use of this instruction was objected to by the defendant and was made a ground for the new trial motion. The deviation instruction was given pursuant to sec. 346.13, Stats., which reads in part as follows: "346.13 Driving on roadways laned for traffic. Whenever any roadway has been divided into 2 or more clearly indicated lanes, including those roadways divided into lanes by clearly indicated longitudinal joints, the following rules, in addition to all others consistent with this section, apply: "(1) The operator of a vehicle shall drive as nearly as practicable entirely within a single lane and shall not deviate from the traffic lane in which he is driving without first ascertaining that such movement can be made with safety to other vehicles approaching from the rear." The defendant contends there are no statutes specifically dealing with passing lanes such as existed here and that moving from the center westbound lane of the highway 289 does not constitute a deviation. We disagree. The statute plainly contemplates exactly the situation that this case presented. The statute speaks in terms of deviating from a lane of traffic in which one is driving, which is what occurred here. The defendant also alleges that the trial court erred in failing to find the plaintiff more negligent as a matter of law than the defendant or, in the alternative, in failing to grant a new trial in the interest of justice. The defendant moved for a directed verdict at the close of testimony below and the trial court found that issues of fact had been raised, denied the motion, and sent the case to the jury. The motion was renewed and restated in several forms after the verdict and the defendant raises the denial of those postverdict motions here, contending the trial court should have found the plaintiff more negligent than the defendant as a matter of law. In the alternative it is the defendant's claim that the court should have granted a new trial in the interest of justice. In Kenwood Equipment, Inc. v. Aetna Ins. Co. (1970), 48 Wis. 2d 472, 478, 180 N. W. 2d 750, 182 N. W. 2d 241, this court said: "A jury's finding of negligence and the apportionment thereof will not be set aside when there is any credible evidence which under any reasonable view supports the verdict. . . . This is especially so where the verdict has been approved by the trial court." The defendant does not seem to contend that there is no credible evidence to support the verdict but rather points out what he regards as various inconsistencies and contradictions in the testimony which would favor the defendant. It is well settled that the weight of testimony and credibility of witnesses are matters for the trier of fact and it is not the function of this court to review such questions. Valiga v. National Food Co. (1973), 58 290 Wis. 2d 232, 206 N. W. 2d 377. There is ample credible evidence to support the jury verdict in this case. The defendant asks us to reverse this case in the interest of justice. A trial court's ruling upon a motion for a new trial in the interest of justice is highly discretionary and will not be reversed on appeal in the absence of a clear showing of abuse of discretion or an erroneous application of the law. Chille v. Howell (1967), 34 Wis. 2d 491, 494, 149 N. W. 2d 600. We find neither in this case. Defendant also alleges that the trial court committed error in granting a nonsuit to the third-party defendants, Mrs. Klamik and her insurer. After the plaintiff and defendant had put in their principal cases, Mrs. Klamik and her insurer moved for a nonsuit, dismissing the claim against them, and the trial court granted this motion after hearing some off-the-record argument by the defendant. When the trial judge said that the motion was granted for the nonsuit the record shows that the defendant's counsel said merely "O. K." and there is no objection on the record nor was it raised by the defendant in his motion to amend the transcript. The objections to the granting of the nonsuit was first raised on the motion for a new trial. In Behning v. Star Fireworks Mfg. Co. (1973), 57 Wis. 2d 183, 187, 203 N. W. 2d 655, this court said: "We have uniformly held that failure to make a timely objection precludes a party, as a matter of right, to subsequently raise the point. Ordinarily, it is necessary to make a timely objection, and again to renew the objection on a motion for a new trial, to give the trial judge an opportunity to correct a possible error." The alleged error then is not properly before this court for review and is deemed waived by failure to make a timely objection. It can be reviewed only under this court's discretion pursuant to sec. 251.09, Stats. Were 291 we to do so, we would find that the trial court did not commit error in granting Mrs. Klamik's motion for nonsuit. An examination of the evidence is not clearly convincing that the trial court erred in this respect. This court said in Slam v. Lake Superior T. & T. Ry. Co. (1913), 152 Wis. 426, 432, 140 N. W. 30: ". . . when the trial judge rules, either on motion for nonsuit, motion for a directed verdict, or motion to set aside the verdict, that there is or is not sufficient evidence upon a given question to take the case to the jury, the trial court has such superior advantages for judging of the weight of the testimony and its relevancy and effect that this court should not disturb the decision merely because, on a doubtful balancing of probabilities, the mind inclines slightly against the decision, but only when the mind is clearly convinced that the conclusion of the trial judge is wrong." This comment was also quoted favorably in Trogun v. Fruchtman (1973), 58 Wis. 2d 569, 585, 207 N. W. 2d 297. In Liebmann v. Busalacchi (1971), 52 Wis. 2d 692, 696, 191 N. W. 2d 31, this court quoted with approval from 88 C. J. S., Trial, p. 573, sec. 245, on reviewing the grant or denial of a motion for a nonsuit: "`In order to avoid a nonsuit the evidence of plaintiff must be sufficient to raise more than a mere surmise or conjecture that the fact is as alleged. Accordingly, if, when plaintiff rests his case, the facts which were incumbent on him to establish appear from the evidence as merely possible, the court may or should grant a judgment of nonsuit; . . .'" The only evidence that the defendant points to which he claims was credible evidence that the jury could find negligence on Mrs. Klamik's part is the testimony of both the plaintiff and the defendant that the light-colored car between the defendant and Mrs. Klamik made a swift or rapid movement to swerve out and pass around the Klamik vehicle and the defendant's testimony that in so *292 doing there was no showing of any brake lights by the passing vehicle. This is supposed to show that she did not signal her turn and stopped abruptly. This is mere speculation and makes the defendant's conclusion fall within the realm of the "merely possible." Liebmann v. Busalacchi, supra. We find no reversible error in the trial court's granting of Mrs. Klamik's motion for nonsuit. By the Court.Order and judgment affirmed. NOTES [1] Defendant requested the following instruction: "You are instructed that a safety statute requires that except when overtaking and passing on the right is permitted, the operator of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance. "You are further instructed that a safety statute allows the operator of a vehicle to overtake and pass another vehicle upon the right only under conditions permitting such movement in safety and only if he can do so without driving off the pavement or main traveled portion of the roadway, and then only when the vehicle overtaken is making or about to make a left turn. "You are further instructed that if you find that Jeffrey Bode violated the provisions of either of these safety statutes, he would be negligent with respect to the manner in which he attempted to overtake Father Buchman's vehicle." [2] "346.08 When overtaking and passing on the right permitted. The operator of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety and only if he can do so without driving off the pavement or main-traveled portion of the roadway, and then only under the following conditions: "(1) When the vehicle overtaken is making or about to make a left turn; or "(2) Upon a street or highway with unobstructed pavement of sufficient width to enable 2 or more lines of vehicles lawfully to proceed, at the same time, in the direction in which the passing vehicle is proceeding; or "(3) Upon a one-way street or divided highway with unobstructed pavement of sufficient width to enable 2 or more lines of vehicles lawfully to proceed in the same direction at the same time." [3] "346.07 Overtaking and passing on the left. The following rules govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions and special rules stated in ss. 346.08 to 346.11: "(1) The operator of an overtaking motor vehicle not within a business or residence district shall give audible warning with his warning device before passing or attempting to pass on the left a vehicle proceeding in the same direction. This subsection shall not apply on a highway having 2 or more lanes available for traffic in the same direction, except when reasonably necessary to warn the operator of the vehicle about to be passed. "(2) The operator of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle. "(3) Except when overtaking and passing on the right is permitted, the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle." [4] "You are instructed that if a party fails to call a material witness within his control, or whom it would be more natural for that party to call than the opposing party, and the party fails to give a satisfactory explanation for his failure to call the witness, then you may infer that the evidence which he would give would be unfavorable to the party failing to call him."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311554/	361 S.E.2d 409 (1987) 87 N.C. App. 481 In the Matter of the Foreclosure of the Deed of Trust from LAKE TOWNSEND AVIATION, INC. to W. Scott Brannan, Substitute Trustee Recorded in Deed of Trust Book 2416, Page 14 in the Office of the Register of Deeds of Guilford County, North Carolina. In the Matter of The Foreclosure of the Deed of Trust from LAKE TOWNSEND AVIATION, INC. to W. Scott Brannan, Substitute Trustee Recorded in Deed of Trust Book 2487, Page 187, in the Office of the Register of Deeds of Guilford County, North Carolina. Nos. 8718SC66, 8718SC69. Court of Appeals of North Carolina. November 3, 1987. 410 Max D. Ballinger, Greensboro, for Aero Associates, Ltd., appellant. Tuggle, Duggins, Meschan & Elrod by David F. Meschan, Paul M. Dennis, Jr., and Harold A. Lloyd, Greensboro, for appellee. COZORT, Judge. Respondent appeals from two orders authorizing foreclosure under two deeds of trust. The two proceedings have been consolidated for opinion. We remand for additional findings by the trial court on the foreclosure under the first deed of trust, and we affirm the foreclosure under the second deed of trust. On 22 January 1969, Lake Townsend Aviation, Inc., (Lake Townsend) executed an $8,000 note payable to James H. Williams. The note was secured by a deed of trust on a tract of property owned by Lake Townsend. The terms of the note, which were incorporated by reference into the deed of trust, required payment in six months, or on 22 July 1969. However, Lake Townsend never made any payments on this note. On 22 May 1970, Lake Townsend executed a $12,000 note payable to James H. Williams. This note was also secured by a deed of trust on the same tract of land. The terms of repayment, as set forth in the note and incorporated by reference into the Deed of Trust, provided that Lake Townsend would repay the sum of $12,000 at the rate of six percent per annum as follows: Interest on the unpaid balance at the rate hereinabove specified shall be paid on the 1st day of June, 1971. The sum of $232.00 shall be paid on the 1st day of July, 1971, and a like amount on the first day of each month thereafter, until both principal and interest are fully paid; said payments to be applied first to interest on the unpaid balance and the residue in reduction of the principal sum. If any payment of principal or interest, or any part of either, shall not be paid within ten (10) days after the same is due, the holder of this Note may declare the entire sum due and payable.... Under these terms, the last payment on the note was due 1 June 1976. However, Lake Townsend never made any payments on this note. On 16 March 1972, Aero Associates, Limited, (Aero) purchased from Lake Townsend the tract of property subject to the aforementioned deeds of trust. Lake Townsend, however, failed to inform Aero that the tract was subject to the deeds of trust, and the deeds of trust were not recited in in the deed from Lake Townsend to Aero. On 25 September 1973, Williams' attorney wrote Lake Townsend and demanded that it begin payment on the $12,000 note. The letter further stated: Unless a satisfactory reply is received by 15 October, Mr. Williams will have no choice but to declare the entire balance of the note due and to proceed with a foreclosure of the Deed of Trust. Lake Townsend never responded to this letter, and on 23 August 1974, Williams had his attorney write Lake Townsend again to demand payment of the $12,000 note. This letter stated: Unless satisfactory arrangements are made to settle this obligation by Friday, 30 August, foreclosure proceedings will be instituted on that date. 411 Lake Townsend never responded to this letter and never made any payment on the note. On 22 January 1986, Aero received a letter from Williams' attorney informing Aero that Williams was the holder of two notes secured by deeds of trust on the land Aero had purchased from Lake Townsend. The letter demanded that Aero pay the $20,000 due on the two notes, plus interest, or Williams would initiate foreclosure proceedings. Aero never made any payments on either note, and on 11 March 1986 the substitute trustee under the deeds of trust filed a Petition For Authorization To Foreclose On Real Property. Aero responded by filing a motion to dismiss the petition on the grounds that foreclosure under both deeds of trust was barred by the statute of limitations. After a hearing, the clerk of superior court ruled: (1) that foreclosure under the first deed of trust was barred by the statute of limitations; and (2) that the foreclosure under the second deed of trust could proceed. Both Williams and Aero appealed. Superior Court Judge W. Douglas Albright entered orders allowing the foreclosure under each deed of trust to proceed. From those two orders, Aero appeals. N.C.Gen.Stat. § 45-21.12(a) provides: Except as provided in subsection (b), no person shall exercise any power of sale contained in any mortgage or deed of trust, or provided by statute, when an action to foreclose the mortgage or deed of trust, is barred by the statute of limitations. The applicable statute of limitations for foreclosure proceedings is N.C.Gen.Stat. § 1-47(3), which provides that an action must be commenced within ten years: For the foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where the mortgagor or grantor has been in possession of the property, within ten years after forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the last payment on the same. In order for a foreclosure to be barred under this section, two events must occur: (1) the lapse of ten years after the forfeiture or after the power of sale became absolute or after the last payment, and (2) the possession of the mortgagor during the entire ten-year period. These two requirements must be coexistent. Ownbey v. Parkway Properties, Inc., 222 N.C. 54, 56, 21 S.E.2d 900, 901 (1942). In addition, possession for the ten-year period must be actual possession. Id. In the first deed of trust, the time lapse requirement of N.C.Gen.Stat. § 1-47(3) has been satisfied. The cause of action for foreclosure under this deed of trust accrued on 22 July 1969, the day the $8,000 note became due. Under the provisions of N.C.Gen.Stat. § 1-47(3), the noteholder had an outside time limit of 10 years, or until 22 July 1979, in which to bring an action to foreclose on the property. The noteholder, however, did not institute his action for foreclosure until 11 March 1986, nearly seven years after the statute of limitations had run. Therefore, the requirement as to lapse of time has been met. Williams, the noteholder, argues, however, that the second requirement of N.C.Gen.Stat. § 1-47(3) has not been satisfied, because that statute protects only the original mortgagor or grantor, not subsequent purchasers. A purchaser of land, however, acquires all the rights, titles and equities of its grantor. Pearce v. Watkins, 219 N.C. 636, 14 S.E.2d 653 (1941). When a purchaser acquires land which is subject to a deed of trust, he also acquires the mortgagor/grantor's equity of redemption in the land. A purchaser of the equity of redemption is entitled to all of the defenses available to the mortgagor, including the defense that foreclosure is barred by the ten-year statute of limitations set forth in the Code, § 152, subsection 3 (now N.C. Gen.Stat. § 1-47(3)). Stancill v. Spain, 133 N.C. 76, 79-80, 45 S.E. 466, 467 (1903). Therefore, we hold that the protection offered by N.C.Gen.Stat. § 1-47(3) is not limited to the original mortgagor or grantor, *412 but also extends to subsequent purchasers. Construing the statute in this manner is in no way detrimental to the mortgagee. The mortgagee still has ten years to bring an action for foreclosure, regardless of who owns the land. In the case sub judice, however, there is no evidence that Aero was in actual possession of the land for the requisite ten-year period. Therefore, we are unable to determine whether the second requirement of N.C.Gen.Stat. § 1-47(3) has been satisfied. Accordingly, we remand to the trial court for further findings on the issue of actual possession. Should the trial court find that Aero was in actual possession of the land for ten years before this action was initiated, it must hold that foreclosure is barred pursuant to N.C.Gen.Stat. § 1-47(3). If, however, Aero was not in actual possession for the ten-year period, then the proposed foreclosure would not be barred by the statute. As to the second deed of trust, the time lapse requirement of N.C.Gen.Stat. § 1-47(3) has not been satisfied. The cause of action for foreclosure under this deed of trust accrued on 1 June 1976, the day the last payment on the $12,000 note was due. Williams had ten years from that date, or until 1 June 1986, to bring a foreclosure action. Since Williams initiated foreclosure proceedings on 11 March 1986, the action was filed within the limitations period. Aero argues that Williams' collection letters, dated 25 September 1973 and 23 August 1974, accelerated the maturity of the note, so that the power of sale became absolute and the statute of limitations began to run on one of these two dates. Since foreclosure proceedings were not initiated until 11 March 1986, Aero contends that the ten-year statute of limitations had already passed. We disagree. The terms of repayment of the $12,000 note, as set forth in the note and incorporated by reference into the Deed of Trust provided that: If any payment of principal or interest, or any part of either, shall not be paid within ten (10) days after the sum is due, the holder of this Note may declare the entire sum due and payable. Since no payments were ever made on the principal or interest by Lake Townsend or anyone else, Williams had the right to accelerate payment on the entire amount of the note. We find that Williams never exercised this right. Neither of the two collection letters sent by Williams' attorney contained any provision accelerating the maturity of the note, nor did they contain a demand for payment in full. The first letter merely requested that Lake Townsend begin payment, and the second letter requested that it make satisfactory payment arrangements. Since neither of these letters was an exercise of the note's acceleration clause, the statute of limitations did not begin to run until 1 June 1976, the day the last payment on the $12,000 note was due. Because foreclosure proceedings were initiated on 11 March 1986, within the ten-year statute of limitations, N.C.Gen.Stat. § 1-47(3) will not bar this action. Having determined that the time lapse requirement of N.C.Gen.Stat. § 1-47(3) has not been met, the issue of actual possession for the ten-year period is irrelevant. Based on the foregoing, we hold that the trial court was correct in allowing foreclosure to proceed on the $12,000 note. In summary, in case No. 8718SC66, the order is vacated and the cause remanded for further proceedings; in case No. 8718SC69, the order is affirmed. Affirmed in part, vacated and remanded in part. BECTON and MARTIN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311559/	58 Mich. App. 609 (1975) 228 N.W.2d 486 PEOPLE v. SINCLAIR Docket No. 19777. Michigan Court of Appeals. Decided February 13, 1975. 610 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Raymond L. Scodeller, Prosecuting Attorney, and Lawrence J. Emery, Assistant Prosecuting Attorney, for the people. Burwell & Shrank, for defendant on appeal. Before: D.E. HOLBROOK, P.J., and R.B. BURNS and VAN VALKENBURG,[] JJ. VAN VALKENBURG, J. The defendant pled guilty to delivery of a controlled substance, lysergic acid diethylamide, contrary to MCLA 335.341(1)(b); MSA 18.1070 (41)(1)(b). On February 1, 1973, defendant allegedly sold the controlled substance to an undercover police officer at 106 Beech Street in Lansing, Michigan. At trial, this officer testified that defendant had offered to sell him drugs which defendant said were mescaline. The unlawful transaction was completed when defendant extracted four blue pills from a vial containing similar pills and delivered them to the undercover officer at $1.00 apiece. This testimony by the police officer completed the first day of trial. On the second day of trial, defendant offered to plead guilty to unlawful delivery of lysergic acid diethylamide (LSD) in exchange for the prosecutor's dismissing another charge against him. This plea bargain had been agreed to by the prosecutor and consequently the trial court proceeded to accept the guilty plea. In establishing a factual basis 611 for the guilty plea, defendant stated that he had delivered pills to one Kathy Mason, who in turn gave the drugs to the undercover police officer in defendant's presence. However, defendant apparently was not aware that the drugs were LSD since he had been told they were mescaline as is indicated in the following colloquy: "Q. (by the court): Now, earlier you said, `I told her I had some chemicals, I didn't know what it was'. Did you suspect what it was? "A. (by defendant): Yes, I did. "Q. What did you suspect it was? "A. I suspected it was mescaline. "Q. Why did you suspect it was mescaline? "A. That's what I was told when it was given to me. "Q. I gather there's a difference between mescaline and LSD? "A. Yes sir. * * "Q. (by the court, continuing): Well, let me ask you, Mr. Sinclair. At that time, you've told me you didn't really know what it was but you thought it to be mescaline, is that correct? "A. Yes, sir. "Q. Did you have any reason to believe that it might also be LSD? "A. No, I believed what I was told. "Q. How do you distinguish between LSD and mescaline? "A. Actually, there's no way except for word of mouth." Later, the trial court again questioned defendant about the chemical nature of the delivered drugs in order to establish defendant's knowledge that they were LSD. Defendant replied evasively, however, and never acknowledged that he knew the 612 drugs he had delivered to the undercover police officer were LSD. Moreover, during the plea taking defendant maintained that the pills he had delivered to the undercover officer were white instead of blue like the pills introduced into evidence against him at trial. The court advised defendant that this difference could constitute a defense on which a jury might acquit him. But, defendant replied that he doubted the jury would acquit him on that basis and therefore he still wanted to plead guilty. In this appeal, defendant contends that the trial court erred in accepting his guilty plea without establishing the correct chemical identity of the controlled substance and his knowledge thereof. Also, defendant argues that the trial court erred in accepting his guilty plea where his statement to the court indicated a discrepancy in the authenticity of the evidence which would constitute a valid defense at a trial. In regard to defendant's first contention, it should be noted initially that both mescaline and LSD are hallucinogenic substances which have the same classification in the Controlled Substances Act, MCLA 335.314(c); MSA 18.1070(14)(c). Similarly, unlawful delivery of either substance is subject to the same penalty. The pertinent court rule, GCR 1963, 785.7(3)(c), provides that a court shall not accept a guilty plea "until it is satisfied that a crime was committed" and: "If defendant's description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court." 613 Quite clearly, this carefully drafted rule does not require certain proof of any specific crime at a guilty plea proceeding. Rather, the requisite proof is that which will substantially support a finding, to the satisfaction of the trial court, that defendant is guilty of the charged offense or the offense to which he is pleading. When the trial court is satisfied that the facts substantially support a finding that defendant is indeed guilty of a crime, the court may accept the guilty plea. In the instant case, the evidence was overwhelming at the trial and at the subsequent plea proceedings that defendant had participated in a violation of MCLA 335.341(1)(b); MSA 18.1070(41)(1)(b). There was some doubt at the guilty pleading as to whether the controlled substance unlawfully delivered was mescaline or LSD. Defendant said he "suspected" the substance in question was mescaline on the basis of his vendor's representations, but defendant admitted he had no method of independently determining the identity of the substance. Since no contention has been made that defendant misunderstood the nature of the charge against him, it can be reasonably concluded that defendant accepted the police analysis that the substance was LSD, albeit at the time of the unlawful delivery defendant suspected it was mescaline. Indeed, when defendant's statements at the plea proceeding are carefully considered, none of them directly contradicts this conclusion. In these circumstances, the record of the plea proceeding does substantially support a finding that defendant is in fact guilty of violating MCLA 335.341(1)(b); MSA 18.1070(41)(1)(b). Conclusive proof of a factual basis for the guilty plea is not required by the court rule despite defendant's contentions in this appeal to the contrary. 614 As to defendant's other contention of error based on an alleged difference in the coloration between the pills unlawfully delivered and those introduced into evidence at trial, it is well established that a court need not reject a guilty plea merely because there are discrepancies in the evidence which indicate possible defenses to the crime. The pertinent court rule, GCR 1963, 785.7(1)(a), does not even oblige the trial court to explain possible defenses to a guilty-pleading defendant, and a fortiori does not require a court to explore and establish whether a defense exists. The principle is well stated in People v Garcia, 36 Mich App 141, 142; 193 NW2d 187, 188 (1971): "Where defendant is represented by counsel, the trial court need not make exhaustive examination as to the possible defenses, even if the testimony of the accused gives some indication that defenses might have been raised at trial." Accord, People v Neal, 38 Mich App 586; 196 NW2d 789 (1972). In passing, we note that some prosecuting attorneys, in order to save needless expense and inconvenience to witnesses and jurors, have adopted a policy of not acquiescing in the acceptance of guilty pleas at the beginning of or during trial. While this may be practical, it would be difficult indeed for a court, on a constitutional basis or otherwise, to refuse a plea where all the requirements of the court rule are met. Moreover, in view of the ever-increasing number of guilty plea appeals to this Court, we feel constrained to urge most respectfully that trial judges employ meticulous care, even to the extent of having a check-off system if necessary, in order to be certain that each and every requirement of the court rule is complied with. Affirmed. NOTES [] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311575/	68 Wis.2d 467 (1975) 228 N. W. 2d 357 RYAN and wife, Appellants, v. DEPARTMENT OF REVENUE, Respondent. No. 404. Supreme Court of Wisconsin. Submitted April 10, 1975. Decided May 6, 1975. 470 For the appellants the cause was submitted on the brief of Robert E. Sutton and Samson, Friebert, Sutton, Finerty & Burns, all of Milwaukee. For the respondent the cause was submitted on the brief of Robert W. Warren, attorney general, and Sverre O. Tinglum, assistant attorney general. Submitted under sec. (Rule) 251.54 April 10, 1975. BEILFUSS, J. The appellants contend, due to the representation of the woman at the commission to the effect that she would file the petition, and due to the appellants' allegedly justifiable reliance to their detriment upon such representation, that the department is estopped from asserting the untimeliness of the filing of the petition. We hold that estoppel is inappropriate here because: (1) It is being asserted against the government, and (2) the appellants have failed to establish justifiable reliance on the representation. With respect to the fact that estoppel is being asserted against the government, it should be noted that it was not an agent of the respondent who made the representation. The respondent is the Wisconsin Department of Revenue. The woman who allegedly made the representation was an employee of the tax appeals commission, which is attached to the department of administration, an executive administrative department entirely separate from the Wisconsin Department of Revenue. Thus the appellants are attempting to assert the acts of an employee of one governmental agency as a basis for estoppel against a different governmental agency. As a general proposition, a government or one of its agencies is not subject to estoppel to the same extent as an individual. Libby, McNeill & Libby v. Department of Taxation (1952), 260 Wis. 551, 555, 51 N. W. 2d 796; Jefferson v. Eiffler (1962), 16 Wis. 2d 123, 133, 113 N. W. 2d 834; Surety Savings & Loan Asso. v. State 471 (1972), 54 Wis. 2d 438, 445, 195 N. W. 2d 464. In order to establish estoppel, the acts of the state agency "must amount to a fraud or a manifest abuse of discretion." Surety Savings & Loan Asso., supra, page 445; Jefferson, supra, page 133. As stated in Monahan v. Department of Taxation (1963), 22 Wis. 2d 164, 169, 125 N. W. 2d 331: ". . . there is no estoppel in pais if the party seeking to invoke it was aware of facts which made it its duty to inquire into the matter. There may be situations where the party, against whom an estoppel in pais is asserted, has been guilty of an intentional wrongful act which has misled the injured party. In such a situation it might well be inequitable to permit the wrongdoer to escape the consequences of the doctrine of estoppel in pais on the ground that the injured party did not exercise diligence to discover the true facts. However, this is not the situation here because there is nothing in the record before us to even suggest that the chairman of the board, in executing the admission of service, acted from an improper motive." With respect to any justifiable reliance on the part of the appellants, as stated in Monahan, supra, page 168, "the right to assert estoppel in pais does not arise unless the party asserting it has acted with due diligence." In the instant case, the appellants' attorney admitted to being fully aware, at all relevant times, of the pertinent filing deadlines. Yet even after his second conversation with the woman at the commission, at which time he learned that with only one day left in the filing period the petition still had not been filed, he made no attempt to go to Madison to get the petition and did not file a copy of the petition with the clerk of courts until about five days later, after the filing period had expired. In view of the attorney's knowledge of the deadline and of the fact that the petition had not been filed, it can hardly be said that he acted with due diligence or that he was justified in relying upon the woman's original representation. *472 This court has consistently demanded strict compliance with the requirements of sec. 227.16, Stats., for judicial review. Cudahy v. Department of Revenue (1974), 66 Wis. 2d 253, 259, 224 N. W. 2d 570; Brachtl v. Department of Revenue (1970), 48 Wis. 2d 184, 187, 179 N. W. 2d 921. As stated in Kohnke v. ILHR Department, supra, at page 690: "To dismiss an appeal because it comes one day late may seem harsh. However, if statutory time limits to obtain appellate jurisdiction are to be meaningful they must be unbending." We hold, therefore, that appellants have failed to make an adequate showing of facts sufficient to create an estoppel, and thus must affirm the order of the circuit court dismissing appellants' petition for lack of timely filing.[2] By the Court.Order affirmed. NOTES [2] The question of the timeliness of the appeal to this court, while briefed by both parties, was decided by order prior to oral argument and hence is not discussed here.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311579/	68 Wis.2d 381 (1975) 228 N. W. 2d 708 FLETCHER, Plaintiff in error, v. STATE, Defendant in error. No. State 10. Supreme Court of Wisconsin. Argued April 8, 1975. Decided May 6, 1975. 382 For the plaintiff in error there was a brief by Howard B. Eisenberg, state public defender, and Alvin E. Whitaker, assistant state public defender, and oral argument by Mr. Whitaker. For the defendant in error the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general. ROBERT W. HANSEN, J. The defendant was found guilty of three counts of illegally selling heroin, with the evidence in support of the jury verdict[1] establishing 383 three separate sales of heroin by the defendant to an undercover agent of the state department of justice. As to the first sale of heroin by the defendant, the purchaser testified that he and an informant went to the residence of the defendant and that: "We were admitted to 359 Highland by Mr. Fletcher and we went upstairs. It's an upstairs apartment, and when we got up there, the confidential informant asked Mr. Fletcher if he had any stuff and Mr. Fletcher said, `A little,' and then he asked me how much I wanted and I said, `Three-quarters,' meaning three quarter bags of heroin. He got upwe were in the living roomhe got up and walked into a room to the right as you come up the stairs and got three tinfoil packets out of a refrigerator and turned and handed them to me and I in turn handed him $75three 20's, one 10 and one 5and then we departed." As to the second sale of heroin, eleven days later, the purchaser testified that he returned to the same address, this time alone, and was again admitted by the defendant. The purchaser testified that he was asked what he wanted and that he replied, "Two quarters of jive," that the defendant then left the room and the following then transpired: "I believe the unidentified Negro male said, `Billy wants you' or something to that effect. I walked into the bedroom. Mr. Fletcher was sitting at a table in a corner and he had a small pile of white powder in front of him, and he was using a small spoon to put a quantity of this white powder in tinfoil packets; and then Mr. Fletcher asked me what was the last thing I had bought from him, and at this time I said, `The brown junk,' and he agreed and then finished spooning out two quarter bags and then handed it to me and I handed him $50, which was in two 20's and one 10." 384 As to the third sale of heroin, one month later, the purchaser testified that he and the informant returned to the same address and the following events took place: "Mrs. Caroline Fletcher answered the door and admitted us and we went upstairs to the upstairs apartment, and Mr. Fletcher asked what we wanted and the confidential informant said, `A quarter,' and then Mr. Fletcher asked the confidential informant a few questions, personal questions concerning him, and then Mr. Fletcher went into the room to the right and returned with a tinfoil packet; and I handed Mr. Fletcher a $20 bill and a $5 bill, and Mr. Fletcher handed the packet to the confidential informant and he placed it in his right jacket pocket and then we exited the apartment. And, when we returned to my car, the confidential informant handed me the tin packet, tinfoil packet, and I placed it in my left shirt pocket." As to sufficiency of the evidence to sustain conviction, we hold that the evidence supporting the verdict, believed and rationally considered by the jury, was amply sufficient to sustain the guilty verdict as to each of the three counts. The issue raised by the defendant as to the testimony of backup agents who observed the purchaser approach the house of the defendant, goes to the credibility of such witnesses and the weight to be given their testimonyboth of which are matters for a jury to determine.[2] As to the quantities of heroin being sufficient to sustain conviction, we hold, as a matter of law, that they were. The chemist who analyzed the contents of the several tinfoil packets testified that the total weight of the matter contained in one packet was two tenths of a gram, five percent of which was heroin, ninety-five percent of which was diluting material. Thus each packet contained ten milligrams or so of heroin, which defendant 385 contends is too minute to have commercial value or constitute a usable quantity of the drug. Our court follows the majority rule, in sale or possession cases, that ". . . possession of a modicum of an illegal drug is sufficient to bring the defendant within the purview of the statute. . . ."[3] The statutes here involved do not prescribe any minimum amount which must exist,[4] and such amount "... need not be a usable amount...."[5] In fact, the quantity of the drug either possessed or sold, we have clearly held ". . . is not material. . . ."[6] As to jury instructions on entrapment being here required, we hold that such instructions would in this case have been entirely inappropriate. A trial court is not required to give a requested instruction unless the evidence reasonably requires it,[7] and here the evidence did not require it. The issue of entrapment does not arise under the circumstances of the three sales as testified to by the purchaser, such testimony, if believed by the jury, establishing that the defendant "was predisposed to unlawfully sell a dangerous drug."[8] Under 386 the circumstances detailed, it is, in fact, "impossible to find any basis upon which to base a claim of entrapment."[9] The defendant disputed the fact of sale, not the circumstances surrounding the sales. As to the first two sales. Defendant testified that he was in California on the date of the first sale, and in Madison on the date of the second. As to the third sale, the defendant testified that there was a return of drugs sold earlier that day to defendant by the informant, but no sale by defendant to either undercover agent or informant. With the fact of sale by the defendant denied as to the three occasions involved, the issue of defense of having been entrapped into making a sale does not here arise as to any of the three counts under either the "predisposition" test, the test in this state,[10] or the "governmental conduct" theory,[11]387 up to now rejected by the United States Supreme Court.[12] Where the testimony on behalf of the state as to circumstances surrounding the three sales of heroin does not even suggest entrapment, and the testimony for the defense is that no sales occurred and does not suggest entrapment under the predisposition test, there is neither reason nor right for a trial court to instruct the jury as to entrapment as an affirmative defense. The trial court's refusal to instruct as to entrapment is affirmed. 388 As to violation of an order segregating witnesses, we find that no such violation here occurred. On the first day of trial, defense counsel made a motion ". . . that the witnesses be segregated and those that aren't testifying be outside the presence of those that are." The trial court granted such motion. During the opening statement of the prosecutor, defense counsel objected to the presence of witnesses in the courtroom, and they were escorted out. A motion for mistrial based on such claimed violation of the segregation order was denied by the trial court for the reason that "... [the prosecutor] had not proceeded far enough in his opening remarks to prejudice [the defendant] in any way...." That appears to be the case, but it is also clear that the scope or limit of the defense motion to sequester extended only to the segregation of witnesses so that "... those that aren't testifying be outside the presence of those that are...." Exclusion of all witnesses during the prosecutor's opening statement is not reached by such motion, so worded. A motion to sequester witnesses is not a matter of right, but is addressed to the sound discretion of the trial court.[13] This is an area in which "... the supreme court will not intrude in the absence of abuse of such discretion."[14] We do not presume prejudice from a failure to sequester.[15] If the order sequestering witnesses had been overlooked or violated under the circumstances 389 here present, we would not here find ground for reversal.[16] However, since the motion, as phrased, did not include exclusion of witnesses from the courtroom during the prosecutor's opening statement, we find no basis for claim of error. By the Court.Judgment and order affirmed. NOTES [1] This court has repeatedly held: "`... In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. ...'" Ziegler v. State (1974), 65 Wis. 2d 703, 706, 223 N. W. 2d 442, quoting Bautista v. State (1971), 53 Wis. 2d 218, 223, 191 N. W. 2d 725. [2] See: Blackwell v. State (1969), 42 Wis. 2d 615, 627, 167 N. W. 2d 587. [3] State v. Dodd (1965), 28 Wis. 2d 643, 651, 137 N. W. 2d 465. [4] Secs. 161.02 (1) and 161.28 (1), Stats. 1969, and sec. 161.41 (1) (a), Stats. 1971. [5] State v. Dodd, supra, footnote 3, at page 651. [6] Id. at page 651, this court adding: ". . . A more liberal interpretation favorable to drug addicts and those illegally dealing in narcotics cannot reasonably be given. . . ." [7] Belohlavek v. State (1967), 34 Wis. 2d 176, 179, 148 N. W. 2d 665. [8] State v. Boutch (1973), 60 Wis. 2d 443, 448, 210 N. W. 2d 730, this court stating: "There is no dispute as to the essential facts in this case.... "Kasabuske [undercover agent for the state department of justice] testified that he approached defendant and asked him if he knew where he could get some weed. Defendant said he would try, and then walked over to another party and returned in about a minute and said he couldn't. He testified that the defendant approached another individual, came back and said he couldn't get any weed, but had some organic mesc to sell. "Kasabuske's testimony establishes that the defendant was predisposed to unlawfully sell a dangerous drug. There was no hesitancy on the defendant's part to solicit marijuana for or to sell organic mesc (LSD) to agent Kasabuske." [9] Id. at page 448, this court holding: "Likewise, the record shows no previous importunities on the part of agent Kasabuske nor refusals on the part of the defendant to purchase or sell dangerous drugs. It is, in fact, impossible to find any basis upon which to base a claim of entrapment. The defendant was not induced by state agents to commit a crime not contemplated by him. The record shows the defendant to be able and willing to supply such drugs without hesitancy on his part whatsoever. The state has proven beyond a reasonable doubt that the accused had a prior disposition to commit the crime." Also holding at page 447: "If, however, the individual is so predisposed to commit the crime such that the intent to violate the law can be said to have originated in the mind of the individual and not the government agent, then the defense of entrapment is inapplicable...." [10] Id. at page 448, this court holding: "`It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.'" Quoting United States v. Russell (1973), 411 U. S. 423, 93 Sup. Ct. 1637, 36 L. Ed. 2d 366. [11] See: United States v. Hampton (8th Cir. 1974), 507 Fed. 2d 832, 834, 835, the court stating: "... Appellant recognizes that the Supreme Court has recently rejected a `Government conduct' theory of entrapment in United States v. Russell, 411 U. S. 423, 93 Sup. Ct. 1637, 36 L. Ed. 2d 366 (1973), but he nevertheless argues that such a theory may represent a proper basis for an entrapment defense where, as here, the defendant's version of the evidence discloses that the Government supplied the contraband without which there would be no crime," but holding: "We believe that the Supreme Court's opinion in Russell forecloses us from considering any theory other than predisposition with respect to Hampton's entrapment defense." (The United States Supreme Court has granted review of this decision in Hampton v. United States (1975), 420 U. S. 1003, 95 Sup. Ct. 1445, 43 L. Ed. 2d 761. Review pending.) [12] United States v. Russell, supra, footnote 10, at page 433, the majority opinion holding: "... This Court's opinions in Sorrells v. United States, supra [(1932), 287 U. S. 435, 53 Sup. Ct. 210, 77 L. Ed. 413] and Sherman v. United States, supra [(1958), 356 U. S. 369, 78 Sup. Ct. 819, 2 L. Ed. 2d 848] held that the principal element in the defense of entrapment was the defendant's predisposition to commit the crime. Respondent conceded in the Court of Appeals, as well he might, `that he may have harbored a predisposition to commit the charged offenses.' . . . Yet he argues that the jury's refusal to find entrapment under the charge submitted to it by the trial court should be overturned and the views of Justices ROBERTS and FRANKFURTER, in Sorrells and Sherman, respectively, which make the essential element of the defense turn on the type and degree of governmental conduct, be adopted as the law. "We decline to overrule these cases...." [13] Ramer v. State (1968), 40 Wis. 2d 79, 82, 83, 161 N. W. 2d 209. See also: Abraham v. State (1970), 47 Wis. 2d 44, 176 N. W. 2d 349. [14] Valiga v. National Food Co. (1973), 58 Wis. 2d 232, 254, 206 N. W. 2d 377, citing Andritsch v. Henschel (1965), 27 Wis. 2d 461, 134 N. W. 2d 426. [15] Ramer v. State, supra, footnote 13, at page 83, citing Loose v. State (1903), 120 Wis. 115, 97 N. W. 526; Zoldoske v. State (1892), 82 Wis. 580, 52 N. W. 778. [16] See: Waite v. State (1973), 57 Wis. 2d 218, 224, 203 N. W. 2d 719, this court there holding: "... As to such minor discrepancies, the trial court's failure to sequester the two state's witnesses, if error at all, was certainly harmless. It is not grounds for granting a new trial."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311585/	184 Ga. App. 282 (1987) 361 S.E.2d 211 WHITTINGTON v. THE STATE. 74644. Court of Appeals of Georgia. Decided September 11, 1987. Rehearing Denied September 23, 1987. Michael P. Katz, Virgil L. Brown, for appellant. William J. Smith, District Attorney, Michael D. Reynolds, Assistant District Attorney, for appellee. CARLEY, Judge. Appellant was tried before a jury on a four-count indictment, and verdicts of guilty were returned on all four counts. Appellant was granted a new trial as to two of the counts, but his motion for a new trial was denied as to the counts which charged him with driving under the influence and with driving although his license had been suspended as an habitual violator. Appellant appeals from the judgments 283 of conviction and sentences entered on the jury verdicts as to those two counts. 1. Appellant asserts that, in reviewing the general ground of his motion for new trial, the trial court applied an erroneous standard of "any evidence." However, the record does not support this contention. It reveals no reference to the standard employed by the trial court in denying appellant's motion for new trial on the general grounds. It is presumed that the trial court applied the correct standard and our own review shows that the general grounds are without merit. After reviewing the entire record, we find that a rational trior of fact could have found appellant guilty, beyond a reasonable doubt, of being an habitual violator and of driving under the influence. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. The trial court's admission into evidence of the results of appellant's intoximeter test is enumerated as error. The contention is formed that appellant was coerced into submitting to the test, as he was informed that his refusal to do so would result in the suspension of his driver's license for a period of "six to twelve months." Under the provisions of OCGA § 40-5-63 (b), as it existed at the time of appellant's arrest, "[a]ny suspension made pursuant to Code Section 40-5-55 shall be for six months; provided, however, that, where a person who has refused to submit to a test or tests provided for in Code Section 40-5-55 has been charged with homicide by a vehicle as provided in Code Section 40-6-393, the suspension shall be for 12 months." As there were no fatalities resulting from appellant's alleged intoxicated driving, he urges that it was impermissibly deceptive for the officer to inform him that, if he refused to submit to the State-administered test, his license could be suspended for more than six months. "In Georgia, the [S]tate may constitutionally take a blood sample from a defendant without his consent. [Cit.] Our `Implied Consent Statute' (OCGA § 40-5-55) thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test. OCGA § 40-6-392 and OCGA § 40-5-55 grant, rather than deny, a right to a defendant." Allen v. State, 254 Ga. 433, 434 (1a) (330 SE2d 588) (1985). "OCGA § 40-5-55 creates the right to refuse. OCGA § 40-6-392 defines the right." Allen v. State, supra at 434 (1a), fn. 1. Subsection (a) (4) of OCGA § 40-6-392, the statute which defines the right to refuse to submit to a State-administered test, merely provides that "[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code Section." Thus, our "Implied Consent Statute" only requires that the arrestee be informed of his right to an additional test. There is neither a statutory nor a constitutional requirement that the arresting officer inform the arrestee of the consequences of the refusal to submit to the State-administered test. See South Dakota v. Neville, 284 459 U.S. 553 (103 SC 916, 74 LE2d 748) (1983). However, a warning to an arrestee of the legitimate consequences of his refusal to submit to a State-administered test is neither constitutionally nor statutorily prohibited. The State is authorized to create such consequences as a means of lawfully inducing an arrestee into choosing his option of submitting to a State-administered test. See South Dakota v. Neville, supra. "`[T]he State wants [the arrestee] to choose to take the test, for the inference of intoxication arising from a positive blood-alcohol test is far stronger than that arising from a refusal to take the test.' [Cit.]" Wessels v. State, 169 Ga. App. 246, 247 (1) (312 SE2d 361) (1983). See also Sorrow v. State, 178 Ga. App. 83 (342 SE2d 20) (1986). Accordingly, by informing the arrestee of the legitimate consequences of his refusal to submit to the State-administered test, the arresting officer is engaging in an act of lawful inducement. Thus, the issue presented for resolution is whether, under the circumstances of this case, the arresting officer unlawfully coerced appellant's election to submit to the State-administered test by informing him that his refusal could result in a suspension of his driver's license for a period greater than six months or whether the arresting officer legally induced that election notwithstanding the non-fatal consequences of appellant's act. OCGA § 40-6-392 (a) (4) mandates that the arrestee be advised of his right to alternative testing at the time of arrest. Our Supreme Court has held that "`(t)his [directive] cannot be interpreted to mean sometime in the future....' [Cit.]" Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983). Since the statute requires that the arrestee be informed of his right to additional testing at the point of his arrest, it follows that any other warnings or notifications purportedly given to induce his submission to the State-administered test are also to be made at that time and are to be considered from the perspective of such circumstances as then existed. However, at the point of arrest, it is not always possible for a law officer to know whether the arrestee will ultimately be charged with violating OCGA § 40-6-393 and thus whether the arrestee will ultimately face suspension of his license for twelve rather than for six months upon his refusal to take the State-administered test. This would be especially true where, as in the present. case, the arrest is incident to the investigation of a vehicular collision. Even where the arrest is made merely for impaired driving which, to the officer's current knowledge, has yet to result in a physical injury, it is entirely possible that the arrestee may well have been involved in a prior incident, such as hit and run, of which the officer is yet unaware. Thus, it would be unreasonable to require that a police officer determine, at the point of each DUI arrest, whether or not the arrestee might ultimately be charged under OCGA § 40-6-393 and to require that the officer tailor his warnings accordingly. The problem 285 is compounded by passage of the 1987 amendment to OCGA § 40-5-63 (b), whereby persons charged with violating OCGA § 40-6-394 are now included among those who will be subject to a twelve-month suspension for refusal to submit to the State-administered test. Accordingly, we hold that evidence merely that the officer informed the arrestee that the consequences of his refusal to submit to a State-administered test could be suspension of his driver's license for a period of "six to twelve months" in no way suggests "that the officer purposely attempted to mislead the [arrestee]." Sorrow v. State, supra at 84. There is no unlawful coercion of the arrestee's submission to the State-administered test as the result of the officer's imparting of such information, merely lawful inducement by the officer's informing him of the permissible range of sanctions that the State may ultimately in fact be authorized to impose should he refuse to submit. The trial court correctly admitted the results of appellant's blood-alcohol test into evidence. 3. The admission into evidence of certain testimony is enumerated as error. However, at trial there was no timely objection or motion to strike the testimony. "`It is a well settled rule in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection.' [Cits.]" Skinner v. State, 155 Ga. App. 754, 755 (272 SE2d 570) (1980). 4. The trial court charged the jury that a guilty verdict would be authorized if it should find, beyond a reasonable doubt, that appellant had committed the offenses at any time within the applicable statute of limitations. Appellant, who had advanced an alibi defense, enumerates the giving of this charge as error. "The instruction is a correct statement of a general principle of law. `Where the date alleged in the indictment is not a material element of the offense, the [S]tate may prove the offense as of any date within the statute of limitation. [Cits.]' [Cit.] The principle is applicable even though the defense is alibi. [Cit.] Yet, it has also been recognized that, as a jury instruction, the legal principle is `potentially confusing in light of (the) alibi defense. [Cit.]' [Cit.] `We have also held, however, that unless time is of the essence of the crime or is expressly made material, such an instruction is not grounds for reversal so long as the requirements set forth in De Palma v. State, 225 Ga. 465 (169 SE2d 801) (1969) are fulfilled... .' [Cit.] Those requirements were fulfilled in the case at bar." McCoy v. State, 174 Ga. App. 621, 622-623 (2) (330 SE2d 746) (1985). See also Brannon v. State, 176 Ga. App. 781, 782 (4) (337 SE2d 782) (1985). Appellant further enumerates as error the trial court's failure to grant a continuance for the purpose of preparing a defense to meet the State's evidence that the alleged violations had occurred on a date which differed from the date specified in the indictment. However, 286 appellant made no motion for a continuance. He only made various motions to dismiss the indictment, for mistrial, and for a directed verdict of acquittal. "[T]he instant variance should have been complained of by an appropriate motion for time to prepare a defense to meet the new date. [Cits.] We hold that the trial court did not err in denying the motion for directed verdict of acquittal, and that the time variance involved here cannot be reached by such motion or by the usual general grounds. While it would have been preferable for the trial court, sua sponte, to make an offer of additional time in which to attempt to establish an alibi defense for the different date, we will not hold that he was compelled to do so." Caldwell v. State, 139 Ga. App. 279, 290-291 (228 SE2d 219) (1976). See also Haygood v. State, 172 Ga. App. 271, 273 (2) (322 SE2d 513) (1984); Frymyer v. State, 179 Ga. App. 391 (2) (346 SE2d 573) (1986). 5. Remaining enumerations of error have been considered, but have been found to be without merit. Judgment affirmed. Banke, P. J., and Benham, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311583/	546 S.E.2d 55 (2001) 248 Ga. App. 284 CLARENCE L. MARTIN, P.C. v. WALLACE et al. No. A00A2306. Court of Appeals of Georgia. February 27, 2001. 56 Constance L. Thomas, Savannah, for appellant. Lee, Black, Scheer & Hart, R. Jonathan Hart, Inglesby, Falligant, Horne, Courington & Nash, Elsie R. Chisholm, Owen C. Murphy, Wiseman, Blackburn & Futrell, James B. Blackburn, Emily E. Garrard, Savannah, for appellees. ELLINGTON, Judge. Clarence L. Martin, P.C. ("the corporation") filed this appeal from the trial court's order denying its motion to intervene and to set aside the judgment following a judicial in rem tax foreclosure sale of certain real property.[1]57 The corporation claims that since it held title to the property sold at the tax sale, the trial court erred in denying its motion to intervene and in granting the tax sale purchaser's motion to dismiss its petition. For the reasons that follow, we reverse the order dismissing the corporation's petition to intervene and remand for further proceedings. The facts of this case are not in dispute. The corporation owned property located in Chatham County. The property was sold for taxes, but the U.S. Small Business Administration paid the redemption price to protect the mortgage it held on the property. When the property was redeemed, the Chatham County Tax Commissioner conveyed the property into the name of Clarence L. Martin, individually, instead of the corporation. When no taxes were paid on the property, the tax commissioner sold the property to Thomas Cecil Wallace, Sr. Wallace also failed to pay taxes on the property. Seeking a judgment authorizing the sale of the property, the tax commissioner filed a petition for ad valorem tax foreclosure which named Wallace as the record owner of the property. Exhibit B to the petition listed interested parties, including Martin. On August 10, 1999, the superior court conducted a hearing on the petition pursuant to OCGA § 48-4-79. It is undisputed that Martin, the registered agent for the corporation, attended the hearing. It is also undisputed that although Martin received notice of the proposed sale, the corporation did not. Martin maintains that he was present on his own behalf and not on behalf of the corporation. After reviewing the petition for judicial in rem tax foreclosure, the superior court issued an order authorizing the foreclosure and tax sale. On October 5, 1999, the property was sold to Dolly Chisholm, an attorney who represents Wallace. On December 6, 1999, the corporation filed a petition to intervene and to contest the tax foreclosure. On that same day, to protect its rights to redeem the property, the corporation paid $22,251.75, the amount of taxes due, into the registry of the court. Subsequently, the tax commissioner reported to the trial court that the property could not be conveyed due to the filing of the petition to intervene. Meanwhile, Wallace filed a motion seeking the dismissal of the corporation's petition. Wallace argued that the corporation had no standing and lacked the capacity to intervene. Wallace claimed that since the professional corporation had been administratively dissolved, the corporation was no longer recognized as a legal entity. Wallace also contended that the corporation was not the title owner of the property at the time of the filing of the petition for the tax foreclosure and, therefore, had no right to redeem the property as provided by OCGA § 48-4-81(c). Without setting forth any reasons for doing so, the trial court granted Wallace's motion to dismiss, and this appeal followed. 1. The corporation contends the trial court erred in denying its motion to intervene. It claims that it had a statutory right to redeem the real property sold to Wallace at the tax sale because it was the owner of title of the property and it had timely paid the appropriate amount into the registry of the court. As a threshold matter, we address the legal existence of and right of the corporation to intervene. Wallace argues that, because the corporation had been administratively dissolved, it lacked standing to sue. Georgia law, however, provides otherwise. See OCGA § 14-2-1410. The legislature amended the corporate Code effective July 1, 1996, to preserve certain rights and remedies of dissolved corporations, except those dissolved by a superior court decree. OCGA § 14-2-1410 now guarantees a dissolved corporation a safe harbor period of two years after the date of dissolution to commence an action. The statute expressly provides: The dissolution of a corporation in any manner, except by a decree of the superior court ..., shall not take away or impair any remedy available to such corporation, its directors, officers, or shareholders for any right or claim existing prior to such dissolution or is commenced within two years after the date of such dissolution. 58 Any such action or proceeding by the corporation may be prosecuted by the corporation in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim. OCGA § 14-2-1410. Nothing in the record establishes that the two-year time period had lapsed. On the contrary, the sole evidence of dissolution is a single page purportedly from an electronic search of the Secretary of State's Internet website which shows that the corporation was current in the payment of its annual return as of October 2, 1997, but that later, according to uncertified information obtained on December 8, 1999, the status of the corporation was "administratively dissolved." Next we consider the application of the statutory procedures to the corporation. The corporation of Clarence L. Martin, P.C. is a distinct legal entity from Clarence L. Martin, an individual. See Henderson v. HSI Financial Svcs., 266 Ga. 844, 846(2), 471 S.E.2d 885 (1996) (a professional corporation and its shareholders enjoy the same rights, privileges, and immunities as shareholders in a business corporation); see OCGA § 14-7-3. Under the statutory provisions governing judicial in rem tax foreclosures, prior to the sale of property for delinquent taxes, "any interested party may redeem the property from the sale by payment of the redemption amount" to the tax sale petitioner. OCGA § 48-4-80(a). But after the conclusion of a judicial foreclosure and sale, under the terms of OCGA § 48-4-81(c), the right to redeem belongs exclusively to the owner of the property before the sale. That subsection provides: From and after the moment of the sale, the sale shall be final and binding, subject only to the right of the owner of the property to redeem the property from the sale upon payment into the superior court of the full amount of the minimum bid price of the sale. Such right of redemption of the owner shall exist for a period of 60 days from and after the date of the sale. OCGA § 48-4-81(c). This right of redemption, however, applies solely to the actual property "owner," defined as "the owner of record of fee simple interest in the property as of the date of filing of the petition." OCGA § 48-4-81(c)(2). By law, the tax commissioner was obligated to ascertain the identity of and to provide notice to all parties having an interest in the property "as revealed by a certification of title to the property conducted in accordance with the title standards of the State Bar of Georgia." OCGA § 48-4-77(1)(A). Thus, the tax commissioner had a legal duty to determine the true owner by searching the appropriate real property records. Thus, if the corporation was, in fact, the owner of record of fee simple interest in the property at issue on June 16, 1999, the date when the petition was filed, then the corporation had an unconditional right to intervene guaranteed by statute. Burruss v. Ferdinand, 245 Ga.App. 203, 204(2), 536 S.E.2d 555 (2000). On this issue, the corporation offered some evidence that it was and is the owner of record of fee simple interest in the property at issue. Compare id. (person holding unrecorded deed was not entitled to intervene in ad valorem tax foreclosure). The corporation asserts that it is the true owner because title was never voluntarily or involuntarily transferred out of its corporate name. To support its claim of title, the corporation offered a copy of an indenture dated April 12, 1979, and filed on April 17, 1979, which showed that Rimstrance Leasing Systems, Ltd. conveyed all interest in this property "FOREVER IN FEE SIMPLE" to "Clarence L. Martin, P.C., a Georgia corporation." The corporation also submitted the affidavit of Sandra Polite-Orr, a title searcher with more than 20 years of experience in searching titles in Chatham and surrounding counties. According to Polite-Orr, she had been retained to conduct a title search on the "Western 30' of Lot 10, Pulaski Ward, 109 West Liberty Street, Savannah, Georgia 31401." Polite-Orr testified that this property "was deeded to Clarence L. Martin, P.C. by Warranty Deed, dated the 12th day of April 1979, recorded in Deed Book 112-P, Page 230." As a result of her title search, Polite-Orr determined that "as of March 1, 59 2000, the property has never been deeded out of Clarence L. Martin, P.C." Polite-Orr noted, however, that "the Chatham County Tax Commissioner attempted to sell the property for taxes in 1982, but transferred the property out of Clarence L. Martin, an individual and not out of Clarence L. Martin, P.C., a corporation." Based on the record before us, it appears that the property at issue was sold by the tax commissioner in 1982 for nonpayment of taxes. A 1982 document declares Clarence L. Martin as the defendant in fi. fa. It appears that it was Martin's property, not the property belonging to the corporation, that was seized and levied upon. The SBA then paid the amount required to redeem the property. But, after the SBA redeemed the property in 1982, title was not put back into the name of Clarence L. Martin, P.C., whose name appears on the indenture as the defendant in fi. fa. Instead, after the SBA paid the funds necessary to redeem the property, it seems that the tax commissioner quitclaimed the property to Martin, not to the corporation.[2] When property has been redeemed, however, the effect of that redemption "shall be to put the title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale." OCGA § 48-4-43. In 1991, this same property was again sold for delinquent ad valorem taxes and Wallace was the purchaser.[3] After Wallace failed to pay taxes on the property, the tax commissioner again purchased the property at a tax sale. In 1997, the tax commissioner transferred the property back to Wallace. In 1999, the underlying tax sale took place during which an attorney for Wallace purchased the property. One cannot transfer or convey an interest in real property greater than he has. McDaniel v. Bagby, 204 Ga. 750, 755(1), 51 S.E.2d 805 (1949); Copelin v. Williams, 152 Ga. 692(1), 111 S.E. 186 (1922); see Foskey v. Dockery, 241 Ga. 26, 27-28(1), 243 S.E.2d 70 (1978); Hinkel, Pindar's Ga. Real Estate Law & Procedure, (5th ed.), p. 130, § 19-20. Generally, the tax sale of property belonging to someone other than the delinquent taxpayer is not recognized as a proper sale. Nelson v. Brown, 174 Ga. 150, 154, 162 S.E. 276 (1932). As the Supreme Court of Georgia held: [w]here the owner of land fails to return it for taxation, there is provision of law for assessing it for him; and if the owner be not known, there is provision for assessing it as unreturned property, and also provision for collecting the taxes on it. But where the owner fails to return the land, there is no provision of law whereby his title can be divested by levy and sale as the property of another person under a tax execution issued against such other person. (Citations and punctuation omitted.) Id.. See Wiley v. Martin, 163 Ga. 381, hn. 1, 136 S.E. 151 (1926). When a person without lawful authority sells and conveys as his own real property belonging to another person and receives the consideration paid, "such pretended sale and conveyance will not operate to divest the title of the owner nor will the purchaser derive any title." Copelin, supra at 692, 111 S.E. 186. A person redeeming property cannot obtain better title than the owner had before the tax sale. Elrod v. Owensboro Wagon Co., 128 Ga. 361, 365(4), 57 S.E. 712 (1907). If, in fact, the tax commissioner conveyed the property to someone other than the defendant in fi. fa. after the SBA redeemed it, and if the tax commissioner attempted a levy and sale of property neither owned by nor titled to Martin but belonging to the corporation, it would appear that the tax commissioner had nothing to sell or to convey. See Nelson, supra; Copelin, supra. The purchaser of property at a void tax sale is entitled only to a return of his money. *60 West v. McBride, 207 Ga. 261, 262(3), 61 S.E.2d 133 (1950). The title searcher testified that the corporation's deed was recorded in "Deed Book 112-P, Page 230" which corresponds with the book and number of the warranty deed from Rimstrance Leasing to the corporation in 1979. Yet, the legal description of the property in the trial court's order says, "recorded in the Office of the Clerk of the Superior Court of said County, Book 14 T, Page 110."[4] No copy of any document recorded at that page number appears in the record before this Court. Thus, here, unlike the situation in GE Capital Mtg. Svcs. v. Clack, 271 Ga. 82, 85(2)(b), 515 S.E.2d 619 (1999), there is some evidence of ownership in the property at issue by the aggrieved party. In light of the conflicting claims and incomplete evidence contained in the appellate record, the trial court, in resolving the corporation's petition to intervene, must determine the exact nature of the corporation's interest in the property, if any, on the date of the filing of the petition to foreclose. See OCGA § 48-4-81(c). 2. The corporation also asserts that the trial court erred by failing to dismiss the proceeding after it paid the balance outstanding into the registry of the court. If, on remand, the trial court finds that Clarence L. Martin, P.C. was the owner of record of a fee simple interest on the date that the tax commissioner filed the petition to foreclose, then the corporation has a statutory right to redeem its property contingent only upon its satisfaction of the statutory requirements set forth in OCGA § 48-4-81(c).[5] If, on remand, the trial court finds that the corporation is estopped from asserting a claim of title due to the conduct of its agent, then no such right would exist. See Pressley v. Maxwell, 242 Ga. 360, 361-362, 249 S.E.2d 49 (1978); but see Anderson v. Manning, 221 Ga. 421, 423-424, 144 S.E.2d 772 (1965) (estoppel does not occur when purchaser has actual knowledge of rights of other party who remained silent or did not rely upon action or inaction of that party); Owen v. Miller, 209 Ga. 875, 876(3), 76 S.E.2d 772 (1953). Judgment reversed and case remanded with direction. ANDREWS, P.J., and RUFFIN, J., concur. NOTES [1] Upon finding that this case did not invoke its title to land jurisdiction or implicate its equity jurisdiction, the Supreme Court transferred the case to this Court. [2] According to the tax commissioner, "on September 11, 1987, the U.S. Small Business Administration paid $15,103.53 and Chatham County executed a quitclaim deed to Clarence L. Martin." But a copy of the quitclaim deed was not included in the appellate record. [3] The corporation claims that it did not receive notice of the tax sales in 1982, 1991, or 1999. [4] The 1982 tax sale apparently was filed in "Record Book 119 J, Folio 178." [5] According to the newspaper advertisement, a starting bid of $17,562 was required, and the corporation deposited more than $22,000 into the registry of the court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311594/	68 Wis. 2d 321 (1975) 228 N.W.2d 702 MARIUZZA, Appellant, v. KENOWER, Individually and as Special Administratrix, and others, Respondents. No. 388. Supreme Court of Wisconsin. Argued April 7, 1975. Decided May 6, 1975. 325 For the appellant there was a brief by Herbert L. Usow, S. C. of Milwaukee, and oral argument by Mr. Usow. For the respondents Sharon Mae Kenower and Milwaukee Mutual Insurance Company there was a joint brief by Jury, Nelson & Bayorgeon of Appleton and James C. Pankratz of Sturgeon Bay, and oral argument by James Bayorgeon; for the respondents Edward Braun and United States Fidelity and Guaranty Company there was a brief by Everson, Whitney, Everson, Brehm & Pfankuch, S. C. of Green Bay, and oral argument by James Everson. ROBERT W. HANSEN, J. Two issues are raised by this appeal. Combined negligences. Appellant's contention that the negligence of the tenant and landowner should have been combined for purposes of comparison with the negligence of the plaintiff fails for two reasons: (1) The required basis for such combining does not here exist. The general rule in this state is that the comparison of negligence in a multiple-defendant case is "required to be between the plaintiff and the individual defendants."[1] The sole exception, arising in a case 326 where the negligence of parents was involved,[2] is limited to situations where the duty involved ". . . was joint, the opportunity to protect was equal, and as a matter of law neither the obligation nor the breach of it was divisible."[3] It is not only the duty to maintain the driveway, this court said in Schwenn, but also the opportunity to maintain it in a safe condition that must be equal for the exception to apply.[4] In the case before us, not only would the duties, particularly as to warning a guest of ice on the rear steps, be different as between tenant and landlord, but the opportunities to remove the ice or warn the guest were not equal between the tenant on the premises and the landlord living in California. There was no error here in not combining the negligence of tenant and landlord for purposes of comparison with the negligence of the plaintiff. Under Schwenn, it would have been error to do so. (2) The request for a combining of negligence was not timely made. It was on motions after verdict that plaintiff's counsel first claimed that the negligence of tenant and landlord related to their single and joint act of maintaining a trap on the premises. The trial court then said: "The case was not tried or submitted to the jury under such theory of negligence. Plaintiff's counsel never made any request to have the jury apportion negligence only between the defendants, combined, and the plaintiff. It 327 was not claimed by plaintiff's counsel when the special verdict was being considered and framed by the court, and counsel, upon conclusion of the trial, that the negligence of all defendants combined should be compared with the negligence of the plaintiff." Where there was agreement between court and counsel, or where there is an absence of objection, as to instructions and form of verdict, the case goes to the jury under such instructions and for the return of such verdict.[5] Here the case went to the jury, following instructions as to duties owed by the landlord and the tenant, and with directions to the jury to determine whether or not such several duties had been separately breached by the tenant or the landlord or both. Plaintiff here was not entitled to change his game plan after the verdict was returned and argue a theory of the case different from that contained in the complaint, instructions and form of verdict. On the instructions given and form of verdict used, plaintiff had no right to have the negligence of the two defendants combined, and, on the theory of a single act and duty being alone involved, the claim of right to have the negligence of tenant and landlord combined was belatedly raised. 328 Contributory negligence. Appellant's contention that the jury was not entitled to find her guilty of contributory negligence fails in two particulars: (1) As a matter of law, plaintiff could be found guilty of contributory negligence. Even under the instructions given and form of verdict used, plaintiff's counsel contends that the jury verdict, finding plaintiff guilty of 40 percent causal negligence, cannot stand. The argument goes as follows: The plaintiff was a social guest of the tenant, so the relationship between the parties was that of licensee-licensor.[6] As a licensor, the liability of the host is for "active negligence" or for injuries caused by a "trap" on the premises.[7] Here there is no allegation of "active negligence," nor basis for such claim.[8] So liability of the licensor here must be predicated upon the "trap" theory of liability. A "trap" arises when the licensor "`. . . fails to disclose to the licensee a known but concealed danger.'"[9] Therefore, counsel argues, if the ice on the rear steps was not a concealed danger, it was not a "trap." If the ice on the steps was such concealed danger, the guest could not know it was there and cannot be found contributorily negligent. The logic carries plaintiff a ways, but not far enough to help. 329 In a recent dove-into-shallow-water case, our court made clear that, except as to active negligence, a licensor's duty is only to warn of concealed but known hazards and so ". . . if there is no concealed hazard no duty is imposed upon the licensor to protect the licensee."[10] If the hazard is not concealed, there is no "trap," and no duty to warn. Conversely, if a hazard is entirely concealed from view, it is difficult to envision a circumstance where the licensee would be held to a duty to observe what was not observable.[11] However, these two situations deal only with conditions entirely concealed or not at all concealed. In between are the conditions where the question of fact is whether under the facts of the case the condition was obvious to a reasonable man in the exercise of ordinary care. In a slipped-on-the-ice case, the majority of our court held that this was a question of fact to be answered by the jury.[12] Distinguishing the earlier dove-into-shallow-water case, our court noted that the diver had observed the condition of the water, whereas the plaintiff who slipped on the ice, did not observe the condition of the steps, concluding ". . . Whether he should have observed the condition of the steps is a question of fact."[13] In the case before us, there clearly was a jury question as to whether the ice on the rear steps was an obvious condition or whether it was reasonable to assume that the existence of such condition would be understood and 330 appreciated.[14] The issue of fact here was whether the plaintiff did observe or, under the reasonable person test, should have observed the ice on the steps. With the case submitted under the comparative negligence approach, the finding of 40 percent negligence on the part of the plaintiff could relate either to her failure to observe or, having observed, proceeding nonetheless. Negligence in failing to observe what was observable would negative the existence of a "trap." Negligence in manner of proceeding after observing the hazardous condition would make the existence of the "trap" or failure to warn non-causative as to the fall. In the dove-into-shallow-water case, our court held that whether the same facts which discharge a licensor's duty to warn "also constitute contributory negligence is irrelevant."[15] Under the circumstances of this case, whether the finding of negligence on the part of the plaintiff is viewed as indicating the existence or nonexistence of a "trap," the result is the same. If the jury verdict apportioning 40 percent of the total negligence to the plaintiff stands, the plaintiff here cannot recover. (2) The verdict of the jury apportioning 40 percent negligence to the plaintiff is supported by the evidence. 331 The record here contains sufficient credible evidence for the jury to have found, as it did, that the plaintiff did not exercise ordinary care for her own safety. The test on review is the any credible evidence test.[16] As to whether the plaintiff did in fact observe the ice before placing her foot on the step, there is evidence in her own pretrial statement to the claims adjuster that she did, and the jury was entitled to believe such earlier statement rather than her testimony on the witness stand. As to whether the illumination from light and windows made the patch of ice observable, there was testimony in the record, which the jury was entitled to believe, that the ice on the steps was thus made observable. The jury here was entitled to find on this evidence either that the plaintiff negligently failed to observe the icy condition of the step, or that, having observed such condition, she negligently proceeded down the steps. Actually the facts in this case are very much like the fact situation before the court in the Lefco Case, where the trial court had directed the verdict for the defendants, our court held that there ". . . was sufficient credible evidence presented by the plaintiffs to create issues of fact for jury determination."[17] Here, as there, we find that whether the plaintiff should have observed the condition of the steps or, having observed them, acted reasonably in proceeding down them were issues of fact for the jury. While the form of verdict here was that of ordinary negligence, we repeat that the right of plaintiff's counsel to seek and secure a form of verdict more precisely tailored and limited to the liability of licensor to licensee for a "trap" on the premises was to be asserted when the 332 special verdict questions were framed.[18] As above noted, the right to object to the instructions given and form of verdict submitted was not timely asserted on motions after verdict. People say: "If I had my life to live over again . . . ." Trial counsel sometimes have reason to say: "If I had the case to try over again . . ." However, in this case we see little basis for suspecting that the all-or-nothing-at-all nature of the "trap" theory of the case would have rendered a different result for a plaintiff found 40 percent negligent by the jury under the general or comparative negligence theory under which the case went to the jury. By the Court.Judgment affirmed. NOTES [1] Schwenn v. Loraine Hotel Co. (1961), 14 Wis. 2d 601, 609, 610, 111 N.W.2d 495, this court holding: "We must agree with the defendants, however, that the trial court erred in combining their negligence for purposes of the jury's comparison with that of the plaintiff. Under sec. 331.045, Stats., which modified the common-law rule barring recovery by one who is contributorily negligent, the comparison of negligence in a multiple-defendant case is required to be between the plaintiff and the individual defendants. . . . Otherwise, it would be possible for a plaintiff to recover from a defendant less negligent than himself. We cannot believe that the legislature intended such a result." (Citation omitted.) [2] Reber v. Hanson (1952), 260 Wis. 632, 51 N.W.2d 505. [3] Id. at page 638. [4] Schwenn v. Loraine Hotel Co., supra, footnote 1, at page 610, this court holding: "The basis for the court's holding in [Reber v. Hanson] is not present here. Even if the duty of the defendants to maintain the driveway safe were considered equal, the opportunity to so maintain it may or may not have been equal. The hotel had someone on duty at the driveway at all times, while the cab company employees might be there only sporadically, especially if the taxi business was good. This is a matter for the jury." [5] Savina v. Wisconsin Gas Co. (1967), 36 Wis. 2d 694, 701, 702, 154 N.W.2d 237, this court holding: ". . . If counsel knows the form of the verdict prior to the verdict's submission to the jury, he should then object; if no such opportunity is afforded counsel, objection to the form of the verdict should be made before the jury returns its verdict. A party cannot take his chance with the jury and object only if he loses. . . . "An objection to the instructions for inadequacy or insufficiency must also be made at least prior to the return of the verdict. Generally, counsel should timely submit his requested instructions, but if this is not done and the instructions given are not erroneous as a misstatement of the law but are incomplete, it is the duty of counsel to object at the time the instruction is given. [cases cited] Absent proper objections by the plaintiff, these alleged errors in the verdict and the instructions are not before us." [6] Kaslo v. Hahn (1967), 36 Wis. 2d 87, 89, 153 N.W.2d 33. [7] Szafranski v. Radetzky (1966), 31 Wis. 2d 119, 126, 141 N.W.2d 902. [8] Kaslo v. Hahn, supra, footnote 6, at page 93, this court holding: "A condition of the premises whether created through an affirmative act of a defendant or through natural causes is not an activity. An act, then, which creates a dangerous `condition of the premises' is not an `activity,' nor is it `active conduct,' `operational conduct' or `active intervention.' Consequently, a licensor cannot be held liable for an act which creates a dangerous `condition of the premises.' In such a case liability can be established if the condition is a trap and the defendant fails to warn, but the liability then is based on the defendant's failure to warn rather than his act in creating a dangerous condition." [9] Flintrop v. Lefco (1971), 52 Wis. 2d 244, 248, 190 N.W.2d 140, quoting Szafranski v. Radetsky, supra, at page 126. [10] Scheeler v. Bahr (1969), 41 Wis. 2d 473, 478, 164 N.W.2d 310. [11] But see: Campbell v. Sutliff (1927), 193 Wis. 370, 373, 214 N.W. 374, a stepped-into-coal-hole case involving an invitor-invitee relationship, this court stating: ". . . If he had been a mere licensee who was obliged to take the premises as he found them he might have been guilty of contributory negligence. . ." (Case overruled on unrelated holding in Powers v. Allstate Ins. Co. (1960), 10 Wis. 2d 78, 92, 102 N.W.2d 393.) [12] Flintrop v. Lefco, supra, footnote 9, at page 250. [13] Id. [14] Scheeler v. Bahr, supra, footnote 10, at page 480, this court holding: ". . . [I]n those cases where the duty that allegedly devolves upon a possessor of land or other property is the duty to warn of a hazard, the defendant is relieved of that duty if the hazard is obvious or where it is reasonable to assume that it will be understood and appreciated. Under these circumstances, the obligation of the host in regard to `traps' is discharged and he has no duty to the licensee. . . ." [15] Id. at page 480, this court holding: "We need not further consider plaintiff's contention that his possible knowledge was merely an element of his own contributory negligence, not vitiating the complaint. . . . [T]he question of whether the same facts which discharge the defendant's duty [to warn] also constitute contributory negligence is irrelevant. `. . . the defense [of contributory negligence] is one of the plaintiff's disability, rather than the defendant's innocence.'" (Quoting Prosser, Law of Torts (3d ed.), p. 427, sec. 64.) [16] See: Carr v. Amusement, Inc. (1970), 47 Wis. 2d 368, 371, 177 N.W.2d 388, this court stating: "This is a jury verdict which has the full approval of the trial court. It is not to be upset if there is any credible evidence which under any reasonable view fairly admits of an inference supporting the findings. . . ." [17] Flintrop v. Lefco, supra, foonote 9, at page 249. [18] Dutcher v. Phoenix Ins. Co. (1968), 37 Wis. 2d 591, 603, 155 N.W.2d 609, this court holding: "It is a well-accepted principle that parties to a lawsuit have a distinct obligation to aid in the preparation of special verdicts and to voice objection to questions when the trial court has an opportunity to correct them."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1311580/	293 S.C. 456 (1987) 361 S.E.2d 615 FIRST UNION NATIONAL BANK OF SOUTH CAROLINA and Jack J. Wright, as Trustees of the Residuary Trust established under Item VII of the Will of John M. O'Dowd, Appellants-Respondents v. William Arthur CISA, individually and as representative of a class of such of the great-grandchildren of John M. O'Dowd and the lineal descendants of such great-grandchildren and all other persons whose names are unknown, born and unborn, as are or shall become beneficiaries of the Residuary Trust established under Item VII of the Will of John M. O'Dowd, Appellant-Respondent, and Vernon Z. Bridges, Jr.; Ann Elizabeth B. Knoll; Laura Lynn O'Dowd McCants; Ann Elizabeth O'Dowd McLean; Frances Christine O'Dowd Hills; Connie Michael Bridges Morton; Frances St. George O'Dowd; John H. O'Dowd, Jr.; Karen St. George O'Dowd Cisa; Michael Edward O'Dowd; Susan Emily Bridges Williamson and Verna Brodie, Respondents-Appellants. 22786 Supreme Court of South Carolina. Heard June 10, 1987. Decided October 26, 1987. 457 Albert L. Moses, of Sherrill & Townsend, Columbia, for appellants-respondents First Union Nat. Bank of South Carolina and Jack J. Wright. Robert P. Wilkins, Lexington, for appellant-respondent, William Arthur Cisa. 458 David M. Adams, Charleston, for respondents-appellants. Heard June 10, 1987. Decided Oct. 26, 1987. FINNEY, Justice: Appellants commenced this action seeking a declaratory judgment with respect to the application of South Carolina law upon John M. O'Dowd's Last Will and Testament and the residuary trust. S.C. Code Ann. § 15-53-10, et seq. (1976). Specifically, appellants ask this Court to determine whether, under the will of John M. O'Dowd (Mr. O'Dowd) and South Carolina law, Mrs. Elizabeth A. O'Dowd (Mrs. O'Dowd) had the power to participate in decisions to distribute residuary trust income or principal to herself. The trial court held that Mrs. O'Dowd was prohibited by the common law of South Carolina from participating as a trustee in the residuary trust with respect to distributions of trust income and principal to herself. The trial court further concluded that it was not Mr. O'Dowd's intent that Mrs. O'Dowd have the right to act as a trustee to participate in decisions to distribute income and principal to herself. We affirm. Plaintiffs-appellants are the residuary trustees (trustees) of the residuary trust established in Mr. O'Dowd's will. The defendants in this action are beneficiaries of the trust and are divided into two groups. One group is referred to as the "current beneficiaries" (defendants-respondents) and receive trust benefits. The second group consists of the remaining minor, unborn and/or unknown beneficiaries and is referred to as the "minor beneficiaries" (defendant-appellant). Mr. O'Dowd's will established two trusts a marital trust and a residuary trust. Plaintiffs-appellants, along with Mrs. O'Dowd, were named as co-trustees of the residuary trust. Upon Mr. O'Dowd's death, property passing to the marital trust qualified for the marital deduction. The property passing to the residuary trust was subject to approximately $400,000 in federal and state estate taxes, which were paid by the executors. Mrs. O'Dowd died on January 19, 1983, and her executors timely filed state and federal estate tax returns and paid the 459 appropriate estate taxes. Three years later, the Internal Revenue Service (IRS) audited Mrs. O'Dowd's federal estate tax return and issued a deficiency notice. The IRS asserts that upon Mrs. O'Dowd's death, the residuary trust assets were subject to an additional tax as part of her estate because of her right as trustee to participate in decisions relating to distributions from the residuary trust to herself as beneficiary. See, I.R.C. § 2041 (1986). The IRS also ruled that under its interpretation of South Carolina law and the language of Mr. O'Dowd's will, there was no impediment to Mrs. O'Dowd's receipt of distributions from the residuary trust. In sum, the IRS held that Mrs. O'Dowd's power to participate as trustee and her right to receive trust principal and income resulted in an additional tax being imposed upon the residuary trust. The IRS's tax assessment is directed to the executors of Mrs. O'Dowd's estate because they are obligated to pay the estate tax. Despite the executors' obligation to pay the additional tax, they have the right to reimbursement for tax payments from the trustees under federal and state statutes. Mrs. O'Dowd's executors have asserted the right of reimbursement against the trustees in the event they are required to pay the assessed estate taxes. Upon receipt of the demand for reimbursement, the residuary trustees informed the current beneficiaries that the bulk of the residuary trust's assets (and the income therefrom) would be placed in a reserve fund to cover the reimbursement demanded by the executors. The current beneficiaries then notified the residuary trustees that the IRS's assessment was in error and that the residuary trustees should not create a reserve. These beneficiaries also asserted that even if such reimbursement were proper, the residuary trustees have a duty to maintain the standard of living of the current beneficiaries through substantial encroachments on principal not held as a reserve. In order to resolve the conflict, the residuary trustees sought an interpretation of the will by the courts and for instruction as to whether a reserve fund should be created. The trial court ruled that under South Carolina common law and under the terms of the will, Mrs. O'Dowd, as a residuary trustee, did not have the right to participate in decisions 460 relating to the residuary trust distributions to herself. It also ruled that Mr. O'Dowd did not intend for Mrs. O'Dowd, as a residuary trustee, to participate in administering the trust proceeds to herself. Finally, the trial court held that the language of Mr. O'Dowd's will evinces his intent that Mrs. O'Dowd was to receive residuary trust distributions only if certain circumstances occurred; and in fact, none of the qualifying conditions transpired during her lifetime. The trial court did not rule on the question of whether the residuary trustees were entitled to establish a reserve for the potential liability to Mrs. O'Dowd's executors or on the current beneficiaries' assertion that the residuary trustees had a duty to make substantial encroachments on the residuary trust principal for their benefit. The court concluded that these questions became moot by its prior rulings. Appellants appeal the trial court's judgment seeking this Court's determination of the testator's intent under the will and the application of South Carolina law upon the will and the residuary trust. In Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L.Ed. (2d) 886 (1967), the Supreme Court held that federal tax authorities and the federal courts are not bound by a lower court's decision interpreting state law, but shall merely give such a decision "proper regard." Id. There was discussion during oral argument as to whether or not this matter was a case or controversy over which this Court had jurisdiction because the litigants appeared to be closely aligned with one another. The highest courts of North Carolina, Massachusetts, Connecticut, Pennsylvania and California, however, have allowed appeals of this nature. See, Bank v. Goode, 298 N.C. 485, 259 S.E. (2d) 288 (1979); In re Dana v. Gring, 374 Mass. 109, 371 N.E. (2d) 755 (1977); Babson v. Babson, 374 Mass. 96, 371 N.E. (2d) 430 (1977); Gimbel v. Gimbel Foundation, Inc., 166 Conn. 21, 347 A. (2d) 81, 84 (1974); Connor v. Hart, 157 Conn. 265, 253 A. (2d) 9. 12 (1968); In re Tibbetts' Estate, 111 N.H. 172, 276 A. (2d) 919 (1971); Worchester County Nat'l Bank v. King, 359 Mass. 231, 268 N.E. (2d) 838, 840 (1971); cf., In re Estate of Merrick, 443 Pa. 388, 275 A. (2d) 18, 22-23 (1971); Wakefield v. Wakefield, 258 Cal. App. (2d) 274, 65 Cal. Rptr. 664, 667, n. 6 (1968); Connecticut Bank and Trusts Co. v. Cohen, 27 Conn. Supp. 138, 232 A. (2d) 337, 338-39 (1967). 461 Because the parties in the instant action seek a judicial determination of rights, we are of the opinion that the underlying purposes of the adversarial system have been met. See, Dana v. Gring, supra. Thus, we conclude that it is appropriate for us to decide the merits and render declaratory relief that turns on state law in this case. The trial court concluded that under the common law of South Carolina, Mrs. O'Dowd was prohibited from participating in any decisions as a trustee to distribute residuary trust income and principal to herself as a beneficiary. See e.g., S.C. Code Ann. § 62-7-301, et seq. (1987); see also, A. Scott, Trusts, Sections 170 and 194 (3d ed. 1967); G. Bogert, Trusts, 129 (2d ed. 1965); In re Dana v. Gring, supra; Garfield, et al., v. U.S., 80-2 U.S.T.C. p. 13, 381 (U.S. Dist. Ct. Mass. 1980) [Available on WESTLAW, DCT database]; Finlay, et al., v. U.S., 752 F. (2d) 246 (6th Cir.1985); Rev. Rul. 82-63, 1982 C.B. 135. We agree. In the case of In re Hale's Trust 292 S.C. 308, 356 S.E. (2d) 138 (1987), W.R. Hale, Sr., the settlor of an irrevocable trust, attempted to name his daughter, Hilda, a successor trustee after the trust had been created. Hilda was one of several beneficiaries of the trust. The South Carolina Court of Appeals held that the purported appointment was ineffective (no power to amend having been reserved to the settlor), that such appointment of a successor trustee could only have been accomplished by a proper court, and the daughter was not eligible for appointment because: A trustee must exclude all selfish interest in his dealings on behalf of the beneficiaries of the trust. Cartee v. Lesley, 290 S.C. 333, 350 S.E. (2d) 388 (1986). Consequently, it is generally undesirable for one of the beneficiaries of a trust to act as trustee, since he is thereby put in a position to favor himself at the expense of the other beneficiaries. Yates v. Yates, 255 Ill. 66, 99 N.E. 360 (1912); Selleck v. Hawley, 331 Mo. 1038, 56 S.W. (2d) 387 (1932). In re Hale's Trust, supra, 356 S.E. (2d) 144-145. Likewise, for Mrs. O'Dowd to have participated as a trustee in decisions relating to the distribution of income and principal from the residuary trust to herself would have 462 put her in a position to favor herself at the expense of the other beneficiaries. Such a restriction does not preclude a beneficiary from serving as a trustee. However, under the principles of trust law, the trustee-beneficiary is required to refrain from taking actions which it cannot exclude all selfish interest from affecting. See, In re Hale's Trust, supra. Under the circumstances, Mrs. O'Dowd's participation in the trust would have been a breach of her fiduciary duty of loyalty to and impartiality among the trust beneficiaries. Therefore, we conclude that the law prohibited her from such participation. The next issue is whether Mr. O'Dowd intended in his will that Mrs. O'Dowd should not have the right to participate in decisions regarding the distribution of income and principal to herself. Mr. O'Dowd's residuary trust makes numerous references to his "trustees" in close proximity to references to his wife. For example, Item VII(b) of the residuary trust states, "My Trustees may pay ... to ... a class composed of my beloved wife ..." and "I wish to impress upon my Trustees... that my primary objective to provide for my wife's comfort ..." and "... I have conferred upon my trustees the power to apportion the income ... among a class of which she is a member ..." The question essentially is whether, when Mr. O'Dowd authorized the trustees in his residuary trust to take certain actions, he intended to include his wife as a person authorized to act in such matters as a trustee. While the use of the unqualified term "trustees" arguably would include his wife, the references to his wife in her beneficiary capacity in the same sentence is an argument to the contrary. A similar question arose in the case of Dana v. Gring, supra. There the court held that a daughter (Gring), a trustee-beneficiary, was not included in a reference to the trustees in the trust instrument. The court stated in pertinent part: The trust terms authorize the trustees "at any time that my said daughter may request, or without such request when the other trustees may deem it advisable, to pay over to her ... such amounts of the principal ... as said Trustees may deem necessary or desirable." The I.R.S. argues that the only reasonable interpretation of the provision is that "said Trustees" refers to all trustees, 463 including Gring. The plaintiffs concede that the language of the trust is susceptible to this construction, but contend that a contrary interpretation is possible and should be favored in this case. We agree. First, a conclusion that the words "said Trustees" refer only to the "other Trustees" and not to Gring is consistent with the fiduciary concepts discussed above. Second, in that the distribution of trust principal to the trustee-beneficiary could only be made with the approval of the independent trustees, 3 (sic) A. Scott, Trusts, § 194 (3rd ed. 1967), a decision would be of no practical advantage to her. Thus a construction of this clause which finds that Gring was able to participate in such decisions would favor the tax authorities and no one else. The propriety of such a construction is not to be lightly presumed. "It would be a rare case in which... an ambiguity in a will should be resolved by attributing to the testator an intention which as a practical matter is likely to benefit the taxing authorities and no one else." Putnam v. Putnam, 366 Mass. 261, 316 N.E. (2d) 729, 737 (1934). Dana v. Gring, 371 N.E. (2d) at 761. The language of the residuary trust in which Mr. O'Dowd referred to the "trustees" and to his wife in the same clause creates an ambiguity as to whether the term "trustees" included his wife. We conclude that to construe the term "trustees," as used in the residuary trust, to include Mrs. O'Dowd would be contrary to the common law of South Carolina and does not express the testator's true intent. It is also unreasonable to presume that Mr. O'Dowd intended to give his wife power to participate in decisions concerning distributions to herself, when the exercise of such power would constitute a breach of fiduciary duty on her part. For these reasons, this Court concludes that Mr. O'Dowd did not intend that Mrs. O'Dowd have the power to take part in decisions regarding distributions of income and principal to herself and, in fact, vested no such authority in her. Furthermore, based upon other provisions of the will, we are of the opinion that Mr. O'Dowd did not intend that Mrs. O'Dowd receive distributions of income and principal from 464 the residuary trust, except under certain specified circumstances, none of which occurred during her lifetime. Mr. O'Dowd noted in Item VII(c) of the residuary trust that it was probable that Mrs. O'Dowd would not need all of the income of the trust, and it was possible she would need none of the principal. He urged his trustees not to make distributions of income and principal to her so long as any principal remained in the marital trust he had created exclusively for her benefit. He empowered his trustees to completely exclude any member of the class from receipt of any principal and income. He also directed the trustees to consider whether making distributions to augment the estate of the recipient-beneficiary was desirable. Augmenting Mrs. O'Dowd's estate when she had not exhausted the marital trust corpus would have been undesirable. Mr. O'Dowd surmised that Mrs. O'Dowd would have a substantial estate and that she would not, under ordinary circumstances, be eligible to receive residuary trust distributions. Finally, we conclude that it is not necessary that we rule on the propriety of the trustees' activities in reimbursing the executors for any federal and state estate taxes paid in the federal estate tax proceedings, the establishment of a reserve for the potential liability to the executors, limiting or eliminating income distributions to the beneficiaries from the assets held as a reserve pending final determinations in the estate tax proceedings, and limiting principal distributions to the beneficiaries from the assets not held as a reserve. Accordingly, we affirm the decision of the circuit court. Affirmed. NESS, C.J., GREGORY and HARWELL, JJ., and LITTLEJOHN, Acting Associate Justice, concur.	01-03-2023	10-30-2013

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