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https://www.courtlistener.com/api/rest/v3/opinions/2267117/ | 471 Pa. 616 (1977)
370 A.2d 1193
COMMONWEALTH of Pennsylvania
v.
James Bernard MYLES, Appellant.
Supreme Court of Pennsylvania.
Argued April 27, 1973.
Decided March 16, 1977.
*617 Abraham J. Brem Levy, John F.X. Fenerty, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Wm. P. Boland, Philadelphia, for appellee.
Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
PER CURIAM:
Appellant, James Bernard Myles, was convicted by a jury of murder in the first degree, forcible rape, and conspiracy. Post-verdict motions were denied, and this appeal followed. Appellant challenges the judgments of sentence for murder in the first degree, forcible rape, and conspiracy to commit rape. See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, *618 art. II, § 202(1) and § 503(a), 17 P.S. § 211.202(1) and 211.503(a) (Supp. 1974).
Appellant raises only two issues in this appeal. First, he argues that the evidence was insufficient to sustain the jury's verdict. After a verdict of guilty, the evidence must be reviewed in the light most favorable to the prosecution. Commonwealth v. Yount, 445 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). We have reviewed the record and conclude that from the evidence and the reasonable inferences arising therefrom, the jury could properly have found that all the elements of the crimes of murder in the first degree, forcible rape, and conspiracy had been proved beyond a reasonable doubt. Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Williams, 450 Pa. 327, 301 A.2d 867 (1973).
Appellant next argues that the trial court erred by denying a requested jury instruction. Appellant requested the following point for charge: "Under an indictment for murder, you may return a verdict of voluntary manslaughter." The Court being equally divided as to this issue, the judgments of sentence are affirmed. Mr. Chief Justice Eagen and Mr. Justice Pomeroy would affirm for the reasons expressed in the opinion in support of affirmance in Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977) (J87 of 1974 filed January 28, 1977). Mr. Justice Nix would affirm for the reasons stated in his separate opinion in support of affirmance herein. Mr. Justice O'Brien, Mr. Justice Roberts, and Mr. Justice Manderino would reverse and remand for a new trial for the reasons expressed in their respective opinions in support of reversal in Cain, supra.
The judgments of sentence are affirmed.
Former Chief Justice JONES did not participate in the consideration or decision of this case.
*619 EAGEN, C.J., filed an opinion in support of affirmance, in which POMEROY, J., joined.
NIX, J., filed an opinion in support of affirmance.
OPINION IN SUPPORT OF AFFIRMANCE
EAGEN, Chief Justice.
In Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (Filed February 28, 1977) four members of this Court, Mr. Chief Justice Jones, Mr. Justice Eagen, Mr. Justice Pomeroy and Mr. Justice Nix, voted that the denial of a request to instruct the jury on voluntary manslaughter was not reversible error under the same circumstances this case presents.
POMEROY, J., joins in this opinion.
OPINION IN SUPPORT OF AFFIRMANCE
NIX, Justice.
This appeal raises the question of whether our decision in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) (holding that in all prosecutions for murder an accused is entitled upon request to a jury instruction on voluntary manslaughter) is applicable to trials which commenced prior to the date of that decision. Because I have not yet had the opportunity to articulate my position on this issue, and because the question is squarely raised in this case, I am constrained to set forth my views at this time.
In Jones, this writer's Opinion in Support of Affirmance, joined by Mr. Justice EAGEN (now Chief Justice EAGEN) and Mr. Justice O'BRIEN, expressed the view that because a jury was traditionally imbued with the *620 power to return a verdict of voluntary manslaughter in a prosecution under an indictment for murder, notwithstanding the absence of evidence of provocation and passion, the jury must be informed of their power to return such a verdict and apprised of the elements of the offense, if so requested, by the defendant. We therefore announced, under our supervisory power, a rule "that henceforth a defendant under indictment of murder will be entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter." Supra at 563, 319 A.2d at 148. The rule announced in Jones was clearly prospective in nature, and accordingly, the appellant in Jones was denied relief and the judgment of sentence was affirmed.
The instant appellant's trial antedated our decision in Jones, and under the holding of that opinion, he is not entitled to the benefit of the prospective rule announced in that case. Appellant contends, however, that the pre-Jones practice, which permitted a trial court to refuse a charge of voluntary manslaughter if the evidence did not provide a rational basis for such a verdict, was violative of due process. It is urged by appellant that a charge on voluntary manslaughter, upon request, is a requirement mandated by the Constitution and for this reason, the argument goes, it must necessarily be given retroactive application. I do not agree. Assuming, without deciding, that the change in the former practice was constitutionally mandated, see e.g., United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3rd Cir. 1974); Commonwealth v. Jones, supra (Opinion in Support of Reversal), the Constitution does not mandate the retroactive application of this doctrine. Since Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), the United States Supreme Court has refused to grant retroactive application of important new constitutional requirements to cases tried before the decisions were announced. Daniel v. Louisiana, 420 U.S. 31, 95 S. Ct. 704, 42 L. Ed. 2d 790 *621 (1975) (decision in Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975) holding that the exclusion of women violates the requirement that petit juries be selected from a representative cross section of the community not retroactively applied); Michigan v. Payne, 412 U.S. 47, 93 S. Ct. 1966, 36 L. Ed. 2d 736 (1973) (decision in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) prohibiting more severe sentences after retrial not retroactively applied); DeStefano v. Woods, 392 U.S. 631, 88 S. Ct. 2093, 20 L. Ed. 2d 1308 (1968) (decision in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) mandating a jury trial in serious criminal cases not retroactively applied); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) (decisions in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 77 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) requiring exclusion of tainted identification evidence not retroactively applied); Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966) (decisions in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) guaranteeing effectuation of the privilege against self-incrimination not retroactively applied); Tehan v. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966) (decision in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) forbidding judicial and prosecutorial adverse comment on the failure of a defendant to testify not retroactively applied); Linkletter v. Walker, supra (decision in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) requiring exclusion of evidence obtained in violation of the Fourth Amendment not retroactively applied).
In denying litigants who have already been tried the benefit of these new constitutional rules the Supreme Court has made clear that the choice between retroactivity *622 and prospectivity "in no way turns on the value of the constitutional guarantee involved." Johnson v. New Jersey, supra at 728, 86 S. Ct. at 1778.
"We also stress that the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved." Id.
Instead the Court has looked to the particular objective of the constitutional rule in question, and within the context of the criteria enunciated in Linkletter v. Walker, supra, resolved the problem.
"The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a new retroactive application of the new standards."
Stovall v. Denno, supra, 388 U.S. at 297, 87 S. Ct. at 1970.
Utilizing the above test I believe that neither the Constitution nor any strong policy consideration within the supervisory power of this Court requires a retroactive application of our rule in Jones.
With regard to the first standard, the purpose to be served by the rule, the United States Supreme Court has said that where the major purpose of the rule is to overcome an aspect of the trial that "substantially impair[s]" the truth-finding function, raising serious questions about the accuracy of guilty verdicts, then full retroactivity should be afforded. Williams v. United States, 401 U.S. 646, 91 S. Ct. 1148, 28 L. Ed. 2d 388 (1970). The rule in Jones was formulated and designed to secure consistency and to eliminate "unseemly arbitrariness" in the judicial process, see United States ex *623 rel. Cannon v. Johnson, 396 F. Supp. 1362 (E.D.Pa. 1975). The uniformity sought to be achieved by the standard, however, has little or no relationship to the reliability of the truth-finding function of the trial or to ascertaining the guilt or innocence of the accused. Not only did the pre-Jones practice not "substantially impair" the integrity of truth-finding process, but the post-Jones practice will not enhance the accuracy of that process. Since the change in the law requires that a jury will now receive an instruction on a crime for which there is no evidence at all, such a verdict is in no way reflective of what actually occurred at the time of the crime.
Since retroactivity is not compelled by the first criteria of Linkletter v. Walker, supra, the focus must then be directed to the reliance by law enforcement authorities on the old standard and the burden on the administration of justice which a retroactive application would engender. Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969). Reliance on the pre-Jones law by the judiciary and the bar is beyond dispute. The principle was well-settled and frequently repeated in the opinions of this Court. See, e.g., Commonwealth v. Dews, 429 Pa. 555, 239 A.2d 382 (1968); Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); Commonwealth v. Flax, 331 Pa. 145, 200 A.2d 632 (1938); Commonwealth v. Pava, 268 Pa. 520, 112 A. 103 (1920); Commonwealth v. LeGrange, 227 Pa. 368, 76 A. 63 (1911); Commonwealth v. Sutton, 205 Pa. 605, 55 A. 781 (1903); Clark v. Commonwealth, 123 Pa. 555, 16 A. 795 (1889). See also, Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895). The reliance of the trial judges of this jurisdiction upon the former rule cannot be seriously challenged. The adverse effect upon the administration of justice in this Commonwealth, if retroactivity were afforded, has already been carefully and accurately documented in United States ex rel. Cannon v. Johnson, supra, at 1369-71, and *624 there is no need here to reiterate those compelling statistics. Suffice it to say that convictions in the most heinous murders would be in serious jeopardy.
A final aspect of this issue requires my comment. In Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977), (J87 of 1974, filed January 28, 1977), the Opinion in Support of Reversal[*] advocated a partial retroactivity of the Jones rule so that it would be applied to those cases before us on direct appeal, but not to those attacking a prosecution collaterally. I do not believe such an approach is dictated either by law or policy. As the United States Supreme Court observed in Stovall v. Denno, supra:
"We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable."
Id. 338 U.S. at 300-01, 87 S. Ct. at 1972. (footnote omitted) (emphasis added).
See also Williams v. United States, supra at 651-52.
Since the trial of the instant cause preceded the change in the rule announced in Jones, I must conclude that the ruling of the learned trial judge was in accordance with the then prevailing law and that the judgment of sentence should be affirmed.
NOTES
[*] In Cain, the Opinion in Support of Affirmance was filed by Mr. Justice EAGEN (now Chief Justice EAGEN), joined by the former Chief Justice JONES and Mr. Justice POMEROY. Mr. Justice POMEROY also filed his own Opinion in Support of Affirmance. Mr. Justice ROBERTS filed an Opinion in Support of Reversal, joined by Mr. Justice O'BRIEN and Mr. Justice MANDERINO. Mr. Justice MANDERINO also filed his own Opinion in Support of Reversal. This writer did not participate in the decision of that case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267118/ | 999 F. Supp. 852 (1997)
UNITED STATES of America, ex rel. Clay STONE, Plaintiff,
v.
AMWEST SAVINGS ASSOCIATION, a Texas Savings and Loan Association, et al., Defendants.
No. Civ.A.3:96-CV-0549-G.
United States District Court, N.D. Texas, Dallas Division.
October 2, 1997.
*853 Steven Andrew Shaw, Anthony F. King, James T. McLaughlin, Roxann E. Henry, Elizabeth J. Leatherbarrow, Howrey & Simon, Washington, DC, William Frank Carroll, Gerald Richard Groh, Donohoe Jameson & Carroll, Dallas, TX, Mark John Zimmermann, Turner Dealy Zimmermann & Grimmer, Dallas, TX, for Plaintiff.
Joseph P. Covington, David W. DeBruin, Jenner & Block, Washington, DC, Donald F. Hawbaker, Jay J. Madrid, Greg A. Sivinski, Madrid & Brooks, Dallas, TX, for Defendants.
MEMORANDUM ORDER
FISH, District Judge.
Before the court is the motion of the defendant AmWest Savings Association ("AmWest") to dismiss for lack of subject matter jurisdiction and to dismiss for failure to state a claim upon which relief can be granted, or, alternatively, for summary judgment ("AmWest's Motion"). For the reasons state below, the claims of Clay Stone ("Stone"), brought as relator on behalf of the United States of America, are dismissed for lack of subject matter jurisdiction. Because this court lacks subject matter jurisdiction, the motion to dismiss for failure to state a claim, the alternative motion for summary judgment, and AmWest's state law counterclaims are not addressed.
I. BACKGROUND
This case has its origins in the savings & loan ("S & L") crisis of the late 1980's. In October 1988, AmWest acquired the assets and liabilities of eleven failed S & L institutions from the Federal Savings and Loan Insurance Corporation ("FSLIC").[1] Affidavit of Mark A. Mesec ("Mesec Affidavit") ¶ 3, attached as Exhibit A to AmWest's Motion. As a condition of this sale, AmWest and the FSLIC entered into an Assistance Agreement guarantying payment to AmWest for certain losses and expenses related to specific "covered" assets. See generally Assistance Agreement, attached to Original Complaint and Demand for Jury Trial ("Original Complaint"). Disputes regarding the proper classification and management of the acquired assets and the reimbursement of related expenses and losses required AmWest, the FSLIC, and other governmental agencies to remain in nearly constant contact for the next several years. Mesec Affidavit ¶ 25. During this time, the Federal Deposit Insurance Corporation ("FDIC")[2] received and reviewed numerous reports of AmWest's operations. Affidavit of Bryceon Sumner ("Sumner Affidavit") ¶¶ 2-5.
AmWest hired the relator, Stone, to serve as President and Chief Executive Officer of one of its newly acquired subsidiaries. Declaration of Clay Stone ("Stone Declaration") ¶ 2, attached as Exhibit B to Plaintiff's Opposition to Defendants' Motion to Dismiss. Stone served in that capacity and as the President and CEO of several other AmWest *854 subsidiaries for roughly two years. Id. ¶ 3; Mesec Affidavit ¶ 7. In December 1990 Stone and AmWest severed their working relationship. Mesec Affidavit ¶ 7. Thereafter, AmWest filed suit against Stone and his new employer, Statewide Capital, Inc. (the "Statewide Litigation"). Affidavit of Jay J. Madrid ("Madrid Affidavit") ¶ 2, attached as Exhibit B to AmWest's Motion. AmWest alleged inter alia that Stone, while still an AmWest employee, engaged in self-dealing during negotiations for an asset sale between AmWest and Statewide. See Declaration of Jay J. Madrid ¶ 3, attached as exhibit to Motion to Transfer filed November 8, 1995. Stone counterclaimed, alleging that AmWest fired him in violation of the Federal Deposit Insurance Act's "whistleblower" provisions. First Amended Third-Party Action and Counterclaims at 3-4, attached as Exhibit B-1 to Madrid Affidavit. Following a jury verdict in favor of AmWest, United States Magistrate Judge Nancy K. Johnson entered judgment notwithstanding the verdict that both sides take nothing. AmWest Savings Association v. Statewide Capital, Inc., No. H-92-1725 (S.D.Tex.1997) (Final Judgment), attached as Exhibit B-5 to Madrid Affidavit.
By 1991, the federal government had initiated an investigation into AmWest's business dealings. Stone Declaration ¶¶ 6-7; Sumner Affidavit ¶ 14. AmWest avers, without demur from Stone, that the government granted Stone immunity from criminal prosecution, in exchange for which Stone testified about questionable business activities he observed and undertook as CEO of the AmWest subsidiary. Brief in Support of Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted or, Alternatively, for Summary Judgment ("Defendants' Brief") at 7. Apparently, however, no criminal charges resulted from the investigation. Sumner Affidavit ¶ 14.
In October 1992, AmWest sued the United States in the Claims Court concerning the "coverage" designation of certain acquired assets (the "Claims Court Litigation"). Exhibit A-2 to Mesec Affidavit. In September 1993, AmWest and the Federal Deposit Insurance Corporation ("FDIC") agreed to redesignate some of the acquired assets as "covered," thereby settling the Claims Court Litigation. See Redesignation Agreement attached as Exhibit A-3 to Mesec Affidavit; Mesec Affidavit ¶ 18.
In December 1992, Stone, on behalf of himself and the United States, brought this suit against AmWest. See generally Original Complaint. Stone, as relator, alleges that AmWest presented false claims, obtained false payments, and fraudulently avoided payment obligations in violation of the False Claims Act ("FCA"), 31 U.S.C. §§ 3729(a)(1), (a)(2), & (a)(7). First Amended Complaint and Demand for Jury Trial ("Amended Complaint") ¶¶ 57-65. These allegations stem from AmWest's business dealings with the federal government under the Assistance Agreement relating to the 1988 acquisition. See generally id. In June 1995, following the government's election not to intervene, the qui tam complaint was unsealed and ordered served on AmWest. See Sumner Affidavit ¶¶ 14-15.
II. ANALYSIS
A. Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Owen Equipment and Erection Company v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978). A federal court may exercise jurisdiction over cases only as expressly provided by the Constitution and laws of the United States. See U.S. Const. art. III §§ 1-2. Federal law gives the federal district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
A party attempting to invoke federal court jurisdiction bears the burden of establishing that jurisdiction. Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th Cir.), cert. denied, 513 U.S. 811, 115 S. Ct. 61, 130 L. Ed. 2d 19 (1994). Dismissal for lack of subject matter jurisdiction "is only proper when `it appears certain that the plaintiffs cannot prove any set of facts in support of their claim that would entitle them to relief.'" McAllister v. Federal Deposit Insurance *855 Corporation, 87 F.3d 762, 765 (5th Cir. 1996) (quoting Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir.1995)). In ruling on a motion to dismiss, the court may rely on "(1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir.1997); see also McAllister, 87 F.3d at 765.
B. False Claims Act
The qui tam[3] provisions of the False Claims Act ("FCA") authorize private persons to bring actions on behalf of the United States against those who have committed fraud on the federal government. 31 U.S.C. § 3730(b). To prevent abuse of the qui tam device, Congress has expressly limited the district courts' power to hear these claims. United States ex rel. Findley v. FPC-Boron Employees' Club, 105 F.3d 675, 680 (D.C.Cir. 1997), petition for cert. filed, 66 USLW 3109 (Jun. 16, 1997) (No. 97-157); United States ex rel. S. Prawer and Company v. Fleet Bank of Maine, 24 F.3d 320, 326 (1st Cir. 1994). These jurisdictional bars prevent the court from adjudicating certain enumerated classes of qui tam suits. See 31 U.S.C. § 3730(e).
In this case, Stone alleges that AmWest defrauded the federal government in violation of the FCA by (1) shifting expenses and revenue between "covered" and "uncovered" assets; (2) failing to manage the "covered" assets properly; (3) mischaracterizing "uncovered" assets as "covered"; and (4) obtaining payment from the FDIC for defaulted Government National Mortgage Association loans. See Amended Complaint ¶¶ 20-56. In its motion to dismiss, AmWest maintains that two of the FCA jurisdictional bars, 31 U.S.C. §§ 3730(e)(3) & (e)(4), prevent this court from adjudicating this suit. Defendants' Brief at 10-24.
1. 31 U.S.C. § 3730(e)(3)Bar on Parasitic Lawsuits
Subsection (e)(3) of Section 3730 of Title 31 of the United States Code prohibits "piggy-back" qui tam lawsuits. See Findley, 105 F.3d at 680. The statute states:
In no event may a person bring ... [a qui tam] action ... which is based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the Government is already a party.
31 U.S.C. § 3730(c)(3).
In the absence of Fifth Circuit authority, this court is persuaded by the First Circuit's analysis of this statute in Prawer. See generally Prawer, 24 F.3d at 327-29. Under Prawer, the determination of whether a qui tam suit is "based upon allegations or transactions which are the subject of" previous government litigation, see § 3730(e)(3) above, requires the court to examine the relationship between the suits. Id. If the qui tam action receives support from the earlier case without giving the government any useful return (other than the potential for monetary recovery), the basis and the subject of the lawsuits are the same.[4]Id. at 328.
AmWest contends that § 3730(e)(3) bars the present suit because it is "based upon" transactions which were the subject of the Claims Court Litigation and the Statewide Litigation two lawsuits, it claims, to which the federal government was a party. Defendants' Brief at 10-11. Stone, on the other hand, submits that the qui tam suit and the Claims Court Litigation were not *856 "based upon" the same transactions and that the government was not a party to the Statewide suit. Plaintiff's Opposition to Defendants' Motion to Dismiss at 6-7. Because the court rejects Stone's first claim, it need not address his second.
The Claims Court Litigation arose out of disagreements between AmWest and the FSLIC/FDIC concerning the proper scope and application of the Assistance Agreement. See generally Claims Court Complaint, attached as Exhibit A-2 to the Mesec Affidavit. Interpreting the Assistance Agreement and determining the rights and duties of the parties under it formed the crux of the Claims Court Litigation. See, e.g., id. at 50-51, 53-54 (complaining of the government's performance under the agreement and seeking to redesignate certain assets as "covered"). The later filed qui tam suit also concerns the propriety of payments made under and the management and characterization of assets pursuant to the Assistance Agreement. Amended Complaint ¶¶ 3-4. Granted, the roles are reversed in the present suitthe United States (through Stone as relator) complaining and AmWest defendingbut the underlying transactions and assets are the same.
This similarity clearly brings these cases within the plain language of the jurisdictional bar. See 31 U.S.C. § 3730(c)(3). Furthermore, these cases exhibit the host/parasite relationship absent from the cases in Prawer. Unlike the qui tam suit in Prawer, Stone's suit seeks to remedy "fraud" arising from a situation previously addressed by the government and AmWest. Cf. Prawer, 24 F.3d at 328 ("because this case is seeking to remedy fraud that the government has not yet attempted to remedy, it is, as a threshold matter, wholly unlike the one the drafters of § 3730(e)(3) ... had in mind...."). Therefore, this court is without jurisdiction to hear this case because it is based upon transactions which were the subject of an earlier civil suit to which the federal government was a party. 31 U.S.C. § 3730(e)(3).
2. 31 U.S.C. § 3730(e)(4)Bar on Lawsuits Based Upon Public Information
Subsection (e)(4) of Section 3730 of Title 31 of the United States Code provides an additional restraint on federal court jurisdiction over FCA qui tam actions. This subsection prohibits the district court from exercising jurisdiction over qui tam cases
based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
31 U.S.C. § 3730(e)(4)(A).
In applying this section, the court must determine "1) whether there has been a `public disclosure' of allegations or transactions, 2) whether the qui tam action is `based upon' such publicly disclosed allegations, and 3) if so, whether the relator is the `original source' of the information." Federal Recovery Services, 72 F.3d at 450.
a. Public Disclosure
Information is publicly disclosed when placed in the public domain through the news media, through a governmental investigation or audit, or through a judicial proceeding. United States ex rel. McKenzie v. BellSouth Telecommunications, Inc., 123 F.3d 935, 938 (6th Cir.1997). Information revealed through civil litigation is considered publicly disclosed. Federal Recovery Services, 72 F.3d at 450. Litigation disclosures include all filings, and in the absence of a protective order, information obtained during discovery though never filed with the court. United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Insurance Company, 944 F.2d 1149, 1158 (3rd Cir.1991). Information discovered during the course of an audit or investigation is also "publicly disclosed," even if disclosed only to employees previously unaware of the wrongdoing. United States ex rel. Doe v. John Doe Corp., 960 F.2d 318, 323 (2nd Cir.1992).
Stone claims that the allegations and transactions involved in the present suit were not publicly disclosed because previous litigation did not involve identical claims and the governmental investigation and audit *857 were insufficiently thorough. Plaintiff's Opposition at 15-16. These assertions border on the disingenuous. The propriety of payments, the sufficiency of management, and the characterization of assets under the Assistance Agreement were litigated both in the Claims Court Litigation and in the Statewide Litigation. See generally Claims Court Complaint; First Amended Third-Party Action and Counterclaims. Because these transactions were litigated prior to the initiation of Stone's qui tam action, the transactions were publicly disclosed. Federal Recovery Services, 72 F.3d at 450. Furthermore, the government's investigation, in which Stone himself participated, provides an independent and sufficiently public source of disclosure. See Doe, 960 F.2d at 323-24.
b. "Based Upon"
The Fifth Circuit has expressly adopted the Tenth Circuit's interpretation of when a qui tam suit is "based upon" publicly available information. Federal Recovery Services, 72 F.3d at 451. According to the Tenth Circuit, the plain language of § 3730(c)(4) applies to "an FCA qui tam action even partly based upon publicly disclosed allegations or transactions...." United States ex rel. Precision Co. v. Koch Industries, Inc., 971 F.2d 548, 552 (10th Cir.1992) (emphasis added), cert. denied, 507 U.S. 951, 113 S. Ct. 1364, 122 L. Ed. 2d 742 (1993). Nearly every circuit which has addressed the issue has adopted this interpretation of "based upon." McKenzie, 123 F.3d at 939-40; Findley, 105 F.3d at 682. In the instant case, the court finds that Stone's complaint is "based upon" publicly disclosed information because the allegations and transactions contained therein are "substantially similar to those in the public domain." See Findley, 105 F.3d at 682.
c. Original Source
Even though a relator's claims are based upon publicly disclosed information, he may avoid the jurisdictional bar of § 3730(e)(4) by qualifying as an "original source." 31 U.S.C. § 3730(e)(4)(A), (B). The statute defines an "original source" as "an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action ...." Id. § 3730(e)(4)(B). Courts have held that a relator, to qualify as an original source, must prove he (1) has "direct" and "independent" knowledge of the information and (2) "voluntarily" provided the information to the government prior to filing suit. United States ex rel. Barth v. Ridgedale Electric, Inc., 44 F.3d 699, 702-03 (8th Cir.1995); see also McKenzie, 123 F.3d at 942; Findley, 105 F.3d at 690; United States ex rel. Fine v. Chevron, U.S.A., Inc., 72 F.3d 740, 743 (9th Cir.1995) (en banc), cert. denied, 517 U.S. 1233, 116 S. Ct. 1877, 135 L. Ed. 2d 173 (1996).
For the first element, "[t]he word `direct' is usually interpreted as `marked by absence of intervening agency,' while `independent knowledge' is not `dependant on public disclosure.'" McKenzie, 123 F.3d at 940 (citations omitted). In the instant case, Stone clearly obtained direct knowledge of the inner workings of AmWest during his tenure as President and CEO of the AmWest subsidiary. See, e.g., Stone Declaration ¶¶ 3-5. Likewise, it is reasonable to assume that at least some of the allegations made in Stone's suit are based upon this knowledge, independent of the public disclosures. Therefore, Stone satisfies the first element of the "original source" test.
For the purposes of § 3730(e)(4)(B), "voluntary" is interpreted as "uncompensated" or "unsolicited," not as "uncompelled." See Fine, 72 F.3d at 744; Barth, 44 F.3d at 704. To qualify, the relator must prove that his disclosure was made "`of [his] own free will without valuable consideration ... [or] without any present legal obligation ... or any such obligation that can accrue from the existing state of affairs.'" Fine, 72 F.3d at 744 (quoting Webster's Third New International Dictionary 2564 (1981) (definition 1(g))).
The court concludes that Stone cannot meet this test. Stone became aware of questionable business dealings during his tenure as President and CEO of an AmWest subsidiary. Stone Declaration ¶¶ 3-5. Yet he failed to report the "fraud" while in AmWest's employ. See id. ¶¶ 6-7. Stone finally *858 made his disclosures seven months after leaving AmWest during the course of the government's criminal fraud investigation. See id. In return for his statements, the government gave Stone immunity from criminal prosecution. Like the relator in Barth, Stone "did not `voluntarily' bring the information to the government and now rewarding him for merely complying with the government's investigation [would be] outside the intent of the [FCA]." Barth, 44 F.3d at 704. Furthermore, Stone has already received valuable compensation in the form of criminal immunity in return for his statements, so "[t]he government has no further need to rouse him from slumber and embolden him to perform ...." Fine, 72 F.3d at 745. Because the court concludes that his disclosures were not voluntary, Stone may not qualify as an "original source." See id. Therefore, this court is without jurisdiction to adjudicate Stone's claims because this FCA qui tam suit is based upon publicly disclosed transactions. 31 U.S.C. § 3730(e)(4).
III. CONCLUSION
For the reasons stated, this case must be DISMISSED without prejudice for want of subject matter jurisdiction. However, in light of the order of June 26, 1995, which provides that (1) the United States "is entitled to intervene in this action, for good cause, at any time" and (2) "the Court will solicit the written consent of the United States before ruling or granting its approval" to a dismissal, settlement, or other discontinuance of this action, judgment will not be entered forthwith, as F.R.Civ.P. 58(1) usually requires. Instead, this memorandum order will be served on the United States to enable it to express its objection, if any, to this ruling or to exercise its right to intervene. If no objection or motion to intervene is received from the United States by December 19, 1997, judgment in accordance with this memorandum order will be entered.
SO ORDERED.
NOTES
[1] The failed S & L's were actually purchased by NuOlney Savings Association and Adam Corporation/Group, predecessors of AmWest. Mesec Affidavit ¶ 3; Affidavit of Bryceon Sumner ¶ 2. For the sake of simplicity, however, the court will use the name "AmWest" to refer to all of these entities collectively.
[2] The FSLIC was abolished by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, which vested its assets in the FDIC. 12 U.S.C. § 1821a(1) and (2). See Federal Deposit Insurance Corporation v. Henderson, 61 F.3d 421, 423 n. 1 (5th Cir.1995).
[3] "Qui tam" is the abbreviated version of the phrase "qui tam pro domino rege quam pro si ipso in hac parte sequitur" which, literally translated, means he "who sues on behalf of the King as well as for himself." Black's Law Dictionary 1251 (6th ed.1990). The private plaintiff suing on behalf of the government in a qui tam action is known as the "relator." See id. at 1289.
[4] This reading of "based upon" is not at odds with the Fifth Circuit's interpretation of similar language in Federal Recovery Services, Inc. v. United States, 72 F.3d 447 (5th Cir.1995). In Federal Recovery Services, the Fifth Circuit held that an action even partly based upon public information satisfied the "based upon" requirement of § 3730(e)(4). Id. at 451. Like the interpretation of the Fifth Circuit, the First Circuit formulation does not require identical allegations; rather, it turns on a similarity of pleading that creates a host/parasite relationship. See Prawer, 24 F.3d at 328-29. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267121/ | 174 Cal. App. 4th 82 (2009)
___ Cal.Rptr.3d ___
JAMES A. CLARK et al., Petitioners,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
NATIONAL WESTERN LIFE INSURANCE COMPANY, Real Party in Interest.
No. B212512.
Court of Appeals of California, Second District, Division Seven.
May 21, 2009.
As modified May 21, 2009.
*87 Gianelli & Morris, Robert S. Gianelli; Ernst & Mattison and Raymond E. Mattison for Petitioners.
No appearance for Respondent.
Barger & Wolen, Kent R. Keller and Larry M. Golub for Real Party in Interest.
Reed Smith, Margaret M. Grignon, Robert D. Phillips, Jr., James C. Martin and Wendy S. Albers for Association of California Life and Health Insurance Companies, North American Company for Life and Health Insurance and Midland National Life Insurance Company as Amici Curiae on behalf of Real Party in Interest.
OPINION
PERLUSS, P. J.
Civil Code section 3345 (section 3345) authorizes the award of an enhanced remedyup to three times greater than the amount of a fine, civil penalty "or any other remedy the purpose or effect of which is to punish or deter" that would otherwise be awardedin actions by or on behalf of senior citizens or disabled persons seeking to "redress unfair or deceptive acts or practices or unfair methods of competition." Is this enhanced remedy available in a private action by senior citizens seeking restitution under California's unfair competition law (Bus. & Prof. Code, § 17200 et seq.)?
The unambiguous language of section 3345 encompasses actions under the unfair competition law brought by or on behalf of senior citizens, even those initiated by private plaintiffs seeking only restitution. Although section 3345 is limited to actions involving remedies intended to "punish or deter," deterrence of illegal acts is both an important aim and a recognized effect of a restitution remedy under the unfair competition law. (See, e.g., Korea Supply *88 Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1148 [131 Cal. Rptr. 2d 29, 63 P.3d 937] (Korea Supply); Bank of the West v. Superior Court (1992) 2 Cal. 4th 1254, 1267 [10 Cal. Rptr. 2d 538, 833 P.2d 545].)
Nonetheless, as both real party in interest and the amici curiae forcefully argue, because the enhanced remedy authorized by section 3345 is similar in many respects to an award of punitive damages, permitting a treble restitution recovery appears to contradict the well-established rule that private plaintiffs in actions under the unfair competition law "may not receive damages, much less treble damages . . . ." (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163, 179 [83 Cal. Rptr. 2d 548, 973 P.2d 527] (Cel-Tech).) The legislative history of section 3345 is unhelpful on this point, neither indicating a clear intent to modify this accepted principle of unfair competition jurisprudence nor reflecting an understanding that the sweeping language in section 4 of Senate Bill No. 1157 (1987-1988 Reg. Sess.), which enacted section 3345, was to be given a restrictive interpretation. Accordingly, we are left with the language of section 3345 itself, which on its face applies to senior citizens or disabled persons seeking restitution under the unfair competition law.
Because the trial court concluded section 3345 is inapplicable to private actions seeking restitution under the unfair competition law, we grant the petition for writ of mandate filed by James A. Clark, Orville R. Camien, Mary F. Simms-Schmidt and Carmen R. Armstrong on behalf of themselves and as representatives of a certified class of certain senior citizens and direct respondent Los Angeles Superior Court to vacate its order of November 14, 2008 granting National Western Life Insurance Company's (National Western) motion for judgment on the pleadings and enter a new and different order denying that motion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Certified Class Action
This action, originally filed in September 2004 by Clark, a senior citizen, alleges National Western utilized deceptive business practices to induce the purchase of high-commission annuity contracts with large surrender penalties in violation of, among other things, the unfair competition law. In December 2005 a third amended complaint was filed naming the petitioners as plaintiffs and including class action allegations. The third amended complaint alleged violations of the unfair competition law, breach of contract, breach of the covenant of good faith and fair dealing and fraud and sought, in part, restitution of the improper surrender penalties and enhanced remedies for each cause of action under section 3345.
*89 In February 2007 the trial court granted, in part, petitioners' motion for class certification, certifying a class consisting of "[a]ll California residents who purchased National Western Life Insurance Company deferred annuities when they were age 65 or older" under specified certificate forms. However, the court permitted the class to proceed only on the unfair competition claim.[1] The court also certified a subclass of approximately 36 class individuals who purchased annuities sold by Ezra Chapman and ruled the subclass could proceed against Chapman and National Western on both the fraud claim and the unfair competition claim.[2]
2. National Western's Motions for Judgment on the Pleadings and Summary Adjudication
On July 15, 2008 National Western filed a motion for judgment on the pleadings, asserting section 3345's enhanced, "treble damages" remedy was inapplicable to a private action under the unfair competition law. On the same date, National Western filed a motion for summary adjudication presenting the identical argument. In addition, the summary adjudication motion argued punitive damages were not available for the subclass's fraud claim because plaintiffs could not establish that National Western had ratified Chapman's conduct or had engaged in any behavior warranting the imposition of punitive damages.
On November 14, 2008 the court granted National Western's motion for judgment on the pleadings without leave to amend, concluding section 3345 is inapplicable to a private action seeking restitution under the unfair competition law because "restitution, the only available remedy, does not have the purpose or effect of punishment or deterrence." The court denied National Western's motion for summary adjudication, finding triable issues of material fact existed as to whether the subclass's common law fraud claim warranted punitive damages.
3. The Instant Petition
On December 5, 2008 plaintiffs petitioned this court for a writ of mandate compelling the trial court to vacate its order granting the motion for judgment *90 on the pleadings and to enter a new order denying the motion. After requesting and receiving an informal opposition to the petition, on December 30, 2008 this court issued an order to show cause as to why the relief requested in the petition should not be granted. On January 23, 2009 National Western filed its return, and on February 13, 2009 plaintiffs filed their reply.
DISCUSSION
1. Standard of Review
We review de novo the trial court's order granting a motion for judgment on the pleadings (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal. 4th 468, 515 [101 Cal. Rptr. 2d 470, 12 P.3d 720]), assuming the truth of, and liberally construing, all properly pleaded factual allegations in the complaint. (Id. at pp. 515-516; see Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal. App. 4th 667, 672 [128 Cal. Rptr. 2d 358] ["[a]ll properly pleaded, material facts are deemed true, but not contentions, deductions, or conclusions of fact or law . . ."].) On appeal we properly consider evidence outside the pleadings presented to the trial court without objection (Stone Street Capital, LLC v. California State Lottery Com. (2008) 165 Cal. App. 4th 109, 115 [80 Cal. Rptr. 3d 326]; O'Neil v. General Security Corp. (1992) 4 Cal. App. 4th 587, 594, fn. 1 [5 Cal. Rptr. 2d 712]), as well as matters subject to judicial notice. (Stone Street Capital, at p. 115; Kapsimallis, at p. 672 ["judicially noticeable matters may be considered"].)
2. Overview of the 1988 Consumer Protection Legislation Providing Additional Penalties and Enhanced Remedies for Unfair or Deceptive Practices Perpetrated Against Senior Citizens or Disabled Persons
(1) Since 1977 the unfair competition law has prohibited unlawful, unfair or fraudulent business practices or unfair, deceptive, untrue or misleading advertising (Bus. & Prof. Code, § 17200) and subjected violators in actions prosecuted by public prosecutors to civil penalties not exceeding $2,500 for each violation (Bus. & Prof. Code, § 17206), as well as to injunctions and restitution orders (Bus. & Prof. Code, § 17203). Private plaintiffs may also prosecute actions under the unfair competition law, but their remedies are limited to orders for injunctions and restitution. (Bus. & Prof. Code, § 17203.) Damages and penalties, whether compensatory or punitive, are prohibited. (Korea Supply, supra, 29 Cal.4th at p. 1148 [only monetary relief available to private plaintiffs under unfair competition law is restitution; compensatory and punitive damages are not authorized]; Kasky v. Nike, Inc. (2002) 27 Cal. 4th 939, 950 [119 Cal. Rptr. 2d 296, 45 P.3d 243] ["[i]n a suit under [unfair competition law], a public prosecutor may collect civil penalties, but a private plaintiff's remedies are `generally limited to injunctive *91 relief and restitution'"]; Cel-Tech, supra, 20 Cal.4th at p. 179 [under unfair competition law "[p]laintiffs may not receive damages, much less treble damages, or attorney fees"].)
In 1987, citing statistics from the California Department of Justice and the International Association of Chiefs of Police indicating senior citizens were "the most frequent victims" of consumer fraud and deceptive business practices, often with tragic consequences, the state Department of Consumer Affairs urged the Legislature to strengthen the consumer protection laws to protect senior citizens from consumer fraud.[3] Senate Bill No. 1157 (1987-1988 Reg. Sess.), passed by the Legislature in September 1988 and signed by the Governor and enacted into law later that month (see Stats. 1988, ch. 823, §§ 1-4, pp. 2665-2669), was the culmination of that effort.
a. The evolution of Senate Bill No. 1157
As originally sponsored by the Department of Consumer Affairs and introduced by Senator Ed Davis on March 5, 1987, Senate Bill No. 1157 (1987-1988 Reg. Sess.) simply added a new section 17206.1 to the Business and Professions Code, providing civil penalties for violation of Business and Professions Code section 17200 would be not less than $2,500 or more than $5,000 for each violation if the victim of the violation is 65 years old or older.[4] The enhanced civil penalty was to be collected in an enforcement action initiated by the Attorney General or a designated local prosecutor pursuant to Business and Professions Code section 17206.
The Attorney General opposed the legislation. In an April 9, 1987 letter to Senator Davis, Attorney General Van de Kamp explained existing law, which under Business and Professions Code section 17206 provided for a civil penalty up to $2,500 per violation of the unfair competition law, gave the courts broad discretion to tailor civil penalties to the specific features of each *92 case and cautioned the mandatory penalty scheme envisioned by Senate Bill No. 1157 "would create administrative nightmares at best, and may well be unconstitutional." (Atty. Gen., letter to Sen. Ed Davis re Sen. Bill No. 1157 (1987-1988 Reg. Sess.) Apr. 9, 1987.)
Amendments to Senate Bill No. 1157 (1987-1988 Reg. Sess.) in May 1987 eliminated the mandatory minimum civil penalty of $2,500 for each violation of Business and Professions Code section 17200, specifying instead a civil penalty of not more than $5,000 for each violation. The Attorney General's office acknowledged the amendments eliminated the major problems it had identified in the original bill but still opposed it because "the bill accomplishes no demonstrable purpose and creates ambiguities, constitutional questions, difficult law enforcement problems and uncertainties where none now exist." (Sr. Asst. Atty. Gen. Herschel T. Elkins, mem. to Asst. Atty. Gen. Jeff Fuller re Sen. Bill No. 1157 (1987-1988 Reg. Sess.) May 12, 1987, p. 3.) In a May 12, 1987 analysis of the legislation provided to the Department of Consumer Affairs, Senior Assistant Attorney General Herschel T. Elkins observed, "Of course, the author is seeking greater protection for senior citizens. Perhaps greater personal remedies in the actions brought by those consumers might be helpful. Of greatest help, of course, would be additional personnel to allow agencies to bring actions in areas in which victims are more likely to be senior citizens." (Ibid.)
The staff of the Department of Consumer Affairs attempted to resolve some of the Attorney General's concerns about the enforcement of proposed new Business and Professions Code section 17206.1 with additional amendments. It also sought to implement the suggestion of creating greater personal remedies for senior citizens by proposing in the same bill new language in the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) (CLRA)[5] authorizing the recovery of three times actual damages, as well as reasonable attorney fees, when the victim of a violation of the CLRA is a senior citizen. The Attorney General's office responded to this series of proposals by preparing draft language for a new section 3284 of the Civil Code, which would have authorized the court, when it was otherwise "authorized by statute to impose a fine, penalty or any other remedy for the purpose of punishment or deterrence," to consider in setting the amount to impose various factors relating to the impact of the defendant's conduct on senior citizens. (See Dept. Consumer Affairs, letter to Sr. Asst. Atty. Gen. Herschel T. Elkins, June 19, 1987.)
*93 Following further refinements to these draft proposals by the Department of Consumer Affairs and Senator Davis's staff, Senate Bill No. 1157 (1987-1988 Reg. Sess.) was amended on July 9, 1987 to provide for (1) addition of section 17206.1 to the Business and Professions Code, authorizing imposition of a civil penalty not to exceed $2,500 in addition to the civil penalty that may be assessed and recovered in a civil action under Business and Professions Code section 17206; (2) amendment of Civil Code section 1780 to permit recovery by senior citizens of three times actual damages in private actions under the CLRA; and (3) addition of section 3345[6] authorizing the trier of fact, whenever it finds one or more of the factors listed in subdivision (b) of the new section relating to the effect of the defendant's conduct on senior citizens, to impose a fine, penalty or other remedy that is greater than it would impose in the absence of that factor.
The scheduled hearing on Senate Bill No. 1157 (1987-1988 Reg. Sess.) as amended July 9, 1987, was cancelled at the request of Senator Davis. No further action was taken on the bill until April 12, 1988 when it was re-referred to committee following additional amendments by Senator Davis. These April 1988 amendments extended the bill's coverage to "disabled persons," as well as to "senior citizens," and narrowed the focus from senior citizens and disabled persons generally to those who are more vulnerable to harm than the average consumer, have been specifically targeted as the victims of consumer fraud or have suffered significant harm that relates to their status as senior citizens or disabled persons. The proposed CLRA amendments eliminated the trebling of actual damages in senior citizen cases and provided instead, in addition to other remedies that may otherwise be available, an award of up to $5,000 when the trier of fact finds the senior citizen or disabled person suffered substantial physical, emotional or economic damage from the defendant's conduct and makes an affirmative finding in regard to one or more of the enumerated factors involving senior citizens or disabled persons as victims of consumer fraud now set forth in the bill's proposed section 3345. (See Sen. Bill No. 1157 (1987-1988 Reg. Sess.) as amended Apr. 12, 1988, §§ 1-3.)[7]
The reach of proposed section 3345 was expressly limited by the April 1988 amendments, so that it no longer applied in any action brought by or on behalf of senior citizens or disabled persons, but only in actions "to redress unfair or deceptive acts or practices or unfair methods of competition." (See Sen. Bill No. 1157 (1987-1988 Reg. Sess.) as amended Apr. 12, 1988, § 4.) *94 In addition to simply considering the factors relating to the impact of the defendant's conduct on senior citizens and disabled persons in fixing the amount of an otherwise authorized fine, penalty or other remedy for the purpose of punishment or deterrence, however, as amended proposed section 3345 permitted the trier of fact to impose additional amounts up to three times the remedy otherwise available. Moreover, just as the enhanced CLRA remedy cross-referenced the factors identified in the enhanced remedy specified in proposed section 3345, the amended section 3345 adopted the definitions of "senior citizen" and "disabled person" that would be included in the CLRA. (See Sen. Bill No. 1157 (1987-1988 Reg. Sess.) as amended Apr. 12, 1988, § 4.)
After some final, technical amendments to conform the legislation to another bill passed in the same session, Senate Bill No. 1157 (1987-1988 Reg. Sess.) as amended June 13, 1988, was passed by the Legislature in August 1988 and signed by the Governor on September 12, 1988. (See Stats. 1988, ch. 823, §§ 1-4, pp. 2665-2669.)
b. The final version of the 1988 senior citizen and disabled person legislation
(2) As the review of the development and final adoption of Senate Bill No. 1157 (1987-1988 Reg. Sess.) makes plain, the legislation was the product of the Department of Consumer Affairs's effort to strengthen the role of the Attorney General and other public prosecutors in protecting senior citizens and disabled persons from unfair business practices and the fully complementary, but nonetheless distinct, preference of the Attorney General's office to create greater private remedies for senior citizens who have been targeted as victims of consumer fraud. As finally enacted the legislation effected three major changes to California's consumer protection laws relating to senior citizens and disabled persons. First, it amended the unfair competition law by adding Business and Professions Code section 17206.1,[8] which authorizes the Attorney General and prosecutors in civil enforcement *95 proceedings to recover an added civil penalty up to $2,500 (in addition to the $2,500 civil penalty available under Bus. & Prof. Code, § 17206) when the unfair practice is perpetrated against a senior citizen or disabled person. (See Bus. & Prof. Code, § 17206.1; Stats. 1988, ch. 823, § 1, pp. 2665-2666.)[9]
Second, it amended the CLRA to authorize private litigants to recover, in addition to other remedies available under the act, including compensatory and punitive damages, an additional monetary awardup to $5,000when the unfair practice prohibited by the act is perpetrated against a senior citizen or disabled person. (Civ. Code, § 1780, subd. (b)(1)(A)-(C); Stats. 1988, ch. 823, § 3, pp. 2667-2668.)
Third, it added section 3345 to the Civil Code, authorizing an enhanced remedy in actions brought by or on behalf of senior citizens seeking redress for "unfair or deceptive acts or practices or unfair methods of competition." (§ 3345, subd. (a).) Section 3345, subdivision (a), limits the new provision to actions "brought by, on behalf of, or for the benefit of senior citizens or disabled persons, as those terms are defined in subdivisions (f) and (g) of [Civil Code] Section 1761,[10] to redress unfair or deceptive acts or practices or unfair methods of competition." Section 3345, subdivision (b), provides the enhanced remedy: "Whenever a trier of fact is authorized by a statute to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact's discretion, the trier of fact shall consider all of the following factors,[11] in addition to other *96 appropriate factors, in determining the amount of fine, civil penalty or other penalty, or other remedy to impose. Whenever the trier of fact makes an affirmative finding in regard to one or more of the following factors, it may impose a fine, civil penalty or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, where the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding."
3. Section 3345 May Be Used to Enhance a Restitution Award
The trial court granted National Western's motion for judgment on the pleadings because, in its view, restitution, the only monetary relief available to private litigants under the unfair competition law, does not have the purpose or effect of punishment or deterrence, a prerequisite to application of section 3345's enhanced, treble recovery. Echoing that conclusion, National Western asserts restitution under the unfair competition law is intended to restore money or property acquired by the defendant, not to deter unlawful conduct. That interpretation of the nature of a restitution remedy, potentially applicable not only in private actions under the unfair competition law but also in lawsuits alleging violation of a variety of other consumer protection statutes, is unduly cramped.[12]
(3) In determining whether section 3345 applies when an action has been brought by senior citizens seeking restitution for fraud or deceptive business practices, we are, of course, guided by well-established principles of statutory construction. Our fundamental task is to ascertain the Legislature's intent and thereby effectuate the purpose of the statute. (Olson v. Automobile Club of Southern California (2008) 42 Cal. 4th 1142, 1147 [74 Cal. Rptr. 3d 81, 179 P.3d 882]; Smith v. Superior Court (2006) 39 Cal. 4th 77, 83 [45 Cal. Rptr. 3d 394, 137 P.3d 218].) "`We begin with the statutory language because it is generally the most reliable indication of legislative intent.'" (Miklosy v. Regents of University of California (2008) 44 Cal. 4th 876, 888 [80 Cal. Rptr. 3d 690, 188 P.3d 629].) "If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs." (Day v. City of Fontana (2001) 25 Cal. 4th 268, 272 [105 Cal. Rptr. 2d 457, 19 P.3d 1196]; see also Smith, at p. 83.) "If, however, the statutory terms *97 are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we `"select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences."'" (Day, at p. 272.) "We do not construe statutes in isolation, but rather read every statute `with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.'" (People v. Pieters (1991) 52 Cal. 3d 894, 899 [276 Cal. Rptr. 918, 802 P.2d 420]; see also Stone Street Capital, LLC v. California State Lottery Com., supra, 165 Cal.App.4th at p. 118 ["[w]e presume that the Legislature, when enacting a statute, was aware of existing related laws and intended to maintain a consistent body of rules"].)
(4) Under the plain language of section 3345 two prerequisites must be satisfied before its enhanced remedy may apply: (1) The action must be brought by or on behalf of senior citizens or disabled persons seeking redress for "unfair or deceptive acts or practices or unfair methods of competition"plainly satisfied here; and (2) the action must be one in which the trier of fact is authorized by a statute to impose a fine, civil penalty or any other penalty the purpose or effect of which is to punish or deter.
a. Deterrence of anticompetitive or deceptive business practices is a purpose or effect of the unfair competition law's restitution remedy
(5) Contrary to the trial court's conclusion, California courts have long recognized that restitution awarded under the unfair competition law has a deterrent purpose and effect. (See Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267 [purpose of restitution order under Bus. & Prof. Code, § 17203 is "`to deter future violations of the unfair trade practice statute and to foreclose retention by the violator of its ill-gotten gains'"]; Korea Supply, supra, 29 Cal.4th at p. 1148 ["deterrence of unfair practices" is "important goal" of unfair competition law, though not sole objective]; Fletcher v. Security Pacific National Bank (1979) 23 Cal. 3d 442, 450 [153 Cal. Rptr. 28, 591 P.2d 51] [unfair competition law vests trial court with "broad authority" to fashion remedies that effectively "`prevent'" unfair trade practices and "deter the defendant, and similar entities, from engaging in such practices in the future"]; Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal. App. 4th 663, 695 [38 Cal. Rptr. 3d 36] ["[u]nder the false advertising and unfair competition laws, the remedy of restitution serves two purposesreturning to the plaintiff monies in which he or she has an interest and deterring the offender from future violations"]; cf. People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003) 111 Cal. App. 4th 102, 135 [3 Cal. Rptr. 3d 429] *98 ["statutory restitution [under unfair competition law] is not solely `intended to benefit the [victims] by the return of money, but instead is designed to penalize a defendant for past unlawful conduct and thereby deter future violations'"].) The deterrent effect of a restitution remedy under the unfair competition law was most recently articulated in In re Tobacco II Cases (2009) 46 Cal. 4th 298, in which the Supreme Court noted in the context of interpreting Proposition 64's impact on class actions that its holdings in prior nonrestitutionary disgorgement cases "did not overrule any part of Fletcher v. Security Pacific National Bank, supra, 23 Cal. 3d 442, under which restitution may be ordered `without individualized proof of deception, reliance, and injury if necessary to prevent the use or employment of an unfair practice.'" (In re Tobacco II Cases, at pp. 320-321, fn. 14.)[13]
Although acknowledging that deterrence may be an effect of a restitution remedy, National Western emphasizes "[t]he object of restitution is to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest" (Korea Supply, supra, 29 Cal.4th at p. 1149) and argues applying section 3345 in a private action seeking restitution under the unfair competition law would transform the remedy and, in effect, allow an award of damages under the guise of restitution, something the Supreme Court has specifically held is prohibited. (See, e.g., Korea Supply, at p. 1148 [disgorgement of profits in which plaintiff has no ownership interest is not permitted under the unfair competition law even though it would have a deterrent effect; a "court cannot, under the equitable powers of [Bus. & Prof. Code, §] 17203, award whatever form of monetary relief it believes might deter unfair practices"]; see also Day v. AT&T Corp. (1998) 63 Cal. App. 4th 325, 339 [74 Cal. Rptr. 2d 55] [The intent of Bus. & Prof. Code, § 17203's restitution remedy "is to make whole, equitably, the victim of an unfair practice. While it may be that an order of restitution will also serve to deter future improper conduct, in the absence of a measurable loss the section does not allow the imposition of a monetary sanction merely to achieve this deterrent effect. Nor is the section intended as a punitive provision, though it may fortuitously have that sting when properly applied to restore a victim to wholeness."].)
*99 (6) National Western's argument misapprehends Korea Supply, supra, 29 Cal. 4th 1134, as well as Cel-Tech, supra, 20 Cal. 4th 163. Both cases hold the court's equitable powers to fashion a remedy under the unfair competition law, while broad, are not unlimited and cannot serve as justification for awarding the plaintiff damages, even when such an award is consistent with the unfair competition law's purpose of deterrence. Neither case suggests enhanced remedies may not be available to private litigants under a different, express legislative mandate authorizing them.
(7) Unlike Korea Supply and Cel-Tech, in this case plaintiffs do not seek to justify monetary relief other than restitution under the unfair competition law: The enhanced remedy is sought under section 3345, a separate statute, which specifically authorizes such an enhanced remedy in unfair competition actions brought by senior citizens. We simply must presume the Legislature meant what it said when it provided section 3345 applied in unfair competition actions involving a fine, civil penalty or "any other remedy" (italics added) the purpose of which is to punish or deter. (See People v. Toney (2004) 32 Cal. 4th 228, 232 [8 Cal. Rptr. 3d 577, 82 P.3d 778] ["[i]f the statutory language is unambiguous, `we presume the Legislature meant what it said, and the plain meaning of the statute governs'"]; accord, Genlyte Group, LLC v. Workers' Comp. Appeals Bd. (2008) 158 Cal. App. 4th 705, 714 [69 Cal. Rptr. 3d 903]; see also Hood v. Hartford Life & Accident Ins. Co. (E.D.Cal. 2008) 567 F. Supp. 2d 1221, 1227 ["[t]he text of the statute clearly indicates that Section 3345 applies to the UCA [unfair competition law] and the CLRA, as both Acts prohibit `unfair practices'"].)
National Western insists section 3345's separate authorization for an enhanced remedy in unfair competition cases is immaterial. Other statutes, it notes, also authorize the recovery of treble or punitive damages (see, e.g., Code Civ. Proc., § 425.13 [authorizing punitive damages in action for professional negligence against health care provider under certain circumstances]; Civ. Code, § 987, subd. (e)(3) [authorizing punitive damages in actions involving destruction or alteration of "fine art"]); but those provisions have never been used to justify a treble damage award under the unfair competition law. In fact, it argues, the Supreme Court has repeatedly held punitive damages, authorized under Civil Code section 3294 for acts involving oppression, fraud or malice, are not permitted under the unfair competition law. (See Korea Supply, supra, 29 Cal.4th at pp. 1148-1149; cf. Cel-Tech, supra, 20 Cal.4th at p. 179 [treble damages not permitted under unfair competition law].)
(8) National Western's statutory analogies miss the mark. Code of Civil Procedure section 425.13 is applicable to professional negligence actions, not unfair competition actions. Civil Code section 987, authorizing a separate *100 action for the destruction of fine art, provides a separate cause of action (and includes within that action possible remedies of compensatory damages, punitive damages and attorney fees), not an enhanced remedy in an unfair competition action.
(9) Moreover, although National Western likens Civil Code section 3294's general authorization of punitive damages to section 3345's "trebling" authorization, the two statutes are quite different. Civil Code section 3294 is a general punitive damages statute. Section 3345, in contrast, is a specific mandate of an enhanced remedy in actions by senior citizens or disabled persons asserting unfair competition. To suggest it does not apply in an action by senior citizens seeking redress for unfair competition under the unfair competition law when the only statutory prerequisites have been satisfied is to ignore the statute's express language. (See Reno v. Baird (1998) 18 Cal. 4th 640, 658 [76 Cal. Rptr. 2d 499, 957 P.2d 1333] ["`[c]ourts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage'"]; accord, Donovan v. Poway Unified School Dist. (2008) 167 Cal. App. 4th 567, 593 [84 Cal. Rptr. 3d 285].)[14]
b. Section 3345 does not require the remedy be "discretionary"
Relying on language from section 3345, subdivision (b), concerning the proper application of the statute "when the amount of the fine, penalty or other remedy is subject to the trier of fact's discretion," National Western also contends the section's enhancement only applies if the amount of the fine, penalty or other remedy is discretionary. Insisting restitution awarded under the unfair competition law is not discretionary (see Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal. 4th 163, 178 [96 Cal. Rptr. 2d 518, 999 P.2d 706] ["a restitutionary order under [Bus. & Prof. Code, §] 17203" encompasses "quantifiable sums one person owes to another"]), National Western argues restitution cannot be subject to a section 3345 enhancement.
(10) National Western's argument is based on a fundamentally flawed reading of the statutory language. The first sentence of section 3345, subdivision (b), provides, when the amount of the fine, penalty or other remedy is subject to the trier of fact's discretion, the trier of fact shall consider various *101 enumerated factors, including "whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons," in "determining the amount of fine, civil penalty or other penalty, or other remedy to impose." The second sentence of subdivision (b) instructs the trier of fact, once the amount of the penalty or other remedy is fixedeither because it is set by statute or determined by the trier of factto consider those same factors in deciding whether to treble the award.[15]
A careful reading of the statute permits no other conclusion. Section 3345 specifically authorizes trebling either "an amount . . . authorized by the statute, or, where the statute does not authorize a specific amount," the amount the trier of fact imposed in its discretion. (§ 3345, subd. (b).) If, as National Western asserts, section 3345 applied only to actions in which the fine, penalty or other remedy was subject to the trier of fact's discretion, it would not apply to any action in which the fine or civil penalty was fixed by statute. Such a conclusion is directly contrary to the statutory language as well as its purpose. (See Reno v. Baird, supra, 18 Cal.4th at p. 658 [statute must be read to avoid interpretation that would render any of its provisions a nullity].)
(11) Equally flawed is National Western's assertion the trial court has no discretion under the unfair competition law in determining the amount of restitution to be awarded. Restitution is an equitable remedy. (Cortez v. Purolator Air Filtration Products Co., supra, 23 Cal.4th at p. 180.) "A court cannot properly exercise an equitable power without consideration of the equities on both sides of a dispute." (Ibid.; see also Olson v. Cohen (2003) 106 Cal. App. 4th 1209 [131 Cal. Rptr. 2d 620].) If equity demands a lesser amount than that needed to fully restore the plaintiff to the status quo, the trial court may award a lesser amount. (See, e.g., Olson, at p. 1214 [unfair competition action is equitable in nature and court may consider equitable factors in deciding amount of restitution to award].)
4. Section 3345 Applies to Actions to Enforce the Unfair Competition Law
Far more troubling than National Western's arguments parsing (incorrectly) the meaning of particular words and phrases in section 3345 is the position of *102 amici curiae, the Association of California Life and Health Insurance Companies, North American Company for Life and Health Insurance and Midland National Life Insurance Company, that the three enhanced remedy provisions included in Senate Bill No. 1157 (1987-1988 Reg. Sess.)the addition of Business and Professions Code section 17206.1 to the unfair competition law; the amendment of the CLRA to provide a civil penalty in actions under the act by senior citizens and disabled persons; and the adoption of section 3345are properly viewed as independent enactments, each with its own, self-contained provisions dealing with enhanced protection for senior citizens and disabled persons.[16]
(12) The amici curiae properly observe it is generally presumed legislation is enacted with an awareness of existing law (see, e.g., Shirk v. Vista Unified School Dist. (2007) 42 Cal. 4th 201, 212 [64 Cal. Rptr. 3d 210, 164 P.3d 630] ["[t]he Legislature is deemed to be aware of existing statutes, and we assume that it amends a statute in light of those preexisting statutes"]; People v. Licas (2007) 41 Cal. 4th 362, 367 [60 Cal. Rptr. 3d 31, 159 P.3d 507] ["`[T]he Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes "`in light of such decisions as have a direct bearing upon them.'"'"]), and an intention to overturn long-established principles of law is not inferred in the absence of a clear expression in either the statutory language or legislative history. (Van Horn v. Watson (2008) 45 Cal. 4th 322, 333 [86 Cal. Rptr. 3d 350, 197 P.3d 164] ["`"[w]e do not presume that the Legislature intends, when it enacts a statute, to overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied"'"]; Torres v. Automobile Club of So. California (1997) 15 Cal. 4th 771, 779 [63 Cal. Rptr. 2d 859, 937 P.2d 290] ["courts should not presume the Legislature in the enactment of statutes intends to overthrow long-established principles of law unless that intention is made clearly to appear either by express declaration or by necessary implication"].)
The well-established principles of law at issue here are, as discussed above, that restitution is the only monetary relief available to a private litigant under the unfair competition law and that only the Attorney General and designated public prosecutors are empowered to recover civil penalties in actions under *103 the unfair competition laws. (See Korea Supply, supra, 29 Cal.4th at p. 1148, fn. 6 ["[i]n public actions, civil penalties may be collected from a defendant"].) Surely, the amici curiae contend, if the Legislature had intended section 3345 to apply to private restitution awards or civil penalties recoverable under the unfair competition law, it would have said so. Far from doing that, the Legislature made the amendment to the unfair competition law independent and self-contained, defining the terms "senior citizen" and "disabled person" and specifying the factors for the court to consider in deciding whether to impose the enhanced civil penalty under Business and Professions Code section 17206.1 rather than cross-referencing the CLRA or section 3345. Indeed, the amici curiae argue, if the Legislature had intended section 3345 to extend to the unfair competition law, the enactment of Business and Professions Code section 17206.1 would have been superfluous.
The amici curiae's explanation of how the various portions of Senate Bill No. 1157 (1987-1988 Reg. Sess.) should relate to each other is certainly reasonable from a policy perspective. But their position is inconsistent with the plain language of the statute itself. In the same bill that added Business and Professions Code section 17206.1 to the state's basic unfair competition law, the Legislature provided that new section 3345 would be applicable to actions brought to redress unfair or deceptive acts or practices or unfair methods of competition. Yet nowhere in Senate Bill No. 1157 or in the committee reports or analyses accompanying its passage is there any suggestion that "action brought to redress . . . unfair methods of competition" did not include the unfair competition law (or the CLRA). The natural reading of the language actually used by the Legislature, which is by no means absurd, compels the contrary conclusion. (See Miklosy v. Regents of University of California, supra, 44 Cal.4th at p. 898, fn. 6 ["because we find no compelling evidence of legislative error, and because the statutory scheme is neither absurd nor inherently unfair, we must construe the law as written by the Legislature"]; see also id. at p. 907 (conc. opn. of Werdegar, J.) [agreeing that court properly construes statute in accord with its unambiguous language even if contrary to the overall purposes and structure of the legislative scheme, but urging Legislature to revisit the statute if the words used do not properly convey its intent].)[17]
*104 (13) There is no merit to the amici curiae's contention that construing section 3345 to apply to actions under the unfair competition law makes enactment of Business and Professions Code section 17206.1 superfluous. Without section 17206.1 the maximum civil penalty available per violation in an enforcement action on behalf of senior citizens or disabled persons would be $2,500 (pursuant to Bus. & Prof. Code, § 17206) trebled under section 3345. With the enhanced penalty provision of section 17206.1 the potential available civil penalty is increased to $5,000 per violation, which can then be trebled. Nor is the specification of factors relating to senior citizens in section 17206.1 in any way inconsistent with the repetition of those same factors in section 3345. As stated in section 17206.1 the factors assist the court, as trier of fact, in assessing whether to impose a civil penalty greater than the penalty specified in section 17206 (that is, whether to impose as much as an additional $2,500 per violation). In section 3345 the factors are used to decide whether to increase the base civil fine up to as much as treble the original sum. Although the analysis for these two steps may be essentially the same, the results are quite different.
Finally, although our interpretation of the scope of section 3345 and its application to actions brought under the unfair competition law is based on the plain language of the statute itself, the legislative history of Senate Bill No. 1157 (1987-1988 Reg. Sess.)to the extent it sheds any light on the issue at allsupports our conclusion. (See California School Employees Assn. v. Governing Board (1994) 8 Cal. 4th 333, 340 [33 Cal. Rptr. 2d 109, 878 P.2d 1321] ["Ordinarily, if the statutory language is clear and unambiguous, there is no need for judicial construction. [Citation.] Nonetheless, a court may determine whether the literal meaning of a statute comports with its purpose."]; accord, In re Tobacco II Cases, supra, 46 Cal.4th at p. 316 ["even though recourse to extrinsic material is unnecessary given plain language of statute, we may consult it for material that buttresses our construction of the statutory language"]; see also Aguiar v. Superior Court (2009) 170 Cal. App. 4th 313, 326 [87 Cal. Rptr. 3d 813].) The twin purposes of the 1988 legislation were to encourage the investigation and prosecution of deceptive business practices perpetrated against senior citizens and to create new forms of civil redress available to senior citizens to "compensate for the lack of [existing] remedies." (See Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1157 (1997-1998 Reg. Sess.) as amended June 13, 1988, p. 2, par. 2.) It is fully consistent with those goals to construe section 3345 to apply to unfair competition actions brought on behalf of senior citizens under the unfair competition law. (See generally Viles v. State of California (1967) 66 Cal. 2d 24, 32-33 [56 Cal. Rptr. 666, 423 P.2d 818] [remedial legislation must be liberally construed to protect persons within its purview].)
*105 DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue directing the trial court to vacate its order of November 14, 2008 granting National Western's motion for judgment on the pleadings and to enter a new order denying that motion and to conduct any further proceedings not inconsistent with this opinion. Petitioners are to recover their costs in this writ proceeding.
Woods, J., and Jackson, J., concurred.
NOTES
[1] The certified class was defined as, "All California residents who purchased National Western Life Insurance Company deferred annuities when they were age 65 or older under the following certificate forms: Confidence Flex 85 (01-1114CA-98); Confidence Flex 45 (01-11114CB-98); Confidence Index 2000 (01-1117C-99); Liberty Champion (01-1128C-02-CA)."
[2] The trial court certified a subclass of "[a]ll California residents who purchased National Western Life Insurance Company deferred annuities when they were age 65 or older under the following certificate forms sold by Ezra Chapman: Confidence Flex 85 (01-1114CA-98); Confidence Flex 45 (01-11114CB-98); Confidence Index 2000 (01-1117C-99); Liberty Champion (01-1128C-02-CA)."
[3] In urging new legislation, the Department of Consumer Affairs noted several reasons seniors are susceptible to unfair business practices: Senior citizens "usually have substantially reduced incomes and often are retired. A reduced income can limit a person's mobility and with it the ability to go elsewhere when prices are high or sales practices are abusive. Reduced mobility caused by fear of crime and poor health also reduces access to information sources and increases reliance on door-to-door, telephone and mail order sales. [¶] . . . [¶] When seniors are defrauded, few are able to replace the loss because of their reduced or lost earning capacity. In some cases, when life savings or homes are lost through fraudulent schemes, seniors must turn to the state and public agencies for ongoing assistance." (See Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1157 (1987-1988 Reg. Sess.) as amended June 13, 1988, p. 3.)
[4] At the request of the parties the trial court took judicial notice of portions of the legislative history of Senate Bill No. 1157 (1987-1988 Reg. Sess.). We do, as well, but our review has included material apparently not presented to the trial court. (See Evid. Code, § 459, subd. (a)(1).)
[5] The CLRA prohibits specified unfair and deceptive acts and practices in a "transaction intended to result or which results in the sale or lease of goods or services to any consumer." (Civ. Code, § 1770, subd. (a).)
[6] The available legislative history does not explain why the new provision was renumbered section 3345 rather than section 3284.
[7] In addition, the CLRA attorney fee provision was expanded to apply in any action under the act, not only those pursued on behalf of senior citizens and disabled persons. (See Sen. Bill No. 1157 (1987-1988 Reg. Sess.) as amended Apr. 12, 1988, § 3.)
[8] Business and Professions Code section 17206.1 provides, "(a)(1) In addition to any liability for a civil penalty pursuant to Section 17206, any person who violates this chapter, and the act or acts of unfair competition are perpetrated against one or more senior citizens or disabled persons, may be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which may be assessed and recovered in a civil action as prescribed in Section 17206. [¶]. . . [¶] (c) In determining whether to impose a civil penalty pursuant to subdivision (a) and the amount thereof, the court shall consider, in addition to any other appropriate factors, the extent to which one or more of the following factors are present: [¶] (1) Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons. [¶] (2) Whether the defendant's conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person. [¶] (3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant's conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct. . . ."
[9] To ensure that senior citizens benefit from such public prosecutions, Business and Professions Code section 17206.1 also requires that "[r]estitution ordered pursuant to this subdivision" be given "priority over recovery of any civil penalty" under section 17206.1, "but shall not be given priority over any civil penalty imposed pursuant to subdivision (a) of Section 17206." (Bus. & Prof. Code, § 17206.1, subd. (d).)
[10] Civil Code section 1761, subdivision (f), part of the CLRA, defines "senior citizen" as "a person who is 65 years of age or older." Subdivision (g) defines "disabled person" as "any person who has a physical or mental impairment that substantially limits one or more major life activities."
[11] The factors to be considered by the trial court in determining whether to impose the enhanced remedy are: "(1) Whether the defendant knew or should have known that his or her conduct was directed to one or more senior citizens or disabled persons. [¶] (2) Whether the defendant's conduct caused one or more senior citizens or disabled persons to suffer: loss or encumbrance of a primary residence, principal employment, or source of income; substantial loss of property set aside for retirement, or for personal or family care and maintenance; or substantial loss of payments received under a pension or retirement plan or a government benefits program, or assets essential to the health or welfare of the senior citizen or disabled person. [¶] (3) Whether one or more senior citizens or disabled persons are substantially more vulnerable than other members of the public to the defendant's conduct because of age, poor health or infirmity, impaired understanding, restricted mobility, or disability, and actually suffered substantial physical, emotional, or economic damage resulting from the defendant's conduct." (§ 3345, subd. (b).) The identical factors are included in Business and Professions Code section 17206.1, subdivision (c).
[12] We need not address whether a common law fraud claim seeking rescission and restitution (see Civ. Code, §§ 1682, 3343) would fall within the ambit of section 3345.
[13] The deterrent effect of a restitution award has also been recognized in cases not involving the unfair competition law. (See, e.g., McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1983) 33 Cal. 3d 816, 821 [191 Cal. Rptr. 458, 662 P.2d 916] [deterrence is object of restitution award under unfair practices law (Bus. & Prof. Code, § 17500 et seq.)]; Beverly v. Anderson (1999) 76 Cal. App. 4th 480, 487 [90 Cal. Rptr. 2d 545] [restitution in case involving welfare fraud serves to deter potential wrongdoers]; People v. Bernal (2002) 101 Cal. App. 4th 155, 161-162 [123 Cal. Rptr. 2d 622], citing People v. Moser (1996) 50 Cal. App. 4th 130, 135-136 [57 Cal. Rptr. 2d 647] [restitution in criminal context has objectives beyond simply indemnifying the victim; "[i]t also seeks to rehabilitate the defendant and deter defendant and others" from future criminality].)
[14] Were section 3345 merely a general authorization of treble damages in civil actions brought by senior citizens or disabled persons, we would agree the general authorization would not trump the specific, limited restitution remedy provided in Business and Professions Code section 17203. (See, e.g., Lake v. Reed (1997) 16 Cal. 4th 448, 464 [65 Cal. Rptr. 2d 860, 940 P.2d 311] ["more specific statute controls over a more general one"]; Cumero v. Public Employment Relations Bd. (1989) 49 Cal. 3d 575, 587 [262 Cal. Rptr. 46, 778 P.2d 174] [same].) But as we must repeatedly note, section 3345 by its very terms applies, without limitation, to actions brought by or on behalf of those categories of individuals "to redress unfair or deceptive acts or practices or unfair methods of competition."
[15] As discussed above, in its initial iteration section 3345 simply directed consideration of factors relating to the impact of the defendant's conduct on senior citizens and disabled persons in fixing the amount of an otherwise authorized fine, penalty or other remedy. (Sen. Bill No. 1157 (1987-1988 Reg. Sess.) as amended July 9, 1987.) The second sentence in subdivision (b) permitting the trier of fact to impose up to three times the amount of the fine, penalty or other remedy once the base amount was determined was included with the April 1988 amendments to the legislation. (See Sen. Bill No. 1157 (1987-1988 Reg. Sess.) as amended Apr. 12, 1988.)
[16] National Western expressly declines to adopt amici curiae's argument, stating, although section 3345 does not apply to private actions under the unfair competition law seeking only restitution as a remedy, it takes no position on the question whether the civil penalties specified in Business and Professions Code sections 17206 and 17206.1 may be trebled in an appropriate case under section 3345.
[17] The interrelation, rather than the independence, of the various provisions of Senate Bill No. 1157 is underscored by cross-references that exist between the new CLRA provisions and section 3345. As discussed, the definitions of "senior citizen" and "disabled person" added to the CLRA are adopted by section 3345 and the specific factors for imposing an enhanced remedy delineated in section 3345 are incorporated by reference in the CLRA civil penalty provision. Yet the amici curiae argue, as they must to be consistent, the new CLRA civil penalty provisions, like those added to the unfair competition law, are not subject to trebling under section 3345. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267124/ | 471 Pa. 529 (1977)
370 A.2d 732
COMMONWEALTH of Pennsylvania, Appellee,
v.
NATIONAL FEDERATION OF THE BLIND and American Brotherhood for the Blind, Appellants.
COMMONWEALTH of Pennsylvania, Appellant,
v.
NATIONAL FEDERATION OF THE BLIND and American Brotherhood for the Blind, Inc., Appellees.
Supreme Court of Pennsylvania.
Argued November 17, 1975.
Decided February 28, 1977.
*530 *531 *532 Allen C. Warshaw, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for appellants.
Jerome H. Gerber, James L. Cowden, Harrisburg, for appellees.
Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION
MANDERINO, Justice.
The Solicitation of Charitable Funds Act, Act of August 9, 1963, P.L. 628, as amended, 10 P.S. § 160-2(1) (Supp. 1974-1975) requires all charities, domestic and foreign, to file a registration statement for approval by the Secretary of the Commonwealth prior to solicitation of funds in Pennsylvania. The registration is approved if it meets the requirements of the Act which are designed to protect the citizens of Pennsylvania from solicitations by unscrupulous charities including those who expend an excessive amount of the contributions received for expenses thus minimizing the monies available to directly benefit the beneficiaries of the charity.
The appellants, National Federation of the Blind (NFB) and American Brotherhood for the Blind, Inc., (ABB) are charitable organizations as defined in the Act. Both organizations are foreign corporations maintaining offices in Des Moines, Iowa. Appellants solicited *533 contributions from Pennsylvania residents in 1973 and 1974 by mailing letters to the homes of those solicited. Neither appellant filed a registration statement as required by the Act.
The Commonwealth of Pennsylvania, through the Attorney General, filed a complaint in equity which sought to enjoin further solicitations from Pennsylvania residents until the appellants complied with the filing requirements of the Act. The NFB and ABB filed preliminary objections to the Court's jurisdiction. The Commonwealth Court overruled the preliminary objections filed by appellants and subsequently denied the Commonwealth of Pennsylvania's request for a preliminary injunction. From these decrees the respective parties appeal.
THE APPEAL OF THE NATIONAL FEDERATION OF THE BLIND AND AMERICAN BROTHERHOOD FOR THE BLIND
The NFB and ABB contend that the Due Process Clause of the Fourteenth Amendment and the Commerce Clause of the United States Constitution prohibit the Commonwealth Court from exercising in personam jurisdiction over them. In effect they are arguing that because their only connection with Pennsylvania was the solicitation of contributions via the United States Mail, they are not subject to judicial scrutiny within this State. We cannot agree with this conclusion.
The Supreme Court of the United States set forth the due process standards of jurisdiction in a trilogy of cases beginning with International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) wherein the Court stated:
" . . . due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he *534 have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" (Emphasis added.)
326 U.S. at 316, 66 S. Ct. at 158.
In McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), the Supreme Court of the United States applied this "minimum contacts" standard and concluded that California had jurisdiction over a foreign insurance company despite the fact that the company had no office or agent in California and had never solicited or done any insurance business in California apart from transactions through the mails involving a single insurance policy, the company's sole contact with California. The Court concluded that the state's manifest interest in providing effective means of redress for its residents outweighed any possible inconvenience to the insurer.
The limitations on the "minimum contacts" standard were expressed in Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), where the Court decided that a Florida Court did not have jurisdiction over a nonresident trustee in a controversy involving the corpus of a trust. The Court distinguished McGee, supra, on three grounds. In McGee, (1) the cause of action arose out of an act done or transaction consummated in the forum state, (2) the forum state had enacted special legislation to exercise its "manifest interest" in providing effective redress for its citizens, (3) the required minimum contact did not rest solely on the unilateral activity of those bringing the action in the forum state.
Under the standards enunciated in International Shoe, McGee, and Hanson, the Commonwealth Court properly exercised jurisdiction over the appellants. Although appellants' only contact with this State was the solicitation of contributions by mail, this is sufficient when contrasted with the limitations of Hanson. We have here an act *535 done or transaction consummated in Pennsylvania by the appellants when they solicited contributions in Pennsylvania by mail. We also have before us a cause of action which arose out of that solicitation. We are not now asked to decide, nor do we decide, whether the solicitation of funds would be a sufficient contact to confer jurisdiction for a cause of action not arising out of the appellants' solicitation of funds in Pennsylvania. As in McGee, the cause of action here arose out of an act done or transaction consummated by appellants in the forum state.
In this case, also as in McGee, the Commonwealth has enacted special legislation to exercise a "manifest interest" in providing effective redress for its citizens. Pennsylvania is not attempting to limit or prohibit the solicitation of funds by all charitable organizations. It only seeks to protect the citizens of the Commonwealth from unscrupulous organizations whose philanthropy may be directed excessively to other than the intended beneficiaries. This vigilance is in an area where effective redress by individuals acting alone would be extremely burdensome if not practically impossible.
Finally, in this case, as distinguished from Hanson, supra, the cause of action is not based on the unilateral activity of the appellee. Rather, the appellants actively and purposefully sought to solicit contributions from residents of this Commonwealth. It is this activity that is the basis of jurisdiction.
We must conclude, therefore, that appellants have done acts or consummated transactions in this State sufficient for Pennsylvania to exercise jurisdiction consistent with the Due Process Requirement of the Fourteenth Amendment.
The appellants' second Due Process argument questions the validity of service of process upon the Secretary of the Commonwealth. They contend, in effect, that the Secretary is the real party-plaintiff in this action *536 and thus it is a denial of due process to effectuate service upon the appellants through the Secretary as their registered agent. This argument lacks merit for two reasons. First of all, the Attorney General, not the Secretary, is the only party authorized to initiate an action under the Act. (10 P.S. § 160-14). Second, even assuming the Secretary of the Commonwealth is the real party plaintiff, it does not necessarily follow that there is not a reasonable assurance that notice to the defendant will be actual. International Shoe, supra. The Act specifically provides that service is sufficient only if:
". . . notice of such service and a copy of such process are forthwith sent by the Attorney General to the charitable organization . . . by registered or certified mail with return receipt requested at its or his office. . . . " (10 P.S. § 160-13).
Under these circumstances we cannot conclude that the mailing of the notice of suit to appellants by registered or certified mail at its home office was not reasonably calculated to apprise appellants of the suit. Compare Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091 (1927) with Wuchter v. Pizzutti, 276 U.S. 13, 48 S. Ct. 259, 72 L. Ed. 446 (1928).
The appellants also contend that even if the substitute service provisions of the Act are sufficient for Due Process purposes, those provisions were not complied with in this case. They argue that since a copy of the complaint was not personally served upon the Secretary as required by Section 13 of the Act, 10 P.S. § 160-13, but rather delivered to his office, the service is defective and must be set aside. This issue as to the technical defect in service was not raised in the defendants' preliminary objections nor otherwise presented to the trial court. A matter not raised in the trial court will not be considered on appeal. Wenzel v. Morris Distributing Co., 439 Pa. 364, 266 A.2d 662 (1970).
*537 Finally, the NFB and the ABB contend that their preliminary objections to the court's jurisdiction should have been sustained because imposing Pennsylvania's regulatory scheme upon them is forbidden by the Commerce Clause of the United States Constitution (U.S.Const. art. I, § 8).
The Supreme Court of the United States has defined and delineated the limits of the Commerce Clause in a multitude of cases over the past two hundred years. In Aldens, Inc. v. Packel, 524 F.2d 38 at 45 (3d Cir. 1975) the Third Circuit Court of Appeals presented an accurate and concise analysis of the factors considered by the United States Supreme Court in determining whether a state statute violates the Commerce Clause:
" . . . the commerce clause limits the power of a state to impose its choice of law on any transaction that is within the broad ambit of congressional power to regulate interstate commerce, and
(1) is one in which Congress has made its own choice of law, or
(2) is one in which Congress has made no specific choice of law, but
(a) despite this inaction the nature of the subject matter requires a uniform national rule, or
(b) the choice of law made by the state discriminates against persons engaged in interstate commerce in favor of local interests, or
(c) a non-discriminatory state choice of law, in an area where national uniformity may not be essential, imposes a burden on interstate commerce in excess of any value attaching to the state's interest in imposing its regulation."
As to the first part of the test, the Congress of the United States has not sought to regulate the field of charitable organization and solicitation. Thus, any regulation *538 imposed by Pennsylvania does not conflict with any preexisting regulation imposed by Congress.
In applying part 2(a) it must be concluded that although charities perform a laudatory function, that function cannot be perceived as an integral link in the national economic chain requiring a uniform national rule. (Compare Allenberg Cotton Co., Inc. v. Pittman, 419 U.S. 20, 95 S. Ct. 260, 42 L. Ed. 2d 195 (1974) involving a species of control over an intricate interstate marketing mechanism for cotton.) In this context the case is similar to Robertson v. California, 328 U.S. 440, 66 S. Ct. 1160, 90 L. Ed. 1366 (1946) wherein the Supreme Court of the United States upheld California's insurance company reserve requirements, prior to the passage of the McCarran Act, (59 Stat. 33, 15 U.S.C. §§ 1011-1015) an Act specifically leaving the area of insurance regulation to the States.
Part 2(b) presents no obstacle to this Commonwealth's attempt to regulate the solicitation of charitable contributions. Since the Act applies to both local and foreign charitable organizations, it cannot be said that the Act discriminates against those engaged in interstate commerce in favor of local interests.
Finally, in applying part 2(c), we conclude that although the registration provisions of the Act may burden interstate commerce to some degree, that burden is outweighed by this State's interest in protecting its citizens from the fraud and deceit of unscrupulous "charitable" organizations. The requirements of the Act are no more burdensome than those held constitutional in Robertson v. California, 328 U.S. 440, 66 S. Ct. 1160, 90 L. Ed. 1366 (1946).
We conclude, therefore, that the registration requirements of the "Solicitation of Charitable Funds Act" do not impose an undue burden on interstate commerce *539 and accordingly we affirm the decree of the Commonwealth Court which overruled the appellants' preliminary objections.
THE APPEAL OF THE COMMONWEALTH OF PENNSYLVANIA
In this appeal, the Commonwealth of Pennsylvania appeals from the decree of the Commonwealth Court which denied its request for a preliminary injunction. Appellant first contends that under the express provisions of § 14(f) of the Act, 10 P.S. § 160-14(f) (Supp. 1976) once past violations of the Act are established (failure to file a registration statement) an injunction must be issued. In effect, the appellant argues that the Act eliminates a court's discretion as to whether an injunction should be issued. Section 14(f) of the Act provides in part:
"[W]henever a charitable organization . . . has failed to file a registration statement required by this act . . . in addition to all other actions authorized by law, the Attorney General . . . may bring an action in the name of the Commonwealth of Pennsylvania against such charitable organization and its officers . . . to enjoin such charitable organization. . . from continuing such violation, solicitation or collection or engaging therein or doing any act in furtherance thereof and for such other relief as the court deems appropriate."
It should be noted initially that this Court has repeatedly held that the issuance of an injunction rests within the sound discretion of the trial court. Vitacolonna v. City of Philadelphia, 382 Pa. 399, 115 A.2d 178 (1955), Rick v. Cramp, 357 Pa. 83, 53 A.2d 84 (1947), Borough of Cheswick v. Bechman, 352 Pa. 79, 42 A.2d 60 (1945). In discussing congressional limitations on the court's discretion in an injunction, the Supreme Court of *540 the United States in Hecht Co. v. Bowles, 321 U.S. 321, 329, 330, 64 S. Ct. 587, 591, 88 L. Ed. 754 (1944) stated:
"We are dealing here with the requirements of equity practice with a background of several hundred years of history . . . we do not believe that such a major departure from that long tradition as is here proposed should be lightly implied."
We agree with the above quoted opinion. The language of Section 14(f) of the Act merely authorizes the Attorney General to bring an action in the name of the Commonwealth upon failure of a charitable organization to comply with the registration requirements of the Act. It does not expressly provide that an injunction must be issued upon proof of a violation. Absent such express language we cannot conclude that the Legislature intended to eliminate the trial court's discretion in determining when an injunction should be issued.
The appellants also contend that even if the statute does not expressly provide for the mandatory issuance of an injunction upon proof of a past violation, the court must issue an injunction when continuing violations are threatened. See Pennsylvania Public Utility Commission v. Israel, 356 Pa. 400, 52 A.2d 317 (1947). The record here, however, does not clearly establish that violations are continuing. Although the appellees have challenged the appellants' right to force them to register under the Act, we do not perceive this assertion of their constitutional rights as an indication of their intent to continue violation of the Act in the future.
The limits of our review of the denial of a preliminary injunction were stated in Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, 123 A.2d 626, 627 (1956):
"Our uniform rule is that, on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court *541 below, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable. . . . " (Emphasis added.)
We must conclude, therefore, that there were reasonable grounds for the action of the Commonwealth Court in denying the preliminary injunction.
We have considered other arguments raised by appellants and find them to be without merit.
The decrees of the Commonwealth Court ordering the defendants to file an answer to the Commonwealth's complaint within thirty days and denying the Commonwealth's motion for a preliminary injunction are affirmed.
Each party to pay own costs.
JONES, C.J., did not participate in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267129/ | 174 Cal. App. 4th 515 (2009)
___ Cal.Rptr.3d ___
THE PEOPLE, Plaintiff and Respondent,
v.
MARIO GUTIERREZ, Defendant and Appellant.
No. F055925.
Court of Appeals of California, Fifth District.
May 28, 2009.
*517 Ron Boyer, 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, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOMES, J.
A jury found Mario Gutierrez guilty of battery against a custodial officer at the Lerdo Detention Facility in Kern County. (Pen. Code, § 243.1; see Pen. Code, § 831, subd. (a).)[1] The trial court found four allegations of serious felony priors (§§ 667, subd. (a)(1), 1192.7, subd. (c)) true within the scope of the three strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and imposed a 25-year-to-life term consecutive to a term of 25 years to life plus one year already imposed in another case. On appeal, he argues an insufficiency of the evidence issue, two interrelated instructional issues, and a sentencing issue. We affirm the judgment.
DISCUSSION
1. Sufficiency of the Evidence
Gutierrez argues that an insufficiency of the evidence of necessary, not excessive, force by the detention deputy is in the record. The Attorney General argues the contrary.
*518 Before discussing the law, we turn to the record. On the morning of March 22, 2007, Robin Norton, a detention deputy, used the public address system to tell Gutierrez his time in the recreation yard was up. After communicating by radio with Troy Kresha, a detention deputy on the other end of the sally port, Norton opened the door on her side of the sally port and followed Gutierrez toward the door on the other side of the sally port. As ordered, Gutierrez walked with his hands behind his back.
Kresha opened the door on his side of the sally port to let Gutierrez go back to his cell. As he walked out of the sally port, Gutierrez turned in the wrong direction. In a conversational tone, Kresha told him he needed to go back to his cell. Gutierrez stopped, raised both fists into the air, and said, "No." He bolted and ran, not toward his cell, but toward the receiving area.
Kresha's job was to secure inmates, so he followed Gutierrez and told him to stop and put his hands behind his back. Disobeying him, Gutierrez pushed on the receiving door leading to the garage, trying to get out. Had Gutierrez been there at the right time, he probably could have caught an officer going through there. That was a security issue. From a distance of three to four feet, Kresha fired a couple of two-second bursts of pepper spray.
Gutierrez turned on Kresha, throwing punches with both fists. Kresha started backpedaling. He fired another burst of pepper spray. Gutierrez kept advancing on him and kept throwing punches at him. Kresha kept backpedaling until he hit the end of the hallway where a door opens to a wider hallway leading into the receiving area. For officer safety, he felt his duty was to "stand there and defend that area" as the "last defense" to keep Gutierrez away from scissors and other items he could use as weapons.
Gutierrez kept advancing on Kresha, who fired another burst of pepper spray, again with no effect. Dropping the pepper spray from his right hand and the keys from his left hand, Kresha started throwing punches back. Neither he nor Gutierrez made contact with each other until a punch from Gutierrez broke Kresha's nose. He had blood in his eyes, could not see, and backed up again, just as other officers arrived. Apart from the effect, if any, of the pepper spray, he caused Gutierrez no physical harm.
Gutierrez argues that he did nothing more than push ineffectually on a locked door Kresha knew could not be opened, that he could not gain access to any other portion of the jail without coming back the way he came, and that Kresha used pepper spray before Gutierrez threatened or assaulted him. He argues, too, that other officers were close enough to arrive within *519 moments to assist in gaining his compliance and that Kresha did not give him sufficient time to obey the order to stop and put his hands behind his back.
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidencecredible and reasonable evidence of solid valuethat could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318 [61 L. Ed. 2d 560, 99 S. Ct. 2781]; People v. Prince (2007) 40 Cal. 4th 1179, 1251 [57 Cal. Rptr. 3d 543, 156 P.3d 1015].) In doing so, we presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence. (Prince, supra, 40 Cal.4th at p. 1251.) The same standard of review applies to circumstantial evidence and direct evidence alike. (Ibid.)
From the evidence in the record, a reasonable trier of fact could reasonably infer that Kresha used necessary, not excessive, force to discharge his duty to secure inmates. Likewise, a reasonable trier of fact could reasonably make inferences contrary to all of those Gutierrez argues. Before a reviewing court can reverse the judgment for insufficiency of the evidence, "it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal. 2d 745, 755 [79 Cal. Rptr. 529, 457 P.2d 321].) That is not the state of the record here. Gutierrez's insufficiency of the evidence argument simply asks us to reweigh the facts. (People v. Bolin (1998) 18 Cal. 4th 297, 331-333 [75 Cal. Rptr. 2d 412, 956 P.2d 374].) That we cannot do.
2. Instructional Issues
Gutierrez argues that the trial court not only denied him his due process and jury trial rights by failing to instruct sua sponte on self-defense but also impermissibly lightened the burden of proof by giving CALCRIM No. 2671, which he says improperly implies that a person generally cannot use any force in response to an officer's use of excessive force. The Attorney General argues that Gutierrez forfeited his right to appellate review of both the self-defense issue (by failing to request a self-defense instruction) and the CALCRIM No. 2671 issue (by failing to object to the instruction), that the trial court had no sua sponte duty to give a self-defense instruction, that CALCRIM No. 2671 correctly states the law, and that error, if any, was harmless.
*520 Preliminarily, we address the Attorney General's forfeiture arguments. As a general rule, an appellate court can reach a question a party has not preserved for review if the issue involves neither the admission nor the exclusion of evidence. (People v. Williams (1998) 17 Cal. 4th 148, 161, fn. 6 [69 Cal. Rptr. 2d 917, 948 P.2d 429], citing Evid. Code, §§ 353, 354.) Assuming arguendo that Gutierrez failed to preserve his right to appellate review of his instructional issues, neither of which involves the admission or the exclusion of evidence, we choose to exercise our discretion to address both. (See Canaan v. Abdelnour (1985) 40 Cal. 3d 703, 722, fn. 17 [221 Cal. Rptr. 468, 710 P.2d 268], overruled on another ground in Edelstein v. City and County of San Francisco (2002) 29 Cal. 4th 164, 183 [126 Cal. Rptr. 2d 727, 56 P.3d 1029].)
At the instruction-settling conference, the trial court and counsel discussed paragraph 4 of CALCRIM No. 946 ("The defendant did not act in self-defense."). The trial court observed, "I didn't see any self-defense in issue," adding that Gutierrez's trial attorney could "surely argue the pepper spray might have incapacitated him. But I don't know that would be self-defense. So," to which she interjected, "Which language are we taking out?" The trial court replied, "Well, I'm looking at 946 and I am trying towhat they have to prove. Where it said that you have to prove the defendant did not act in self-defense, what is your suggestion? What can we put in to cover this pepper spray?" The prosecutor said, "I can'twell, you have to give instruction 2671, which would be unreasonable force because," at which point the trial court inquired, "Don't we have that in here?" The prosecutor replied, "Don't know if I added that one because I didn't," at which point the trial court said, "All right. Well, let's stay with what we have got. 946, I will give that. I will not give [paragraph] four [on] self-defense because I don't think that's an issue. And then we will pick it up on that other instruction, I do think it is in here."
Later in the instruction-settling conference, the trial court said that CALCRIM No. 946 would inform the jury a custodial officer who is using "unreasonable or excessive force" is not lawfully performing his duties and that CALCRIM No. 2671 would "tie in the pepper spray and all the facts." On the request of Gutierrez's trial attorney, and with the prosecutor's concurrence, the trial court agreed to give CALCRIM No. 2671 "right after 946." After argument to the jury, the trial court so instructed as follows:
"The defendant is charged in Count 1 with battery against a custodial officer in violation of Penal Code section 243.1.
*521 "To prove that the defendant is guilty of this crime, the People must prove that: Officer Kresha was a custodial officer performing the duties of a custodial officer; the defendant willfully and unlawfully touched Officer Kresha in a harmful or offensive manner; and three, when the defendant acted, he knew, or reasonably should have known, that Officer Kresha was a custodial officer who was performing his duties.
"Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else or gain any advantage.
"The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.
"A custodial officer is someone who works for a law enforcement agency of the city or county and is responsible for maintaining custody of prisoners and helps operate a local detention facility.
"The Lerdo facility is a local detention facility.
"A custodial officer is not lawfully performing his duties if he is using unreasonable or excessive force in his or her duties. Instruction 2671, which follows, will define reasonable and unreasonable force."
"The People have this is the People have the burden of proving beyond a reasonable doubt that Officer Kresha was lawfully performing his duties as a custodial officer. If the People have not met this burden, you must find the defendant not guilty of Count 1. Not guilty of Count 1.
"A custodial officer is not lawfully performing his duties if he is using unreasonable or excessive force in his duties.
"Special rules control the use of force.
"A custodial officer may use reasonable force in his duties to restrain a person, to overcome resistance, to prevent escape, or in self-defense.
"If a person knows or reasonably should know that a custodial officer is restraining him, that person must not use force or any weapon to resist an officer's use of reasonable force.
*522 "If a custodial officer uses unreasonable or excessive force while restraining a person, that person may lawfully use reasonable force to defend himself.
"A person restrained a person being restrained uses reasonable force when he uses that degree of force that he actually believes is reasonably necessary to protect himself from the officer's use of unreasonable or excessive force. And two, uses no more force than a reasonable person in the same situation would believe is necessary for his protection."
Gutierrez construes CALCRIM No. 2671 as enumerating "four circumstances in which the deputy is authorized to use force (`to restrain a person, to overcome resistance, to prevent escape, or in self-defense') and only one circumstance in which the defendant is authorized to defend himself (`to restrain a person')." He infers a "logical implication" in the instruction that "the defendant is not authorized to use force in those other three circumstances" from which "an improper legal theory upon which the jury could have convicted [him]" arises. Since "there is nothing in the record that excludes the possibility that the jury relied upon this illegal theory," he argues, the trial court instructed the jury "with an incorrect legal standard" that impermissibly lightened the prosecutor's burden of proof by misstating the elements of the crime. In reliance on People v. Guiton (1993) 4 Cal. 4th 1116 [17 Cal. Rptr. 2d 365, 847 P.2d 45] (Guiton), he argues the remedy is reversal per se. (Id. at p. 1128.)
(1) To a limited degree, we agree with Gutierrez. Read literally, CALCRIM No. 2671 authorizes a custodial officer to use reasonable force in four situations "to restrain a person, to overcome resistance, to prevent escape, or in self-defense" but erroneously limits to the first situation alone not only the prohibition against the defendant's use of force or any weapon to resist reasonable force but also the authorization of the defendant's use of reasonable force to defend against unreasonable or excessive force. Nonetheless, on the record here, as we will explain, the error does not require reversal.
In Guiton, the issue was whether and, if so, how to harmonize the facially discordant rules in Griffin v. United States (1991) 502 U.S. 46 [116 L. Ed. 2d 371, 112 S. Ct. 466] (Griffin) and People v. Green (1980) 27 Cal. 3d 1 [164 Cal. Rptr. 1, 609 P.2d 468] (Green), overruled on another ground in People v. Martinez (1999) 20 Cal. 4th 225 [83 Cal. Rptr. 2d 533, 973 P.2d 512], as stated in People v. Morgan (2007) 42 Cal. 4th 593, 607 [67 Cal. Rptr. 3d 753, 170 P.3d 129]. (Guiton, supra, 4 Cal.4th at p. 1119.) In Guiton, our Supreme Court *523 summarized the general rule in Green: "`[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.'" (Guiton, supra, 4 Cal.4th at p. 1122, quoting Green, supra, 27 Cal.3d at p. 69, italics added.)
On the issue of whether Green survived Griffin, our Supreme Court noted the distinction Griffin drew "between a mistake about the law, which is subject to the rule generally requiring reversal, and a mistake concerning the weight or the factual import of the evidence, which does not require reversal when another valid basis for conviction exists," and quoted the crux of Griffin's holding: "`Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence. . . .'" (Guiton, supra, 4 Cal.4th at p. 1125, quoting Griffin, supra, 502 U.S. at p. 59.)
(2) Guiton held that the rule in Green applies "only to cases of legal insufficiency in the Griffin sense." (Guiton, supra, 4 Cal.4th at pp. 1128-1129.) "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Id. at p. 1129, italics added.) Since the error Gutierrez identifies in CALCRIM No. 2671 arguably gives rise to an improper legal theory upon which the jury could have convicted him, the Green rule applies.
Nonetheless, as affirmance is not always appropriate under Griffin, so reversal is not always appropriate under Green. (Guiton, supra, 4 Cal.4th at p. 1129.) "These are general rules to apply in the absence of a basis in the *524 record supporting the opposite result. But the record may sometimes affirmatively indicate that the general rule should not be followed." (Ibid.) "In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (Id. at p. 1130.)
The facts show that Gutierrez was the aggressor and Kresha was the defender. Gutierrez initiated the confrontation by refusing to go back to his cell, bolting toward the receiving area, and disobeying commands to stop and put his hands behind his back. His conduct posed the security risks of catching an officer going through the door leading to the garage and of acquiring scissors or other items for use as weapons against officers. Only after the pepper spray proved ineffectual did Kresha try to stop Gutierrez's violent advance toward the receiving area by throwing punches back at him.
On the premise that Kresha's use of pepper spray was a use of force, Gutierrez insists a self-defense instruction was necessary since he used force only after Kresha did and since he broke Kresha's nose only after Kresha started throwing punches back at him. Gutierrez's contorted reading of the record is not at all persuasive. The record confirms the trial court's observation during the instruction-settling conference that self-defense was not an issue requiring instruction beyond that in CALCRIM Nos. 946 and 2671. We reject Gutierrez's argument that the trial court denied him his due process and jury trial rights by failing to instruct sua sponte on self-defense.
The instruction at issue, CALCRIM No. 2671, listed four circumstances ("to restrain a person, to overcome resistance, to prevent escape, or in self-defense") in which the detention deputy was authorized to use force but only one circumstance ("to restrain a person") in which defendant was authorized to defend himself. Nonetheless, a literal reading of the instruction alone is no substitute for a careful reading of the entire record bearing in mind the broad scope of the word "restrain," which means, inter alia, "hold back or keep in check; control," "hold (a person) back; prevent," "deprive of freedom or liberty," and "limit or restrict" (American Heritage Dict. of the English Language (4th ed. 2006) p. 1487) and "check, hold back, or prevent (a person or thing) from some course of action," "keep (one) in check or under control," "deprive of personal liberty or freedom of action," and "deprive (one) of liberty by restraint" (13 Oxford English Dict. (2d ed. 1989) pp. 756, col. 3 through 757, col. 1). Since the record, so read, shows Kresha attempting to restrain Gutierrez at all times during Gutierrez's violent *525 defiance of lawful authority, the Green rule requiring reversal does not apply, as "the verdict was actually based on a valid ground." (Guiton, supra, 4 Cal.4th at p. 1129.)
(3) Congruently, with no limitation at all, other language in the charge to the jury flatly barred a guilty verdict if Kresha used unreasonable or excessive force. Two of the elements of battery against a custodial officer are "the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his or her duties ..." and "the custodial officer is engaged in the performance of his or her duties. . . ." (§ 243.1.) CALCRIM No. 946 instructed the jury that a "custodial officer is not lawfully performing his duties if he is using unreasonable or excessive force in his duties." CALCRIM No. 2671 instructed the jury that a "custodial officer is not lawfully performing his duties if he is using unreasonable or excessive force in his duties" and that "the People have the burden of proving beyond a reasonable doubt that Officer Kresha was lawfully performing his duties as a custodial officer. If the People have not met this burden, you must find the defendant not guilty."
Likewise, counsel's arguments to the jury belie Gutierrez's argument. "Now the one way out for the defendant would be if there was excessive force used," the prosecutor argued. Congruently with the broad scope of the word "restrain," he argued, "A custodial officer may use reasonable force in his or her duties to restrain a person to overcome, one, resistance, two, to prevent escape, and three, in self-defense." The prosecutor's argument characterized the custodial officer's fundamental role as restraint ("to restrain a person," in the words of CALCRIM No. 2671) to which the other three situations in the instruction ("to overcome resistance, to prevent escape, or in self-defense") were subordinate. "So the defendant has no right to use force as long as Officer Kresha is acting in a lawful way," he argued.
Tacitly conceding the accuracy of the prosecutor's summary of the law, Gutierrez's trial attorney argued that his "involuntary reaction" to the pepper spray made him "flail and swing his arms around" and that Kresha's use of pepper spray to keep him from pushing on a secured door was not a "lawful performance of his duties" since the door could not be opened without either a command from the control room or a key from a detention deputy. In his closing argument, the prosecutor emphasized Kresha's testimony, in reply to the question whether Gutierrez's arms were flailing or whether he was taking swings, that "he was swinging at me, he was coming for me."
*526 Deliberating for less than an hour, the jury sent a single note to the trial court "We have reached a verdict" and decided adversely to Gutierrez the issue whether his arm motions were an involuntary reaction to pepper spray or a battery on a custodial officer. Since the record affirmatively indicates that the general rule in Green should not be followed, we conclude beyond a reasonable doubt that the instructional error did not produce an improper verdict. (See People v. Hughes (2002) 27 Cal. 4th 287, 352-353 [116 Cal. Rptr. 2d 401, 39 P.3d 432], citing Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 87 S. Ct. 824].)
3. Sentencing Issue
On the premise that the trial court had the statutory discretion to impose either a felony sentence or a misdemeanor sentence, Gutierrez argues that the imposition of a felony sentence with no showing in the record of the trial court's awareness of that discretion denied him due process. The Attorney General argues that the trial court had no such discretion.
(4) In 1976, the Legislature enacted section 243.1 to punish the crime of battery against a custodial officer as a felony. (Stats. 1976, ch. 1139, § 150.1, p. 5105, operative July 1, 1977.)[2] Years later, the Legislature amended subdivision (b) of section 243 to punish the same crime as a misdemeanor. (Stats. 1982, ch. 1353, § 2, p. 5048.)[3] "[W]hile our courts sometimes speak of the sections as though the distinction had something to do with the interpretation, at other times nothing is perceptible from which such inference could be drawn. On the whole, little depends on this matter, beyond mere convenience of citation.'" (In re Wilson (1925) 196 Cal. 515, 523 [238 P. 359], quoting Bishop, Commentaries on the Law of Statutory Crimes (1901) p. 61.) "Likewise, the provisions of the same code relating to the same subject matter are to be construed together as one act, as though all were *527 passed at the same time." (Kahn v. Kahn (1977) 68 Cal. App. 3d 372, 381 [137 Cal. Rptr. 332], citing Rose v. State of California (1942) 19 Cal. 2d 713, 723 [123 P.2d 505].)
On that foundation, Gutierrez argues that the crime of battery against a custodial officer, for which section 243.1 authorizes felony punishment and subdivision (b) of section 243 authorizes misdemeanor punishment, is an "alternative felony/misdemeanor offense, also known as a `wobbler,'" which our Supreme Court defines as "a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court under Penal Code section 17, subdivision (b)." (People v. Statum (2002) 28 Cal. 4th 682, 685 [122 Cal. Rptr. 2d 572, 50 P.3d 355]; see §§ 17, 18.) The Attorney General, on the other hand, argues that section 243.1 "contains no provision for an alternative punishment. Therefore, the trial court lacked discretion to contemplate or impose a misdemeanor penalty."
We need not reach that issue. Assuming, without deciding, that the trial court had statutory discretion to impose either a felony sentence or a misdemeanor sentence for the crime of battery against a custodial officer, we conclude, for two reasons, that the record shows no error.
(5) First, in light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion. (People v. Mosley (1997) 53 Cal. App. 4th 489, 496 [62 Cal. Rptr. 2d 268], citing People v. Moran (1970) 1 Cal. 3d 755, 762, 83 Cal. Rptr. 411 [463 P.2d 763]; People v. Davis (1996) 50 Cal. App. 4th 168, 170-173 [57 Cal. Rptr. 2d 659]; People v. White Eagle (1996) 48 Cal. App. 4th 1511, 1521-1523 [56 Cal. Rptr. 2d 749]; accord, Evid. Code, § 664.)
Second, the record shows that the trial court found no circumstances in mitigation, found five circumstances in aggravation, and observed just before imposing a 25-year-to-life three strikes law sentence, "He has a lengthy criminal record covering almost 16 years, he's performed poorly on both probation and parole, and has an extended history of violence." On that record, the trial court clearly would not have exercised sentencing discretion to impose a misdemeanor sentence. (See People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 530, fn. 13 [53 Cal. Rptr. 2d 789, 917 P.2d 628], citing People v. Belmontes (1983) 34 Cal. 3d 335, 348, fn. 8 [193 Cal. Rptr. 882, 667 P.2d 686].)
*528 DISPOSITION
The judgment is affirmed.
Wiseman, Acting P. J., and Levy, J., concurred.
NOTES
[1] Later statutory references are to the Penal Code except where otherwise noted.
[2] In relevant part, the statute provides: "When a battery is committed against the person of a custodial officer ... and the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his or her duties, and the custodial officer is engaged in the performance of his or her duties, the offense shall be punished by imprisonment in the state prison." (§ 243.1.)
[3] In relevant part, the statute provides: "When a battery is committed against the person of a ... custodial officer ... engaged in the performance of his or her duties, ... and the person committing the offense knows or reasonably should know that the victim is a ... custodial officer ... engaged in the performance of his or her duties ... the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment." (§ 243, subd. (b).) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267074/ | 174 Cal.App.4th 213 (2009)
___ Cal.Rptr.3d ___
JOHN VAUGHN, JR., Plaintiff and Appellant,
v.
LJ INTERNATIONAL, INC., et al., Defendants and Respondents.
No. B208192.
Court of Appeals of California, Second District, Division Eight.
May 26, 2009.
*216 Johnson Bottini, Frank J. Johnson, Francis A. Bottini, Brett M. Weaver and Derek J. Wilson for Plaintiff and Appellant.
Morrison & Foerster, Dan Marmalefsky and Saro Balian for Defendants and Respondents.
OPINION
O'NEILL, J.[*]
A shareholder of a publicly traded corporation filed a derivative action in California alleging breaches of fiduciary duty by corporate officers and directors. The international business, a fine jewelry company incorporated in the British Virgin Islands, has no other connection to that jurisdiction. The company employs 3,000 people at its manufacturing facility in China. The majority of the company's wholesale revenues are earned in North America, including substantial sales in California, where a few employees are based. The corporate headquarters is in Hong Kong, where all but one *217 of the company's directors reside; the sole exception lives in Colorado. The shareholder-plaintiff apparently does not reside in California, but part of the basis for the action is the issuance in Los Angeles of allegedly false and misleading financial statements.
A British Virgin Islands statute requires approval from the high court of that jurisdiction before a shareholder may sue derivatively. Here we hold that such approval was required before the instant California lawsuit could proceed. Because the plaintiff had no such approval, the trial court properly sustained defendants and respondents' demurrer without leave to amend.
FACTUAL AND PROCEDURAL HISTORY
The following summary is gleaned from the complaint, as well as other sources of which we have taken judicial notice at the request of the parties.[1]
Defendant and respondent LJ International, Inc. (LJI), is a designer and distributor of fine jewelry which is listed and traded only on the NASDAQ National Exchange (National Association of Securities Dealers Automated Quotations). It services wholesale customers in Japan and throughout North America and Western Europe, and has a growing wholesale and retail presence in China. Prior to the time this case arose, most of LJI's sales were in North America and its functional currency was the U.S. dollar.[2]
LJI is incorporated in the British Virgin Islands (BVI), but its principal executive office is located in Hong Kong, where its 130 full-time employees include approximately 100 management and executive staff. All but one of LJI's directors and officers reside in Hong Kong.[3] The company's 143,000 square foot production facility is located in Shenzhen, China, where it employees about 3,000 people. LJI's only full-time employees outside Asia are three people based in Los Angeles.[4]
*218 On October 10, 2007, plaintiff and appellant John Vaughn, Jr., filed the instant derivative complaint against LJI and its directors.[5] Appellant asserted breaches of fiduciary duty and other misconduct by the directors based on reports issued between November 2006 and October 2007, which allegedly (1) overstated the company's 2005 and 2006 financial results by understating tax liability; (2) falsely projected full profitability by the end of 2007; and (3) misleadingly predicted the company would meet or exceed its goal of opening 100 retail outlets in China before the start of the 2008 Olympic games. Appellant claimed the false statements resulted in company stock increasing from $4.50 per share in January 2007 to $13.15 by May 2007.
The complaint further asserts that in June 2007 the company again misled investors as to the reasons for a delay in the release of its fourth quarter 2006 and first quarter 2007 financial results. When further delays were announced in July 2007, investors began to doubt the reliability of previously reported financial results, and the NASDAQ threatened to "de-list" the company's stock. On September 6, 2007, LJI announced it had not achieved the 2006 financial results it had projected in January and February 2007, and that its 2006 earnings report would be adversely affected by a tax liability. According to the complaint, this news caused the stock price to fall to less than $5 per share.[6]
Respondents' motions claiming lack of personal jurisdiction and forum non conveniens were denied. Respondents demurred on the ground that appellant was not entitled to sue derivatively without leave from the High Court of the British Virgin Islands, as required by section 184C of the British Virgin Islands Business Companies Act of 2004 (BVI Act). The demurrer was sustained with leave to cure and amend. Appellant elected not to seek leave to sue from the BVI High Court; the parties stipulated to dismissal of the action and this timely appeal followed.
DISCUSSION
1. Standard of Review
We engage in a de novo review of a sustained demurrer, based on a reasonable interpretation of the complaint which assumes the truth of all *219 properly pleaded and judicially noticed facts. (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10 [72 Cal.Rptr.3d 112, 175 P.3d 1170]; Schuster v. Gardner, supra, 127 Cal.App.4th at p. 311.) Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 [118 Cal.Rptr.2d 187].)
The demurrer raised a choice of law issue, i.e., whether, assuming California's jurisdiction to entertain a derivative lawsuit against a business incorporated outside the United States, a "leave to sue" provision of the incorporating jurisdiction is applicable. After setting out the provision at issue, we will address each of appellant's reasons for contending the trial court erred in ruling the provision applicable to the present case.
2. British Virgin Islands Business Companies Act of 2004
As noted above, the trial court sustained respondents' demurrer on the ground that appellant had not obtained leave to sue from the high court of the British Virgin Islands, where LJI is incorporated. The BVI Business Companies Act, section 184C, provides:
"184C. (1) Subject to subsection (3), the Court may, on the application of a member of a company, grant leave to that member to [¶] (a) bring proceedings in the name and on behalf of that company; or [¶] (b) intervene in proceedings to which the company is a party for the purpose of continuing, defending or discontinuing the proceedings on behalf of the company.
"(2) Without limiting subsection (1), in determining whether to grant leave under that subsection, the Court must take the following matters into account [¶] (a) whether the member is acting in good faith; [¶] (b) whether the derivative action is in the interests of the company taking account of the views of the company's directors on commercial matters; [¶] (c) whether the proceedings are likely to succeed; [¶] (d) the costs of the proceedings in relation to the relief likely to be obtained; and [¶] (e) whether an alternative remedy to the derivative claim is available.
"(3) Leave to bring or intervene in proceedings may be granted under subsection (1) only if the Court is satisfied that [¶] (a) the company does not intend to bring, diligently continue or defend, or discontinue the proceedings, as the case may be; or [¶] (b) it is in the interests of the company that the conduct of the proceedings should not be left to the directors or to the determination of the shareholders or members as a whole.
"(4) Unless the Court otherwise orders, not less than twenty eight days notice of an application for leave under subsection (1) must be served on the *220 company and the company is entitled to appear and be heard at the hearing of the application.
"(5) The Court may grant such interim relief as it considers appropriate pending the determination of an application under subsection (1).
"(6) Except as provided in this section, a member is not entitled to bring or intervene in any proceedings in the name of or on behalf of a company."
3. Procedure Versus Substance
Appellant Vaughn contends BVI Act section 184C has no application here because, as a foreign procedural provision, it should not be applied by the forum in which the litigation is prosecuted. (World Wide Imports, Inc. v. Bartel (1983) 145 Cal.App.3d 1006, 1012 [193 Cal.Rptr. 830]; see also 3 Witkin, Cal. Procedure (5th ed. 2008) Actions § 45, p. 115.) Appellant notes that section 184C imposes no liability and creates no cause of action; rather, he argues, because it deals only with the "mode of proceeding by which a legal right is enforced," it is not a substantive provision as defined by Chavez v. Keat (1995) 34 Cal.App.4th 1406 [41 Cal.Rptr.2d 72] (Chavez). We disagree for the following reasons.
(1) Section 184C by its own terms limits entitlement to sue to those shareholders who have complied with its provisions. Although those provisions do establish what may be called a procedure for compliance, the resulting decision as to presence or absence of standing to bring an action is most appropriately characterized as resolving a substantive right. We are not persuaded that standing to sue is a matter of mere court administration or "mode of proceeding" as argued by appellant. As stated in Hausman v. Buckley (2d Cir. 1962) 299 F.2d 696, 701 (Hausman): (2) "`The words "substantive" and "procedural" . . . are not talismanic. Merely calling a legal question by one or the other does not resolve it . . . .' . . . [Citation.] [¶] Our real inquiry must be directed to the question whether appellants' right to bring this action involves no more than compliance with procedural requirements extraneous to the substance of their claim, or whether it concerns the very nature and quality of their substantive rights, powers and privileges as stockholders . . . . Thus defined, we think it is clear that appellants' position cannot prevail. . . . The issue is not just `who' may maintain an action or `how' it will be brought, but `if' it will be brought."
Hausman held that a Venezuelan law requirement that a derivative action be approved by a majority of stockholders was substantive, and therefore applicable in a federal proceeding governed by New York procedural law. As *221 in Hausman, BVI Act section 184C controls the "if" question, and is a substantive provision.
Nothing in the authorities cited by appellant persuades us to the contrary. The abstract formulations of the concepts of procedure and substance cited in appellant's quotations from secondary authorities leave much to be desired as solutions to the present dispute. As noted in Chavez, the distinction between procedure and substantive law can be "`shadowy and difficult to draw' in practice." (Chavez, supra, 34 Cal.App.4th at p. 1414, quoting 3 Witkin, Cal. Procedure (3d ed. 1985), Actions § 62, p. 91.) Chavez itself is not helpful here, as it involved a much different question: whether California rules concerning proof of punitive damages apply to a federal civil rights action prosecuted in a California court. (Chavez, supra, 34 Cal.App.4th at p. 1413.)
Appellant also cites an unpublished Maryland decision which, even were we to consider its reasoning, is distinguishable because it involved a clearly procedural BVI Act requirement that a plaintiff post security for costs.[7] As we have indicated, section 184C addresses the substantive issue of standing to sue, rather than an ancillary requirement like security for costs.
Finally, appellant notes that California statutes that require court approval before certain claims may be pleaded[8] have been called "procedural" by the California Supreme Court in College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 718 [34 Cal.Rptr.2d 898, 882 P.2d 894]. Appellant pulls the terminology out of context, because the issue in College Hospital had nothing to do with the difference between procedural and substantive requirements that is at issue in the present case. (Id. at p. 709 [issue before the court was the meaning of the phrase "substantial probability" as used in Code Civ. Proc., § 425.13, subd. (a)].) College Hospital provides no support for appellant's position here. Appellant also calls our attention to an unpublished federal district court case which excused a federal plaintiff from complying with Civil Code section 1714.10 by classifying it as a procedural rather than substantive requirement.[9] The federal court's reasoning highlights the distinction between section 184C and the California statutes under discussion. The California statutes are designed to eliminate groundless accusations of various types at *222 the prefiling stage, not to determine standing in a fundamental sense. (See Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 83 [131 Cal.Rptr.2d 777].) Unlike section 184C, they control the type of pleadings that may be filed against attorneys, health care professionals and religious corporations. As stated by another federal court, which was speaking about Civil Code section 425.13, the requirement of a prefiling showing "is essentially a method of managing or directing a plaintiff's pleadings, rather than a determination of substantive rights." (Jackson v. East Bay Hosp. (N.D.Cal. 1997) 980 F.Supp. 1341, 1352.)
To the extent that California statutes which require a prefiling prima facie showing may be said to confer standing to bring a claim, we simply disagree with the federal courts' characterization of them as procedural because, as stated above, we view standing to sue as a substantive right. Although prefiling requirements which grant or deny standing might be accurately described as "hybrids," involving both procedure and substance, they must in our view be considered substantive for purposes of the present dispute.
More persuasive, in our view, are cases involving analogous statutory conditions precedent to a shareholder suit, such as Hausman, supra, 299 F.2d 696 and cases classifying as substantive a requirement that shareholders make a demand on the board of directors before bringing a derivative action. (See Kamen v. Kemper Financial Services, Inc. (1991) 500 U.S. 90, 96-97 [114 L.Ed.2d 152, 111 S.Ct. 1711] ["the function of the demand doctrine in delimiting the respective powers of the individual shareholder and of the directors to control corporate litigation clearly is a matter of `substance,' not `procedure'"]; Rales v. Blasband (Del. 1993) 634 A.2d 927, 932, fn. 7 [quoting Kamen and holding that "the demand requirements for a derivative suit are determined by the law of the state of incorporation"].)
Accordingly, the common law "substance versus procedure" analysis does not assist appellant. That being so, we turn to appellant's contentions that choice-of-law principles require California courts to ignore section 184C.
4. Choice of Law Principles
Although the trial court did not articulate a specific basis for its ruling, respondents' opposition papers relied on the "internal affairs doctrine" as codified in Corporations Code section 2116. That section provides that "The directors of a foreign corporation transacting intrastate business are liable to the corporation, its shareholders, creditors, receiver, liquidator or trustee in bankruptcy for the making of unauthorized dividends, purchase of shares or distribution of assets or false certificates, reports or public notices or other violation of official duty according to any applicable laws of the state or place *223 of incorporation or organization, whether committed or done in this state or elsewhere. Such liability may be enforced in the courts of this state." We will discuss the internal affairs doctrine and other potentially applicable choice of law principles raised by the parties.
A. The internal affairs doctrine and Corporations Code section 2116
(3) "The internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairsmatters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholdersbecause otherwise a corporation could be faced with conflicting demands." (Edgar v. MITE Corp. (1982) 457 U.S. 624, 645 [73 L.Ed.2d 269, 102 S.Ct. 2629], quoted with approval in Havlicek v. Coast-to-Coast Analytical Services, Inc. (1995) 39 Cal.App.4th 1844, 1854 [46 Cal.Rptr.2d 696] (Havlicek).) "States normally look to the State of a business' incorporation for the law that provides the relevant corporate governance general standard of care." (Atherton v. FDIC (1997) 519 U.S. 213, 224 [136 L.Ed.2d 656, 117 S.Ct. 666].)
Corporations Code section 2116 codifies the modern view of the common law doctrine, whereby a court will entertain an action involving the internal affairs of a foreign corporation. With certain exceptions, the law of the state of incorporation applies. (See 9 Witkin, Summary of Cal. Law (10th ed. 2005) Corporations, § 239, p. 1005; Friese v. Superior Court (2005) 134 Cal.App.4th 693, 706 [36 Cal.Rptr.3d 558] ["As applied to directors' liability, section 2116 is a codification of the `internal affairs doctrine.'"].)
Thus, in State Farm Mutual Automobile Ins. Co. v. Superior Court (2003) 114 Cal.App.4th 434, 449 [8 Cal.Rptr.3d 56], where policyholders sought to hold defendant State Farm liable for not declaring a dividend, the internal affairs doctrine required California courts to apply the law of Illinois, where State Farm is incorporated. By contrast, in Friese v. Superior Court, supra, 134 Cal.App.4th at p. 706, the court held that Corporations Code section 2116 could not be used as a shield against a suit by a bankrupt corporation's trustee alleging liability of former officers and directors for insider trading in violation of California's Corporate Securities Law of 1968. The corporation involved in Friese, although incorporated in Delaware, had its headquarters and principal place of business in San Diego, and the securities transactions at issue took place in California. (Friese, at p. 699.) The court of appeal rejected the defense claim that Delaware securities regulations were applicable, reasoning that securities regulations designed to protect participants in California's securities marketplace are not limited by the internal affairs doctrine. (Id. at p. 698.)
*224 The Witkin treatise makes note that the internal affairs doctrine is sometimes ignored where, despite foreign incorporation, a business's books, records and principal operations are located in California. (9 Witkin, Summary of Cal. Law, supra, Corporations, § 239, p. 1006.) Clearly, that line of authority is inapplicable in the present case. Even accepting at face value the complaint's allegations concerning LJI's Los Angeles operations, it cannot be said that LJI's principal operations, let alone its books and records, are located in California or elsewhere in the United States.
Whether a permission to sue provision is governed by the internal affairs doctrine as codified in Corporations Code section 2116 appears to be a question of first impression in California. The plain meaning of the broad statutory language strongly supports the position of respondents and the trial court's ruling. Appellant's contention that section 184C, by divesting a corporation of authority to control litigation, operates outside a company's internal affairs, misses the point. BVI section 184C regulates the liability of directors to shareholders for violations of official duty, exactly as described by section 2116.
Appellant's reply brief argument, that section 184C was intended to govern only lawsuits filed in the British Virgin Islands, is unsupported and ignores the reality that most businesses incorporated in the BVI are unlikely to be sued there. Like Delaware and other similar locations, the BVI is used as a place of incorporation by businesses not located there for a variety of reasons, including enhancing confidence that a predictable legal framework will govern the relationship between investors and the corporation. This is a salutary purpose. As the United States Supreme Court has stated, "Th[e] beneficial free market system depends at its core upon the fact that a corporationexcept in the rarest situationsis organized under, and governed by, the law of a single jurisdiction, traditionally the corporate law of the State of its incorporation." (CTS Corp. v. Dynamics Corp. of America (1987) 481 U.S. 69, 90 [95 L.Ed.2d 67, 107 S.Ct. 1637].)
Further, federal circuit courts have resolved very similar issues in respondents' favor. In Batchelder v. Kawamoto (9th Cir. 1998) 147 F.3d 915, a shareholder in Honda of Japan attempted to bring a derivative action in California. The court found his standing to sue was governed by the law of Japan under the terms of an applicable deposit agreement. (Id. at p. 920.) The court then analyzed the case under the internal affairs doctrine, assuming the deposit agreement was inapplicable. The court stated: "Under the `internal affairs' doctrine, the rights of shareholders in a foreign company, including the right to sue derivatively, are determined by the law of the place where the company is incorporated. See Hausman v. Buckley[, supra], 299 F.2d 696, 702 (2d Cir.1962) . . . ." (Ibid., citations omitted.) In Hausman, the Second Circuit *225 applied New York law in a diversity case, and concluded that a shareholder's standing to sue derivatively was governed by the law of the country of incorporation (Venezuela) pursuant to the internal affairs doctrine. (Hausman, at pp. 702-703.)
(4) Seeking to avoid the seemingly straightforward application of these principles to the present matter, appellant first contends that section 184C "in no way governs the relationship between LJI and its shareholders, directors, officers or agents." We disagree. Section 184C, in establishing a condition precedent to the right of a shareholder to derivatively sue corporate directors on behalf of the company, most definitely regulates the internal affairs of the corporation.
Appellant next incorrectly cites Pratt v. Robert S. Odell & Co. (1942) 49 Cal.App.2d 550, 559 [122 P.2d 684] (Pratt), for the proposition that Civil Code former section 366, governing loans and obligations incurred by corporate officers,[10] applied to a foreign corporation doing business in California. In fact, Pratt held the exact opposite. The decision applied Civil Code former section 412, the substantively identical predecessor to current Corporations Code section 2116, i.e., the internal affairs doctrine. The court of appeal held the law of the state of incorporation (Delaware) should be applied by California courts to an action by minority shareholders seeking restitution from corporate officers and directors for unlawful expenditures. (Pratt, supra, 49 Cal.App.2d at pp. 553, 559-561.) Thus, when accurately summarized, Pratt supports respondents' position in the present matter.
(5) We reach a similar conclusion here. Pursuant to Corporations Code section 2116, British Virgin Islands Business Companies Act, section 184C, requiring approval of the BVI High Court, governs appellant Vaughn's standing to bring his present derivative claims against the corporation and its directors in California.
B. The Restatement Second of Conflict of Laws
(6) In applying the internal affairs doctrine, the Witkin treatise and many California cases rely heavily on the Restatement Second of Conflict of Laws (Restatement). (See, e.g., 9 Witkin, Summary of Cal. Law (10th ed. 2005) Corporations §§ 238-239, pp. 1005-1006; Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 464 [11 Cal.Rptr.2d 330, 834 P.2d 1148]; State Farm Mutual Automobile Ins. Co. v. Superior Court, supra, 114 Cal.App.4th at p. 443.) Section 302 of the Restatement provides: "§ 302. Other Issues with Respect to Powers and Liabilities of a Corporation [¶] (1) Issues *226 involving the rights and liabilities of a corporation, other than those dealt with in § 301,[11] are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. [¶] (2) The local law of the state of incorporation will be applied to determine such issues, except in the unusual case where, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which event the local law of the other state will be applied."
Restatement, section 6, in turn, provides: "6. Choice-of-Law Principles [¶] (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. [¶] (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include [¶] (a) the needs of the interstate and international systems, [¶] (b) the relevant policies of the forum, [¶] (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, [¶] (d) the protection of justified expectations, [¶] (e) the basic policies underlying the particular field of law, [¶] (f) certainty, predictability and uniformity of result, and [¶] (g) ease in the determination and application of the law to be applied."
With reference to Restatement, section 6, subdivision (1), we have already discussed California's codification of the internal affairs doctrine in Corporations Code section 2116. Even putting that statutory directive aside, the factors in Restatement, section 6, subdivision (2) favor applying BVI law to the present case. LJI is a publicly traded, international corporation in which California has no extraordinary interest. Appellant has demonstrated no significant California public policy that will be offended should we affirm the trial court's ruling. Appellant has not argued that any jurisdiction other than California has a compelling interest in determining the present issues pursuant to its law. Factors (a), (d), (f) and (g) in section 6 of the Restatement heavily favor applying the law of the state of incorporation in the present case. Those factors are addressed in comment e to Restatement, section 302, page 309: "Uniform treatment of directors, officers and shareholders is an important objective which can only be attained by having the rights and liabilities of those persons with respect to the corporation governed by a single law. To the extent that they think about the matter, these persons would usually expect that their rights and duties with respect to the corporation would be determined by the local law of the state of incorporation. This state is also easy to identify, and thus the value of ease of application is attained when the local law of this state is applied."
*227 Further, comment g to Restatement, section 302, pages 311-312 states, in part: "[I]n the absence of an explicitly applicable local statute, the local law of the state of incorporation has almost invariably been applied. This result furthers the choice-of-law factors of certainty, predictability and uniformity of result, ease in the application of the law to be applied and, at least on occasion, protection of the justified expectations of the parties. This last factor is mentioned because parties who deal with a corporation will often expect, to the extent that they think about the matter, that any issue that may arise between them and the corporation will be determined by the local law of the state of incorporation."
We thus conclude that the modern view of the internal affairs doctrine, whether viewed through the prism of the Restatement or that of Corporations Code section 2116, favors application of the law of the incorporating jurisdiction in the present case.
C. Governmental interest analysis
(7) Appellant asserts error in the trial court's failure to apply a "governmental interest analysis," which he argues would preclude application of section 184C. That analysis resolves substantive choice of law issues by balancing the interests of the involved states and parties. (See Tucci v. Club Mediterranee (2001) 89 Cal.App.4th 180, 188-194 [107 Cal.Rptr.2d 401] [applying governmental interest analysis in a tort case, and holding that the law of the Dominican Republic governed].)
However, the governmental interest approach has been applied almost exclusively in tort and contract cases, and occasionally to statute of limitations issues. (3 Witkin, Cal. Procedure, supra, Actions §44, p. 113.) Only dictum supports appellant's claim that California courts might utilize this approach in a derivative action against the directors of a foreign corporation. In Shields v. Singleton (1993) 15 Cal.App.4th 1611, 1621 [19 Cal.Rptr.2d 459], a derivative action was brought against a Delaware corporation which was headquartered in and did "substantially all of its business in" California. The defense argued that Delaware law regarding a prefiling demand requirement should apply pursuant to the internal affairs doctrine, but made no showing of a difference between California and Delaware law. (Ibid.) The court's decision to apply California law was therefore based on the lack of a showing of a true conflict of law rather than rejection of the internal affairs doctrine. (Ibid.) Similarly, Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1104 [72 Cal.Rptr.3d 129, 175 P.3d 1184], involved a Delaware corporation based in California. The case presented the question whether a derivative action could *228 be maintained after the plaintiff lost his status as a stockholder due to a merger. The Supreme Court noted that if there was a conflict between Delaware and California laws on the standing issue, "we must then analyze the governmental interests of the two states, including the effect of the internal affairs doctrine, to determine which state's law ought to apply." (Id. at p. 1107.) However, the court never reached the merits of the conflict issue because it found no substantial difference between the laws of the two states. (Id. at p. 1119.) Further, the reference to the internal affairs doctrine in the passage just cited defeats appellant's contention that Grosset "mandated" application of the governmental interests approach to a shareholder action.
Thus, appellant has cited no authority actually applying the governmental interest analysis to resolve choice of law in a derivative action against the directors of a foreign corporation. He relies heavily on Havlicek, supra, 39 Cal.App.4th 1844. But that case did not involve the liability of directors to the corporation for alleged breaches of fiduciary duties; rather, it involved a director's right of access to books and records of a company incorporated in Delaware. Thus, Corporations Code section 2116 was not implicated, and the court of appeal found the internal affairs doctrine inapplicable because no violation of Delaware law would result. (39 Cal.App.4th at p. 1854.)
We again find Hausman, supra, 299 F.2d 701, to be instructive. In the course of applying New York law in a diversity case, the Second Circuit noted that, although New York had formulated a choice of law test similar to the governmental interest analysis (called "center of gravity"), it had not been applied to corporate stockholder litigation. Consequently, the court invoked the traditional internal affairs test and found that the law of the state of incorporation applied to a question of a stockholder's standing to bring a derivative action. (Id. at p. 704.)
(8) Finally, a close look at the analysis involved in the governmental interest approach reveals that it is inapposite to a shareholder derivative action involving the posture of the present case. The required analysis consists of three steps, as summarized in Havlicek: "First, we determine whether the two concerned states have different laws. Second, we consider whether each state has an interest in having its law applied to this case. Finally . . . we apply the law of the state whose "interests would be more impaired if its policy were subordinated to the policy of the other state. [Citations.]" (Havlicek, supra, 39 Cal.App.4th at p. 1851.) In a shareholder case where the jurisdiction of incorporation has little if any other contact with the company, this test will invariably result in the application of California law. That predictable result ignores the factors identified by the Restatement *229 which, as noted earlier in this opinion, are of great significance to corporate directors and investors who do business across state and international borders. We agree with respondents' similar argument that the protective purpose of the governmental interest approach is inapplicable to a derivative action, which is brought on behalf of the corporation rather than the individual citizens and shareholders of the forum state.
Thus, the governmental interest choice of law test is inapplicable to the present case.
5. English Common Law
Appellant makes his last stand behind the bulwark of the United Kingdom. He contends that, even if BVI law applies, section 184C is inapplicable under the rule announced 166 years ago in Foss v. Harbotle (Eng. 1843) 2 Hare 461, which is still sometimes invoked in cases involving semi-sovereign British Overseas Territories. With certain exceptions, the rule allows derivative claims only where a simple majority of shareholders could not ratify the conduct on which the suit is based. (In re Tyco Intern., Ltd. (D.N.H. 2004) 340 F.Supp.2d 94, 98.) Appellant contends he qualifies for, and has pleaded, an exception to the Foss rule called "fraud on the minority," which was recently explained and applied to a BVI corporation in Seghers v. Thompson, an unpublished decision of a federal district court.[12] He adds that cases involving British Overseas Territories other than BVI also support his position, citing Tyco, which involved a Bermuda corporation, and Winn v. Schafer (S.D.N.Y. 2007) 499 F.Supp.2d 390, 396, involving a Cayman Islands corporation.
However, none of the cited cases discusses section 184C or any similar statute. Seghers, the only one involving a BVI corporation, was based on conduct in 2002, two years before section 184C was enacted as part of the 2004 BVI Act. (Seghers v. Thompson, supra, 2006 U.S.Dist. Lexis 71103 at pp. *4-*8) The applicable law in Seghers was the predecessor 1984 BVI Act), which contained no provision concerning shareholder derivative actions. It is therefore not surprising that, with no applicable statute involved, the parties in Seghers agreed the case should be analyzed according to British common law. (2006 U.S.Dist. Lexis 71103 at p. *11.)
Here, by contrast, the 2004 BVI Act, including section 184C, is applicable. As a statute specifically addressing shareholder derivative actions, it obviates the need to resort to English common law to resolve the present issue.
*230 DISPOSITION
The trial court's ruling sustaining the demurrer without leave to amend and the ensuing dismissal are affirmed. Costs on appeal are awarded to respondents.
Rubin, Acting P.J., and Bigelow, J., concurred.
NOTES
[*] Judge of the Ventura County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Both parties' unopposed motions for judicial notice are hereby granted. Appellants' objections voiced for the first time at oral argument came too late.
[2] In a "Form 20F" report to the U.S. Securities and Exchange Commission filed in December 2007, LJI reported that North American sales had accounted for 72 percent of its business in 2005 and 62 percent in 2006.
[3] The sole exception is respondent Andrew Bernstein, who lives in Colorado. Mr. Bernstein is a director and the company's outside counsel in the United States. LJI's Hong Kong-based directors had not yet been served by the time of the demurrer that is the subject of this appeal.
[4] As to the Los Angeles facility, the complaint alleges that LJI is "Hong Kong and Los Angeles-based," and that defendants "generated their significant United States' sales from the Company's operations in Los Angeles." By contrast, among the judicially noticed documents is a February 29, 2008 declaration by LJI's chief operating officer stating that the Los Angeles facility is rented workspace which is not its corporate headquarters or principal place of business. We will assume the truth of the complaint on this point for purposes of ruling on the demurrer. (Schuster v. Gardner (2005) 127 Cal.App.4th 305, 309 [25 Cal.Rptr.3d 468].)
[5] The instant complaint parallels the allegations in several federal securities fraud class actions that had been filed in September 2007.
[6] Although respondents deny false or misleading statements and contend that LJI's belated 2006 annual report, issued December 28, 2007, belies plaintiff's allegations, our review of a sustained demurrer assumes the truth of the complaint's factual allegations. (Schuster v. Gardner, supra, 127 Cal.App.4th at p. 309.)
[7] Standard Reserve Holdings, Ltd. v. Downey (July 9, 2004, No. 24-C-04-0661) 2004 Md.Cir.Ct. Lexis 17.
[8] Appellant cites: Code of Civil Procedure section 425.13 (leave of court required to allege punitive damages against health care professionals); Code of Civil Procedure section 425.14 (leave of court required to allege punitive damages against religious corporations); Civil Code section 1714.10(a) (leave of court required to bring claim against attorney for conspiring with client); Business and Professions Code section 17204, as amended in 2004 by Proposition 64 (actual injury required for standing to bring unfair business practice claim).
[9] Franklin v. Allstate Corp. (N.D.Cal., July 3, 2007, No. C-06-1909 MMC) 2007 U.S.Dist. Lexis 51332.
[10] Presently, see Corporations Code sections 315 and 316.
[11] Section 301 deals with a corporation's "Rights Against and Liabilities to Third Person," a topic not relevant to the instant case.
[12] Seghers v. Thompson (S.D.N.Y. Sept. 27, 2006, No. 06 Civ. 308 (RMB) (KNF)) 2006 U.S.Dist. Lexis 71103. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384781/ | 252 S.W.3d 781 (2008)
Eduardo RIVERA-REYES, Appellant
v.
The STATE of Texas, Appellee.
No. 14-06-00621-CR.
Court of Appeals of Texas, Houston (14th Dist.).
April 24, 2008.
*783 Tony Aninao, Houston, TX, for appellants.
Lori DeAngelo Fix, Houston, TX, for appellees.
Panel consists of Chief Justice HEDGES and Justices FROST and MURPHY.[*]
OPINION
KEM THOMPSON FROST, Justice.
Appellant Eduardo Rivera-Reyes appeals his conviction for attempted indecency with a child, asserting factual and legal insufficiency of the evidence, error by the trial court in admitting hearsay evidence of the child's age, and ineffective assistance of his trial counsel. We affirm.
I. Factual and Procedural Background
On January 31, 2005, a store security officer saw appellant enter the store and recognized appellant from a 2004 store security video in which store employees recorded appellant acting "suspiciously." The officer alerted the loss-prevention investigator to appellant's presence in the store and the investigator recorded appellant's movements on the store's security monitors. The investigator, via the recording equipment, observed appellant continuously move his right hand back and forth within his pants pocket as if he were stimulating himself. The investigator saw appellant approach a young girl in the store's school-supply aisle. Appellant appeared to brush the front of his body against the back of her body several times in a "provocative way," which the investigator described as "suspicious" behavior. The incident was recorded on videotape, but the recording did not capture sound. The video depicted appellant speaking to the girl. The investigator then approached the girl and appellant in the aisle, and the girl walked away. The investigator asked appellant if he knew the girl, to which appellant replied that he was trying to buy boots and did not know what the investigator was talking about. The security officer did not see the incident, but upon the investigator's orders, the officer detained appellant.
The investigator spoke with the girl and her mother and wrote a report based on the information provided. The girl did not remember what appellant said to her. Though the video shows appellant brushing up against the child from the back, neither the girl nor her mother was aware of appellant touching the girl.
Appellant was indicted for the felony offense of attempted indecency with a child, to which he pleaded "not guilty." At a bench trial, the State presented witness testimony from three store employees and tendered the 2005 security videotape of the incident. Neither the appellant, the child, nor the child's mother testified. The trial judge found appellant guilty and assessed punishment of ten years' confinement.
*784 II. ISSUES AND ANALYSIS
Appellant presents the following issues for review on appeal:
(1) Is the evidence legally and factually sufficient to support appellant's conviction?[1]
(2) Did the trial court err in admitting hearsay evidence of the child's age?
(3) Did appellant receive ineffective assistance of counsel?
A. Is the evidence legally and factually sufficient to support appellant's conviction?
In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. Appellant claims error in that the investigator offered inadmissible hearsay regarding the child's age, an essential element of the crime, and that no other evidence proved the child's age. According to appellant, because the investigator's testimony regarding the child's age was inadmissible hearsay, the State failed to prove beyond a reasonable doubt that the child was under seventeen years of age. Appellant also alleges legal and factual insufficiency in that the State adduced no evidence that the child was not appellant's spouse.
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim. App.1991). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim.App.1997).
In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim. App.2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See *785 Fuentes, 991 S.W.2d at 271. In conducting a factual-sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).
A person commits indecency with a child if, with a child younger than seventeen years and not the person's spouse, the person engages in sexual contact with the child. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2003). "Sexual contact" includes any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child. TEX. PENAL CODE ANN. § 21.11(c)(1) (Vernon 2003). A person commits an attempted indecency with a child if, with specific intent to commit the offense, the person commits an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. § 15.01(a) (Vernon 2003). Circumstantial evidence may be used to prove an essential element of the offense charged. Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998) (inferring intent from circumstantial evidence of accused's acts, words, and conduct); Henson v. State, 173 S.W.3d 92, 101 (Tex.App.-Tyler 2005, pet. ref'd) (inferring from circumstantial evidence that complainant was not appellant's spouse).
A reviewing court considers both properly and improperly admitted evidence in its sufficiency review and gives the evidence whatever weight and probative value it could rationally convey to a jury. Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim. App.2004). The investigator indicated that the child's mother told him that the girl was born in December 1996, which would make the child eight years old at the time of the offense. The investigator's statement[2] of the child's age as well as the videotape depicting the actual offense are sufficient to establish that the child was under seventeen years of age when appellant attempted indecency with her. See id.; Henson, 173 S.W.3d at 101.
Appellant argues that the State produced no evidence to prove that the child was not appellant's spouse, which is another element of the crime of indecency with a child. See TEX. PENAL CODE ANN. § 21.11(a)(1). The record reflects the investigator's testimony that when the investigator asked appellant if he knew the child, appellant replied that he "didn't know what [the investigator was] talking about." This statement supports an inference that the child was not appellant's spouse. See Henson, 173 S.W.3d at 101. Additionally, the fact that the child was eight years old is enough to support an inference that she was not appellant's wife, even absent testimony from the complainant. See Chavez v. State, 508 S.W.2d 384, 386 (Tex.Crim.App.1974); see also Ramirez v. State, No. 01-96-00353-CR, 1999 WL 351154, at * 1 (Tex.App.-Houston [1st Dist.] June 3, 1999, no pet.) (not designated for publication) ("Evidence of the victim's age is sufficient to prove that the victim is not the spouse of the defendant."); Driver v. State, No. 01-086-00810-CR, 1988 WL 15112, at *2 (Tex. App.-Houston [1st Dist.] Feb. 25, 1988, pet. ref'd) (not designated for publication) (approving use of circumstantial evidence to prove rape victim was not appellant's spouse).
*786 Because a rational trier of fact could have found that the State proved each of the elements of attempted indecency with a child beyond a reasonable doubt, the evidence is legally sufficient to support appellant's conviction. See McDuff, 939 S.W.2d at 614. Additionally, in viewing all the evidence in a neutral light, appellant's conviction is not "clearly wrong" or "manifestly unjust" given the weight and preponderance of the evidence, which we determine to be factually sufficient. See Watson, 204 S.W.3d at 414-17. Therefore, we overrule appellant's second and third issues.
B. Did the trial court err in admitting hearsay evidence of the child's age?
In his first issue, appellant contends that the trial court erred in admitting hearsay evidence of the girl's age, over his objection, during the State's direct examination of the store's loss-prevention investigator:
[PROSECUTOR]: Do you recall what [the complainant's] date of birth was as given to you by her mother?
[DEFENSE COUNSEL]: Objection to hearsay, Your Honor.
[COURT]: Overruled. You may answer the question.
[INVESTIGATOR]: I believe it was December of 1966, December 6th, 1996.
A trial court's decision to admit or exclude hearsay evidence is a matter within the discretion of the trial court. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim. App.2001); Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). A ruling within the bounds of reasonable disagreement will not be disturbed on appeal. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.App.1990).
Hearsay is an out-of-court statement, other than a statement made while testifying at trial, that is offered into evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d); Long v. State, 800 S.W.2d 545, 547 (Tex.Crim.App.1990). For hearsay to be admissible, it must fit into an exception provided by statute or the rules of evidence. TEX. R. EVID. 802; Long, 800 S.W.2d at 547. A "matter asserted" includes any matter expressly asserted and any matter implied by a statement if the probative value of the statement, as offered, stems from the declarant's belief as to the matter. TEX. R. EVID. 801(c). In this case, the investigator testified that the girl's mother, the declarant, made the out-of-court statement regarding the child's birth date to the investigator as he wrote a report of the incident. Such information presumably was offered for the truth that the child was a minor under the age of seventeen. Upon appellant's objection, the State did not argue that such evidence fell within an admissible exception to the hearsay rule, and the trial court did not indicate the basis of its ruling. The investigator's statement that the mother told him the child was born in December 1996 is hearsay because it was offered for the truth of the matter that the child was under seventeen years old. See TEX. R. EVID. 802; TEX. R. EVID. 801(d). The trial court erroneously overruled appellant's hearsay objections to the investigator's statement and erred in admitting the investigator's inadmissible hearsay statement regarding the child's age. See TEX. R. EVID. 802; Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).
The admission of inadmissible hearsay constitutes non-constitutional error subject to the harm analysis rule under Texas Rule of Appellate Procedure 44.2(b), which requires the reviewing court to disregard non-constitutional error that does not affect a criminal defendant's substantial rights. See TEX. R. APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. *787 Crim.App.2001). Error affects a substantial right when it has a substantial and injurious effect or influence in determining the jury's verdict. Johnson, 43 S.W.3d at 4. Such error is harmless if the reviewing court, after examining the record as a whole, is reasonably assured the error did not influence the jury verdict or had but slight effect. See Johnson, 967 S.W.2d at 417.
An error in the admission of evidence is cured when the same evidence comes in elsewhere without objection. Anderson v. State, 717 S.W.2d 622, 627 (Tex.Crim.App.1986); Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984). In this case, the State showed a videotape of the actual offense without objection from appellant. The video depicts a young girl whose features, stature, build, characteristics, clothing, and overall appearance are obviously those of a child younger then seventeen years of age.
We first determine whether the video, without direct testimony, is admissible to prove an essential element of the crime, such as the child's age, when the video depicts only the child's image. Circumstantial evidence[3] is as probative as direct evidence in establishing guilt and may prove any element of a case. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim. App.2004); Henson, 173 S.W.3d at 101 (providing elements for attempted indecency with a child and that "[c]ircumstantial evidence may be used to prove an essential element of the offense charged."). Circumstantial evidence alone may be enough to support a verdict in a criminal case as long as the State shoulders its burden of proof of the element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Kutzner v. State, 994 S.W.2d 180, 186 (Tex.Crim.App.1999). Though no direct testimony of the child's age was elicited from the trial witnesses except for the investigator's inadmissible hearsay testimony, no formalized procedure is required for the State to prove the essential elements of the crime. See Sepulveda v. State, 729 S.W.2d 954, 957 (Tex.App.-Corpus Christi 1987, pet. ref'd) (providing that no formalized procedure is necessary for identifying appellant, whose identity is an element of the crime, when other evidence identified appellant as the perpetrator); see also Wilson v. State, 9 S.W.3d 852, 855 (Tex.App.-Austin 2000, no pet.) (involving inference for identity, an essential element of the crime of indecency with a child, through officer's testimony of the complainants' description of perpetrator's van and license plate number when no other direct evidence existed of defendant's identity). Furthermore, in assessing evidence, fact finders may draw inferences from the evidence for certain essential elements of a crime. See Moore, 969 S.W.2d at 10 (inferring mental state from acts, words, and circumstances without need for direct evidence thereof); McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App.1981) (inferring intent for indecency with a child); see also Wilson, 9 S.W.3d at 855 (inferring identity based on officer's testimony of the complainants' description of perpetrator's van and license plate number); Burden v. State, No. 05-97-01464-CR, 1999 WL 562585, at *2 (Tex.App.-Dallas Aug.3, 1999) (not designated for publication), aff'd 55 S.W.3d 608 (Tex.Crim.App.2001) (inferring character and content of a video was obscene, an essential element of crime of promotion of obscenity, by looking at cover of videotape). In the case at hand, the trial judge, as fact finder, was easily able to see for himself that the child in the *788 video could not have been seventeen years or older. Indeed, fact finders are free to use their common sense and apply common knowledge, observations, and experiences gained in the ordinary affairs of life when giving effect to the inferences that reasonably may be drawn from the evidence. United States v. Heath, 970 F.2d 1397, 1402 (5th Cir.1992); Griffith v. State, 976 S.W.2d 686, 690 (Tex.App.-Tyler 1997, pet. ref'd).
At trial, the State showed the store's video depicting appellant and the child, a girl whose appearance cannot be adjudged as being over the age of seventeen. By showing the video of the child in the aisle as the incident occurred, the State proved through circumstantial evidence that the child was under the age of seventeen. In addition, throughout trial, attorneys for both appellant and the State routinely referred to the complainant as a "little girl."
We hold that the error resulting from the admission of the investigator's inadmissible hearsay testimony concerning the child's date of birth was rendered harmless when the same facts were shown by other evidence, namely the store's security video of the incident, to which appellant did not object. See Anderson, 717 S.W.2d at 627 (deeming admission of hearsay statement harmless when other evidence that did not draw an objection proved the same thing). As a result, the improper admission of the hearsay statement does not constitute reversible error. See id. We overrule appellant's first issue.
C. Is appellant's conviction reversible based on ineffective assistance of counsel?
In his final issue, appellant claims he received ineffective assistance of counsel at trial. The record reflects that appellant filed a motion for a new trial alleging multiple grounds of ineffective assistance of counsel upon which the trial court conducted an evidentiary hearing.
Appellant's motion for a new trial was filed with the district clerk and stamped with the date of August 15, 2006, one day after the deadline to file this motion had passed. When the trial court indicated that the filing deadline had passed, appellant's trial counsel produced his own personal copies of a motion for new trial that were file-stamped "August 11, 2006." These copies were unsigned and unverified, and the trial court included these copies in the appellate record for review. The trial judge acknowledged for the record that he was not conceding that the motion was timely filed. Instead, the trial judge conducted the evidentiary hearing and ultimately denied appellant's motion.
To prove ineffective assistance of counsel, appellant must show by a preponderance of the evidence that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998). In assessing appellant's claim, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We presume that trial counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy, unless that presumption is rebutted. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Thompson, 9 S.W.3d at 814. When reviewing a claim of ineffective assistance, we look to the totality of the representation and not to isolated instances of error or to only a portion of the trial, to determine *789 that appellant was denied a fair trial. Thompson, 9 S.W.3d at 813.
A claim for ineffective assistance of counsel must be firmly supported in the record. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). Ordinarily, the record on direct appeal is not sufficient to show prejudice or that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. The record is best developed for these claims by an application for a writ of habeas corpus or by developing facts and details with a thorough and detailed examination of the alleged ineffectiveness, as attempted in this case via a motion for new trial. See Jackson, 973 S.W.2d at 957.
However, in this case, the trial court lacked jurisdiction to hold the hearing on appellant's motion for new trial because the motion was not timely filed. See TEX. R. APP. P. 21.4(a); Drew v. State, 743 S.W.2d 207, 223 (Tex.Crim.App. 1987). The procedural provisions governing motions for a new trial demand strict adherence for a trial court to hold jurisdiction to consider the motion. Oldham v. State, 977 S.W.2d 354, 361 (Tex.Crim.App. 1998). An appellant has thirty days after the judgment and sentence are imposed to file a motion for new trial. TEX. R. APP. P. 21.4(a). Similarly, any amendments to the motion for new trial also must be filed within the same thirty-day period. TEX. R. APP. P. 21.4(b). Filing an affidavit in support of a motion for new trial more than thirty days after sentencing results in an untimely attempt to amend the motion. See Dugard v. State, 688 S.W.2d 524, 530 (Tex.Crim.App.1985), overruled on other grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex.Crim.App.1989); Flores v. State, 18 S.W.3d 796, 798 (Tex.App.-Austin 2000, no pet.). The trial court does not have jurisdiction to rule on an untimely motion or amendment.
According to the record, the trial court signed the judgment and imposed the sentence on July 13, 2006. The record reflects that the thirty-day deadline for filing a motion for new trial fell on a Saturday, which then made the actual deadline for filing Monday, August, 14, 2006. See TEX. R. APP. P. 21.4(a); TEX. R. APP. P. 4.1(a). The record contains appellant's signed, verified motion for a new trial that was file-stamped in the district clerk's office with the date of August 15, 2006, one day after the deadline for filing such a motion. See TEX. R. APP. P. 21.4(a). Though appellant's trial counsel claims to have filed the motion on August 11, 2006, the only proof of this action is his own unsigned and unverified copy of the motion bearing an August 11, 2006 file stamp. Furthermore, the August 11, 2006 motion was not supported by affidavit. See Flores, 18 S.W.3d at 798. The August 11, 2006 motion could not be considered by the trial court because motions neither verified nor supported by affidavits are insufficient as pleadings and fatally defective. See Dugard, 688 S.W.2d at 529; Bearden v. State, 648 S.W.2d 688, 690 (Tex.Crim.App. 1983).
Appellant's August 15, 2006 motion was untimely if filed as an original motion. See TEX. R. APP. P. 21.4(a). If appellant's verified August 15, 2006 motion were considered to be an amended motion, this amended motion was not timely filed either. See TEX. R. APP. P. 21.4(b). Notwithstanding appellant's untimely filing of the August 15, 2006 motion, the trial court conducted an evidentiary hearing in which live witness testimony was presented. The trial court was without jurisdiction to conduct the hearing on appellant's motion for new trial. Drew, 743 S.W.2d at 223. Because the trial court did not have jurisdiction, *790 this court cannot consider the record created on the motion in assessing appellant's ineffective-assistance-of-counsel claims. See Morrison v. State, 132 S.W.3d 37, 48 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Without the motion-for-new-trial hearing, the record is silent as to prejudice or deficiency in trial counsel's performance; this court will not speculate as to why trial counsel did or did not do as appellant alleges. See Jackson, 877 S.W.2d at 771. Absent evidence in the record, appellant cannot overcome the presumption that counsel's actions amounted to sound trial strategy or otherwise show that appellant's trial counsel was deficient. See id.; Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833. Therefore, we overrule appellant's final issue.
The trial court's judgment is affirmed.
NOTES
[*] Senior Chief Justice Paul C. Murphy sitting by assignment.
[1] Appellant addresses legal and factual sufficiency of the evidence in two separate issues, but we review the two issues together and address these points first.
[2] In Part B of this opinion, we address appellant's hearsay argument regarding the admissibility of the investigator's statement; however, we review the sufficiency of the evidence, as rendition points, first. In a sufficiency review, appellate courts must consider all evidence both properly and improperly admitted at trial, which the jury was permitted to consider. Moff, 131 S.W.3d at 488, 489.
[3] Circumstantial evidence is direct proof of a secondary fact that, through logical inference, demonstrates an ultimate fact to be proven. Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim.App.1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384818/ | 625 S.E.2d 824 (2006)
James Edd LIGON, Jr., Plaintiff,
v.
MATTHEW ALLEN STRICKLAND and Gerald Allen Strickland, Defendants.
No. COA04-822.
Court of Appeals of North Carolina.
February 21, 2006.
Clarke K. Wittstruck, Asheville, for plaintiff-appellee.
Cogburn, Goosmann, Brazil & Rose, P.A., by Andrew J. Santaniello, Ashville, for defendants-appellants.
*826 GEER, Judge.
Defendants Matthew Allen Strickland and Gerald Allen Strickland appeal from a verdict in favor of plaintiff James Edd Ligon, Jr. Ligon contended and the jury found that Matthew Strickland ("Strickland"), who was driving the car of his father Gerald Strickland, swerved across a road and struck Ligon as he was walking along the opposite side of the road. Defendants argue on appeal that the trial court erred (1) in denying their motion for a directed verdict on the issue of negligence and (2) in not instructing the jury on the issue of contributory negligence. Because the evidence is undisputed that Strickland crossed the center line and Ligon offered sufficient evidence to permit a reasonable juror to find that Strickland struck Ligon, the trial court properly denied defendants' motion for a directed verdict. We agree with defendants, however, that when the evidence is viewed in the light most favorable to them, the record contains sufficient evidence to warrant submission of the issue of contributory negligence to the jury. Defendants are, therefore, entitled to a new trial.
Facts
On the evening of 21 December 1997, Ligon went to a ball field with his friend, Charlie Hawkins, where they drank a bottle of liquor. At some point between midnight and 1:00 a.m., Ligon, who was dressed in dark clothes, left Hawkins and began to walk home along Green Valley Road in rural Buncombe County. Ligon was walking along the left hand side of the road facing the traffic. In a field next to the road, he noticed a white horse that he knew and clapped his hands to get the horse's attention. Ligon testified that he then heard a noise like a "whoosh." He does not remember anything further until he woke up in the hospital.
Strickland, who was called as a witness by Ligon, testified that at approximately 12:30 or 1:00 a.m. on 21 December 1997, he was driving his father's car on Green Valley *827 Road. According to Strickland, approximately a quarter of a mile down the road, he saw an animal in the middle of the road, he swerved off to the left, and he struck a fence five to six feet off the left side of the road with sufficient force to deploy his air bag. Strickland testified that, without stopping, he "got back control" and returned to the road and drove to his house.
He woke his father and told him that he had hit a fence. The two Stricklands then drove back to the scene. Both testified they wanted to make sure that no livestock was escaping through the damaged fence. They found Ligon tangled up in the fence exactly where Strickland had struck the fence. Strickland's father called 911.
James Powell, a firefighter and EMS technician, responded to the accident. Upon arrival, he found Ligon sitting in a fence five to six feet from the road. Powell described Ligon as confused, disoriented, and inebriated. Although Ligon stated that he wanted to get up and walk home, Powell could tell from his observations that Ligon had suffered a broken leg. A state highway patrol trooper, Stan Webb, also responded and, after interviewing Strickland, prepared a report of the accident.
At the hospital, Ligon was treated for a compound fracture of the right leg and multiple abrasions on the right shoulder. At that time, Ligon's blood alcohol level was .08.[1] Ligon's treating orthopedic surgeon testified that the injuries to Ligon's right leg were consistent with a high energy impact from behind by a motor vehicle.
The case was tried in Buncombe County Superior Court beginning 6 January 2004. The trial court denied defendants' motion for a directed verdict at the close of plaintiff's evidence and at the close of all the evidence. Over defendants' objection, the court submitted only two issues to the jury: whether plaintiff was injured by defendants' negligence and, if so, the amount of damages plaintiff was entitled to recover. The jury awarded plaintiff $50,000.00.
On 2 April 2004, the trial court entered judgment against defendants for the amount awarded by the jury and for additional costs incurred by plaintiff. Defendants' motions for judgment not withstanding the verdict and for a new trial were denied in an order dated 29 April 2004. Defendants filed their notice of appeal on 4 May 2004.
Denial of Defendants' Directed Verdict Motion
Defendants first assign error to the trial court's denial of their motion for a directed verdict at the close of plaintiff's evidence and again at the close of all the evidence. As this Court has explained, however:
When a motion is made for directed verdict at the close of the plaintiff's evidence, the trial court may either rule on the motion or reserve its ruling on the motion. By offering evidence, however, a defendant waives its motion for directed verdict made at the close of plaintiff's evidence. Accordingly, if a defendant offers evidence after making a motion for directed verdict, "any subsequent ruling by the trial judge upon defendant's motion for directed verdict must be upon a renewal of the motion by the defendant at the close of all the evidence, and the judge's ruling must be based upon the evidence of both plaintiff and defendant."
Stallings v. Food Lion, Inc., 141 N.C.App. 135, 136-37, 539 S.E.2d 331, 332 (2000) (internal citations omitted) (quoting Overman v. Gibson Prods. Co., 30 N.C.App. 516, 520, 227 S.E.2d 159, 162 (1976)). The question before this Court is, therefore, whether the trial court properly denied defendants' motion for a directed verdict at the close of all the evidence.
Defendants argue that a directed verdict was warranted because the record contains insufficient direct or circumstantial evidence of negligence. The party moving for a directed verdict "`bears a heavy burden under North Carolina law.'" Martishius v. *828 Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002) (quoting Taylor v. Walker, 320 N.C. 729, 733, 360 S.E.2d 796, 799 (1987)). When a motion for a directed verdict is made, the trial court must determine
"whether the evidence is sufficient to go to the jury. In passing upon such motion the court must consider the evidence in the light most favorable to the non-movant. That is, the evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor. It is only when the evidence is insufficient to support a verdict in the non-movant's favor that the motion should be granted."
Dockery v. Hocutt, 357 N.C. 210, 216-17, 581 S.E.2d 431, 436 (2003) (internal quotation marks and citation omitted) (quoting Rappaport v. Days Inn of Am., Inc., 296 N.C. 382, 384, 250 S.E.2d 245, 247 (1979), overruled on other grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998)). On appeal, we must uphold the denial of a directed verdict "if there is more than a scintilla of evidence to support each element of the nonmovant's primae [sic] facie case." Handex of the Carolinas, Inc. v. County of Haywood, 168 N.C.App. 1, 9, 607 S.E.2d 25, 30 (2005).
In this case, it is undisputed that Strickland crossed the center line on the road, traveled all the way across the left lane, and drove off the left shoulder, before, as he testified, getting "back control," and returning to his proper lane of travel. N.C. Gen.Stat. § 20-146(d) (2005) provides:
(d) Whenever any street has been divided into two or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
As this Court has previously stated, "[o]ur Courts have consistently held that the violation of this section constitutes negligence per se, and when it is the proximate cause of injury or damage, such violation is actionable negligence." Sessoms v. Roberson, 47 N.C.App. 573, 579, 268 S.E.2d 24, 28 (1980). See also Anderson v. Webb, 267 N.C. 745, 749, 148 S.E.2d 846, 849 (1966) ("When a plaintiff suing to recover damages for injuries sustained in a collision offers evidence tending to show that the collision occurred when the defendant was driving to his left of the center of the highway, such evidence makes out a prima facie case of actionable negligence.").
A defendant may, as defendants do in this case, present evidence "that [defendant] was driving on the wrong side of the road for reasons other than his own negligence, but, in such a case, such showing by the defendant serves merely to raise an issue of credibility for the jury to resolve." Sessoms, 47 N.C.App. at 579, 268 S.E.2d at 28. Thus, this Court has held that a motion for a directed verdict should be denied when the plaintiff's evidence established that the defendant drove left of center even though the defendant offered evidence that he skidded due to ice. Brewer v. Majors, 48 N.C.App. 202, 205, 268 S.E.2d 229, 230-31, disc. review denied, 301 N.C. 400, 273 S.E.2d 445 (1980). See also Anderson, 267 N.C. at 749, 148 S.E.2d at 849 (reversing nonsuit when the evidence indicated that the defendant had crossed the center line while skidding on wet pavement even though no one survived the accident and there were no eyewitnesses to testify that the skidding was due to negligence); Sessoms, 47 N.C.App. at 579, 268 S.E.2d at 28 (reversing grant of directed verdict when the defendant conceded that he crossed the center line, but claimed he did so to avoid hitting the plaintiff since "this evidence alone ... is sufficient to require the submission of this case to the jury").
Here, defendants contend that Strickland crossed the center line to avoid an animal, identified as possibly being a local black dog who tended to run loose in the neighborhood. Ligon offered evidence that he noticed the dog, but that the dog was in a yard up a hill right before the collision; no one else saw a dog in the area after the collision. Strickland's testimony was vague: he said "something *829 came out in front of [him] in the middle of the road"; he did not recall it darting, but rather it was simply "in the road"; he could only "guess" where he first saw the animal; and he could not recall from which direction the animal had come, although he would "guess" that it came from the right side. He said that his recollection was "very vague" and he was having a "hard time remembering." Thus, there is a question for the jury as to whether an animal was in the road that caused Strickland to cross over the center line.
Even if the presence of the animal were undisputed, plaintiff also offered evidence that Strickland traveled 20 feet across the center line from his legal lane of travel and continued to the fence. Further, there is no evidence suggesting that Strickland attempted to brake or slow down to avoid the animal. Strickland testified:
Q And you saw the animal in your lights and you swerved across the roadway to the left, and that you swerved all the way across the roadway to the left across this section here and hit this fence. (Indicating) Is that your testimony?
A Correct.
Q And then after you hit the fence your car kept going and righted itself and you ended up back on the roadway here? (Indicating)
A I don't know if it righted itself.
Q That's what I was confused about. You said you came back to and you were on the road.
A I hit the fence and I must have corrected it. I don't see how it would have righted itself up on the road. The next thing I remember, I was on the road.
He later confirmed that he was traveling 35 to 40 miles per hour, hit the fence with "[m]ore of a sidewswipe and [kept] going." He stated: "I never stopped." According to Strickland, once he "got back control" or "gained control," he was again on the road. With respect to Ligon, he testified: "I never saw him." Ligon, however, presented evidence that it was a clear, moonlit night, and he was standing next to the road.
As this Court explained in Brewer:
[T]he question to be resolved by the jury is not simply whether defendants' car skidded, but whether [the] defendant [driver] was in the wrong lane, and if so, whether he was there through no fault of his own. It cannot be said that the skidding of the defendants' vehicle immediately preceding the collision establishes a lack of any negligence on [the driver's] part, as a matter of law. It was not only [the driver's] duty to drive in the right-hand lane, but it was also his duty to keep his vehicle under proper control so as to avoid injury to others.
Brewer, 48 N.C.App. at 205, 268 S.E.2d at 230-31. Plaintiff's evidence in this case, when viewed in the light most favorable to plaintiff, is sufficient to allow a jury to find that Strickland was negligent in failing to keep his car under control even if he needed to avoid an animal and in failing to keep a proper lookout. See Troy v. Todd, 68 N.C.App. 63, 66, 313 S.E.2d 896, 898 (1984) (reversing directed verdict when the defendant struck a person walking on the side of the road at night and in dark clothes because "the failure of a motorist to see a person in or upon a roadway at night before striking him constitutes some evidence of negligence"); Sessoms, 47 N.C.App. at 580, 268 S.E.2d at 28 (holding that even though the defendant claimed he crossed the center line to avoid the plaintiff, the evidence permitted an inference that the defendant failed to exercise due care to avoid hitting the plaintiff in that he failed to keep a proper lookout or keep his car under proper control).
Defendants also argue that the evidence is merely speculative that Strickland, as opposed to someone else, struck Ligon. Strickland, however, admitted that Ligon was found entangled in the fence at the precise point where he struck the fence. In addition, the timing of his collision with the fence corresponds with the timing of Ligon being struck by a vehicle from behind. It is not speculation but rather a reasonable inference that only one car during the time frame of 12:30 to 1:00 a.m. ran off the road at the particular spot where Ligon was standing and struck the fence. Further, the state highway patrol trooper's report states that Strickland struck Ligon. While defendants *830 objected to the trial court's admission of the report, they have not challenged that ruling on appeal. This evidence, when viewed in the light most favorable to Ligon, was sufficient to allow a reasonable juror to disbelieve defendants' two vehicle theory and find that Strickland struck Ligon.
Defendants rely upon Thompson v. Coble, 15 N.C.App. 231, 189 S.E.2d 500, cert. denied, 281 N.C. 763, 191 S.E.2d 360 (1972) to support their argument that a directed verdict should have been granted. In Thompson, the plaintiff's evidence showed that the defendant was driving in the center of her lane with her lights on when she heard a noise. Id. at 232, 189 S.E.2d at 501. The defendant knew that she had hit something, but had not seen anything prior to hearing the noise. Id. Subsequently, using a flashlight, she and her husband found an injured man in a ditch. Id. This Court held that a directed verdict was appropriate because "[t]he jury would have to engage in pure speculation of how deceased was injured." Id. Similarly, in Whitson v. Frances, 240 N.C. 733, 738, 83 S.E.2d 879, 881 (1954), also cited by defendants, there was no evidence at all that the defendant's vehicle left the road, nor was there evidence as to where the deceased was standing when he was struck.
Unlike Thompson and Whitson, this case involves both (1) evidence permitting an inference that Strickland was negligent by crossing the center line and completely leaving the road and (2) evidence that Ligon, who was on the shoulder on the opposite side of the road, was injured by being struck from behind by a motor vehicle at generally the same time that Strickland was swerving. The question is only whether it was Strickland's car that struck Ligon. See Walker v. Pless, 11 N.C.App. 198, 199-200, 180 S.E.2d 471, 472 (1971) (reversing grant of directed verdict when the plaintiff was struck from behind by an automobile even though the plaintiff could not testify as to what happened other than that the defendant was at the scene immediately after he was hit). As this Court stated in Sessoms, 47 N.C.App. at 581, 268 S.E.2d at 29, "[w]e cannot imagine a more clearcut case for the twelve."
Contributory Negligence
Defendant next assigns error to the trial court's refusal to submit the issue of contributory negligence to the jury. When deciding whether to instruct the jury on contributory negligence,
[t]he trial court must consider any evidence tending to establish plaintiff's contributory negligence in the light most favorable to the defendant, and if diverse inferences can be drawn from it, the issue must be submitted to the jury. If there is more than a scintilla of evidence that plaintiff is contributorily negligent, the issue is a matter for the jury, not for the trial court.
Cobo v. Raba, 347 N.C. 541, 545, 495 S.E.2d 362, 365 (1998) (internal citations omitted).
In this case, the state trooper's report offered as evidence by Ligon, when viewed in the light most favorable to defendants, suggests that Ligon was standing in the road, as opposed to by the fence. The diagram drawn by Trooper Webb to reconstruct the accident has Ligon first being struck by Strickland's vehicle in the middle of the road and then being pushed to the fence. The narrative portion of the report states, consistent with the diagram, that "[t]he pedestrian was struck by Vehicle 1. Vehicle 1 and the pedestrian continued off the roadway to the left" before colliding with the fence. (Emphasis added.) In order to continue off the roadway after being struck, one must first be in the roadway. Although Ligon, at trial, challenged the basis for the officer's statement that Ligon was in the road, Ligon was the party who offered the officer's testimony and Ligon relied upon the report in establishing Strickland's negligence.
The jury should have had an opportunity to decide whether Ligon was in fact in the road. When this evidence is considered in addition to evidence that Ligon was walking along a road at night in dark clothes while intoxicated, we believe that the trial court erred in failing to present the issue of contributory negligence to the jury. Clark v. Bodycombe, 289 N.C. 246, 253-54, 221 S.E.2d 506, 511-12 (1976) (holding that contributory negligence instruction should have been given where plaintiff stepped a foot off of the *831 curb into the roadway when she was struck, which created "diverse inferences as to whether plaintiff acted in a reasonable manner and whether her acts proximately caused her injuries").
Defendants are, therefore, entitled to a new trial. Based upon our review of the issues and the evidence, we have concluded that the issues of negligence and contributory negligence "are so intertwined that the ends of justice will be best met by a new trial on both issues." Paris v. Carolina Portable Aggregates, Inc., 271 N.C. 471, 485, 157 S.E.2d 131, 142 (1967). See also McMahan v. Bumgarner, 119 N.C.App. 235, 238, 457 S.E.2d 762, 764 (1995) ("[S]ince the facts and issues surrounding defendant's counterclaim are inextricably intertwined with plaintiff's claim, a new trial should be granted on both claims so that all issues and legal theories that arise from the evidence can be presented to the jury.").
Sudden Emergency Doctrine
Because there will be a new trial on all issues, we need not fully address defendants' remaining assignment of error regarding the trial court's instruction on the sudden emergency doctrine. Nevertheless, because this issue is likely to recur at the second trial, we address it briefly. We agree with defendants that, based upon the evidence offered at trial, the court properly gave an instruction regarding sudden emergency. Defendants, however, have objected to the trial court's alteration of the pattern jury instruction (N.C.P.I.Civ. 102.15) (motor veh. vol.1996) by adding the following sentence: "This doctrine of sudden emergency only applies when a person is apparently or actually in danger. It does not apply if only a non-human animal is in danger."
In making this alteration, the trial court explained that he wanted to make sure that the jury understood that the doctrine applied only if the driver was acting to avoid danger to himself or to another person and did not apply if the driver swerved only "to save the life of an animal." Defendants do not disagree with the trial court's reasoning, but argue that a jury could misunderstand the instruction to preclude application of the doctrine if the animal in the road was in imminent danger regardless of any accompanying danger to the driver.
We believe it unlikely that the jury interpreted the instruction in that fashion given that the trial court's alteration of the pattern instruction stated that the doctrine "does not apply if only a non-human animal is in danger." (Emphasis added.) Nevertheless, on remand, we urge the trial court to take care to ensure that any sudden emergency instruction that is given focuses on whether the driver was "suddenly and unexpectedly confronted with imminent danger to himself or others." Holbrook v. Henley, 118 N.C.App. 151, 153, 454 S.E.2d 676, 677-78 (1995).
New trial.
Judges McGEE and TYSON concur.
NOTES
[1] At trial, defendants also pointed to the fact that the hospital report indicated that Ligon had trace amounts of benzodiazepines and opiates in his system. Two doctors, however, testified that they would expect those findings since such medications are routinely used in the emergency room for pain, sedation, and intubation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384815/ | 625 S.E.2d 291 (2005)
218 W.Va. 529
STATE of West Virginia ex. rel. James M. Wensell, Petitioner Below, Appellee,
v.
George TRENT, Warden, Respondent Below, Appellant.
No. 32567.
Supreme Court of Appeals of West Virginia.
Submitted: September 21, 2005.
Filed: November 29, 2005.
*293 Darrell V. McGraw, Jr., Esq., Attorney General, Robert D. Goldberg, Esq., Assistant Attorney General, Charleston, for Appellee.
Mark Pellegrin, Esq., Morgantown, for Appellant.
The Opinion of the Court was delivered PER CURIAM.
PER CURIAM.
This case is before this Court upon appeal of a final order of the Circuit Court of Monongalia County entered on July 15, 2004. In that order, the circuit court denied a petition for a writ of habeas corpus filed by James M. Wensell (hereinafter "the appellant"). In this appeal, the appellant contends that the circuit court erred by refusing to *294 grant his petition for habeas corpus relief based upon his claims of ineffective assistance of counsel[1] as well as his contention that there was a violation of Rule 404(b) of the West Virginia Rules of Evidence. The appellant is currently serving a sentence of no less than twenty-one years and no greater than fifty-five years for his conviction of thirteen counts of sexual felonies against his stepdaughters. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court did not commit reversible error and accordingly, affirm the decision below.
I.
FACTS
On January 4, 1996, the appellant was indicted on thirteen counts of sexual felonies committed against his stepdaughters, T.E. and A.E.,[2] for offenses committed between 1992 and 1995. The appellant was charged with eight counts of first degree sexual assault, three counts of first degree sexual abuse, and two counts of sexual abuse by a custodian.
The appellant was married to Bobbie Wensell in the summer of 1991. The victims, T.E. and A.E., were Ms. Wensell's two daughters from a previous marriage. T.E. was born on March 8, 1987, and A.E. was born on May 16, 1988. In August 1994, the appellant was arrested and pled guilty to domestic battery. It was throughout this same time period when Ms. Wensell began to notice bruises on her children. During the appellant's trial in the case at bar, Ms. Wensell, T.E., and A.E., testified to specific instances of physical abuse, sexual abuse, and intimidation by the appellant.
Following a four day trial which began on July 16, 1996, a jury found the appellant guilty on all thirteen counts. He was represented by Mr. Howard Higgins during his trial. On October 30, 1996, the appellant's motion for judgment of acquittal was granted as to one of the thirteen counts. With regard to the remaining twelve counts against him, the appellant was sentenced to no less than twenty-one years and no greater than fifty-five years in the State Penitentiary.
On October 18, 2001, the appellant filed a petition for State habeas corpus relief in the Circuit Court of Monongalia County. On July 15, 2004, following July 23, 2002, and August 23, 2002, omnibus evidentiary hearings, the circuit court denied relief. This appeal followed.
II.
STANDARD OF REVIEW
The appellant has presented assignments of error for our review surrounding the denial of his petition for a writ of habeas corpus based on his claim of ineffective assistance of counsel as well as his contention that the circuit court committed error by allowing evidence in violation of Rule 404(b) to be used against him during trial. In Syllabus Point 1 of State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), we held that "[f]indings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong." Generally applicable is our standard for conducting review of circuit court decisions, as restated in Phillips v. Fox, 193 W.Va. 657, 458 S.E.2d 327 (1995):
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Id. at 661, 458 S.E.2d at 331 (citing Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 *295 (1995)). With regard to the appellant's claim of ineffective assistance of counsel, this Court held in Syllabus Point 1 of State ex rel. Vernatter v. Warden, 207 W.Va. 11, 528 S.E.2d 207 (1999), as follows:
An ineffective assistance of counsel claim presents a mixed question of law and fact; we review the circuit court's findings of historical fact for clear error and its legal conclusions de novo. This means that we review the ultimate legal claim of ineffective assistance of counsel de novo and the circuit court's findings of underlying predicate facts more deferentially.
(Quoting State ex rel. Daniel v. Legursky, 195 W.Va. 314, 320, 465 S.E.2d 416, 422 (1995)). We further held in Syllabus Point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), that:
In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):(1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.
With these standards in mind, we proceed to review the trial court's rulings on the issue of habeas corpus relief to determine if any error was committed.
III.
DISCUSSION
The appellant raises two assignments of error in his appeal to this Court. For the reasons set forth below, we do not find merit in any of the assigned errors.
A. Ineffective Assistance of Counsel.
The appellant maintains in his first assignment of error that he was denied a fair trial due to ineffective assistance of counsel during his trial. The only allegations discussed in more than a cursory manner by the appellant are his trial counsel's failure to hire an investigator or to retain a psychological expert. The record shows that prior to the appellant's trial, the circuit court granted his trial counsel's motion to appoint a psychological expert as well as a private investigator. Nonetheless, the appellant's trial counsel did not acquire the services of either in preparation of his case. The appellant maintains that hiring such individuals would have assisted his trial counsel in cross-examining the victims and the State's witnesses. However, other than his general statements that the retention of a psychological expert and investigator would have been helpful to his defense, the appellant does not explain with particularity or give any specific instances as to how this actually harmed his defense.
The State contends that the circuit court correctly denied habeas relief based upon ineffective assistance of counsel and that the appellant simply was not able to meet the requirements of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifically, the State contends that even if the appellant's counsel was ineffective, "the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
In Syllabus Point 5, of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this Court provided: "In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):(1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Moreover, as stated in Syllabus Point 6 of Miller:
In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the *296 circumstances, as defense counsel acted in the case at issue.
See Syllabus Points 1 and 2, Ronnie R. v. Trent, 194 W.Va. 364, 460 S.E.2d 499 (1995). See also State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995), holding that counsel must make a "reasonable investigation" of the case in order to provide effective assistance to an accused in a criminal proceeding.
In the July 15, 2004, order, the circuit court found that not hiring a psychologist or investigator fell below professional standards, but that such conduct could not be determined to have had any substantial effect on the appellant's trial. After reviewing the entire record, we agree with the circuit court that the appellant's counsel's conduct fell below professional standards, but that the appellant has not shown how the shortcomings on the part of his trial counsel actually prejudiced him or had any substantial effect on the outcome of the trial.
With regard to his trial counsel's failure to hire an investigator, this Court believes that while the retaining of an investigator could have been helpful, the appellant has not shown any actual new, exculpatory evidence which might have been discovered had an investigator been hired. The result is that the circuit court and this Court are left to speculate regarding what, if any, exculpatory evidence might have been discovered through the hiring of an investigator in the underlying criminal trial. Unfortunately, this does not carry the day in a habeas corpus proceeding and this Court is not persuaded that, but for the appellant's failure to hire an investigator in the underlying criminal trial, there is a reasonable probability that the outcome of the trial would have been any different.
We have also carefully reviewed the appellant's contention of trial error with regard to his counsel's failure to retain a psychological expert. During the appellant's habeas corpus hearing before the circuit court he did retain Dr. David Clayman, a psychological expert, who submitted an affidavit of his findings as well as providing testimony at the omnibus hearing on behalf of the appellant. Dr. Clayman gave testimony regarding the areas where he believed the appellant's trial counsel fell short in cross-examining both of the psychological experts for the State. However, having carefully reviewed the affidavit submitted by Dr. Clayman, as well as the transcript of the testimony given by Dr. Clayman at the omnibus hearing, this Court does not believe that the appellant's counsel's failure to cross-examine these expert witnesses in these areas caused the appellant any substantial prejudice at trial. This is particularly true in consideration of the fact that nowhere within the affidavit or testimony of Dr. Clayman does he criticize the ultimate opinions which were rendered by the State's expert witnesses. In fact, Dr. Clayman affirmatively made it clear throughout his testimony and affidavit that he was not criticizing the ultimate opinions of either of these doctors, or the manner and procedure in which these opinions were derived. Moreover, Dr. Clayman specifically stated that the evaluations of the victims performed by the State's experts met "acceptable standards, both in procedure and content."
This Court would likely have been more persuaded that the appellant's trial counsel's failure to procure a psychological expert caused the petitioner prejudice at trial if his own expert witness, Dr. Clayman, had asserted any flaws with the State's experts' ultimate opinions; however, this clearly was not the nature of Dr. Clayman's opinion. Thus, this Court believes the appellant has not shown that the outcome of his trial would have been any different had the appellant's trial counsel retained a psychological expert.
At the end of the appellant's argument with regard to his ineffective assistance of counsel claim, he provides a laundry list of other alleged instances of ineffective assistance of counsel which amount to nothing more than general and bare allegations without any analysis, explanation, or legal citation. The appellant summarily states that his trial counsel: failed to object to hearsay evidence elicited from alleged victims' doctors, caseworkers, and psychologists; failed to object to statements by the victims' mother; failed to adequately cross-examine and attack the credibility and inconsistencies of *297 the alleged victims; failed to object to numerous instances of irrelevant evidence pertaining to prior bad acts and counseling; failed to object to the prosecution's experts rendering opinions that were not based upon a reasonable degree of medical probability or certainty; failed to properly investigate the appellant's case; failed to properly voir dire the jury panel; failed to properly voir dire and cross-examine the prosecution's experts; failed to follow-up on the motion for a bill of particulars after it was granted; and failed to object to the procedure that the court followed for allowing evidence under the West Virginia Rules of Evidence 404(b).
Although the appellant makes these claims, he does not provide to this Court any examples of how the circuit court acted in an erroneous manner or in a manner that was not consistent with the laws of West Virginia. Rather, the appellant's assertions lack reasonable specificity and particularity and are completely unsupported. In the absence of such supporting arguments or authority, we deem these assignments of error to have been waived. As we explained in State Dept. Of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995), "[a] skeletal `argument,' really nothing more than an assertion, does not preserve a claim.... Judges are not like pigs, hunting for truffles buried in briefs." (Citation omitted). Moreover, as we held in Syllabus Point 2 of WV Dept. of Health & Human Resources Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004), "`[a]n appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.' Syllabus Point 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966)."
Likewise, this Court has previously adhered to the rule that, "[a]lthough we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but are not supported with pertinent authority, are not considered on appeal." State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996). Accord State v. Allen, 208 W.Va. 144, 162, 539 S.E.2d 87, 105 (1999); State v. Easton, 203 W.Va. 631, 642 n. 19, 510 S.E.2d 465, 476 n. 19 (1998); State v. Lilly, 194 W.Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995).
Based upon all of the above as well as our thorough review of the record, we find that there is no merit to the appellant's allegations of ineffective assistance of counsel.
B. W.Va. R. Evid. 404(b)
Next, the appellant maintains that throughout the trial the State introduced testimony in violation of Rule 404(b)[3] of the West Virginia Rules of Evidence. Specifically, the appellant argues that the circuit court should have excluded testimony that he punished his stepdaughters by spanking them with a paddle board; that he smacked his stepdaughter with an open hand in 1992 causing facial bruises; that he assaulted his wife in a domestic dispute in 1994; and that he disciplined his stepchildren extensively in a non-physical manner such as sending them to their room.
The State responds that there was no violation of law in admitting the evidence. It argues that the purpose of the evidence was to further demonstrate the conditions in the home which caused the children to be fearful of making disclosures to anyone while the family resided together. Moreover, the showing that the incident had actually occurred was made by the appellant's guilty plea to a domestic battery charge in connection with that event. We agree.
*298 We have heretofore drawn a distinction between intrinsic and extrinsic evidence. In Syllabus Point 1 of State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978), we held that "[o]ther criminal act evidence admissible as part of the res gestae or same transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose." Moreover, in State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), addressing a father's conviction for the murder of his infant son, we explained as follows:
Evidence of the prior attacks and beatings not only demonstrated the motive and setup of the crime but also was necessary to place the child's death in context and to complete the story of the charged crime. We hold that historical evidence of uncharged prior acts which is inextricably intertwined with the charged crime is admissible over a Rule 403 objection.
196 W.Va. at 313, 470 S.E.2d at 632. We further explained that:
In determining whether the admissibility of evidence of "other bad acts" is governed by Rule 404(b), we first must determine if the evidence is "intrinsic" or "extrinsic." See United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990): "`Other act' evidence is `intrinsic' when the evidence of the other act and the evidence of the crime charged are `inextricably intertwined' or both acts are part of a `single criminal episode' or the other acts were `necessary preliminaries' to the crime charged." (Citations omitted). If the proffer fits in to the "intrinsic" category, evidence of other crimes should not be suppressed when those facts come in as res gestaeas part and parcel of the proof charged in the indictment. See United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980) (stating evidence is admissible when it provides the context of the crime, "is necessary to a `full presentation' of the case, or is ... appropriate in order `to complete the story of the crime on trial by proving its immediate context or the "res gestae"'"). (Citations omitted).
LaRock, 196 W.Va. at 312 n. 29, 470 S.E.2d at 631 n. 29.
We find that the evidence which the appellant challenges on this appeal was merely presented as context evidence illustrating why the appellant's stepdaughters were terrified of him and were fearful to report the appellant's conduct while the appellant was living under the same roof. It portrayed to the jurors the complete story of the inextricably linked events with regard to the interaction between the appellant and his stepdaughters and amounted to intrinsic evidence. Moreover, even though the State had no obligation to provide notice of Rule 404(b) evidence, it did so anyway in its initial discovery materials. The State advised of its intent to seek admission of the evidence because the excessive and harsh disciplinary measures by the appellant against his stepchildren provided the complete picture for the sexual abuse and explained the delay in reporting by the children until the time they were outside of the appellant's care, custody, and control. The State also advised of its intention to use evidence of a domestic violence episode in the home by the appellant against his wife, which was committed in the presence of the children. Clearly, the purpose of the evidence was to further demonstrate the conditions in the home which would cause the children to be fearful of making disclosures to anyone while the family resided together. The showing that the incident had actually occurred was made by the appellant's guilty plea to a domestic battery charge in connection with that event.
Our review of this matter did not reveal any abuse of discretion by the lower court, and we do not find that the lower court acted in an arbitrary or irrational manner. We consequently affirm on this ground.
IV.
CONCLUSION
Accordingly, for the reasons stated above, the final order of the Circuit Court of Monongalia County entered on July 15, 2004, is affirmed.
Affirmed.
NOTES
[1] It is noted that counsel for the appellant in this appeal did not represent the appellant at trial.
[2] This Court follows its past practice in sensitive cases and shall refer to the names of certain individuals by initials only. Department of Health and Human Resources ex rel. Mills v. Billy Lee C., 199 W.Va. 541, 543 n. 1, 485 S.E.2d 710, 712 n. 1 (1997); In re Danielle T., 195 W.Va. 530, 531 n. 1, 466 S.E.2d 189, 190 n. 1 (1995).
[3] Rule 404(b) of the West Virginia Rules of Evidence provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384825/ | 625 S.E.2d 852 (2006)
NAVISTAR FINANCIAL CORPORATION, Plaintiff/Appellant,
v.
E. Norris TOLSON, in his official capacity as the Secretary of the Department of Revenue of the State of North Carolina, Defendant/Appellee.
No. COA05-352.
Court of Appeals of North Carolina.
February 21, 2006.
Bell, Davis & Pitt, P.A. by D. Anderson Carmen and John W. Babcock, Winston-Salem, for plaintiff-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State.
*854 CALABRIA, Judge.
Navistar Financial Corporation ("plaintiff") appeals the order denying its motion for summary judgment and granting E. Norris Tolson ("defendant") summary judgment. We affirm.
Plaintiff, a Delaware corporation authorized to conduct business in North Carolina, is a subsidiary of International Truck and Engine Corporation ("International"), also a Delaware corporation. Although plaintiff's truck sales finance business is not located in North Carolina, plaintiff extends credit to North Carolina truck dealers as well as third persons. Dealers acquire inventory such as commercial medium and heavy duty trucks, tractors, and related equipment through "wholesale financing." The second type of financing plaintiff provides is "retail financing" for third persons purchasing trucks from dealers or directly from the manufacturer of the trucks.
In addition to direct loans, plaintiff purchases promissory notes and retains liens on personal property to secure payment of the obligation in the notes. Specifically, as promissory notes are executed by both North Carolina dealerships and third persons, plaintiff retains a security interest in each customer's personal property located in North Carolina. The wholesale financing branch of the business reserves liens on the current and after-acquired inventory of the dealer, however in the retail financing branch, liens are reserved on the financed equipment.
From 1 January 2000 through 31 March 2003, plaintiff engaged in business with twenty-eight North Carolina dealerships. Over that same time period, plaintiff paid over seven hundred thousand dollars in North Carolina installment paper dealer taxes pursuant to N.C. Gen.Stat. § 105-83.
On 19 June 2003, plaintiff filed a complaint alleging the following: "taxes paid by [plaintiff]... pursuant to N.C. Gen.Stat. § 105-83 which result from [plaintiff's]" wholesale and retail financing business "during the period of 1 January 2000 through 31 March 2003 were overpayments;" taxes assessed pursuant to § 105-83 were invalid because plaintiff did not "engage in North Carolina in the business of dealing in ... installment paper... in connection with" either its wholesale or retail business "within the meaning of N.C. Gen.Stat. § 105-83;" "[a]ll material activities incident to the assignment of promissory notes between International and [plaintiff] took place outside of North Carolina;" and, plaintiff "is entitled to a judgment against the [North Carolina] Department of Revenue refunding $693,788.79 ... respect[ing] its wholesale financing operations" and "$14,830.62 ... respect[ing] its retail financing operations."
Cross motions for summary judgment were heard on 27 October 2004. The court determined there was no genuine issue as to any material fact with regard to the claims stated in plaintiff's complaint and granted defendant's motion for summary judgment on 17 November 2004. Plaintiff appeals.
I. Summary Judgment:
Plaintiff first argues the trial court erred by denying their summary judgment motion and granting defendant the same due to the following assertions: N.C. Gen.Stat. § 105-83 is not applicable to either plaintiff's wholesale or retail financing business; that North Carolina precedent requires a refund of taxes paid; and that material issues of fact remain rendering summary judgment inappropriate. We disagree.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). "[B]efore summary judgment will be properly entered, *855 the moving party has the burden to show the lack of a triable issue of fact and ... that he is entitled to judgment as a matter of law." Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E.2d 436, 441 (1982) (emphasis added). The movant carries this burden "by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim." Zimmerman v. Hogg & Allen, Prof'l. Ass'n., 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1974). "[A]ll inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion." Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (internal quotations and citation omitted).
I(a). Applicability of N.C. Gen.Stat. § 105-83:
N.C. Gen.Stat. § 105-83, in pertinent part, provides
Every person engaged in the business of dealing in, buying, or discounting installment paper, notes, bonds, contracts, or evidences of debt for which, at the time of or in connection with the execution of the instruments, a lien is reserved or taken upon personal property located in this State to secure the payment of the obligations, shall submit to the Secretary ... a full ... statement ... of the total face value of the obligations dealt in, bought, or discounted within the preceding three calendar months and, at the same time, shall pay a tax of two hundred seventy-seven thousandths of one percent (.277%) of the face value of these obligations.
N.C. Gen.Stat. § 105-83(a) (2005) (emphasis added). Plaintiff contends that "because they do not in North Carolina carry on the business of an installment dealer," N.C. Gen. Stat. § 105-83 does not apply to either its wholesale or retail financing business.
"Statutory interpretation properly begins with an examination of the plain words of the statute." State ex rel. Banking Comm'n v. Weiss, ___ N.C.App. ___, ___, 620 S.E.2d 540, 543 (2005) (quoting Three Guys Real Estate v. Harnett County, 345 N.C. 468, 472, 480 S.E.2d 681, 683 (1997)). Consequently, "[w]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning." Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). According to Black's Dictionary, "plain meaning" is "[t]he meaning attributed to a document by giving the words their ordinary sense, without referring to extrinsic indications of the author's intent." Black's Law Dictionary 1002 (8th ed.2004). Thus, the statute "must be given effect and its clear meaning may not be evaded by an administrative body or a court under the guise of construction." State ex rel. Utilities Comm'n v. Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977).
N.C. Gen.Stat. § 105-83 applies to any individual "dealing in" or buying installment paper obligations secured by personal property located in North Carolina. Simply put, there is no requirement in N.C. Gen. Stat. § 105-83 limiting the liability for this tax provision to individuals in the installment paper business only located in North Carolina. The essential nexus for application of the statute's tax provision is that the individual "dealing in" or buying installment paper secures repayment of the obligation by attaching a lien to personal property located in North Carolina. Thus, when appellant secured repayment of promissory notes by attaching liens on personal property located in North Carolina, N.C. Gen.Stat. § 105-83 became applicable. Consequently, appellant's assertion that the activities directly related to the actual transfer of the obligation the execution, payment, and assignment of the promissory note must occur within North Carolina to incur tax liability are unavailing. Therefore, because appellant engaged in the business of buying installment paper reserving liens on property located in North Carolina, appellant was properly assessed tax under N.C. Gen.Stat. § 105-83 since this statute imposes a tax for the privilege of carrying on business in the State of North Carolina. Furthermore, according to the plain language of the statute, there is no differentiation or distinction to be made as to *856 whether the business is of the wholesale, retail or hybrid variety. Thus, based upon the above analysis, N.C. Gen.Stat. § 105-83 is applicable to both appellant's wholesale and retail financing business.
I(b). Precedent:
Plaintiff further contends Chrysler Fin. Co., LLC v. Offerman, 138 N.C.App. 268, 531 S.E.2d 223 (2000), is controlling precedent and consequently, necessitates a refund. This Court addressed two essential questions in Chrysler based upon an old version of N.C. Gen.Stat. § 105-83[1]: "whether: (I) Chrysler Financial is engaged in the business of dealing in ... installment paper within the meaning of N.C. Gen.Stat. § 105-83 and, if so; (II) [whether] Chrysler Financial engaged in this business in the State of North Carolina within the meaning of N.C. Gen. Stat. § 105-83." Id., 138 N.C.App. at 272, 531 S.E.2d at 225. This Court read the old statutory language to require that "both the assignment of a receivable take place in North Carolina and that a lien be reserved or taken upon property located in North Carolina." Id. Because the old version of N.C. Gen.Stat. § 105-83 required any person engaging in the business of dealing in installment paper to procure a state license if "purchasing such obligations in this State," this Court correctly ascertained in Chrysler that plaintiff had to engage in North Carolina in the business of an installment paper dealer for the tax to apply. However, in the instant case, there is no statutory command requiring a state license to buy obligations in this State as part of N.C. Gen.Stat. § 105-83. Thus, absent such a requirement, N.C. Gen. Stat. § 105-83 is applicable whether or not individuals engage in the business of an installment paper dealer in North Carolina as long as they reserve liens on property located in North Carolina to secure the obligation. Therefore, Chrysler is not controlling precedent and plaintiff is not entitled to a refund under its rationale.
I(c). Material Issues of Fact:
Plaintiff finally contends material issues of fact exist which precluded the trial court granting summary judgment for defendant. Plaintiff expressly contends the question before this Court is "whether there is a material issue of fact that [plaintiff] conducts activity in North Carolina which is sufficiently incident to the receipt of promissory notes from [International] to justify taxation." In section I(a). of this opinion, "Applicability of N.C. Gen.Stat. § 105-83," we determined "when appellant secured repayment of promissory notes by attaching liens on personal property located in North Carolina, N.C. Gen.Stat. § 105-83 became applicable." Because we have already determined plaintiff engaged in activity warranting application of the § 105-83 tax, there is no genuine issue of material fact regarding plaintiff's actions within North Carolina as it relates to justification of the assessed tax under § 105-83. "When any ... activity incident to ... [the] business [of dealing in, buying and/or discounting installment paper] occurs in North Carolina, G.S. 105-83 applies." 17 NCAC 4B.2905 (June 2002). The assignments of error relating to summary judgment, numbers one through five and eight through ten, are overruled.
II. Due Process and Commerce Clauses:
II(a). Due Process Clause:
Plaintiff argues application of N.C. Gen.Stat. § 105-83 violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. We disagree. The United States Supreme Court has held "[t]he Due Process Clause `requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax [.]'" Quill Corp. v. North Dakota, 504 U.S. 298, 306, 112 S. Ct. 1904, 119 L. Ed. 2d 91, 102 (1992) (quoting Miller Brothers Co. v. Maryland, 347 U.S. 340, 344-45, 74 S. Ct. 535, 98 L. Ed. 744, 748 (1954)). Further, "`income attributed to the *857 State for tax purposes must be rationally related to values connected with the taxing State.'" Id. (quoting Moorman Mfg. Co. v. Bair, 437 U.S. 267, 273, 98 S. Ct. 2340, 57 L. Ed. 2d 197, 204 (1978)). Since "[d]ue process centrally concerns the fundamental fairness of governmental activity ... due process... analysis requires that we ask whether an individual's connections with a State are substantial enough to legitimate the State's exercise of power over him." Id., 504 U.S. at 312, 112 S.Ct. at 1913, 119 L.Ed.2d at 106.
Plaintiff asserts there must be a sufficient nexus between the activity taxed and the activity of the taxpayer within the taxing statute for the application of the tax to be constitutional and not offend due process. Plaintiff contends the transfer of promissory notes from International to them is the activity being taxed and moreover, because this activity occurred exclusively in Illinois, they lack the necessary connections with North Carolina to justify imposition of the § 105-83 tax. Plaintiff's argument is unavailing.
In the instant case, plaintiff has substantial connections necessary for the State to legitimately levy taxes upon its business and not violate the Due Process Clause. Plaintiff executed promissory notes with North Carolina dealerships as well as third persons and further, purchased contracts from International which had reserved liens upon each customer's personal property located in North Carolina. Numerous liens secured payments to the plaintiff for obligations in promissory notes. Thus, from 1 January 2000 through 31 March 2003, plaintiff engaged in wholesale and retail transactions with a variety of North Carolina businesses and individuals. In fact, plaintiff admits "[they] do[ ] business in North Carolina." Furthermore, the activity being taxed is not, as plaintiff believes, the specific transfer of promissory notes, but rather, according to the express language of § 105-83, the business of "dealing in" installment paper for which liens are reserved upon personal property located in North Carolina. Accordingly, N.C. Gen.Stat. § 105-83 taxes business activities rationally related to values connected with North Carolina. Thus, according to Quill, supra, there exists (1) plentiful minimum connections between the plaintiff's wholesale and retail business and North Carolina and (2) a rational relationship between the business activity taxed and values associated with North Carolina to justify the State's imposition of the § 105-83 tax. Consequently, plaintiff has "purposefully avail[ed] itself of the benefits of an economic market in [North Carolina]." Id., 504 U.S. at 307, 112 S.Ct. at 1910, 119 L.Ed.2d at 103. This assignment of error is overruled.
II(b). Commerce Clause:
The plaintiff next argues application of N.C. Gen.Stat. § 105-83 violates the Commerce Clause, Article I, Section 8 of the United States Constitution. We disagree. The Constitution expressly grants to Congress the power to "regulate [c]ommerce with foreign [n]ations, and among the several [s]tates[.]" U.S. Const. art. I, § 8, cl. 3. Moreover, "the Commerce Clause is more than an affirmative grant of power; it has a negative sweep as well" in that "`by its own force' [it] prohibits certain state actions that interfere with interstate commerce." Quill, 504 U.S. at 309, 112 S.Ct. at 1911, 119 L.Ed.2d at 104 (quoting South Carolina State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 185, 58 S. Ct. 510, 82 L. Ed. 734, 739 (1938)). This notion of a "dormant" Commerce Clause means "[a] State is ... precluded from taking any action which may fairly be deemed to have the effect of impeding the free flow of trade between States." Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 278, 97 S. Ct. 1076, 51 L. Ed. 2d 326, 330 n. 7 (1977) (citations and internal quotation marks omitted).
Under the Complete Auto test, a state tax will be sustained as constitutional under the Commerce Clause so long as the "tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." Id., 430 U.S. at 279, 97 S.Ct. at 1079, 51 L.Ed.2d at 331. In Quill, the United States Supreme *858 Court described the effect of the Complete Auto test in the following manner:
The second and third parts of that analysis, which require fair apportionment and non-discrimination, prohibit taxes that pass an unfair share of the tax burden onto interstate commerce. The first and fourth prongs, which require a substantial nexus and a relationship between the tax and state-provided services, limit the reach of state taxing authority so as to ensure that state taxation does not unduly burden interstate commerce.
Quill, 504 U.S. at 313, 112 S.Ct. at 1913, 119 L.Ed.2d at 107. A thorough analysis of each prong of the Complete Auto test reveals N.C. Gen.Stat. § 105-83 does not violate the Commerce Clause.
First, as to the initial prong of the Complete Auto test, that the tax is applied to an activity with a substantial nexus to the taxing state, plaintiff merely reasserts their due process argument. This argument was refuted above and is equally unavailing here. In the instant case, plaintiff's business of dealing in installment paper has a substantial nexus with North Carolina. Plaintiff purchased installment paper from North Carolina wholesale and retail businesses and individuals and secured the multiple obligations to repay the promissory notes by reserving liens upon personal property located in North Carolina. Thus, application of N.C. Gen.Stat. § 105-83 to plaintiff's business complies with the first prong of Complete Auto.
The second prong of the Complete Auto test requires an answer to whether the tax is fairly apportioned. "[T]he central purpose behind the apportionment requirement is to ensure that each State taxes only its fair share of an interstate transaction." Goldberg v. Sweet, 488 U.S. 252, 260-61, 109 S. Ct. 582, 102 L. Ed. 2d 607, 616 (1989) (emphasis added). "[W]e determine whether a tax is fairly apportioned by examining whether it is internally and externally consistent." Id., 488 U.S. at 261, 109 S.Ct. at 589, 102 L.Ed.2d at 616.
The first ... component of fairness in an apportionment formula is what might be called internal consistencythat is the formula must be such that, if applied by every jurisdiction, it would result in no more than all of the ... business's income being taxed. The second and more difficult requirement is what might be called external consistencythe factor or factors used in the apportionment formula must actually reflect a reasonable sense of how income is generated.
Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 169, 103 S. Ct. 2933, 77 L. Ed. 2d 545, 556 (1983) (emphasis added). Consequently, "[t]o be internally consistent, a tax must be structured so that if every State were to impose an identical tax, no multiple taxation would result." Goldberg, 488 U.S. at 261, 109 S.Ct. at 589, 102 L.Ed.2d at 617. Conversely, "[t]he external consistency test asks whether the State has taxed only that portion of the revenues from the interstate activity which reasonably reflects the in-state component of the activity being taxed." Id., 488 U.S. at 262, 109 S.Ct. at 589, 102 L.Ed.2d at 617. Importantly, "[t]he Constitution does not invalidat[e] an apportionment formula whenever it may result in taxation of some income that did not have its source in the taxing State." Container Corp., 463 U.S. at 169-70, 103 S.Ct. at 2942, 77 L.Ed.2d at 556 (citation and internal quotation marks omitted). However, the United States Supreme Court "will strike down the application of an apportionment formula if the taxpayer can prove by clear and cogent evidence that the income attributed to the State is in fact out of all appropriate proportions to the business transacted ... in that State, or has led to a grossly distorted result." Id., 463 U.S. at 170, 103 S.Ct. at 2942, 77 L.Ed.2d at 556 (citations and internal quotation marks omitted).
Plaintiff failed to prove by "clear and cogent evidence" the revenue paid to North Carolina through application of the § 105-83 tax is either out of reasonable proportion to the business transacted by plaintiff or has led to a grossly distorted result. First, plaintiff renews their argument that the activity subject to the tax occurred outside of North Carolina and thus there was no apportionment provision in the statute. In fact, as to the "external consistency" branch of the apportionment *859 prong, this is plaintiff's entire argument. This argument was dismissed under our analysis regarding due process and remains unavailing here as well for the activities taxed under § 105-83, including transacting with North Carolina wholesalers and retailers for installment paper and securing those debt obligations through liens reserved on personal property located in North Carolina, were certainly, according to Goldberg, supra, in-state components of the activity being taxed.
Second, plaintiff contends the tax violates the "internal consistency" branch of the apportionment prong in that they would be subject to multiple taxation were another state to enact identical legislation to N.C. Gen.Stat. § 105-83. However, "[i]nternal consistency is preserved when the imposition of a tax identical to the one in question by every other State would add no burden to interstate commerce that intrastate commerce would not also bear." Oklahoma Tax Comm'n v. Jefferson Lines, 514 U.S. 175, 185, 115 S. Ct. 1331, 131 L. Ed. 2d 261, 271 (1995) (emphasis added). Consequently, "[t]his test asks nothing about the degree of economic reality reflected by the tax, but simply looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with commerce intrastate." Id., 514 U.S. at 185, 115 S.Ct. at 1338, 131 L.Ed.2d at 271-72.
In the instant case, if any other state passed a statute identical to N.C. Gen.Stat. § 105-83, that state would tax the following business activity: the purchase of installment paper when, at the time of the execution of the instrument, to secure that obligation, a lien was reserved upon personal property located within the taxing state. Practically speaking then, if Virginia passed such a statute, it would tax such business only if liens were reserved upon personal property located in Virginia, not North Carolina. Consequently, according to Goldberg, supra, there is no danger of multiple taxation because as to that individual business transaction only the state where liens are reserved could impose the tax. Thus, N.C. Gen.Stat. § 105-83 complies with the second prong of Complete Auto.
The third prong of the Complete Auto test requires an answer to whether the state tax discriminates against interstate commerce. "A State may not impose a tax which discriminates against interstate commerce... by providing a direct commercial advantage to local business." Jefferson Lines, 514 U.S. at 197, 115 S.Ct. at 1334, 131 L.Ed.2d at 279 (citation and internal quotation marks omitted). Consequently, "States are barred from discriminating against foreign enterprises competing with local businesses and from discriminating against commercial activity occurring outside the taxing State[.]" Id. (citations omitted).
In the instant case, N.C. Gen.Stat. § 105-83 does not discriminate against foreign enterprises competing with local businesses as each must pay the privilege tax if they purchase installment paper reserving liens upon property located in North Carolina. This in no way limits interstate commercial activity for no advantage is given to in-state businesses liable under N.C. Gen.Stat. § 105-83 for taxes due when compared to out-of-state businesses engaged in the identical practice. Thus, N.C. Gen.Stat. § 105-83 complies with the third prong of the Complete Auto test.
The fourth prong of the Complete Auto test requires an answer to whether the tax is fairly related to the services provided by the State. "The purpose of this test is to ensure that a State's tax burden is not placed upon persons who do not benefit from services provided by the State." Goldberg, 488 U.S. at 266-67, 109 S.Ct. at 592, 102 L.Ed.2d at 620. Moreover,
[t]he fair relation prong ... requires no detailed accounting of the services provided to the taxpayer on account of the activity being taxed ... [for] [i]f the event is taxable, the proceeds from the tax may ordinarily be used for purposes unrelated to the taxable event. Interstate commerce may thus be made to pay its fair share of state expenses and contribute to the cost of providing all governmental services, including those services from which it arguably receives no direct benefit.
*860 Jefferson Lines, 514 U.S. at 199-200, 115 S.Ct. at 1345-46, 131 L.Ed.2d at 281 (emphasis added) (citation and internal quotation marks omitted). Consequently, "the measure of the tax [need only] be reasonably related to the taxpayer's presence or activities in the State." Id., 514 U.S. at 200, 115 S.Ct. at 1346, 131 L.Ed.2d at 281.
The tax is reasonably related to plaintiff's presence and activities in North Carolina. Specifically, plaintiff executed promissory notes with North Carolina dealerships as well as third persons and further, retained liens through customers upon personal property located in North Carolina. Numerous liens secured payments on obligations in promissory notes. Thus, from 1 January 2000 through 31 March 2003, plaintiff engaged in wholesale and retail transactions with a variety of North Carolina businesses and individuals. Under the rationale provided in Jefferson Lines, supra, the tax was fairly related to the services provided by North Carolina. Thus, N.C. Gen.Stat. § 105-83 complies with the fourth and final prong of the Complete Auto test. This assignment of error is overruled.
In sum, we affirm the trial court's grant of defendant's motion for summary judgment and further find N.C. Gen.Stat. § 105-83 does not violate either the Due Process Clause or Commerce Clause of the United States Constitution.
Affirmed.
Judges HUDSON and BRYANT concur.
NOTES
[1] The old version of N.C. Gen.Stat. § 105-83, applicable in Chrysler, 138 N.C.App. at 272, 531 S.E.2d at 225-26, included the following pertinent language absent from the current version applicable in the instant case: "Every person ... shall apply for and obtain from the Secretary a State license for the privilege of engaging in such business or for the purchasing of such obligations in this State ...." (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384837/ | KAREN M. MORRILL (now Harris), Plaintiff
v.
GREGORY P. MORRILL, Defendant
No. COA05-691
North Carolina Court of Appeals
Filed February 7, 2006
This case not for publication
Rowan County No. 99 CVD 1394.
The Law Office of Randell F. Hastings, by Randell F. Hastings, for plaintiff-appellant.
Robert L. Inge for defendant-appellee.
HUNTER, Judge.
Karen M. Harris ("plaintiff") appeals from an order of the trial court denying her motion to modify an order of visitation and dismissing as moot a motion to modify custody filed by her former husband, Gregory P. Morrill ("defendant"). Plaintiff contends that several of the trial court's findings are unsupported by substantial evidence, and that these findings in turn do not support its order. For the reasons stated herein, we affirm the decision of the trial court.
Plaintiff and defendant were married on 3 February 1990 and separated on 4 May 1998. Two children were born of the marriage: Brittany, born 16 September 1991, and Ryan, born 1 April 1995. The parties entered into a consent judgment filed 6 April 2000 in which they agreed that plaintiff should have primary custody of the children, with general and specific visitation privileges for defendant. The consent judgment also provided that defendant should pay monthly child support in the amount of $625.00.
On 8 June 2004, plaintiff filed a motion to modify the existing consent judgment with respect to visitation. In her motion, plaintiff alleged that she had remarried and that her husband had obtained new employment as a pastor in Texas. As a result, plaintiff intended to relocate to Texas and to take the children with her. Plaintiff sought to modify the consent judgment with respect to visitation in order to accommodate the planned relocation.
Defendant filed a reply and counter-motion alleging that plaintiff's anticipated move to Texas would adversely affect his relationship with the children and would constitute a substantial change in circumstances warranting a change in custody. Defendant therefore requested that the trial court grant him custody of the children.
Plaintiff's and defendant's motions came before the trial court on 22 July 2004. After presentation of the evidence and arguments by counsel, the trial court found and concluded that the proposed relocation of the children would likely adversely affect their welfare, and that it was not in the best interests of the children to modify the existing visitation order. The trial court therefore denied plaintiff's motion to modify visitation and dismissed defendant's motion to modify custody as moot. Plaintiff appeals.
We note initially the proper standard of review for appeals from custody decisions. "In cases involving child custody, the trial court is vested with broad discretion." Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 97 (2000). Child custody determinations expressly include visitation rights. See id.; N.C. Gen. Stat. § 50A-102(3) (2005). The trial court's decision will not be upset on appeal absent a clear showing of abuse of discretion. Browning, 136 N.C. App. at 423, 524 S.E.2d at 97. "A trial court's findings of fact in a bench trial have the force of a jury verdict and are conclusive on appeal if there is evidence to support them." Id. at 423, 524 S.E.2d at 98. The trial court's conclusions of law are reviewable de novo, however. Id.
By her first assignment of error, plaintiff argues there was insufficient evidence to support Findings of Fact Numbers 24 and 25, which provide as follows:
24. It would be expensive to fly two (2) children and pay unaccompanied minor fees for trips to North Carolina.
25. The household incomes of the parties make it unlikely that the children could be flown to North Carolina from Texas several times a year for visits with their father.
Plaintiff contends there was insufficient evidence to support these findings. We do not agree.
Plaintiff submitted various quotes from airline carriers concerning fares for round-trip flights between several cities in North Carolina and several cities in Texas. The quoted pricesranged from $203.00 to $305.00 per ticket. In addition, several of the airline carriers required additional service fees if the children traveled alone. For example, the quoted price for the unaccompanied minor fee for US Airways ranged from $40.00 to $75.00 each way. Thus, at a minimum, the cost of flying the children round-trip between North Carolina and Texas was $406.00, with a maximum of $760.00. Although cost is always a relative matter, such evidence in the instant case supports the trial court's finding that it would be expensive to fly the children and pay unaccompanied minor fees for trips to North Carolina.
There was also sufficient evidence to support the trial court's finding that it was unlikely that the children could be flown to North Carolina from Texas several times a year for visits with their father. Plaintiff testified that the "package" offered to her husband at his new position in Texas was $75,000.00. According to exhibits, $36,500.00 of the package represented his actual base salary, with the remainder being amounts allotted for a housing allowance, insurance, and other benefits. Plaintiff's husband earned "a little over [$]60,000.00" per year prior to leaving his former employment. Plaintiff stated she currently earned approximately $36,000.00 per year, but that she had no plans to seek employment in Texas. Plaintiff agreed that the move to Texas would result in a net loss of income to the family. Moreover, plaintiff declined to pay for the children's trips back to North Carolina, testifying instead that she "would hope we could work that out." Plaintiff further objects to Finding of Fact Number 27, which states: "Should the children relocate to Texas, it is unlikely that a realistic visitation schedule can be arranged which will preserve and foster their great relationship with their father." Plaintiff argues this finding is unsupported by the evidence. However, plaintiff did not object to any of the following findings:
9. There is currently a successful custody-visitation arrangement in which both parents have substantial contact with said children.
. . .
11. The children are currently involved in and excel in sporting activities and both parents attend as many athletic events of the children as their schedules allow.
12. The children's father attends school open houses and Parent Teacher Organization meetings. . . .
13. Relocation to Texas would eliminate the ability of the children to have the defendant involved in their schooling and sporting events.
14. The defendant spends time each week with the children on Tuesdays and provides horseback riding lessons for Brittany.
. . .
16. Relocation to Texas would prevent the frequent contact enjoyed between the defendant and the children.
17. The children and the defendant have an excellent and loving relationship.
. . .
26. Plaintiff believes the children should not be away from her for more than a week at a time and is not willing for the children to spend their entire summer break in North Carolina with the defendant.
These findings, to which plaintiff did not object and are therefore conclusive, establish that defendant and the children currently have "an excellent and loving relationship" in which they enjoy weekly contact with one another. Defendant is involved in the children's school and sporting events. Relocation to Texas would prevent defendant from being involved in these events, and would prevent the frequent contact currently enjoyed between defendant and the children. Plaintiff would not agree to the children being away from her for more than one week at a time. Given these facts, the trial court had substantial evidence to support its Finding of Fact Number 27.
By her third assignment of error, plaintiff contends the trial court erred in concluding that the proposed relocation would likely adversely affect the welfare of the children. Plaintiff argues this conclusion is unsupported by the findings. We disagree.
In addition to the above-listed findings of fact concerning the detriment to defendant's relationship with his children should the relocation take place, the trial court also found that:
10. The children have lived in the same community all or nearly all their lives and are thriving in said community.
. . .
18. The children have only been to Texas one (1) time and do not know anyone in the community other than the people they met at church on one (1) occasion.
. . .
20. The children are excelling and thriving in their current situation.
Plaintiff did not object to these findings. "[I]t will be a rare case where the child will not be adversely affected when a relocation of the custodial parent and child requires substantial alteration of a successful custody-visitation arrangement in which both parents have substantial contact with the child." Ramirez-Barker v. Barker, 107 N.C. App. 71, 79, 418 S.E.2d 675, 680 (1992) (concluding there was sufficient evidence to support the trial court's findings that the proposed relocation of the mother and child to California would likely adversely affect the welfare of the child), overruled in part on other grounds, Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). Given the trial court's findings regarding the detrimental effect of the proposed move on the relationship between defendant and his children, which were supported by substantial evidence, along with the findings that the children are currently excelling and thriving, the trial court did not err in concluding that the proposed relocation would likely adversely affect the children.
Finally, plaintiff argues the trial court erred in concluding that it was not in the best interests of the children to modify the current order and in denying her motion to modify visitation. "In making the best interest decision, the trial court is vested with broad discretion and can be reversed only upon a showing of abuse of discretion." Id. at 79, 418 S.E.2d at 680. Plaintiff's contentions rely mainly on her previous arguments that there was insufficient evidence to support key findings of fact by the trial court. However, as previously stated, the trial court did not err in its findings or conclusions, and we therefore overrule plaintiff's final argument.
The order of the trial court is affirmed.
Affirmed.
Judges WYNN and JACKSON concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384853/ | 125 S.W.3d 505 (2003)
Consuelo FREEMAN, Appellant,
v.
The STATE of Texas.
No. 2156-01.
Court of Criminal Appeals of Texas.
November 5, 2003.
Rehearing Denied February 4, 2004.
*506 Yolanda Gutierrez Burns, Corpus Christi, for Appellant.
Douglas K. Norman, Assistant District Attorney, Corpus Christi, Matthew Paul, State's Attorney, Austin, for State.
OPINION
HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.
In this case, we decide that the record does not support the decision of the Court of Appeals on an ineffective assistance of counsel claim that appellant raised for the first time on direct appeal.
Appellant raised several ineffective assistance of counsel claims for the first time on direct appeal without having developed a record in the trial court during the trial or during a motion for new trial hearing for the purpose of establishing these claims. In a 2-1 decision, the Court of Appeals held that appellant's trial counsel was ineffective for failing to file a motion to recuse the trial judge because of comments the trial judge made which appellant claimed raised the issue of the trial judge's impartiality. See Freeman v. State, No. 13-98-587-CR slip op. at 7 (Tex. App.-Corpus Christi, delivered August 16, 2001) (nonpublished). The dissenting opinion claimed that, in the absence of a more fully developed record, the presumption that counsel's conduct was reasonable was not overcome. See Freeman, slip op. at 1-2 (Hill, J., dissenting); see also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984) (counsel's conduct presumed reasonable).
We exercised our discretionary authority to review this decision. The sole ground upon which we granted the State's discretionary review petition states:
Did the Court of Appeals err when it effectively held that the failure to seek recusal of the trial judge was per se ineffective assistance of counsel as a matter of law, in conflict with the dissenting opinion, with another court of appeals, and on an important question of state and federal law that has not been, but should be, settled by the Court of Criminal Appeals?
We have held several times that in cases like this "the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." See, e.g., Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Cr.App.1999). The United States Supreme Court generally agrees. See Massaro v. United States, 538 U.S. 500, , 123 S. Ct. 1690,1694, 155 L. Ed. 2d 714 (2003) (when ineffective assistance of counsel claim is raised on direct appeal, "appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose").
The record in this case is insufficient to support the conclusion reached by the Court of Appeals on the ineffective assistance of counsel claim it addressed because appellant did not develop a record in the *507 trial court for the purpose of establishing this claim. See Thompson, 9 S.W.3d at 815. The Supreme Court in dicta did state in Massaro that some ineffective assistance of counsel cases may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." See Massaro, ___ U.S. at ___, 123 S.Ct. at 1696. Without more guidance from the Supreme Court, however, we decline to hold that this is such a case. See Freeman, slip op. at 1-2 (Hill, J., dissenting).
The judgment of the Court of Appeals is reversed and the case is remanded there for further proceedings consistent with this opinion.
MEYERS, J., filed a dissenting opinion in which PRICE, J., joined.
PRICE, J., filed a dissenting opinion in which MEYERS, and JOHNSON, JJ., joined.
MEYERS, J., dissenting in which PRICE, J., joined.
The issue in this case is whether the Court of Appeals erred by holding that the failure to seek recusal of the trial judge was ineffective assistance of counsel. The majority's opinion, however, fails to address this issue and instead concludes that the Court of Appeals erred by addressing the merits of a claim that was raised for the first time on direct appeal. The State doesn't ask us to say that the Court of Appeals erred in addressing this point, only that it was wrong in holding that it was per se ineffective assistance of counsel to fail to seek recusal. In fact, in its brief, the State presents interesting arguments concerning whether this type of error could be per se ineffective assistance of counsel. As indicated by both the opinion of the Court of Appeals and the dissenting opinion by Justice Hill, this case was well briefed and could properly be answered on direct appeal. Additionally, Judge Price's dissenting opinion actually addresses the ground for review brought by the State. Why don't we just improvidently grant this case if we are not going to answer the question that was asked? Because the majority resolves this case without considering the ground for review which was granted by this Court, I respectfully dissent.
PRICE, J., dissenting which MEYERS, and JOHNSON, JJ., joined.
The appellant was charged with retaliation for threatening witnesses who were to testify at her son's community supervision revocation hearing. The trial judge who presided over the revocation hearing also presided over her trial and made several comments on the record about his prior involvement in the case.[1] The appellant's trial counsel did not file a motion to recuse the trial judge. On direct appeal, the Court of Appeals held that trial counsel provided ineffective assistance of counsel in failing to file a motion to recuse the trial judge. Freeman v. State, No. 13-98-587-CR (Tex.App.-Corpus Christi Aug. 16, 2001) (not designated for publication). Today the Court summarily concludes that the record does not support the Court of Appeals's decision. Because I believe that the record was adequate and that there was no reasonable trial strategy for the attorney's failure to file a motion to recuse the trial judge in this case, I dissent.
I. Facts
During the appellant's son's community supervision revocation hearing, the trial *508 judge noticed that two witnesses seemed reluctant to testify against the appellant's son. The trial judge pulled the witnesses aside and questioned them about their reluctance to testify. During the questioning, the witnesses said that the appellant threatened to retaliate against them if they testified against her son. The trial judge notified the proper state authorities who fully investigated matter. It is not clear from the record what, if any, further disciplinary measures the trial judge took to prevent further disruption of the revocation hearing.
On April 20, 1998, authorities arrested the appellant on a warrant alleging retaliation. The warrant was issued by a judge other than the one who presided over the revocation hearing. Later, the appellant was indicted. The appellant's bond was set at $100,000, again by a different judge. The appellant completed an affidavit of indigency, and trial counsel was appointed to her. At a pretrial hearing, in which the same trial judge from the revocation hearing presided, the appellant's trial counsel discussed a motion to request notice of intent to offer extraneous offenses and a motion for reconsideration of bond reduction. No documentation regarding the appellant's financial situation was presented to the trial court during this pretrial hearing to support the request for a bond reduction. Although the transcript is devoid of any formal motion or order in that hearing, the trial court states that the motion for a bond reduction was denied. The appellant did not make bond.
The case was assigned to the trial judge who had presided over the appellant's son's revocation hearing. During another pretrial hearing, the trial judge explained to the appellant's counsel the sequence of events that led to the appellant's indictment.
The Court:well, let me tell you how it all started, if you want to know. Her son was accused of, I think, assault.
Ms. Cable [State's attorney]: Robbery.
The Court: Robbery?
Ms. Cable: Robbery. And he had a Motion to Revoke alleging assault.
The Court: Okay. And there were two women involved who later refused to testify. And I said: Well, I wonder why anybody got beat up that bad, to make it a felony and wouldn't testify? So I asked that the women be brought up and, according to them, they were forced or threatened not to testify. That's the way it turned out. So that's what led to this Indictment.
Mr. George [Appellant's attorney]: To this Indictment?
The Court: Right. And we had a hearing after she was placed in the jail. I don't know if I found her in contempt, but she kept interrupting the hearing, I believe. And then there was aI don't show any psychological testing at all.
Mr. George: Okay.
The Court: And there may not have been one, but that's what led to this. And then we had some testimony under oath by one or two of the women.
Ms. Cable: Two women.
The Court: Two women, testifying about the threats, and the father of one of them.
Mr. George: Actually, that's the testimony that I was seeking, Your Honor.
The Court: All right.
Ms. Cable: That was within the Motion to Revoke [the appellant's son's community supervision], Judge.
When the appellant requested a bond reduction or the option of house arrest, the trial judge responded to the requests using his own knowledge of the facts gained from prior interactions with the appellant, *509 rather than using the arguments presented by the appellant during the hearing.
The Court: Well, you understand that here is a judge looking at a woman who is accused of retaliation. And I get a letter dated May 20or at least that's when we got itand she speaks of how she's been harassed for 25 years. She kept quiet, "but then this time I will speak out and defend me and my family."
I think this woman is going to go back to why she was placed in here. She was accused of going to the victim and saying: You better not testify because here is what's going to happen to you.
I'm not saying you are guilty ma'am. I'm saying that that's what they're saying. Now, a jury can otherwise say: You know what, Judge? They are wrong; let this lady go.
But it's not up to me. I don't file charges, but I'm the one that suspects that there was something wrong going on and, I think, halfway approved it. Because when they came, he said: "I do want to testify, Judge, but she's the one that threatened me not to testify."
The trial judge made several references to a letter written by the appellant. The handwritten letter, addressed to the judge who signed the appellant's bond order, was sent by the appellant before she was represented by counsel. In that letter, she requested a bond reduction and also complained of twenty-five years of police harassment. In her letter, the appellant listed the names of judges, the Chief Investigator of the Nueces County District Attorney's Office, and three Corpus Christi police officers, people whom she said had harassed her. The trial judge made reference to these individuals and predicted on the record that the city and county would have to deal continually with the appellant. The trial judge mocked the appellant and her allegations. He predicted that the appellant would continue to cause disruptions.
The Court: And this [letter] speaks of some kinds of slander. I have a feeling she is going to do something against the people who are going to be testifying against her. She speaks of police harassmentall this stuff. But Judge Harville? Somehow she is going to get Judge Harville involved. She's always a badI don't know why thinks [sic]Mr. Wade? I have a feeling this lady is going to goLeslie Pointer. Bill May. Ray Rivera. Lewenskinot Monica. (General laughter) And Sgt. StarrI have a feeling all these people are going to have to put up with [the defendant]. I think she needs to be tried and if she is not guilty she'll walk away and we may even apologize to her. But I don't think anything has changed. In fact, I think its worsened.
As part of her pro se request for a bond reduction, the appellant told the judge that "it w[ould] be nationwide news" and she hoped "their bonds ... will be bigger than mine." In large print across the top of the page, the words "slander case" appeared. The trial judge who presided over the appellant's case made many references to this letter.
At the same hearing, the attorneys and trial judge discussed the appellant's mental competency to stand trial. The trial judge and the State's attorney explained the situation to the appellant's trial counsel.
Mr. George [Appellant's attorney]: ... when I looked in the court file to try to get updated on what had occurred, it looked like there might have been an entry concerning some testing that was ordered.
The Court: Testing? ... Oh, psychiatric?
*510 Mr. George: Right.
The Court: There could have been.
Mr. George: And that was one of the questions, as to whetheryou know, I'm not sure whatever happened with that or if anything ever did.
Ms. Cable [State's Attorney]: I don't think the Court ever ordered itthere may have been some question of her not receiving some medication possibly something like that in the jail. But I don't think there was [sic] psychiatric ordered by the Court.
No formal motion requesting a psychiatric evaluation was ever made. In addition to the statements at the pretrial hearing, the appellant explained under the "employer" section of her affidavit for indigency that she suffers from "mental disorder [sic] also anxiety attacks, 2 bruis[illegible]."
The trial judge never offered to recuse himself nor did the trial judge ask the appellant's counsel about a motion to recuse. The guilt phase of the appellant's trial proceeded without further comments from the trial judge, but at the sentencing phase, the trial judge stated that "[i]n fact, before even this defendant was charged, felt [sic] that there was something going on as to why the witnesses were reluctant to testify. Then the court heard evidence as to why. I agree with the State that the defendant should serve time." The State asked for a maximum sentence of ten years confinement; the appellant's attorney requested community supervision and assignment to a community supervision officer who handled cases with mentally ill probationers. The trial judge sentenced the appellant to five years' confinement with a $1,000 fine.
On direct appeal, the appellant complained that her counsel had been ineffective for failing to file a motion to recuse the trial judge. The Court of Appeals held that, under the unusual circumstances of this case, trial counsel's failure to move for to recuse the trial judge was ineffective assistance as a matter of law because no objectively reasonable strategy existed for his failing to do so. Freeman v. State, No. 13-98-587-CR, slip op. at 7. One justice dissented. He said that the majority made a good case for recusal of the trial judge. He disagreed with the majority's conclusion that the there was no reasonable trial strategy to support trial counsel's inaction. He suggested two reasons: (1) counsel could have had confidence in the integrity of the trial judge and his ability to be fair; and (2) counsel might have been concerned about the ability or temperament of a judge who might be assigned to hear the case in the event that the motion was successful. Id. at 10-11.
The State filed a petition for discretionary review, which we granted.[2] The State argues that recusal in this case was inappropriate because the trial judge's pretrial involvement did not create a reasonable doubt about his impartiality. The State also argues that nothing in the record refutes the presumption that trial counsel possessed a reasonable trial strategy in failing to seek recusal. The State does not challenge the Court of Appeals's holding regarding the prejudice prong of the ineffective assistance of counsel analysis.
The appellant responds that the comments made by the trial judge at the pretrial *511 hearing, the questioning of the witnesses by the trial judge before the State investigated the matter, and the fact that the trial judge was a potential witness in the State's case gave trial counsel more than adequate notice of the grounds for recusal. She also says that trial counsel's failure to file a motion to recuse the trial judge fell below an objective standard of reasonableness.
II. Analysis
In Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) the Supreme Court articulated a two-prong test to be used when analyzing a claim of ineffective assistance of counsel. To have her conviction reversed on the grounds of ineffective assistance of counsel, an appellant has the burden of proving by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the appellant. Id. at 687, 104 S. Ct. 2052. Unless the appellant makes both showings, it cannot be said that her conviction is rendered unreliable by a breakdown in the adversarial process. Ibid. In Hernandez v. State, this Court adopted the Strickland two-prong test for criminal cases in Texas. Hernandez v. State, 726 S.W.2d 53 (Tex. Crim.App.1986).
Our review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 690, 104 S. Ct. 2052. There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance, and the defendant must overcome the presumption Ibid. We determine the reasonableness of counsel's challenged conduct in context, and view it as of the time of counsel's conduct. Ibid.
We have said that we commonly assume a strategic motive if any can be imagined; and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Bone v. State, 77 S.W.3d 828, 833 n. 13 (Tex.Crim.App.2002) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.App.2001)). The policy behind this course is that "[i]ntensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Strickland, 466 U.S. at 690, 104 S. Ct. 2052. This standard balances the protection of these important policy interests with the protection of each defendant's fundamental Sixth Amendment rights.
As a result, we have said that the record on direct appeal is generally inadequate to show that counsel's conduct fell below an objectively reasonable standard of performance, and the better course is to pursue the claim in habeas proceedings. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).
In fact, the United States Supreme Court has said recently much the same thing in a different context. In Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003), the Supreme Court held that there is no procedural default for failure to raise an ineffective assistance of counsel claim on direct appeal. Id., at 1693. Among the reasons for preferring that these claims be brought in habeas proceedings, the Court said the trial record is not developed precisely for the purpose of preserving and litigating these claims. As a result, the Court said, the trial record is often incomplete and inadequate to resolve these claims. Id., at 1694.
Even so, the Court did not hold that there claims must be brought in habeas proceedings. But the Supreme Court also *512 said that cases exist in which "counsel's ineffectiveness is so apparent from the record that appellate counsel will consider it advisable to raise the issue on direct appeal." Id., at 1696. The Court even noted that there may be instances when an appellate Court will review it sua sponte. Ibid.
When no reasonable trial strategy could justify the trial counsel's conduct, the counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as she did. Strickland, 466 U.S. at 690, 104 S. Ct. 2052.
III. Application
A. Recusal
First I will address the State's argument that recusal was not appropriate in this case. The State argues that recusal is not appropriate in this case because the trial judge's pretrial involvement in the case did not create a reasonable doubt about his impartiality.[3]
The State cites the test found in Kemp v. State, 846 S.W.2d 289, 305 (Tex.Crim. App.1992). In Kemp, the trial judge issued an arrest warrant for the defendant and presided over pretrial evidentiary hearings. This Court stated that "[t]he mere fact that a trial judge issued a defendant's search or arrest warrant, alone, does not establish bias against that defendant in a subsequent proceeding" because judges routinely performs these duties. Id., at 306. We said that the test to establish bias is whether "a reasonable man, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial judge." Id., at 305.
The State cites other cases to support its argument that the appellant's situation was not unique, and thus, that we should reverse the Court of Appeals's judgment. The State cites Kelly v. State, 18 S.W.3d 239, 242 (Tex.App.-Amarillo 2000, no pet.), and Madden v. State, 911 S.W.2d 236, 241-42 (Tex.App.-Waco 1995, pet. ref'd).
In Kelly, the defendant appealed the denial of a motion to recuse the trial judge in his aggravated robbery case. The defendant moved to recuse the judge because he had overheard several witnesses discussing an unrelated assault by the defendant. The Court of Appeals concluded that the factual basis for the grounds to recuse the trial judge were not related to the facts and evidence supporting the conviction in the case. Kelly, 18 S.W.3d at 241.
In Madden, the defendant argued that the trial judge should have disqualified herself because she had prosecuted him in another case before she became a judge. The Court explained that the prohibition against a judge hearing a case in which she had been counsel does not include prior cases having no relation to the case before the court. Madden, 911 S.W.2d at 240.
Kemp, Kelly, and Madden are distinguishable because the trial judges in those cases presided over pretrial proceedings or proceedings in other cases that were unrelated to the case before the trial court at the time. The State asserts that presiding over a prior judicial hearing in which the defendant participated rarely establishes bias or prejudice. Although the proposition is correct, it is inapplicable in this case.
*513 In the appellant's case, the trial judge did not simply preside over prior judicial hearings or issue a warrant for her arrest. The trial judge presided over the appellant's son's community supervision revocation hearing and interviewed, in private, two witnesses who were reluctant to testify at the community supervision revocation hearing. The witnesses told the judge that the appellant had threatened them to keep them from testifying. The judge investigated the witnesses' allegations. The judge then informed the authorities, and the appellant was indicted for retaliation.
Then, the same judge was assigned to the appellant's trial for retaliation. The trial judge not only interviewed witnesses for the appellant's trial, but was himself a potential witness for the State. These interactions go above and beyond the normal interactions of judges and defendants resulting from prior judicial hearings.
The appellant contends that her trial attorney should have filed a motion to recuse the trial judge under Texas Rule of Civil Procedure 18a(a), which states, in part, that "any party may file ... a motion stating grounds why the judge before whom the case is pending should not sit on the case. The grounds may include any disability of the judge to sit in the case." In Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App.1993), this Court made Rule 18a applicable to criminal cases. Rule 18b(2) states that a judge shall recuse himself in any proceeding in which:
(a) his impartiality might reasonably be questioned;
(b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(c) he or a lawyer with whom he previously practiced law has been a material witness concerning it; [or]
(d) he participated as counsel, advisor or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service[.]
The record supports the conclusion that the trial judge in this case should have been recused under Rule 18b(2)(a). His comments about initiating the proceedings against the appellant, his comments in response to the appellant's request for bond, and his comments about a letter the appellant wrote about alleged police harassment would cause a reasonable person to doubt the trial judge's impartiality.
The State argues that the trial judge consistently maintained that the appellant's guilt would be determined by the jury. That may be true, but it does not change the doubts that were raised about the judge's impartiality in light of the comments he made at the pretrial hearing. His comments about being involved from the outset of the case and his mocking the appellant in open court on the record undermine the State's claim that the trial judge was impartial.
The State also argues that the fact that the trial court gave the appellant a punishment that was in the middle between the appellant's request and the State's recommendation shows that the trial judge was impartial. But when the trial judge imposed the sentence in this case, he, once again, stressed his personal involvement in the case. Moreover, we are concerned with the time frame when trial counsel could have filed a motion to recuse. To be timely filed, a motion to recuse must be filed at least ten days before trial. Tex.R. Civ. P. 18a(a). There was ample evidence in the record to support a motion to recuse more than ten days before the beginning of the appellant's trial.
*514 Because the trial judge in this case acted in such a way that would cause a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge's conduct, to have a reasonable doubt that the judge was actually impartial, trial counsel should have moved to recuse the judge.
B. Ineffective Assistance of Counsel
Next, the State claims that, even if the trial judge was subject to recusal in this case, it does not follow that the appellant's trial counsel was ineffective. In support of this claim, the State argues that (1) as with most ineffective assistance of counsel claims brought on appeal, the record in the case is insufficient to overcome the presumption that trial counsel acted within the range of reasonable professional assistance and (2) there are conceivable reasonable trial strategies to support counsel's inaction. The appellant argues that there was no reasonable trial strategy supporting trial counsel's inaction. I agree.
In support of its arguments, the State cites one case from the Waco Court of Appeals and cases from other jurisdictions. These cases are distinguishable on their facts.
The State claims that Madden, 911 S.W.2d at 241, supports the proposition that the decision not to file a motion to recuse is generally a matter of trial strategy that reviewing courts should not second guess in a Strickland analysis. Counsel's decisions are always accorded great deference in a Strickland analysis whether the conduct in question is related to the filing of a motion to recuse or some other area of representation. As a general proposition, I agree with the State that the decision to file a motion to recuse is one, like many decisions counsel makes during the representation, that is entitled to great deference from the trial court. If, however, the State is suggesting that trial counsel's actions in this area is somehow immune from review, it is mistaken.
As I explained above, Madden is distinguishable on its facts. The Court of Appeals held that the trial judge was not subject to a motion to recuse, and, as a result, counsel could not have been ineffective for failing to file the motion. Ibid.
Similarly, United States v. Bayless, 201 F.3d 116 (2d Cir.), cert. denied, 529 U.S. 1061, 120 S. Ct. 1571, 146 L. Ed. 2d 474 (2000), does not support the State's position. In that case, the trial judge presided over a pretrial suppression hearing in which he granted the defendant's motion to suppress evidence. After receiving harsh publicity regarding his decision, he reopened the case and admitted the evidence. Id., at 123-24. The defendant's trial counsel filed a motion to recuse the judge. The appellate court stated that waiting for the trial judge to rule before filing a motion to recuse is a waiver. Id., at 127. On the defendant's ineffective assistance of counsel claim, the Second Circuit held that there had been no basis for trial counsel to file a motion to recuse before the second hearing because the judge had ruled in the defendant's favor on the initial motion to suppress. Id., at 130.
In this particular case, the trial counsel never filed a motion to recuse, despite being given ample notice of the trial judge's potential bias and prejudice. It was not part of the trial counsel's strategy to see if the trial judge would treat the appellant fairly, then file a motion to recuse. Trial counsel had ample reason, long before trial, to harbor doubts about the trial judge's impartiality. In addition, the source of the trial judge's potential bias in Bayless was not that the judge witnessed and took part in the events that led to the defendant's indictment. The judge merely ruled on matters brought *515 before him in the course of the judicial process. Bayless does not support the State's position in this case.
Reliance on Butts v. State, 273 Ga. 760, 546 S.E.2d 472 (2001), is equally misplaced. In that case, the trial judge had presided over juvenile proceedings of the defendant and there was nothing in the record to indicate that the trial judge was biased or prejudiced. Also, in United States v. Ortiz Oliveras, 717 F.2d 1, 4 n.** (1st Cir.1983), the trial judge's only interactions with the defendant were in prior hearings. In People v. Scott, 15 Cal. 4th 1188, 65 Cal. Rptr. 2d 240, 939 P.2d 354, 365 (1997), the trial judge presided over proceedings regarding the mental state of the defendant, and the California Supreme Court held that there was no evidence of bias or prejudice. In Thompson v. State, 671 N.E.2d 1165, 1169 (Ind.1996), the trial judge presided over the defendant's prior criminal trials.
The only case cited by the State with facts even remotely similar to the facts of this particular case is State v. Gomes, 93 Hawai'i 13, 995 P.2d 314 (Haw.2000). In Gomes, the defendant appealed his conviction for assault in the second degree, on the grounds that the trial judge failed to recuse himself sua sponte. The defendant was on trial for assaulting a man while surfing in the ocean. Before the defendant's trial began, the trial judge described an incident in which he had met the appellant.
The trial judge, a fellow surfer, had met the defendant one morning while the two were surfing. The defendant had become upset at the trial judge when the defendant felt that the trial judge had gotten in his way couple of times. The trial judge stated that the defendant:
got a little bit upset. He did start to berate me; I apologized, but the berating continued. I think that even Mr. Gomes will admit that there was an air of physical menace there. But after things calmed down, he kind of paddled off and sat by himself.... And he did apologize, come over, shake my hand, and we had a nice conversation after that. That was my only contact with Mr. Gomes. It's quite ambivalent, and I can assure counsel and Mr. Gomes that I bear no grudge. I have no opinion, no impression, and I can be fair and impartial.
Id., at 316. The trial judge then went on to mention that he had already had a discussion with counsel regarding this matter off the record in his chambers before going on record. The judge said that he would entertain any motions for recusal at that point, and the defendant declined to file or request recusal. The trial judge told the defendant directly that he would be sentencing the defendant, and the defendant stated that he understood that. Still no motion to recuse was filed, and the trial judge asked the defendant directly if he was sure. The defendant said yes. The trial proceeded, the defendant was found guilty, and the trial judge sentenced the defendant to five years probation. Ibid.
On appeal, the defendant argued that the trial judge should have recused himself, sua sponte, based on an appearance of impropriety. The defendant failed to allege that the trial judge was actually biased but argued that the appearance of impropriety was sufficient to warrant a recusal. He also did not claim that his trial counsel was ineffective for failing to file a motion to recuse. The Supreme Court of Hawai'i held that the trial judge did not err in failing to recuse himself sua sponte. Id., at 321. In the case before this Court, the appellant alleged ineffective assistance of counsel for her trial counsel's failure to file a motion to recuse the trial *516 judge. The appellant never alleges that the trial judge should have recused himself sua sponte.
It is important to note that the Hawai'i Supreme Court discussed in a footnote the defendant's decision not to file a motion to recuse. In dicta, the Hawai'i Supreme Court stated that "whether to file a motion to disqualify a judge is a strategic decision that is generally left to defense counsel.... In the present matter, [the trial judge] expressly offered both Gomes and his counsel the opportunity to interpose a motion to recuse. Gomes and his counsel declined to do so. We will not second guess that strategy on appeal." Id., at 321 n. 5.
The Gomes case is not controlling or even persuasive on the facts of the appellant's case. In the appellant's case, no such dialogue between the judge, her trial counsel, and the appellant herself ever took place. When determining the merits of an ineffective assistance of counsel claim, the reviewing court must look at all the facts of the particular case. The facts of this particular case are not similar enough to the facts found in the Gomes case, and thus the analysis is not the same.
In this case, the appellant did not come before the trial judge in prior judicial proceedings as a party or a defendant. The trial judge was the one who, in his own words, "suspect[ed] that there was something wrong going on and, ... halfway approved [the State's pursuit of charges against the appellant]." The trial judge initiated an investigation into the allegations of retaliation and was a potential witness for the State. A trial judge who simply reads a transcript of previous events would not have the same kind of intimate knowledge of the underlying facts as the trial judge in the appellant's case had. No other judge had participated in the events that were the basis for the offense for which the appellant was being tried. The trial judge in appellant's case had an extra-judicial relationship with the appellant.
The State and the dissenting Justice from the Court of Appeals have provided what they believe to be conceivable trial strategies in an attempt to explain trial counsel's inaction. Freeman v. State, No. 13-98-587-CR, slip op. at 2-3 (Hill, J., dissenting). The reasons given include: (1) counsel had great confidence in the trial judge's ability to hear the case fairly; (2) counsel may have been worried about alienating the trial judge if the motion was unsuccessful; (3) counsel may have been concerned about the ability or temperament of a judge who would hear the case if the motion was successful; and (4) trial counsel may have wanted to avoid further delay. These general considerations are not reasonable trial strategies based on the record before us.
First, the State and the dissenting Justice from the Court of Appeals suggested that counsel may have had great confidence in the trial judge's ability to hear the case fairly. Whatever counsel's opinions may have been before, counsel should have had grave doubts about the trial judge's ability to hear the case fairly after hearing the comments made on the record in open court by the judge.
Looking at the record from the pretrial hearing, the trial judge made his prejudice against the appellant obvious. Although the trial judge told the appellant that it was not his job to find her guilty, he also made several negative comments directed towards the appellant, such as "[s]he's always a bad." When a trial judge states on record his frustration with the appellant from his prior experiences with her and anticipates that she will continue to be a nuisance to the court, he has affirmatively demonstrated that he has not put aside his *517 bias or prejudice. In this situation, reason leaves no room for a trial strategy that assumes the trial judge will be able to put aside his bias or prejudice.
Second, if trial counsel had been concerned about alienating the trial judge in the event the motion was unsuccessful, he would have had plenty of support for a reversal on appeal from this record. This is not a legitimate reason to fail to pursue a motion to rescue. The motion to recuse is to protect the client's right to a fair trial. This should be paramount to other considerations. The appellant was adamant about her innocence and concerned about how she would prove her case in court, even offering to take a lie detector test. It is not reasonable for an attorney to choose efficiency in the trial proceedings rather than ensuring that his client receives a fair trial, especially when the client is so adamant about her innocence.
Third, even if trial counsel had been concerned about the ability or temperament of a judge who would be likely to hear the case in the event the motion was successful, the stark fact remains that no other judge would have had the same first-hand knowledge of this particular case that this trial judge had. The difference between learning about the appellant's actions from reading transcripts of prior proceedings, and being the judge who questioned witnesses, who reported the appellant's threats to the proper authority, and who was a potential witness himself, is too great for reason to ignore.
Fourth, concerns about potential delay are not outweighed in this case by the concern about a trial judge with intimate knowledge of the facts of the case who had strong opinions about the appellant's guilt and who mocked her on the record in open court.
Generally speaking, there are a myriad of reasons why trial counsel might choose not to file a motion for recusal in any given case. But in this particular case, there is no reasonable explanation for the trial counsel's decision. As the State has reminded this Court in its brief, "any one particular decision that trial counsel makes during the course of his representation should generally not be viewed in a vacuum..." In light of the facts known to the trial counsel at the time he failed to file a motion for recusal, which are plainly stated in the record from the pretrial hearing, his conduct fell below an objective standard of reasonableness.
The trial record in this case provides sufficient evidence to support the Court of Appeals's conclusion that the appellant's trial counsel's performance was deficient. The record shows by a preponderance of the evidence that the trial counsel's conduct fell below an objective standard of reasonableness. No reasonable trial strategy could justify trial counsel's failure to file a motion for recusal in this particular case. I would affirm the Court of Appeals's judgment. Because the Court does not, I dissent.
NOTES
[1] The trial judge who presided over the appellant's case no longer presides over the 347th District Court in Nueces County.
[2] The exact ground on which we granted review is: "Did the Court of Appeals err when it effectively held that the failure to seek recusal of the trial judge was per se ineffective assistance of counsel as a matter of law, in conflict with the dissenting opinion, with another court of appeals, and on an important question of state and federal law that has not been, but should be decided by the Court of Criminal Appeals?"
[3] The State does not challenge the Court of Appeals's holding that the trial judge was also subject to a motion to recuse because he was a potential witness in the case. See Tex.R. Civ. P. 18b(2)(b); Freeman, No. 13-98-587-CR, slip op. at 7. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384836/ | 125 S.W.3d 819 (2003)
DEATH AND PERMANENT DISABILITY TRUST FUND
v.
Chris ANDERSON (Deceased), Employee; City of Hot Springs, Employer; and Arkansas Municipal League Workers' Compensation Trust, Carrier.
No. CA 03-255.
Court of Appeals of Arkansas, Division I.
October 22, 2003.
*820 David L. Pake, Little Rock, for appellant.
J. Chris Bradley, North Little Rock, for appellee Municipal League Workers' Compensation Trust.
SAM BIRD, Judge.
The Death and Permanent Total Disability Trust Fund brings this appeal from a decision of the Workers' Compensation Commission involving the interpretation of the statutory term "full-time student." Arkansas Code Ann. § 11-9-527(d)(2) (Repl.2002) directs that benefits to an otherwise eligible child of a deceased employee "shall not terminate at the age of eighteen (18) years provided the child is a full-time student who has not attained the age of twenty-five (25) years." The Commission interpreted the statute to mean that benefit payments to an otherwise eligible student should not be suspended during summer breaks after commencement of college even when the "full-time student" does not attend summer sessions on a full-time basis. The decision of the Commission is affirmed.
Chris Anderson, the deceased claimant in this case, was a police officer who sustained a fatal work-related injury on February 12, 1996. His widow and his daughter, claimant Amanda Anderson, were eligible for workers' compensation benefits at the time of his death. Under Ark.Code Ann. § 11-9-502(b)(1) and (2) (Repl.2002), when appellees City of Hot Springs and Arkansas Municipal League Workers' Compensation Trust have paid $75,000 in benefits, appellant Death and Permanent Total Disability Trust Fund becomes obligated to pay any further *821 weekly benefits.[1]
This case arose from Amanda's claim for benefits in the summers between her sessions of full-time college enrollment after she was eighteen. The Arkansas Municipal League Workers' Compensation Trust (Municipal League) supported her claim, while the Death and Permanent Total Disability Trust Fund (Trust Fund) contended that she should be denied benefits during summers in which she was not enrolled as a full-time student.
A hearing was held before the administrative law judge to decide whether Amanda was entitled to weekly benefits continuously throughout the year, without suspension of benefits in the summers. The parties stipulated that Amanda had reached her eighteenth birthday on March 3, 1997, while she was in her last year of high school. They also stipulated that she was entitled to weekly dependent benefits for the following periods of time:
February 13, 1996, through May 22, 1997, which was the date that she graduated from high school; August 27, 1997, through May 14, 1998, when she was a full-time student at Henderson State College; August 24, 1998, through May 14, 1999, when she was a full-time student at Garland County Community College; August 23, 1999, through June 30, 2000, (which included first-session summer school) when she was a full-time student at Garland County Community College;
August 21, 2000, until December 15, 2000, when she was a full-time student at Garland county Community College until she graduated.
At the conclusion of the hearing, the law judge ruled that Amanda was entitled to dependency benefits for the summer breaks when she was not attending college as a full-time student "between the commencement of her secondary education[2] beginning August 27, 1997, through her graduation of December 15, 2000."
The Trust Fund appealed the law judge's decision to the Workers' Compensation Commission. The Commission remanded the case to the law judge for further development of issues, including whether the Trust Fund should credit the benefits paid by the Municipal League during the time periods in question against the limitations imposed by Ark.Code Ann. § 11-9-502. The law judge's second opinion incorporated the stipulations of his first opinion. In the second opinion, the law judge concluded:
In the absence of a clear definition in the Arkansas Workers' Compensation Act, I am not willing for respondent No. 2, the Fund, to take a credit against its ultimate liability for those benefits paid by respondent No. 1 [the Municipal *822 League] to Amanda Anderson during those summer sessions when she was either not enrolled or was not taking sufficient hours to classify her as a "full-time student" according to the college handbook or catalog.
The Trust Fund appealed this decision regarding the credit issue, and the Commission affirmed and adopted the law judge's decision. The Fund now appeals the decision of the Commission.
Point on Appeal
The Trust Fund raises one point on appeal, contending, as it did below, that the Municipal League was not entitled to credit for benefits paid to Amanda when she was not classified as a full-time student according to the college catalog or handbook. The provisions of our workers' compensation law are to be strictly construed. Ark.Code Ann. § 11-9-704(c)(3) (Repl.2002). Strict construction is a narrow construction, requiring that nothing be taken as intended that is not clearly expressed. Wheeler Constr. Co. v. Armstrong, 73 Ark.App. 146, 41 S.W.3d 822 (2001). The doctrine of strict construction is to use the plain meaning of the language employed. Id. In considering the meaning of a statute, the appellate court will construe it just as it reads, giving the words their ordinary and usually accepted meaning. Nelson v. Timberline Int'l, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998).
Discussion
The Commission, adopting the decision of the law judge, addressed the Trust Fund's argument that the statutory definition of "full-time student" is dependent on the classification of "full-time student" according to an individual college's handbook or catalog. The Commission rejected this approach, reasoning as follows:
The problem which arises from ... using that particular college or university's handbook or catalog to define a "full-time student," is that there is no uniformity of that definition from institution to institution. This gives rise at least to the potential for some students drawing benefits while others may not, resulting again, potentially, for the unequal treatment of one student as opposed to another.
The Trust Fund argues that this reasoning is faulty on several bases: first, that no evidence shows that the definition of "full-time student" differs among educational institutions; second, that even if so, no equal-protection argument exists because payment of benefits is contingent upon obtaining the status of a category known as "full-time student"; third, that decisions must be made on a case-by case basis; and fourth, that all educational institutions would agree that Amanda would not be considered a "full-time student" for the summer sessions when she did not attend at all. The Fund relies upon various documents, including a June 27, 2001, letter from the assistant registrar for Garland County Community College, which sets forth student classifications as shown in the college's general catalogue:
Full-Time StudentStudents enrolled in 12 or more student semester hours in the Fall or Spring semester, or six hours in the Summer Sessions, are considered full-time students.
Part-Time StudentStudents enrolled in eleven or less semester hours in the Fall or Spring Semesters and less than six hours in the Summer Sessions are considered part-time students.
The Fund contends that the clear legislative intent of section 11-9-527(d)(2) is to provide financial assistance to those dependents who, by virtue of their full-time student status, cannot work. The statute *823 must be interpreted, according to the Fund, to mean that a dependent over eighteen years of age should be a full-time student twelve months of the year if she chooses to attend further schooling in lieu of embarking on a work career. The Fund argues that it is just as likely to assume that Amanda's father would have insisted that she work during the summers when she was not attending college full-time as to assume that he would have supported her for those times. It complains that Amanda did not choose to attend summer school full time when she could have chosen to do so. Noting that she earned $130 weekly for twenty hours' work while attending a summer session part time, the Fund argues that Amanda's income could have been even greater during the semesters she did not attend school at all. The Fund argues that workers' compensation benefits become nothing more than unemployment compensation insurance if a dependent is over eighteen, is not going to school full-time, and is available for employment.
The Municipal League responds that the ordinary and usually accepted meaning of "full-time student" is one who during the regular school year attends class and makes normal academic progress with passing grades towards a degree. The League argues that the traditional two-semester school term, based on our agrarian economy and especially in this state, includes the traditional summer break. The League contends that denying benefits to a student who is doing what is commonly and ordinarily done would defeat the statute's intent of paying benefits so that a dependent child may receive an education, enter the work force, and become a productive member of society.
The basic rule of statutory construction, to which all other interpretative guides must yield, is to give effect to the intent of the legislature. Id. In ascertaining legislative intent, the appellate court may examine statutory history as well as conditions contemporaneous with the time of the enactment, the consequences of interpretation, and all other matters of common knowledge within the jurisdiction of the court, and in this case the Commission. See Lawhon Farm Servs. v. Brown, 335 Ark. 276, 984 S.W.2d 1 (1998). A primary purpose of the workers' compensation laws is to pay timely temporary and permanent disability benefits to all legitimately injured workers who suffer an injury arising out of and in the course of their employment, and then to return the worker to the work force. Ark.Code Ann. § 11-9-101(b) (Repl.2002). Subject to certain limitations, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee in a percentage of the average weekly wage of the employee. Ark.Code Ann. § 11-9-527(c).
Because the Arkansas workers' compensation statutes do not define the term "full-time student," the parties have offered definitions from other areas both in our state's statutes and in federal law. For example, Ark.Code Ann. § 24-6-216(d)(B)(i) (Supp.2003), concerned with survivors' pensions upon the death of a police retirant, states that a child's dependency shall terminate at age eighteen but shall be extended until age twenty-three "as long as the child is continuously enrolled as a full-time student at an accredited secondary school or accredited postsecondary institution of higher education." The same language is found in Ark.Code Ann. § 24-6-217(e)(1)(B)(i), addressing survivors' pensions upon death of a member of the state police retirement system.
Regarding retirement benefits for state police members who die in service before retirement, Ark.Code Ann. § 24-6-411(d)(3)(B)(i) *824 (Repl.2003) extends eligibility of a dependent child until the age of twenty-three "as long as the child continues uninterruptedly being a full-time student...." The latter language is also found in Ark.Code Ann. § 24-4-608, regarding dependent children of members of our state public employees' retirement system who die before retirement; and at section 24-7-710, addressing survivor benefits to dependent children of members of our school employees' retirement system.
A third Arkansas statute, Ark.Code Ann. § 6-82-202(7) (Repl.1996), specifically defines "full-time student" within our state scholarship program for post-secondary education:
"Full-time student" means an individual resident of Arkansas, as prescribed by the department, who is a student at an approved private or public institution in a course of study leading to an associate's or bachelor's degree or completion of an occupational training program, and who is enrolled in at least twelve (12) semester hours or some other reasonable academic equivalent as defined by the department[.]
Congress has considered a student's full-time course of study in determining a dependent child's eligibility for death benefits of workers covered under the Longshoremen's and Harbor Worker's Act. The following definition is found at 33 U.S.C. § 902(18) (1994):
The term "student" means a person regularly pursuing a full-time course of study or training ... but not after he reaches the age of twenty-three or has completed four years of education beyond the high school level.... A child shall not be deemed to have ceased to be a student during any interim between school years if the interim does not exceed five months and if he shows to the satisfaction of the Secretary that he has a bona fide intention of continuing to pursue a full time course of education or training during the semester or other enrollment period immediately following the interim or during periods or reasonable duration during which, in the judgment of the Secretary, he is prevented by factors beyond his control from pursuing his education.
(Emphasis added.)
Social security law specifies at 20 CFR § 404.350(a)(5) (2003) that an eligible child who is a full-time student is entitled to dependency benefits from the ages of eighteen through twenty-three. Under 20 CFR § 404.368, eligibility of a full-time student may continue during a period of nonattendance if (a) the period of nonattendance is four consecutive months or less, (b) there is a showing of intent to resume studies as a full-time student at the end of the period or at the end of the period of being a full-time student, and (c) the period of nonattendance is not due to expulsion or suspension from the school.
Conclusion
The term "full-time student" is not defined in Ark.Code Ann. § 11-9-527(d)(2), which directs that benefits to an otherwise eligible child shall not terminate at the age of eighteen years provided the child is a full-time student who has not attained the age of twenty-five years. Nor is the term defined elsewhere in our workers' compensation law. However, Arkansas statutes for beneficiary payments to eligible dependents of our police and public employee retirement systems direct that a child may be eligible "as long as the child continues uninterruptedly being a full-time student" or "as long as the child is continuously enrolled as a full-time student at an accredited secondary school or accredited postsecondary institution of higher education." For purposes of our state scholarship *825 program, the statutory definition of a "full-time student" is, in part, a student "enrolled in at least twelve (12) semester hours or some other reasonable academic equivalent as defined by the department." In the Longshoremen's and Harbor Worker's Act, Congress has determined that a student pursuing a full-time course of education is not deemed to have ceased being a student during an interim between school years that does not exceed five months. For purposes of social security regulations, a child remains a full-time student during a period of nonattendance for four consecutive months coupled with a showing of intent to resume full-time studies at the end of the period.
Had our legislature intended to restrict the definition of full-time student in Ark. Code Ann. § 11-9-527 to students so defined by an institution's student handbook or catalog, it easily could have done so by including such language within our workers' compensation statutes. In the absence of such language by the Arkansas legislature, in light of reading this section in conjunction with the purpose of making timely payments to beneficiaries, in light of the purpose of this section to extend dependency payments to eligible children who are "full-time" college students, and because a traditional approach to education consists of a school year that excludes summer attendance, we will not read into the statute the restriction that "full-time student" is defined by each individual student's college handbook or catalog.
The interpretation given a statute by the agency charged with its administration is highly persuasive, and while not conclusive, it should not be overturned unless it is clearly wrong. See Death & Permanent Total Disability v. Brewer, 76 Ark.App. 348, 65 S.W.3d 463 (2002). We agree with the Commission's interpretation of Ark.Code Ann. § 11-9-527(d)(2) that dependency benefit payments shall include the time during summer breaks after commencement of college when a "full-time student" does not attend summer sessions on a full-time basis. We affirm the Commission's decision that Amanda was a full-time student during the disputed times when she was not enrolled for full-time summer classes. Therefore, we affirm the Commission's ruling that the Municipal League was entitled to credit for benefits paid to Amanda when she was not classified as a full-time student according to the college catalog or handbook.
Affirmed.
STROUD, C.J., and VAUGHT, J., agree.
NOTES
[1] Ark.Code Ann. § 11-9-502 (Repl.2002), addressing limitations on compensation, states in pertinent part:
(b)(1) ... [T]he first seventy-five thousand dollars ($75,000) of weekly benefits for death or permanent total disability shall be paid by the employer or its insurance carrier in the manner provided in this chapter. (2) An employee or dependent of an employee who receives a total of seventy-five thousand dollars ($75,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this chapter, but all benefits in excess of seventy-five thousand dollars ($75,000) shall be payable from the Death and Permanent Total Disability Trust Fund.
[2] It is clear that this reference is not to Amanda's secondary education but to her post-secondary education, which began with her first semester of college on August 27, 1997. "Secondary school" is defined as a school that is intermediate in level between elementary school and college.... The American Heritage College Dictionary 1253 (4th ed. 2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2458620/ | 281 S.W.2d 671 (1955)
Charles W. DENNY et ux.
v.
WILSON COUNTY.
Supreme Court of Tennessee.
August 2, 1955.
*672 Louis Chambers, E.R. Woolard, Lebanon, for plaintiffs.
Willard Hagan, Lebanon, for defendant.
PREWITT, Justice.
This is a suit instituted by plaintiffs, Denny and wife, to recover of Wilson County, damages for a change in the grade of a right-of-way in front of their property, on the West side of State Highway No. 10 in the 10th Civil District of Wilson County, Tennessee, and North of the City limits of Lebanon.
The Circuit Court sustained a demurrer to the declaration and dismissed the suit.
The appeal here states that the strip involved is 101 feet long, and contains 0.09 acres, more or less.
The declaration sets out that when the plaintiffs signed the warranty deed to the right-of-way it was represented to them that the maximum limit of the grade or elevation would be 1.6 feet; that instead the grade was several times more or approximately 6 feet in height, and that this change greatly damaged their property; that such raise of the grade in front of their residence greatly impaired its market value and usefulness. The Court paid plaintiffs $100 for the right-of-way, and the declaration avers:
"the same being in full satisfaction and compensation for the land and any and all damages which they might suffer over and above incidental benefits."
It is insisted by the plaintiffs that they have a right of action on account of this marked and substantial change in the grade, and that such change was not contemplated by the parties at the time the deed was executed.
We have three situations that arise in the acquisition of rights-of-way for highway purposes:
1st. Where the property is taken by condemnation proceedings provided by statute;
2nd. Where the public authorities take the property without condemnation, the property owner is given one year to sue for damages for the taking;
3rd. Where in the first instance, as is the case here, the property owners convey by deed the right-of-way for public use.
In the first class of cases, where the landowner suffers damages as the result of condemnation and use of his land, which *673 neither he nor the condemnor contemplated at the time of the proceedings; and the damage is of such nature that the Court would have rejected an attempt to prove the same in the condemnation proceedings as speculative and conjectural, the landowner may be compensated for such damage in a subsequent action. Fuller v. City of Chattanooga, 22 Tenn. App. 110, 118 S.W. (2d) 886; Jones v. Oman, 28 Tenn. App. 1, 184 S.W. (2d) 568; 29 C.J.S., Eminent Domain, Sec. 328, p. 1372; 18 Am. Jur 1011, Eminent Domain, Sec. 369.
In the second group of cases we find instances where the public authorities take over the property without the usual condemnation proceedings, and in such cases they have one year to institute suit after the taking.
Our recent case of Hollers v. Campbell County, 192 Tenn. 442, 241 S.W. (2d) 523, is illustrative of this class of cases. In the Hollers case we held that the action was not in tort, but rather a taking for which compensation should be allowed. In that case we held that plaintiff was not proceeding upon the theory of a nuisance. Odil v. Maury County, 175 Tenn. 550, 136 S.W. (2d) 500; Buckholtz v. Hamilton County, 180 Tenn. 263, 174 S.W. (2d) 455.
There the plaintiffs sued complainant county for changing and raising the grade of a pike near their property, causing water flowing and draining on said pike to flow on their property washing some of the surface away and causing the soil to be damp and soggy. That said acts on the part of the county caused the water falling on said pike and draining thereon to change their natural and regular course of flow and caused the said water falling and accumulating and draining on this pike to drain and flow on to the property of the plaintiffs in great quantities; that the plaintiffs maintained their home on said realty, which they claim, before said wrongs, was a valuable piece of property. That the waters which the defendant had wrongfully diverted on the plaintiffs' property had washed away the surface of some of the soil and had made it unhealthful and that said flood waters have already caused a permanent decrease in the value of plaintiffs' property. There a recovery was allowed.
In Knox County v. Lemarr, 20 Tenn. App. 258, 97 S.W. (2d) 659, it was held that the county is liable to abutting landowners for destruction or impairment of owner's right of ingress and egress in construction of street or road. See Barron v. Memphis, 113 Tenn. 89, 80 S.W. 832.
In Pumpelly v. Green Bay & Miss. Canal Co., 13 Wall. 166, 20 L. Ed. 557, the Supreme Court of the United States said:
"It would be a very curious and unsatisfactory result if, in construing a provision of constitutional law, * * * it shall be held that, if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely; can inflict irreparable and permanent injury to any extent; can, in effect, subject it to total destruction without making any compensation, because in the narrowest sense of that word it is not taken for public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as these stood at common law, instead of the government, and making it an authority for invasion of private right under the pretext of the public good."
See Central Realty Co. v. City of Chattanooga, 169 Tenn. 525, 89 S.W. (2d) 346.
In the third class of cases we deal with the situation where a deed has been executed to the proposed right-of-way. Whether the right to maintain a separate suit is reserved in the landowner depends upon the language and effect of the deed conveying the right-of-way in question.
In the present case it is to be noted that the plaintiffs, for a valuable consideration, acknowledged the consideration as being:
"any and all damages which they might suffer over and above incidental benefits."
*674 In view of the above language just quoted it can hardly be said, giving effect to the written expression of the parties, that incidental damages was not within the contemplation of the parties at the time of the execution of the warranty deed.
The plaintiffs insist the damage claimed in the declaration, that is the material raising of the grade, was not within the contemplation of the parties at the time of the execution of the deed, and relies upon the case of Morgan County v. Neff, 36 Tenn. App. 407, 256 S.W. (2d) 61, 62. In that case the plaintiff executed a right-of-way deed to Neff, conveying a strip along the entire front of farm 145 feet wide and a distance of approximately 900 feet. The material part of the deed in that case was as follows:
"`This conveyance is made in consideration of the sum of $600.80 cash in hand paid, the receipt of which is hereby acknowledged and said sum is in full payment for said above described right-of-way and all damages which may be done to the remainder of said land by the construction of a highway upon said right-of-way.'"
It appears in that case that the landowner, who executed right of way deed of strip along entire length of farm, was unaware that creek channel along edge of right-of-way could cut off ingress and egress to the farm. The Court held that this was exception to usual rule that such deed embraced by implication all damages necessarily incident to making the land effectual for purpose for which it was acquired, and right of way deed did not preclude recovery for loss of ingress and egress.
In Carter County v. Street, 36 Tenn. App. 166, 252 S.W. (2d) 803, the Court applied the exception because it appeared that the landowner had no information when he executed a deed to the right-of-way that cuts and fills would be of such magnitude that slides would result in damage to his remaining lands.
The Court of Appeals said in the Carter County v. Street, supra, that language in the right of way deed similar to that contained in the Neff case with reference to damages to the remainder of grantor's lands should not be construed as concluding a claim for damage for slides in grading the right of way.
Where land was conveyed by general warranty deed to a county for highway purposes, under an agreement with said county that the road would be constructed almost level with the abutting land, and there was a change of plans raising the grade of the road approximately 5 feet above said land, the county was not liable in damages, because its officers had no anthority to make such agreement. State ex rel. Morgan County v. Gouge, 194 Tenn. 484, 487, 253 S.W. (2d) 721.
None of the cases above cited involved, or considered the effect of a deed as an estoppel where such deed recites that the consideration for it is in full of all damages that may be sustained by the grantor; and none of them is an authority against such an estoppel.
Where an applicable rule, statute or common law, is overlooked in the decision of a case, such decision is no authority against the rule or for the proposition that the rule is not to be applied in a like case in the future. Katzenberger v. Weaver, 110 Tenn. 620, 635, 636, 75 S.W. 937, 941; KVOS, Inc., v. Associated Press, 299 U.S. 269, 289, 57 S. Ct. 197, 81 L. Ed. 183, 188; State ex rel. v. Nashville Baseball Club, 127 Tenn. 292, 154 S.W. 1151; Winters v. American Trust Co., 158 Tenn. 479, 14 S.W. (2d) 740; State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W. (2d) 841, 91 A.L.R. 1246; Burns v. Duncan, 23 Tenn. App. 374, 133 S.W. (2d) 1000.
The recital in the deed, that the consideration for it is in full of all damages that the grantor may suffer, is an estoppel and a bar against his right later to sue for such damages.
There are three kinds of estoppel viz.: (1) by record, (2) by deed, and (3) by matter in pais.
*675 "Estoppel by a deed is a bar which precludes one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed or from denying the truth of any material facts asserted in it." 19 Am. Jur., Estoppel, Sec. 6, p. 603.
"`A fact admitted by recital, or directly in a covenant or deed, concludes all the parties to it, and cannot be averred against.' Henderson v. Overton, 10 Tenn. (2 Yerg.), 394-397 (24 Am. Dec. 492)." Battle v. Claiborne, 133 Tenn. 286, 302, 180 S.W. 584, 588.
"`Estoppel by warranty is based on the fundamental principles of giving effect to the manifest intention of the grantor, appearing on the deed, as to the lands or estate to be conveyed, and of preventing the grantor's derogating from or destroying his own grant by any subsequent act.' Condit v. Bigalow, 64 N.J. Eq. 504, 54 A. 160." Battle v. Claiborne, supra, 133 Tenn. 303, 180 S.W. 588.
It is true an estoppel must be specially pleaded in a suit in equity, or the facts constituting the estoppel must be set out in some pleading, though it is not necessary to use the word estoppel. But in an action at law an estoppel need not be specially pleaded, but may be enforced without being specially pleaded. Boone v. Citizens Bank & Trust Co., 154 Tenn. 241, 290 S.W. 39; 50 A.L.R. 1369.
In the case at bar the facts constituting the estoppel the recital or provision of the deed did appear in the declaration. That is, the declaration showed on its face that plaintiffs were estopped to maintain this action, and therefore the demurrer was properly sustained by the Trial Court.
It is true the Trial Court did not base his action upon the ground of estoppel; but he nevertheless reached the correct result, and such result, being correct, should be affirmed.
Where the Trial Court rules correctly, but states an erroneous reason for such ruling, the Appellate Court will uphold the ruling, basing its decision on what it conceives to be the correct theory. State ex rel. McConnell v. First State Bank, 22 Tenn. App. 577, 586, 124 S.W. (2d) 726, and numerous cases there cited; Blaylock v. Stephens, 36 Tenn. App. 464, 467-468, 258 S.W. (2d) 779.
The judgment of the lower Court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267132/ | 999 F. Supp. 1120 (1998)
Javon JENKINS and David L. Terrafino, individually and on behalf of others similarly situated, Plaintiffs,
v.
UNION CORPORATION and Transworld Systems, Inc., Defendants.
No. 96 C 3440.
United States District Court, N.D. Illinois, Eastern Division.
March 30, 1998.
*1121 *1122 *1123 *1124 Cathleen M. Combs, Daniel A. Edelman, James O. Latturner, Tara Leigh Goodwin, Michelle Ann Weinberg, Edelman & Combs, Chicago, IL, for Javon Jenkins.
James S. Shedden, Mary Elizabeth Philipps, David J. Phillips, Catherine Lee Gemrich, Beeler, Schad & Diamond, P.C., Chicago, IL, for David L. Terrafino.
Ronald S. Adelman, Law Offices of Ronald S. Adelman, Chicago, IL, for Union Corporation, Transworld Systems, Inc.
MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
In this putative class action,[1] plaintiffs Javon Jenkins and David Terrafino allege that defendant Union Corporation and its subsidiary, Transworld Systems, Inc., violated numerous provisions of the Fair Debt Collection Practices Act ("FDCPA" or "Act") and the Illinois Collection Agency Act ("Illinois Act"). The three-count complaint stems from a series of form debt collection letters that the defendants sent on behalf of their creditor-clients.
The complaint claims that defendants violated the Act in four ways: 1) the letters contained false and deceptive language; 2) the letters overshadowed, contradicted, and obfuscated plaintiffs' rights to contest the validity of their debts; 3) the letters violated the FDCPA's proscription against threatening litigation that defendants had no intent or authority to bring;[2] and 4) the letters tried to collect service fees prohibited by both the FDCPA and the Illinois Act. The parties also contest whether defendant Union is sufficiently involved in debt collection activities to be held liable for the alleged statutory violations. Before the Court are the plaintiffs' motion for partial summary judgment on the FDCPA claims against defendant Transworld only, and defendants' cross-motion for summary judgment on all counts.
*1125 RELEVANT FACTS[3]
A. Union Corp. and Transworld Systems, Inc.
1. Union's Business
Defendant Union is a publicly held corporation whose principal place of business is in Greenwich, Connecticut. Def.'s Facts ¶ 5. Union describes itself as a "pure financial services company," with a 1996 net worth of approximately $63 million. Pl.'s Add'l Facts Ex. B (Union Annual Report at 2-3). Through its five operationally decentralized subsidiaries, Union provides telephone-based services, including accounts receivable management, customer service, billing inquiry, credit authorization, and pre-charge-off receivables. Id. At the time of the events in this suit, Union's "core business" was accounts receivable management. Id.
Union is not licensed as a collection agency, is not assigned accounts for collection, generates no collection letters, and makes no telephone calls to debtors. Def.'s Facts ¶ 8. Its corporate headquarters currently employs fewer than fifteen people, who are responsible for corporate strategy, policy and finance. Pl.'s Add'l Facts ¶¶ 6-7. Defendants describe Union's headquarters simply as the place where "they count the money." Dunn Dep. p. 30.
In 1985 Union purchased Transworld Systems Inc. from Gordon Dunn and others for $28 million. Def.'s Facts ¶ 9. Union and Transworld had no connection before the purchase. Dunn Dep. p. 17. Before 1985, Union owned a variety of enterprises, including an airline in Puerto Rico, a foundry, a military contractor, and another debt collection agency. Pl.'s Add'l Facts ¶ 1. The Transworld purchase was part of Union's plan to sell its unprofitable entities and focus on more profitable and growth-oriented businesses. Pl.'s Add'l Facts ¶ 2. Since purchasing Transworld, Union has not changed Transworld's policies and practices. Def.'s Facts ¶ 10.
2. Transworld's Business
Transworld Systems offers debt collection services from 139 offices nationwide, including Illinois, and has its principal place of business in Rohnert Park, California. Def.'s Facts ¶ 10. Transworld has a net worth in excess of $11 million, does not have any significant debt, and does not receive loans from Union. Def.'s Facts ¶¶ 6, 10. Transworld is Union's most profitable subsidiary and, at the time of the events in this case, was responsible for a large portion of Union's profits. Pl.'s Add'l Facts ¶ 5, Ex. B (Union Annual Report). Transworld distributes to Union an annual dividend that consists of all income beyond Transworld's immediate and long-range cash requirementsan amount Transworld determines on its own. Dunn Dep. p. 32-33.
3. The Companies' Corporate Structure
As a Union subsidiary, Transworld has one officer who sits on Union's board of directors. Def.'s Facts ¶ 9. Gordon Dunn, Transworld's former president and current chairman of the board, is that person. Id. His employment agreement is signed by both entities. Pl.'s Add'l Facts ¶ 6. Nicholas Gill, Union's vice president, treasurer and secretary, is also a director of Transworld. Dunn Dep. at 26. Besides Dunn and Gill, the companies do not have common directors or officers. Def.'s Facts ¶ 9. Transworld's current president, George Macaulay, does not do any consulting for Union or for any of Union's other subsidiaries or affiliates. Id. ¶ 9.
Transworld does not share its office facilities, postal meters, insurance policies or a computer system with Union or any of Union's other subsidiaries or affiliates. Id. Union maintains no offices or employees in California, Transworld's base, and it does not own or lease any of Transworld's offices. Transworld and Union maintain their own accounting departments and keep separate corporate minute books. Id. Transworld has, however, used Union's auditors. Id.
*1126 B. Transworld's Debt Collection Practices
Transworld provides debt collection services to more than 40,000 creditor-clients, both in its own name and under the name Credit Management Services. Pl.'s Facts ¶¶ 5-6. Creditor-clients initiate debt collection by filling out a "Start Service" transmittal slipthe only document needed to trigger collection efforts for a particular debtorand mailing it to Transworld headquarters in California. Def.'s Facts ¶ 19. The pre-printed "Start Service" slip directs the creditor to provide the debtor's name, address, date of the latest payment or charge, and the total debt figure to be collected. Id. Ex 1. The form specifically instructs the client to "COMBINE ALL INTEREST, FINANCE CHARGES AND OTHER FEES TO WHICH YOU ARE LEGALLY ENTITLED. ONE TOTAL FIGURE." It also provides a space for the creditor-client to indicate whether the creditor wants "diplomatic" or "intensive" collection efforts, and whether the service should include collection of a "NSF check." Id. The Start Service slip does not designate a space for the creditor to indicate that the debt arose from a "stopped check." Id.
Transworld is aware that the law prohibits attempting to collect fees unauthorized by law or contract. Accordingly, Transworld's "installation packet," a manual given to clients, instructs clients to include in the amount sought the fees "legally due" to them. Pl.'s Facts ¶¶ 30-33. Transworld also relies on its creditors to state with accuracy the amounts legally due and owing from the debtor, the date the debt arose, and the debtor's last known address. Def.'s Facts ¶ 20. Transworld assumes that its clients add "service fees" to dishonored checks; these clients have the option of sending a pre-printed Transworld collection letter that states, "The amount due includes a service fee, which must also be paid." Pl.'s Facts ¶ 32. It is not Transworld's procedure or policy to compound the outstanding debt with a service charge when the debtor has stopped payment. Def.'s Facts ¶ 22. Nevertheless, Transworld does not specifically advise the creditor-client against collecting on checks stopped because of a debtor-merchant dispute. Pl.'s Facts ¶ 36. Transworld does instruct creditors that they may not attempt to collect from debtors who have filed for protection under bankruptcy laws. Id. ¶ 35.
If a creditor has a question about its legal entitlement to a particular charge, Transworld refers the creditor to its own attorney, and has issued memos instructing its sales representatives to do the same. Def.'s Facts ¶ 24. Transworld does not determine the propriety of creditors' additional fees or give any legal advice. Id. ¶ 20.
Transworld's efforts to collect debts from plaintiffs Jenkins and Terrafino surfaced in a series of standard form letters mailed to each approximately 14 days apart. None of the letters to Jenkins or Terrafino identifies or makes any reference to Union, or otherwise indicates any relationship between Transworld and Union. Def.'s Facts ¶ 25. Neither Jenkins nor Terrafino contacted Transworld to dispute their debts or to request validation of the total debt figures stated in their letters. Def.'s Facts ¶ 23.
C. Plaintiff Jenkins
In October 1995, Javon Jenkins bought a used car from Montell Pontiac in Blue Island, Illinois. She delivered a personal check for $1000, a portion of the purchase price. On October 17, 1995, Jenkins stopped payment on the check, claiming that the car was defective. Def.'s Facts ¶ 12; Pl.'s Facts ¶ 3. Montell Pontiac responded on October 23 by completing Transworld's "Start Service" form and authorizing collection efforts on Jenkins' debt. Def.'s Facts ¶ 14. Montell indicated on the form that $1,025 was legally due and owing from Jenkins, and requested "intensive" efforts to collect it. Montell also marked, erroneously, an "X" in the space for "NSF [dishonored] check," which added $25 to Jenkins' $1000 debt. Def.'s Facts ¶ 16, Ex. 1.
Using its own name, Transworld mailed Jenkins three "intensive" standard form collection letters dated November 1, 13 and 24, 1995, seeking the $1,025 that Montell Pontiac claimed was due. The first letter included text designed for collecting dishonored checks:
*1127 SPECIAL NOTICE
Our client has requested that we contact you regarding your check which has been returned by the bank and payment refused. We realize this could be an over-sight on your part and not willful disregard of an obligation.
However, intentional payment with a dishonored check for goods or services can lead to serious consequences.
The amount due includes a service fee, which must also be paid. To avoid any possible misunderstanding, it is important you immediately make payment to or arrangements with [Jerry Montell Pontiac].
In smaller print located beneath the main text and just above the printed directive "detach and return with payment" was a validation notice required by the FDCPA:
Transworld Systems, Inc. is a licensed collection agency and any information obtained from you will be used for the purpose of collecting this debt. All portions of this claim shall be assumed valid unless disputed within thirty days of receiving this notice. If disputed in writing, verification of the debt will be provided to you. If the original creditor is different from the above named creditor, the name and address of the original creditor will also be provided.
The second form letter, dated November 13, reads:
IMPERATIVEGrace period about to expire. Our client shows an unpaid account in the above stated amount appearing legally due and owing by you.
This account has been referred to our agency and we are authorized to pursue collection. With offices nationwide, a number of alternatives are available to us to effect settlement.
You may eliminate the possibility of additional trouble and make further communication unnecessary by contacting your creditor at once. Be sure to enclose this letter with your payment for proper identification.
On November 24, 1995, approximately 24 days after the first standard letter and eleven days after the second letter, Transworld sent a third letter to Jenkins:
Above claim still due. Federally mandated dispute period will expire within 10 days. Unless we hear from you, at that time we will assume your debt to be legally due.
Please be advised that there are two ways of settling a legitimate debttimely payment or as the result of protracted and unpleasant collection effort. At this time the choice is still yours.
Make further effort on our part unnecessary by making payment to [Jerry Montell Pontiac].
D. Plaintiff Terrafino
On August 22, 1995, Transworld sent Terrafino an initial "intensive" collection letter, which sought to collect $150.40 allegedly owed to Glenoaks Medical Center.[4] Transworld sent Terrafino a second letter dated September 5, 1995 and a third dated October 3, 1995.
The August 22 letter read:
URGENTThis account has been assigned to our agency for immediate collection.
Please be advised that we have been authorized to pursue collection and are committed to make whatever efforts are necessary and proper to effect collection.
Strongly recommend you contact our client to make payment arrangement.
This letter also included the required validation notice in the same language, print size and location as the first Jenkins letter. On September 5, 1995, Transworld sent Terrafino the same second form letter that it sent to Jenkins.
Transworld sent Terrafino a third, more detailed letter on October 3:
As Collection Manager of Transworld Systems Inc., I thought it important to state our intentions regarding your debt. The economic feasibility of some type of litigation by our client has not been determined. *1128 However, please understand that if legal action were to be undertaken, it would be costly and time-consuming for both parties. The loser of such an action would probably be subject to court costs and/or attorney fees, if applicable. Should such court action occur, and should your creditor prevail, there would be available various avenues to satisfy a judgment. You may wish to check your state laws concerning these remedies.
It is not my intention to threaten or alarm you about this matter but merely to point out the problems of refusing to pay what appears to be a just and legal debt.
We would hope, however, that additional costly collection efforts not be necessary (sic) and that you demonstrate your willingness to resolve this matter by remitting the full amount due to [Glenoaks Medical Center].
On the reverse side of every form letter that Transworld mailed to both plaintiffs appear four numbered paragraphs that contain information required by various state debt collection statutes. Pl.'s Facts ¶ 22. Paragraph 3 reads in pertinent part:
COLORADO
If you refuse to voluntarily pay this debt, or you wish our agency to cease communication either written or oral at either your place of employment or residence, and you so advise Transworld Systems Inc. in writing, we will not communicate with you further ....
This paragraph, which Transworld includes in letters mailed to debtors in several states, describes rights that Colorado law bestows on its residents. The FDCPA extends to all consumers the same right to request a debt collector to cease contact, but Transworld's letter mentions nothing about this federal right. Pl.'s Facts ¶¶ 23-24.
We must decide whether the undisputed facts demonstrate that these letters violate the FDCPA. First, however, we examine the legal standards applicable to this case.
LEGAL STANDARDS
A. Summary Judgment
Summary judgment may be granted when the record contains no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial will be found only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A court ruling on a motion for summary judgment must view all evidence in a light most favorable to the nonmoving party, and draw all inferences in the nonmovant's favor. Wolf v. Buss America, Inc., 77 F.3d 914, 918 (7th Cir. 1996); Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir.1995). If the evidence is merely colorable, however, or is not sufficiently probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 259-60; Unter-reiner v. Volkswagen, Inc., 8 F.3d 1206, 1212 (7th Cir.1993).
In determining whether a genuine issue exists, the court views the evidence presented "through the prism of the substantive evidentiary burden." Liberty Lobby, 477 U.S. at 254. "If the record taken as a whole could not lead a trier of fact to find for the non-moving party, there is no `genuine' issue for trial." Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The court must decide whether sufficient evidence exists to support a verdict in the nonmovant's favor. The judge will not engage in credibility determinations or weigh evidence, as these are functions of the jury. Liberty Lobby, 477 U.S. at 255.
Where the parties submit cross-motions for summary judgment, the court is not obligated to grant judgment as a matter of law for one side or another. Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). The court must evaluate each party's motion on its own merits, resolving all factual uncertainties and drawing all reasonable inferences against the party whose motion is under consideration. Id.; Buttitta v. City of Chicago, 803 F. Supp. 213, 217 (N.D.Ill.1992), aff'd, 9 F.3d 1198 (7th Cir.1993). With these standards in mind, we examine the parties' cross-motions for summary judgment.
*1129 B. FDCPA Claims
Congress enacted the FDCPA in 1977 "to eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692(e). To this end, the Act sets certain standards for debt collectors' communications with debtors. Among them are a requirement that debt collectors advise debtors of their rights to dispute the debt and demand verification, see 15 U.S.C. § 1692g, a ban on false and misleading statements in collection letters, see id. § 1692(e), and a prohibition against collecting a debt through "unfair or unconscionable means," such as slapping the debtor with unauthorized fees beyond the amount in arrears, see id. § 1692f(1).
The Seventh Circuit evaluates communications from debt collectors "through the eyes of an unsophisticated consumer." Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483-84 (7th Cir.1997); see Avila v. Rubin, 84 F.3d 222, 226 (7th Cir.1996). The unsophisticated consumer is a "hypothetical consumer whose reasonable perceptions will be used to determine if collection messages are deceptive or misleading."[5]Gammon v. GC Servs. Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir.1994). This presumes a level of sophistication that "is low, close to the bottom of the sophistication meter," Avila, 84 F.3d at 226, and "protects the consumer who is uninformed, naive, or trusting," Jang, 122 F.3d at 483-84 (quoting Gammon, 27 F.3d at 1257). Still, the standard "admits an objective element of reasonableness," which "protects debt collectors from liability for unrealistic or peculiar interpretations of collection letters." Id. (citation and internal quotations omitted).
The Court must determine whether Transworld's standard debt collection letters violate the consumer protection provisions in FDCPA §§ 1692g, 1692e, and 1692f, and, if so, whether Union can be held liable for any of these violations. Jenkins and Terrafino first contend that the standard form letters violate section 1692g because they overshadowed the validation notice at the bottom of the first letter. The notice was allegedly overshadowed not only visually, by the larger typeface in the initial letters' main text, but also linguistically, with requests for "immediate payment" and by later letters warning the plaintiffs that their "grace period" and "federally mandated dispute period" had nearly expired. Coupled with the statement that the debts "appear[] legally due and owing by you" and a suggestion to contact the creditors "at once," plaintiffs claim that the unsophisticated consumer would be confused into waiving his rights to dispute and verify the debts out of fear that waiting thirty days would only make things worse. The plaintiffs also claim that the letters violate section 1692g by directing the debtor to contact the creditor by phone.[6]
Second, Terrafino argues that his third letter's reference to litigation violated section 1692e(5), which prohibits "[a] threat to take any action that cannot legally be taken or that is not intended to be taken." Third, both plaintiffs urge that all the letters should have explained their FDCPA rights to request Transworld to stop contacting them. Including only the Colorado provision on this point allegedly misleads the non-Colorado-resident consumers to believe that they have no right to cease communicationsin violation of section 1692e's false and misleading statement ban and 1692f's proscription of "unfair and unconscionable" collection endeavors. Finally, Jenkins maintains that Transworld's attempts to secure an allegedly unauthorized service fee from her was an "unfair and unconscionable" collection method under section 1692f, and misrepresented *1130 the amount of the debt in violation of section 1692e.
ANALYSIS
I. Claims of Overshadowing and Misrepresenting the Validation Period Under Sections 1692g and 1692e
To ensure that consumers have a fair chance to dispute and demand verification of their debts, Congress passed 15 U.S.C. § 1692g, which requires the debt collector to send the debtor a "validation notice" within five days of the collector's initial communication. The validation notice must explain that the debtor has 30 days to dispute the validity of all or a portion of the debt. Id. § 1692g(a)(4). If the debtor disputes the debt, the collector must cease collection efforts until it sends information verifying the debt. Id. § 1692g(b). If the debtor does not dispute the debt, the collector may assume it is valid. Id. § 1692g(a)(3).
A validation notice that explains the debtor's rights to contest a debt nevertheless violates section 1692g if the notice is somehow overshadowed or otherwise contradicted by accompanying or subsequent messages. Chauncey v. JDR Recovery Corp., 118 F.3d 516, 518 (7th Cir.1997). For example, in Avila v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996), the Seventh Circuit held that following a validation notice with a threat to sue and the statement "if the above does not apply to you, we shall expect payment ... within ten (10) days" violated 1692g. The Avila court explained that "[a] debt validation notice, to be valid, must be effective, and it cannot be cleverly couched in such a way as to eviscerate its message." Id. The court found the letter did just that because it left the debtor without "a clue as to what he was supposed to do before real trouble begins." Id. While Avila adjudged overshadowing from an express threat, subsequent Seventh Circuit decisions indicate that an express threat is not essential to an overshadowing claim, see Chauncey, 118 F.3d at 519 (7th Cir.1997) (a collection letter informing a debtor that failure to pay in full within 30 days could lead to "a decision to pursue other avenues to collect the debt" violated 1692g), and has espoused a consumer "confusion" standard instead,[7]see Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir.1997).
In Bartlett, the court broadly stated that the "unsophisticated consumer is to be protected against confusion, whatever form it takes." Id. Plaintiff Bartlett's collection letter contained the standard validation notice informing him about his thirty-day right to dispute and demand verification of the debt, but added directly below the notice that "suit may be commenced at any time before the expiration of this thirty (30) days." Id. While noting that § 1692g does not prohibit a debt collector from threatening litigation or even instituting a lawsuit before the validation period expires, the court held that the collector must adequately explain how its right to seek collection or file suit coexists with the debtor's validation rights. Id. If the debtor is left unable to determine how those rights "fit together," the letter violates the FDCPA. Id. That was the case with the letter to Bartlett; the threat to sue if payment was not made within one weekwhile simultaneously informing Bartlett of his thirty-day validation rights"turned the required disclosure into legal gibberish." Id. at 501. The Seventh Circuit reversed the district court's judgment for the collector and remanded the case for entry of judgment in favor of the plaintiff. Id. at 502.
In this case, plaintiffs Jenkins and Terrafino claim numerous section 1692g violations based on the various letters they received from Transworld. We review each alleged transgression separately.
*1131 A. Visual Overshadowing in the Plaintiffs' First Letters
We first address plaintiffs' claim that the visual presentation in their initial letters from Transworld overshadowed their rights to dispute and verify their debts. Specifically, plaintiffs claim that their section 1692g rights were obscured because the validation notice was printed in a smaller typeface than the letter's main text. See Bartlett, 128 F.3d at 500 ("The required notice might be `overshadowed' just because it was in smaller or fainter print than the demand for payment.").
We disagree that the type size is overshadowing in this case. The validation notice need only "be large enough to be easily read and sufficiently prominent to be noticed" by an unsophisticated consumer. Severson v. Transworld Sys., Inc., 1994 WL 779763, at *2 (W.D.Wis. Apr.12, 1994). Transworld printed the validation notice on the front of these letters in an italicized style that makes the notice easy to distinguish and to locate. While the type size in the notice is smaller than the printing in the body of the letter, it is large enough to read easily. Moreover, except for using capital letters in the words "SPECIAL NOTICE" at the top of Jenkins' letter and the single word "URGENT" at the head of Terrafino's letter, Transworld employs a consistent, standard, typeface in the body of the letter. Transworld has not, for example, printed the validation notice in light, barely legible ink, juxtaposed the notice against screaming headlines, or employed any of the visual devices that other courts have found to overshadow the validation notice. See United States v. National Fin. Servs., Inc., 98 F.3d 131, 139 (4th Cir.1996) (validation notice overshadowed where "bold commanding type of the dunning text overshadowed the smaller, less visible, validation notice printed on the back in small type and light grey ink."); Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225-26 (9th Cir. 1988) (section 1692g violated where notice at the bottom of the page in ordinary typeface was "dwarfed by a bold-faced, underlined message three times [its] size which dominates the center of the page").
Indeed, two other courts have rejected this exact claim lodged against the very same Transworld form letters. See Severson, 1994 WL 779763, at *2 ("Applying this standard to the letters at issue it is clear that there is no violation of the Act. The notices appear at the bottom of the single-page letters which were sent to the debtors. The notices are plainly legible and would no doubt be observed even by the least sophisticated debtor."); Anthes v. Transworld Sys., Inc., 765 F. Supp. 162, 169 (D.Del.1991) ("In the present case, there is no issue of material fact with respect to this claim.... The notices are clear and readable, and should be noticed by even the least sophisticated of debtors."). Accordingly, plaintiffs cannot obtain summary judgment on this ground. Because the initial letters are not, as a matter of law, visually overshadowing, defendants win summary judgment on this issue.
B. Overshadowing Claims Arising from Jenkins' First Letter
Next, Jenkins claims that the language in her initial letter, which Transworld sent November 1, 1995, contradicts and overshadows the validation notice because it requests that she "immediately make payment." Specifically, the last sentence implores Jenkins, "To avoid any possible misunderstanding, it is important you immediately make payment to or arrangements with [Jerry Montell Pontiac]." Analyzing the letter's language under the confusion-based standard articulated in Bartlett v. Heibl, 128 F.3d 497 (7th Cir.1997), we find it violates § 1692g.
By asking Jenkins to "immediately make payment to or arrangements with" the creditor, while simultaneously granting him thirty days to challenge the validity of the debt yet failing to state which provision takes precedence the letter presents two apparently contradictory statements without explaining their relationship. See Bartlett v. Heibl, 128 F.3d 497, 500 (7th Cir.1997) ("These rights are not inconsistent, but by failing to explain how they fit together the letter confuses"). The directive that "it is important" to "immediately" pay or make arrangements with the creditor leaves the impression that the consumer must pay or begin paying right away, and that he has no right to contest the debt or demand verification *1132 first. The Seventh Circuit has found even less urgent demands for payment to overshadow the validation notice. See Avila, 84 F.3d at 226 (letter demanding payment within 10 days violated FDCPA); Chauncey, 118 F.3d at 519 (letter requesting payment within 30 days violated § 1692g). When viewed through the eyes of an unsophisticated consumer, this kind of unexplained contradiction is sufficiently confusing to violate § 1692g.
The Court rejects Transworld's argument that the letter is simply communicating a desire for prompt contact or prompt payment. The fact is that the letter stresses the "importan[ce]" of making "immediate payment to or arrangements with" the creditor. (emphasis added). The problem lies in the close proximity of the words "immediate" and "payment." These words are easily interpreted as requesting the consumer to pay or set up a payment plan, not simply make contact and to start paying now, rather than exercise the consumer's thirty-day rights to dispute or verify the debt. This request for immediate payment distinguishes the communication found permissible in Gammon v. Belzer, 1997 WL 189291 (N.D.Ill. Apr.11, 1997). In Gammon, the letter stated that "[y]our immediate attention to this matter is in your best interest;" it never asked for payment immediately or within any time period under thirty days. Id. at *2. As the court in Gammon correctly held in dismissing the 1692g claim with prejudice, this sentence was merely a recommendation that the plaintiff "look into the matter as soon as possible." Id. at *3. See also Vasquez v. Gertler & Gertler, Ltd., 987 F. Supp. 652, 657 (N.D.Ill.1997) ("While a demand for immediate payment may overshadow a validation notice, the letter does not demand payment immediately or within any time period less than thirty days. Rather, the letter asks for Vasquez's immediate attention, a request that has never been found to violate section 1692g").
Nor must the payment directive be accompanied by a threat to constitute overshadowing. See Chauncey, 118 F.3d at 518; see also Russell v. Equifax, 74 F.3d 30, 35 (2d Cir.1996) ("The question is whether ... the notice overshadowed or contradicted the mandatory validation notice; if so, then the Act is violated. It is unnecessary to prove the contradiction is threatening."). As Bartlett made clear, our job is to discern whether the request for immediate payment gives rise to confusion. 128 F.3d at 500. We find as a matter of law that the November 1, 1995 letter's emphasis on immediate payment or arrangements presented an apparent contradiction to Jenkins' validation rights, and leaves no doubt that an unsophisticated debtor would be confused. Therefore, we grant summary judgment to Jenkins on her overshadowing claim based on the language in her November 1, 1995 dunning letter. We deny defendants' motion for summary judgment on this ground.
C. Overshadowing Claims Arising from Terrafino's First Letter
Terrafino likewise challenges the legality of his initial dunning letter, dated August 22, 1995. Although this letter does not use the words "immediate payment," we conclude that, viewed as a whole, the letter creates an apparent and unexplained contradiction between its message and the thirty-day validation rights discussed at the bottom of the letter.
The letter begins with the declaration "URGENT." This is followed by a statement informing Terrafino that his account has been "assigned to our agency for immediate collection." Contrary to Transworld's assertions, the unsophisticated consumer is likely to understand "immediate collection" as an effort to extract immediate payment from him, not as a reference to the collector's duties. While Bartlett makes clear that a debt collector need not suspend collection efforts during the validation period, these efforts run afoul of the FDCPA if they create an unexplained contradiction that confuses the debtor. 128 F.3d at 500. The confusion in this letter is compounded by its last sentence, which "[s]trongly recommend[s] you contact our client to make payment arrangement." Read together, the reference to "immediate collection" and the "strong" recommendation to contact the creditor to arrange for payment are the substantive equivalent of the request for immediate payment in Jenkins' first letter.
*1133 A collection letter that does not expressly request immediate payment can also overshadow the validation notice by creating a confusing impression of urgency, when, in reality, the consumer has thirty days in which to decide on his course of action. See Ozkaya v. Telecheck Servs., Inc., 982 F. Supp. 578, 583-84 (N.D.Ill.1997) (plaintiff stated valid overshadowing claim where offending letter was confusing because it "urg[ed] [plaintiff] to resolve the dispute `quickly' when, in fact, she had at least thirty days."). Terrafino's letter begins by proclaiming that it is "URGENT;" the sense of urgency is further communicated by the "immediate collection" language and in the letter's express request for action a "strong" recommendation in the final paragraph that Terrafino contact the creditor to make payment arrangements. The middle paragraph sounds pressing and ominous as well: "Please be advised that we have been authorized to pursue collection and are committed to make whatever efforts are necessary and proper to effect collection." We find that this language creates an apparent contradiction with the validation notice by creating a false sense of urgency.
Accordingly, we grant Terrafino summary judgment on his overshadowing claim premised on the language in his first letter, and deny defendants' cross motion for summary judgment on this claim. We emphasize, however, that our decision to grant Terrafino summary judgment on this ground is based on the letter read as a whole, not on any one phrase scrutinized in isolation.
D. Overshadowing Claims Arising from the Common Second Letter
Plaintiffs next contend that Transworld's second letter, sent in identical form to Terrafino on September 5, 1995 and to Jenkins on November 15, 1995, overshadowed and contradicted the validation notice in the initial letters to the plaintiffs. See Chauncey, 118 F.3d at 518 (subsequent letters violate section 1692g if they overshadow or contradict the validation notice in an earlier communication). Plaintiffs argue that the second letters are overshadowing in two ways: (1) Despite the fact that these letters were sent with fourteen days remaining in the validation period, they confuse the unsophisticated consumer into believing he must act earlier by announcing, "IMPERATIVE Grace period about to expire," and "you may eliminate the possibility of additional trouble and make further communication unnecessary by contacting your creditor at once;" and (2) The letters' statement that the debts "appear[] legally due and owing by you" confuse the unsophisticated consumer into thinking that he has no legal basis for disputing them.
We disagree that these statements are overshadowing under Bartlett's confusion standard. The reference to an expiring "grace period" and suggestion to contact the creditor "at once" neither directly nor apparently contradict the consumer's thirty-day right to dispute the debt. These statements do not demand payment or any other action, for that matter immediately or within a certain time frame, see Chauncey, 118 F.3d at 518; they simply suggest a possible course of action communication. See Vasquez, 987 F.Supp. at 657 (letter requesting debtor's "immediate attention and cooperation by sending me your payment or contacting me without further delay" simply provides the debtor with two possible courses of action, and complies with section 1692g as a matter of law). They do not create a false sense of urgency, see Ozkaya, 982 F.Supp. at 584 (letter stated valid overshadowing claim because it proclaimed, "[W]e have entered your name in our NATIONAL COMPUTER FILES. Until this is resolved, we may not approve your checks or the opening of a checking account at over 90,000 merchants and banks ...."), and do not threaten legal action, see Avila, 84 F.3d at 226, or impliedly threaten the consumer's credit rating, see Russell, 74 F.3d at 34.
Most important, these statements are not confusing. The expiring "grace period" is perfectly compatible with the passing thirty-day validation period; even the unsophisticated consumer needs no explanation as to how these two seemingly interchangeable concepts fit together. Nor could the grace period statement confuse the unsophisticated consumer about the time remaining in the validation period because it does not purport to specify how much time the consumer has left to challenge the debt. Likewise, suggesting *1134 that the consumer contact the creditor "at once" to avoid possible trouble or further collection correspondence is consistent with the waning validation period. This statement, in conjunction with the grace period language, is reasonably read as a reminder to the consumer that he has a limited time period in which to act, and that it is in his best interest to move in a timely fashion.[8] Far from persuading the consumer to forego his rights, this letter may actually prompt the consumer to enforce them.
Equally infirm is the plaintiffs' contention that telling the unsophisticated consumer his debt "appears legally due and owing" would lead him to conclude that he lacks a legal basis to contest it. Placing the word "appears" before "legally due and owing" communicates uncertainty; indeed, it invites a challenge to the statement's accuracy. As such, this language adequately conveys that the debt's validity is not a foregone conclusion.[9]
In sum, Transworld's second letters to Jenkins and Terrafino cannot reasonably be read to confuse consumers about their validation rights. Therefore, plaintiffs are not entitled to summary judgment on this ground. Because no unsophisticated consumer could be confused by these letters as a matter of law, we grant defendants summary judgment on this issue.
E. Overshadowing Claims Arising from Jenkins' Third Letter
Jenkins argues that her third letter, sent November 24, 1995, also contains language that overshadowed the validation notice in his initial letter.[10] Sent 24 days after the first communication, the letter proclaims, "Above claim still due. Federally mandated dispute period will expire within 10 days." It further advises that "there are two ways of settling a legitimate debt timely payment or as the result of protracted and unpleasant collection effort. At this time the choice is still yours." Jenkins does not explain exactly how this language violates section 1692g, other than characterizing the letter as "demanding `timely payment' or face `protracted and unpleasant collection effort[s].'" Pl.'s Mot. Partial S.J. at 12. Presumably, Jenkins objects as well to the "federally mandated dispute period" expiration language on the same grounds as the expiring "grace period" statement.
We find no basis for an overshadowing claim in Jenkins' third letter. First, just like the "grace period" language in Transworld's second letter, alerting Jenkins that the federally mandated dispute period will expire within 10 days merely reminds Jenkins about her validation rights. Second, Jenkins' characterization of the letter's remaining language is a gross misrepresentation. The letter never "demands" timely payment; it simply explains that a valid debt must either be paid on time or collected after reminding Jenkins that she still has time to dispute the debt's validity. The warning about protracted and unpleasant collection efforts does not directly or apparently contradict Jenkins' thirty day validation rights either. It informs *1135 Jenkins that, if her debt is valid and remains unpaid, efforts will be made to collect the debt efforts that may be protracted and unpleasant. All of this is true, and serves to encourage, not discourage, the seasonable exercise of validation rights. Because the letter would not confuse the unsophisticated consumer about her validation rights, we deny Jenkins summary judgment on her 1692g claim based on the November 24, 1995 letter, and grant the defendants summary judgment on this claim.
F. Misrepresenting the Thirty Day Validation Period Section 1692e Claims Arising from the Common Second Letter and Jenkins' Third Letter
We next address issues closely related to the plaintiffs' overshadowing claims based on the expiring "grace period" language in Transworld's second form letter and the "federally mandated dispute period" expiration statement in Jenkins' third letter. Plaintiffs urge that, in addition to overshadowing the validation notice in violation of section 1692g, these statements are "false, deceptive, or misleading means" of debt collection under section 1692e because they misrepresent the time remaining in the validation period. According to plaintiffs, the second letters were sent only fifteen days after the validation period began, but the phrase "grace period about to expire" falsely implies that far less time remains. Jenkins' third letter, on the other hand, allegedly falsely overstates the time left in the validation period: although sent twenty-four days into the thirty-day period, the letter declares "federally mandated dispute period will expire within 10 days" instead of six.
The first claim has no merit. The second involves fact issues preventing summary judgment for both sides.
We reject the assertion that "grace period about to expire" falsely or misleadingly understates the amount of time left in the validation period. This language never specifies the time remaining in the period. The plaintiffs need only have looked to their initial letters to calculate how much time remained to dispute their debts. The FDCPA does not impose contract-like precision on debt collection letters; it prohibits false, misleading or deceptive statements. Read in context with the initial letters, we cannot reasonably conclude that the "about to expire" language is false or misleading. As for the plaintiffs' objection to the statement "federally mandated dispute period expires within 10 days" in Jenkins' third letter, it is premised on a fundamental misreading of the FDCPA. The statute permits the exercise of validation rights "within thirty days after receipt of the notice," see § 1692g(a)(3), not thirty days after the notice is sent. We cannot tell when Jenkins received the validation notice contained in her initial letter because the record contains no evidence on this point. This makes it impossible to determine whether the third letter's ten-day statement left a false or misleading impression about the time remaining in Jenkins' validation period, creating an issue of material fact.
To recap, on the 1692e claim tied to Transworld's second form letter, we deny summary judgment to the plaintiffs and grant summary judgment to the defendants. We deny summary judgment to both sides on the issue of whether Jenkins' third letter violates section 1692e.
G. Section 1692g Claim Arising from the Alleged Direction to Contact the Creditor By Telephone
Plaintiffs lodge one final 1692g attack on Transworld's letters. They claim that the "series" of letters violates 1692g by inviting the plaintiffs to telephone their creditors. While the FDCPA does not explicitly prohibit a request for phone contact, some courts have held that asking for a phone call overshadows the validation notice because the FDCPA requires the debtor to dispute the debt in writing. In Miller v. Payco-General American Credits, Inc., 943 F.2d 482, 484 (4th Cir.1991), for example, the court observed that "a consumer who wished to obtain validation of his debt could lose his rights under the statute if he followed the commands to telephone [because ...] collection activities will cease only when the consumer disputes the debt in writing." But the Ninth Circuit disagrees. In Terran v. Kaplan, 109 F.3d 1428, 1434 (9th Cir.1997), the *1136 court held that requesting the debtor immediately to telephone the collector does not contradict the validation notice. "This language simply encourages the debtor to communicate with the debt collection agency. It does not threaten or encourage the least sophisticated debtor to waive his statutory right to challenge the validity of the debt." Id.
The court need not choose sides on this split in authority because none of Transworld's letters asks the consumer to telephone the creditor. Not once does Transworld use the words "phone," "call," or imply that contact should be oral rather than written. Instructions to "contact our client" in Terrafino's first letter are reasonably interpreted, even by an unsophisticated consumer, to mean written contact. Directions to "contact[] your creditor at once" in the plaintiffs' second letters are clarified by the language "[b]e sure to enclose this letter with your payment for proper identification." Read together, these statements request contact by mail, not by telephone. Therefore, defendants, not plaintiffs, are entitled to summary judgment on this issue.
II. The 1692e(5) Claim Threat of Suit in Terrafino's Third Letter
The FDCPA has a special section aimed at preventing empty threats of litigation as a means of scaring the debtor into payment. Section 1692e prohibits a debt collector from using any "false, deceptive or misleading representation or means in connection with the collection of any debt, including but not limited to ... (5) the threat to take any action that cannot legally be taken or that is not intended to be taken." Terrafino claims that Transworld violated § 1692e(5) by threatening him with legal action that neither it nor the creditor intended to initiate. He points to the following language in his third letter from Transworld, dated October 3, 1995:
The economic feasibility of some type of litigation by our client has not been determined.
However, please understand that if legal action were to be undertaken, it would be costly and time-consuming for both parties. The loser of such an action would probably be subject to court costs and/or attorney fees, if applicable. Should such court action occur, and should your creditor prevail, there would be available various avenues to satisfy a judgment. You may wish to check your state laws concerning these remedies.
It is not my intention to threaten or alarm you about this matter but merely to point out the problems of refusing to pay what appears to be a just and legal debt.
This language, Terrafino claims, would lead an unsophisticated consumer to believe Transworld was threatening legal action to collect the $150 debt unless it was paid. But this is misleading, according to Terrafino, because (1) Transworld knew that it was not economically feasible to sue over such a small amount, and (2) Terrafino's account was still in "Phase I" of Transworld's collection program, which is limited to sending correspondence. Transworld counters that Terrafino fails the threshold requirement that the letter make a "threat" to take action. While the letter mentions the word "litigation," Transworld argues, the surrounding language makes clear that no action is pending and no decision has been made regarding any future action.
Tracking the terms of the statute, we begin by asking whether this letter poses a "threat to take [legal] action," as viewed through the eyes of the unsophisticated consumer. See United States v. National Financial Servs., Inc., 98 F.3d 131, 136 (4th Cir.1996) (evaluating letters from the consumer's point of view "is consistent with the norms that courts have traditionally applied in consumer-protection law."). For a collection letter to threaten legal action under § 1692e(5), it must communicate that a lawsuit is not merely a possibility, but that a decision to pursue legal action is either imminent or has already been made. Courts have found litigation threats even in indirect or oblique statements, provided that they imply legal action is underway or contemplated in the near future.
For instance, in Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 25-26 (2d Cir.1989), the court found an implied threat to take legal action in the following statements: "Notice Is Hereby Given That This Item Has Already Been Referred For Collection *1137 Action"; "We Will At Any Time After 48 Hours Take Action As Necessary And Appropriate To Secure Payment In Full"; and "Pay This Amount If Action Is To Be Stopped." While acknowledging that the question was close, the court determined, "The clear import of the language, taken as a whole, is that [some] type of legal action has already been or is about to be initiated and can be averted from running its course only by payment."
Bentley v. Great Lakes Collection Bureau, Inc., 6 F.3d 60, 62-63 (2d Cir.1993), went one step further, finding an implied threat of litigation even though a later letter denied that legal action was underway. The collector mailed two letters to the debtor. The first informed the debtor that "our client has instructed us to proceed with whatever legal means is necessary to enforce collection." Id. at 61. The follow-up letter stated, in part, "[Y]our delinquent account has been referred to my desk where a decision must be made as to what direction must be taken to enforce collection. Were our client to retain legal counsel in your area, and it was determined that suit should be filed against you, it could result in a judgment." Id. Although the second letter concluded with the statement "No legal action has been or is now being taken against you," the Second Circuit held that this did not save the first letter's statement that the collection agency was authorized to bring legal action, or the second letter's pronouncement that "a decision must be made as to what direction must be taken to enforce collection." Read together, the letters could lead the unsophisticated consumer to think that legal proceedings were imminent. Id. at 62.
Consistent with this focus on imminence, some courts have refused to find a threat of litigation even in the face of stronger, more direct references to "legal action," when the letter does not suggest that the action is already underway or imminent. These cases deem permissible statements that litigation is an option that the creditor can consider. For example, in Madonna v. Academy Collection Serv., Inc., 1997 WL 530101, at *6-*7 (D.Conn. Aug.12, 1997), the debt collector sent three letters that all informed the debtor, "Our client may choose to pursue legal action." Id. at *1-*2. The last letter preceded this statement with the declaration that "it is our intent to close our files and inform our client that you have refused to cooperate." Id. at *2. The letter went on to describe possible consequences of litigation and suggested that the client obtain legal assistance. Id. The court held, however, that the letters' references to legal action were not threats to pursue it the letters merely communicated that litigation was one possible course of action. "Far from threatening legal action, the statement ... indicates that legal action is an option available to the creditor, who may indeed choose to take advantage of it." Id. at *7. See also Knowles v. Credit Bureau of Rochester, 1992 WL 131107, at *1-*2 (W.D.N.Y. May 28, 1992) (the statement "failure to pay will leave our client with no choice but to consider legal action" did not violate section 1692e by threatening legal action: "At most, the language at issue here threatened that the creditor will have to consider legal action. No action of any kind is threatened by defendant collection agency.").
Finally, in cases where the likelihood of legal action is not clear from the language, the letter's source can be determinative, especially if it purports to be from an attorney. "Because to most consumers, the relevant distinction between a collection agency and an attorney is the ability to sue," a letter signed by an attorney signals to the unsophisticated consumer that legal action is at hand. United States v. National Fin. Servs., 98 F.3d 131, 136-37 (4th Cir.1996); see also Russey v. Rankin, 911 F. Supp. 1449, 1454 (D.N.M.1995) (a letter purporting to be from an attorney declaring "we have the legal right to file a lawsuit" held to "clearly threaten litigation.").
Our review of the relevant legal precedent leads us to conclude that Terrafino's October 3, 1995 letter does not impermissibly threaten litigation in violation of 1692e(5). First, the letter is clearly not from an attorney; it is signed by Transworld's collection manager and written on Transworld's letterhead. Second, the letter's reference to litigation lacks imminence; it contains no language implying that legal action is underway, either now or in the near future. The paragraph *1138 discussing litigation is phrased in hypothetical terms, such as "if legal action were taken" and "should such court action occur." In fact, the sentences following these phrases state explicitly that "[i]t is not my intention to threaten you about this matter ...." Most important, the letter opens by disavowing any current or imminent legal action; the first sentence states that "the economic feasibility of some type of litigation by our client has not been determined." In short, the letter makes clear that no decision regarding legal action has been made, no action has been taken and none is imminent. It is a lawful reminder that litigation is a step available in the debt collection process, and details some of the possible consequences of that step. Because we find no threat in the October 3, 1995 letter, we need not consider whether Transworld had the intent or authority to follow through with legal action. We grant summary judgment on this issue to the defendant, and deny it to Terrafino.
III. The 1692e and 1692f Claims Arising from Disclosures on the Back of Transworld's Letters
Plaintiffs next take issue with the contents of or rather, omissions from the reverse side of Transworld's dunning letters. On the back of each letter that Transworld sent the plaintiffs are selected state collection law provisions. One paragraph under the heading "COLORADO" explains that the state's law prohibits a debt collector from contacting the debtor at home or work if the debtor requests cessation of contact.[11] Plaintiffs claim that this notice is misleading under 15 U.S.C. § 1692e, as well as unfair and unconscionable under § 1692f, because it is not printed in conjunction with the FDCPA's analogous provisions. See 15 U.S.C. § 1692c(c).[12] Printing these consumer protections only under the "Colorado" heading, plaintiffs argue, deceives the debtor into believing that only Colorado residents are entitled to end collection agency contact when, in fact, this right is extended to all consumers, regardless of their residence, under the FDCPA.
The Colorado and federal statutes differ in an important way, however. Colorado law requires collection agencies to notify Colorado consumers about these cessation rights, in writing, along with their initial collection communications. See Colorado Rev. Stat. § 12-14-105(3)(c). The FDCPA, on the other hand, does not require debt collectors to disclose the analogous federal rights in any debt collection letter.
The plaintiffs retort that the Colorado statute does not require this information to be accompanied by the "Colorado" heading. They argue this heading, which appears in *1139 letters sent across the country, misleads unsophisticated consumers from other states into believing that the right to end debt collection communications belongs exclusively to Colorado residents. Unaware of their parallel federal section 1692c(c) rights, these consumers will likely continue to receive unwanted contact. The plaintiffs go on to suggest a number of alternative ways that Transworld's letters could provide the information from both statutes.
Transworld responds that this Court should follow the ruling in Brown v. ACB Business Servs., Inc., 1996 WL 469588, at *3 (S.D.N.Y. Aug.16, 1996), which rejected an identical section 1692e claim challenging the omission of section 1692c disclosures from letters that printed analogous state provisions. The Brown court admitted that consumers "could be misled as to the scope of his or her rights by the state disclosures" but explained that "this Court is constrained by the knowledge that Congress did not include in the FDCPA a mandatory notification provision with respect to the FDCPA itself." Id. at *3. Finding a violation under these circumstances would "in effect write a notification requirement into the FDCPA," exceeding the court's judicial power. Id. We agree with Brown's observation that any ruling on this issue should not be fashioned in a way that constructively imposes a written federal notification requirement. But, we hasten to add, ruling that Transworld must communicate that cessation rights are not limited to Colorado residents does not necessarily mean that Transworld is required print the relevant federal statutory section. In fact, we would leave the method of compliance up to Transworld.
It is within our purview to mandate that if Transworld prints state statutory provisions explaining debtors' rights to stop contact, as it must under Colorado law, and chooses to send these letters to debtors across the country, it must do so in a way that will not confuse those debtors into believing they have no similar rights because they reside outside of Colorado. We find that Transworld failed to meet that mandate in the letters it sent to plaintiffs. The unsophisticated consumer could read the notice on the back of Transworld's letters and be mislead to believe that only Colorado residents may demand that a debt collector cease communication.[13]
We conclude that Transworld has violated 1692(e)[14] by presenting information about debtors' rights to cease collector contact in a misleading manner. Therefore, we grant summary judgment to the plaintiff on this issue, and deny it to defendants.
IV. Attempted Collection of Unauthorized Service Fee
We now consider the last of the alleged FDCPA violations Jenkins' claim in Count II of the complaint that Transworld violated the FDCPA by attempting to collect a $25 service fee from her.[15] These allegations stem from events in October 1995 when, shortly after purchasing a car that proved to have mechanical problems, Jenkins stopped payment on her $1,000 check for the car's downpayment. That action prompted the car *1140 dealer to turn Jenkins' account over to Transworld for collection. In providing the information requested by Transworld's "Start Service" form, however, the dealer incorrectly indicated that Jenkins' check had been returned "NSF" (not sufficient funds). Accordingly, the dealer added a $25 NSF service fee to the $1,000 it sought to collect. This misinformation was reflected in the November 1, 1995 letter that Transworld sent to plaintiff Jenkins a letter specifically designed for debts arising from a dishonored check.
Jenkins contends that Transworld's efforts to collect the $25 fee violate section 1692f(1), which prohibits the use of unfair or unconscionable means to collect a debt, including attempts to secure an amount not "expressly authorized by the agreement creating the debt or permitted by law." Jenkins also claims that this collection effort violates section 1692e(2)(A), which prohibits the false representation of "the character, amount, or legal status of any debt."
"Federal courts look to state law in determining whether a fee is `permitted by law' under 1692f(1)." Ozkaya v. Telecheck Servs., Inc., 982 F. Supp. 578, 585 (N.D.Ill. 1997). While Illinois law permits assessing service fees for dishonored checks,[16] it does not allow service charges to be imposed on a stopped check. Nor does Transworld contend that any contract between Jenkins and the car dealer permitted tacking a service fee onto debts arising from a stopped check. Consequently, it appears that the service fee charge violates section 1692f(1). It appears to violate section 1692e(2)(A) as well, which prohibits the false representation of the debt's amount.
This does not end the matter, however. It remains to be seen whether Transworld can be held liable for these violations. Civil liability under the FDCPA is governed by § 1692k, which allows recovery against a debt collector who intentionally violates the Act, but absolves a debt collector whose "violation was unintentional and occurred despite the existence of reasonable procedures to prevent it." Jenkins v. Heintz, 124 F.3d 824, 828 (7th Cir.1997).[17] The section reads:
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
15 U.S.C. § 1692k(c). The first question the Jenkins court examined is whether the statutory violation was intentional. On this score, the court explained that once a defendant offers evidence that it was unaware of the violation, the burden shifts to the plaintiff to show that the defendant was indeed acting intentionally. Id. at 831. To fulfill this burden, the plaintiff "is required to present evidence creating a reasonable inference, not a mere possibility" of intent. Id. Negligence is insufficient; the plaintiff may not show violations of sections 1692f and 1692e, for example, by demonstrating that the defendant should have known that the debt was unauthorized. The statute requires a reasonable inference that "defendants actually knew [that the debt amount was unauthorized], and then intentionally made a false representation." Id. at 832. After evaluating the intent issue, the court then determined whether the violation was the result of a bona fide error. Id.; see 15 U.S.C. § 1692k(c).
Transworld offers evidence that it was unaware of its statutory violations, i.e., that the $25 service fee was not authorized at the time it sent the collection letter. It is undisputed that Transworld was not in possession of the sales contract between plaintiff Jenkins and the creditor. In fact, Transworld had no other information about Jenkins' debt aside from its "Start Service" form on which the creditor incorrectly noted that Jenkins' debt arose from a dishonored check. The Jenkins court makes clear that a debt collector has the right to rely on information provided by the client-creditor, *1141 and has no obligation to undertake an independent debt validity investigation. See 124 F.3d at 833-34 (recognizing that neither attorneys acting as debt collectors nor non-lawyer debt collectors are required to "conduct an independent investigation into the legal intricacies of the client's contract with the consumer"); see also Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1032 (6th Cir.1992); Ducrest v. Alco Collections, Inc., 931 F. Supp. 459, 462 (M.D.La.1996); Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 392-93 (D.Del.1991).
Jenkins, on the other hand, fails to present evidence from which a reasonable jury could infer that Transworld knew it was collecting an unauthorized fee. While the plaintiffs' response to Transworld's motion for summary judgment attaches a copy of Jenkins' check, stamped "payment stopped," Jenkins provides no evidence that Transworld ever saw the check, much less that it was in Transworld's possession at the time it received the creditor's erroneous "Start Service" form. Jenkins rejoins that, as an experienced debt collector, Transworld knew or should have known that the FDCPA prohibits collecting unauthorized service fees. But Transworld's knowledge of the FDCPA requirements is not the relevant issue. Jenkins must present some evidence that Transworld knew that the $25 fee it attempted to collect was in fact not authorized by law or contract, and then tried to collect it anyway. See Jenkins, 128 F.3d at 832. She has presented no such evidence. As such, Jenkins loses on the intent issue.
Transworld next argues that it satisfies the requisites of section 1692k(c)'s "bona fide error" defense. This provision absolves of liability a debt collector who has shown by a preponderance of the evidence that (1) it violated the FDCPA unintentionally, and (2) has in place procedures reasonably adapted to avoid the violation it committed.[18] The affirmative bona fide error defense is "unrelated to the issue of whether a plaintiff has proven a debt collector's actual knowledge of facts sufficient to sustain a cause of action under § 1692(e)." Hubbard v. National Bond & Collection Assocs., Inc., 126 B.R. 422, 429 (D.Del.1991). "The mere assertion of good intent, absent a factual showing of actual safeguards reasonably adopted to avoid violations of the FDCPA, is insufficient" to sustain the defense. Oglesby v. Rotche, 1993 WL 460841, at *9 (N.D.Ill. Nov. 5, 1993); see also Green v. Hocking, 792 F. Supp. 1064, 1066 n. 5 (E.D.Mich.1992) (rejecting bona fide error defense where defendant merely asserted the error was unintentional without supplying evidence of procedural safeguards.).
While Jenkins argues that the adequacy of Transworld's procedures is one of fact, other courts have ruled on this issue as a matter of law in appropriate circumstances. See, e.g., Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 389 (D.Del.1991) (procedures were adequate where defendant held periodic seminars and provided training on FDCPA requirements, and gave employees various editions of a FDCPA manual, issued a three-page memorandum setting forth its FDCPA policy, and posted a 5" by 8" card over every telephone citing language required by the Act); Howe v. Reader's Digest Ass'n, 686 F. Supp. 461, 467 (S.D.N.Y.1988) (granting summary judgment based on bona fide error defense where affidavits detailed the "extensive systems and procedures," including use of an independent auditing agency, to ensure compliance with the FDCPA).
Although Transworld's relevant procedures are fairly simple, they are clearly reasonably adapted to avoid the imposition of unauthorized fees. Clients are instructed in writing to submit only those charges to which they are legally entitled. Transworld includes this admonition in the "installation packet" provided to prospective clients and repeats it on the "Start Service" form. Furthermore, clients are advised to consult with an attorney before adding any such fees. Transworld also issued memos to its sales staff directing them to reinforce this message *1142 to prospective clients. Jenkins argues that Transworld's failure to advise clients specifically that they are not to submit service charges added to stopped checks "almost guarantees" that such a client error will occur. Transworld counters that a blanket prohibition on adding service fees is impractical because remedies for dishonored checks vary among states and private contracts may permit fees for stopped checks.
It is true that Transworld could conceivably add to its procedures (for instance, the "Start Service" form includes a space to indicate that "NSF service" is desired, but does not include a similar space for stopped checks). However, in light of Jenkins' clear directive that debt collectors may reasonably rely on information provided by the creditorclient, and Transworld's evidence of its policy to instruct clients to seek legal counsel in determining which fees are legally due, we find as a matter of law that the procedures were adequate. Transworld therefore prevails on its bona fide error defense. In making this determination, we emphasize that the statutory violations here were initiated by the creditor-client, who acted in direct opposition to Transworld's directive to include only legally due charges.
Our holding is also consistent with the decision in Smith v. Transworld Systems, Inc., 953 F.2d 1025, 1032 (6th Cir.1992), which held that the very same debt collector's specific instructions to claim only amounts legally due and owing were adequate to sustain a bona fide error defense. "Because the appellee employs procedures reasonably adapted to prevent errors in amounts referred for collection, [defendant] reasonably relied on the accuracy of [creditor's] debt figure; the resulting mistake was bona fide error pursuant to 15 U.S.C. § 1692k(c)." Id. at 1032. See also Lewis v. ACB Business Services, Inc., 135 F.3d 389, 401-02 (6th Cir.1998) (defendant's procedure manual and computer system were adequate to establish bona fide error defense in light of the fact that violation arose from clerical error by creditor-client, not defendant). Because Transworld has established that its efforts to collect an unauthorized fee were unintentional, and that it maintained procedures reasonably adapted to avoid the imposition of unauthorized fees, it is entitled to summary judgment on Count II. Plaintiffs' motion for partial summary judgment is denied as to Count II.
V. Union's Potential Liability Under the FDCPA
We must now determine whether Union is responsible for the FDCPA violations that have been established. In their cross-motion for summary judgment, defendants Union and Transworld argue that Union is not liable to the plaintiffs for the actions of its subsidiary, Transworld. The defendants note that Union is a holding company that plays no role in collecting debts, belying any claim that it is a debt collector under the FDCPA. Moreover, defendants contend that they are distinct, independently operated corporations, and that Transworld cannot be characterized as Union's "instrumentality." Thus, they argue, Union should not be liable under traditional "piercing the corporate veil" analysis.
Plaintiffs argue that because Union controls Transworld's debt collection practices, and receives the bulk of its revenue from those practices, it is indirectly engaged in debt collection. Plaintiffs also contend that Union is aware of Transworld's FDCPA violations and has the power and responsibility to correct them. Finally, plaintiffs maintain that Union should be held liable for Transworld's transgressions because it is a corporate fiction designed to avoid the FDCPA's net worth limitation on recovery. They urge the use of a more liberal application of traditional veil piercing analysis in light of the FDCPA's status as federal consumer protection statute.
The FDCPA defines a debt collector as "any person who uses any instrumentality of interstate commerce or the mails the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or asserted to be owed or due to another." 15 U.S.C. § 1692a(6). Plaintiffs have not alleged any facts that show Union directly participated in any of Transworld's debt collection activities. To find Union liable as an indirect debt collector under the FDCPA, plaintiffs must show Union and Transworld *1143 share an interdependence that renders them a "single economic enterprise." Harrison v. NBD, Inc., 968 F. Supp. 837, 845 (E.D.N.Y. 1997); see also Moore v. National Account Sys., Inc., 1991 WL 313896, at *2 (D.Conn. Nov.13, 1991); United States v. ACB Sales & Serv., Inc., 590 F. Supp. 561, 574 (D.Ariz. 1984).
In ACB Sales, the court held that a corporate parent and its sixteen subsidiary collection agencies constituted a single economic enterprise based on the companies' "appearance to the public and the actual interdependent relationship between them." 590 F. Supp. at 575. The court noted that the parent's name was on each subsidiary's letterhead. Id. Furthermore, the parent entered into contracts with creditors for the debt collection services provided by the subsidiaries. Id. It provided management, accounting, purchasing and administrative services for the local offices. Id. Finally, all the companies were managed by "an interlocking directorate" of three individuals. Id. "Consequently, [defendants], albeit indirectly, are debt collectors under the FDCPA and, therefore, are liable for all violations of the FDCPA committed by the local [subsidiaries]." Id. at 576.
In contrast, Union plays no role in either the actual debt collection process or in procuring creditor-clients. The Union name does not appear on any Transworld correspondence. The two corporations do not share any facilities, employees or a computer system. One Transworld officer sits on Union's board and one Union director is a Transworld officer. Both corporations maintain their own accounting departments and keep separate corporate minutes. Although the bulk of Union's profits come from Transworld dividends, this amount is set after Transworld determines its immediate and long-range cash requirements. Other courts have found allegations of more extensive interdependence within a parent-subsidiary relationship insufficient to state a FDCPA claim against a collector's corporate parent. See Stepney v. Outsourcing Solutions, Inc., 1997 WL 722972at *2-*3 (N.D.Ill. Nov.13, 1997) (allegations that defendant parent purchased portfolios of old consumer debts, implemented the policies and practices of its subsidiary collection company, and financed the collection activities at issue failed to support a finding of a single economic enterprise.); Harrison v. NBD, Inc., 968 F. Supp. 837, 845 (E.D.N.Y.1997) (parent corporation's approval of both the collection demand form and the deceptive practices of its subsidiary were inadequate to render defendants a single economic enterprise.) Plaintiffs fall far short of establishing the facts necessary to find that Union and Transworld are engaged in a single economic enterprise, a finding required to make Union an indirect debt collector under the FDCPA.
Absent such a showing, Union can be liable for Transworld's FDCPA violations only by presenting evidence that (1) Transworld is a "mere instrumentality" of Union, and (2) recognizing Transworld's corporate existence would work a fraud or injustice on the plaintiffs, so as to warrant piercing the corporate veil.[19]Van Dorn Co. v. Future Chem. & Oil Corp., 753 F.2d 565, 570 (7th Cir.1985) ("Generally, before the separate corporate identity of one corporation will be disregarded and treated as the alter ego of another, it must be shown that it is so controlled and its affairs so conducted that it is a mere instrumentality of another, and it must further appear that observance of the fiction of separate existence would, under the circumstances, sanction a fraud or promote injustice.") (citing Main Bank of Chicago v. Baker, 86 Ill. 2d 188, 205, 56 Ill. Dec. 14, 427 N.E.2d 94, 101 (1981)). On the instrumentality/control factor, "the Illinois courts have considered some of the following: (1) the failure to maintain adequate corporate records or to comply with corporate formalities, (2) the commingling of funds or assets, (3) undercapitalization, and (4) one corporation treating the assets of another corporation as its own." Id. at 570.
Plaintiffs argue that because this case involves a federal consumer protection statute, the court should apply a more lenient standard, such as the one employed in cases *1144 involving section 5 of the Federal Trade Commission Act, where liability has been imposed on parent corporations without rigidly adhering to common law veil-piercing analysis. See, e.g., P.F. Collier & Son Corp. v. FTC, 427 F.2d 261, 267 (6th Cir.1970) ("[W]here the public interest is involved, as it is in the enforcement of Section 5 of the Federal Trade Commission Act, a strict adherence to common law principles is not required in the determination of whether a parent should be held for the acts of its subsidiary, where strict adherence would enable the corporate device to be used to circumvent the policy of the statute."). But plaintiffs fail to show how employing traditional veil-piercing analysis here would circumvent the FDCPA's policies. Indeed, the Seventh Circuit recently applied the traditional veil piercing test to determine whether a corporate parent should be liable for the acts of its subsidiary under the FDCPA. See Aubert v. American General Finance, Inc., 137 F.3d 976, 978 (7th Cir.1998). In rejecting the plaintiff's attempt to hold three corporations jointly liable for FDCPA violations, the court observed that the plaintiff failed to present any evidence, "such as inadequate capitalization or a failure to observe the legal requirement of separate corporate existences, to justify the unusual remedy of piercing the corporate veil." Id.
In the instant case, plaintiffs have failed to present any evidence that Transworld is a mere instrumentality subject to Union's total control, or that observing Transworld's corporate existence would work an unjustice or fraud on them. First, the same facts that demonstrate Union and Transworld are not a single economic enterprise compel the conclusion that Transworld is not a mere instrumentality of Union. In addition, there is no evidence that the two companies have failed to observe corporate formalities, that Transworld is a sham corporation, is inadequately capitalized, or that it would be unable to afford the plaintiffs' damages. Union and Transworld each have their own officers and board of directorswith only two overlapping membersand keep separate minute books and accounting records. It is undisputed that Transworld existed prior to its involvement with Union and that Transworld has a net worth of $11 million. In light of these facts, we find no justification for piercing the corporate veil or for finding Union liable for Transworld's debt collection activities. Accordingly, we grant Union's motion for summary judgment in its entirety.
CONCLUSION
To summarize, the Court finds as follows:
(1) Transworld's typeface did not visually overshadow the validation notice in violation of § 1692g in the November 1, 1995 letter to Jenkins or the August 22, 1995 letter to Terrafino.
(2) Transworld violated the requirements of § 1692g by using language that overshadowed the validation notices in the November 1, 1995 and August 22, 1995 collection letters sent to Jenkins and Terrafino, respectively.
(3) Transworld did not violate § 1692g or any other provision of the FDCPA in the second common letter sent to both Jenkins and Terrafino.
(4) Transworld did not violate § 1692g with overshadowing language in Jenkins' third letter, dated November 24, 1995.
(5) Fact issues prevent the Court from determining, as a matter of law, whether Transworld's third letter to Jenkins misrepresented the amount of time remaining in the validation period in violation of § 1692e.
(6) Transworld did not request that Jenkins or Terrafino contact the creditor by telephone in violation of § 1692g.
(7) Transworld did not threaten legal action against Terrafino in violation of § 1692e(5).
(8) Transworld's presentation of the "Colorado" information on the reverse side of all six letters is false, deceptive and misleading in violation of § 1692e.
(9) Transworld did not intentionally seek to collect an unauthorized fee from Jenkins in violation of §§ 1692f(1) or 1692e(2)(a), and it has a bona fide defense to these claims.
(10) Union Corp. is not a debt collector as defined in the Act and is not liable for any of the above FDCPA violations committed by Transworld. *1145 Accordingly, as set forth above and for the reasons stated, the parties' motions for summary judgment are hereby GRANTED in part and DENIED in part.
NOTES
[1] Earlier in the litigation, the plaintiffs moved for class certification. The Court denied the motion without prejudice in light of the pending potentially dispositive motions. See Allen v. Aronson Furniture Co., 971 F. Supp. 1259, 1261 (N.D.Ill. 1997) (in appropriate cases, district court may address motion for summary judgment before deciding whether to certify a class).
[2] Transworld's response to the plaintiffs' summary judgment motion argues that this claim is waived because Terrafino failed to include it when the Court consolidated his suit with Jenkins'. Plaintiffs respond that we should address the claim because its omission from the consolidated complaint was inadvertent. Despite Transworld's objection, we will consider this claim because we find that the plaintiffs intended the consolidated action to incorporate all claims in their original complaints. This ruling will not prejudice Transworld; Terrafino's complaint gave it notice of this claim and the plaintiffs have consistently pursued it in their briefs.
[3] The facts are derived from statements that the parties filed with this Court under the Northern District of Illinois' Local General Rule 12(M)-(N).
[4] The pleadings do not explain what gave rise to Terrafino's dispute with Glenoaks Medical Center.
[5] Although numerous other circuits employ a "least sophisticated" consumer or debtor standard, the Seventh Circuit has adopted the "unsophisticated" consumer standard to "relieve incongruity between what the [least sophisticated consumer] standard would entail if read literally, and the way courts have interpreted the standard." See Gammon, 27 F.3d at 1257. While the least sophisticated consumer is, literally, the "single most unsophisticated consumer who exists," circuits that use this standard nevertheless "routinely blend in the element of reasonableness." Id.
[6] The defendants argue that the plaintiffs' summary judgment motion cites numerous examples of overshadowing not included in the original complaint. The Court nevertheless considers these overshadowing charges since they are reasonably within the scope of the original allegations.
[7] Other circuits likewise hold that the offending letter need not contain an overt threat, but may violate section 1692g with an implied threat, see Russell v. Equifax, 74 F.3d 30, 34 (2d Cir.1996) (letter's statements that, "[i]f you do not dispute this claim (see reverse side) and wish to pay it within the next 10 days we will not post this collection to your file" and "[i]t is our practice to post unpaid collections in the amount of $25 or more to individual credit records," overshadowed debtor's thirty-day right to dispute the debt); or, in the absence of an implied threat, confusing language, see Miller v. Payco-General American Credits, Inc., 943 F.2d 482, 484 (4th Cir.1991) (letter demanding "immediate full payment" and instructing the consumer to telephone the creditor "now" could confuse the debtor into giving up his or her validation rights).
[8] The "grace period" language distinguishes Transworld's second letter from the communication in a recent decision, Flowers v. Accelerated Bureau of Collections, Inc., 1997 WL 136313 (N.D.Ill. Mar.19, 1997), modified on reconsideration, 1997 WL 224987 (N.D.Ill. Apr.30, 1997). The Flowers court held, on reconsideration, that a follow-up collection letter urging immediate communication but not payment nevertheless stated a valid section 1692g claim because it omitted a reminder about the thirty day dispute period. 1997 WL 224987, at *3. This created the potential for confusion because, without the reminder, the request for immediate contact suggested to the unsophisticated consumer that the validation period had expired. Id.
[9] For the same reason, this statement is not a "false, deceptive, or misleading" means of debt collection proscribed by section 1692e, nor an "unfair or unconscionable" means of debt collection in violation of section 1692f.
[10] The defendants argue that Jenkins waived any 1692g claims based on her third letter because they were not properly pled in the complaint. They point out that Count I (which sets forth the plaintiffs' section 1692g claims) says nothing about this letter. Although defendants are correct that the third letter is not expressly mentioned in Count I, the complaint references the letter in earlier paragraphs, all of which Count I incorporates by reference. Moreover, the plaintiffs' opening brief includes enough facts (though just barely enough) to fairly alert the defendants about the basis for this claim. Finally, since we conclude that this claim fails as a matter of law, defendants are not prejudiced by its consideration.
[11] Colorado Rev. Stat. § 12-14-105(3) states:
(a) If a consumer notifies a debt collector or collection agency in writing that:
. . . . .
(II) The consumer refuses to pay a debt or the consumer wishes the collection agency to cease further communication with the consumer, then the debt collector or collection agency shall not communicate further with the consumer with respect to such debt except:
(A) To advise the consumer that the collection agency's further efforts are being terminated;
(B) To notify the consumer that the collection agency or creditor may invoke specified remedies which are ordinarily invoked by such collection agency or creditor; or
(C) Where applicable, to notify the consumer that the collection agency or creditor intends to invoke a specified remedy permitted by law.
(b) If such notice from the consumer is made by mail, notification shall be complete upon receipt.
(c) In its initial written communication to the consumer, the collection agency shall include notification of the consumer's rights under this subsection (3). If such notification is placed on the back of the written communication, there shall be a statement on the front notifying the consumer of such fact.
[12] 15 U.S.C. § 1692c(c):
Ceasing Communication If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt except:
(1) to advise the consumer that the debt collector's further efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor;
(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
[13] Simply by way of suggestion, Transworld may want to consider prefacing the state law disclosures with the following statement suggested by the Brown court: "We are required under state law to notify consumers of the following rights. This list does not contain a complete list of the rights consumers have under state and federal law." 1996 WL 469588, at *3 n. 1.
[14] Having found a section 1692e violation, we express no opinion as to whether this aspect of the letters offends section 1692f.
[15] This FDCPA claim resides in Count II of the complaint. Count III alleges that Transworld's attempt to collect this service fee likewise violated the Illinois Collection Agency Act, 225 ILCS 425/2.02; however, the plaintiffs fail to argue or even mention this claim anywhere in their briefs. The defendants also shy away from defending against the Illinois Act. Given the parties' utter failure to support or defend against Count III with legal argument and authority, we offer no opinion on the viability of this claim. See Reidt v. County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir.1992) (plaintiff waived disparate impact claim alleged in complaint because she did not fulfill her "minimal responsibility of identifying the applicable law and arguing why the facts ... fit into the parameters of that law."); see also Freeman United Coal Mining Co. v. Office of Workers' Compensation Programs, 957 F.2d 302, 305 (7th Cir.1992) ("[W]e have no obligation to consider an issue that is ... not developed in a party's brief.").
[16] 810 ILCS5/3-806 (1988).
[17] The Jenkins court applied section 1692k's civil liability requirements to the plaintiffs' section 1692f(1) and section 1692e(2)(a) claims that the defendant was trying to collect unauthorized debts consisting of force-placed insurance premiums.
[18] Jenkins argues that the bona fide error defense covers only clerical or administrative errors, not errors of judgment or law. For support, she cites to numerous cases that deal with the Truth in Lending Act's bona fide error provision. However, the Seventh Circuit rejected this exact argument, distinguishing the FDCPA's bona fide error provision from TILA's. Jenkins v. Heintz, 124 F.3d 824, 833 n. 7 (7th Cir.1997).
[19] This is the two-part test for piercing the corporate veil under Illinois law. The parties do not dispute that Illinois law governs whether we should hold Union liable under a veil-piercing theory. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267149/ | 174 Cal. App. 4th 1060 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
DEL JAY UGALINO, Defendant and Appellant.
No. C055469.
Court of Appeals of California, Third District.
June 9, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*1061 Donald Masuda and Kenny N. Giffard for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Paul E. O'Connor, Alison Elle Aleman and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
*1062 OPINION
DAVIS, J.[*]
A jury found defendant Del Jay Ugalino guilty of the following crimes: (1) first degree residential burglary (Pen. Code, § 459); (2) attempted robbery of Joshua Johnson (Pen. Code, §§ 664, 211); (3) attempted robbery of Jessie Rider (Pen. Code, §§ 664, 211); (4) possession of a controlled substance for sale (Health & Saf. Code, § 11378); (5) possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)); (6) robbery of Bendon Lee (Pen. Code, § 211); (7) battery of Charles Maroosis (Pen. Code, § 242); and (8) making a criminal threat to Mickey Lathum (Pen. Code, § 422). The jury also found true the allegation that defendant personally used a handgun during the commission of the crimes set forth in (1) to (3), above. Defendant was sentenced to an aggregate term of 14 years six months in state prison. He appeals his conviction, claiming prosecutorial misconduct, ineffectiveness of counsel, and insufficiency of the evidence. We will reverse defendant's conviction for attempted robbery of Jessie Rider and otherwise affirm the conviction.
I
Facts Relating to August 28, 2005, Incident
In August 2005, Joshua Johnson was living in a two-bedroom apartment with his girlfriend, Denise Galindo, their infant daughter, and two roommates: Jessie Rider and Devon McDermott. For income, Johnson sold marijuana from the apartment.
On August 28, 2005, defendant called Johnson on Johnson's cell phone, telling Johnson he wanted to buy three ounces of marijuana. Having sold to defendant 10 to 15 times before, Johnson told him to come over. So, driving a pickup truck, Aorn Saechow drove defendant and a third man to Johnson's apartment, where Johnson met them at the curb. Defendant and the third man then followed Johnson to his apartment.
When the three men got to Johnson's apartment, Rider was in the front room looking through CD's (compact discs), Galindo was on the front porch, and McDermott was sleeping in one of the bedrooms. Once inside the apartment, defendant began counting out his money and Johnson went to his bedroom to get the marijuana out of a locked safe.
Johnson went into the kitchen area with the marijuana and defendant asked to use the restroom. Defendant walked down the hall toward the restroom and *1063 then turned around, aimed a gun at Johnson, and said, "you're getting jacked." The man who came with defendant had his own gun and he pointed it at Rider, telling Rider to lie facedown on the ground.
Johnson initially "froze" but quickly grabbed the marijuana and stuffed it in his underwear, covering it with his shirt. Defendant then turned to his cohort and said, "give me your nine," and started walking toward Johnson. While defendant was looking the other way, Johnson ran out of the apartment, down the stairs, out to the parking lot, and past the truck in which defendant had arrived.
Approximately 30 seconds later, defendant and his cohort ran out of the apartment, down the stairs, and out to the parking lot, where they jumped into the waiting truck. As the truck pulled away, it hit a pole; the bumper fell off and was left behind, with the license plate attached. The police were called and shortly thereafter Galindo and Johnson identified defendant as the man who had attempted to rob them.[1]
Defendant was arrested and a search of defendant's person revealed a.380-caliber round and a nine-millimeter caliber round of ammunition in defendant's left pocket. Both cartridges bore magazine marks indicating they had been loaded into a handgun. The search also revealed 20 Ecstasy pills and a cell phone in defendant's right pocket.
Defendant admitted stealing from Johnson, but told the police they "couldn't arrest him for ripping off a drug dealer." He also claimed the Ecstasy was for personal use and not for sale. Defendant was subsequently charged with one count of first degree residential burglary (Pen. Code, § 459count one), two counts of attempted robbery (Johnson and Rider, respectively; Pen. Code, §§ 664, 211counts two & three), possession of a controlled substance (Health & Saf. Code, § 11378count five), and being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)count six). It was further alleged that defendant used a handgun in the commission of counts one through three.
A jury found defendant guilty on counts one through three, five, and six. The jury also found true the allegation that defendant had used a handgun during the commission of counts one through three. Defendant appeals, arguing prosecutorial misconduct, ineffective assistance of counsel, and insufficiency of the evidence. We find only one of defendant's claims has merit.
*1064 Discussion Relating to August 28, 2005, Incident
A., B.[*]
C. Insufficient Evidence
Defendant further contends there was insufficient evidence to convict him of possessing ammunition and attempting to rob Jessie Rider.
On appeal, we "must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal. 4th 978, 1053 [99 Cal. Rptr. 2d 1, 5 P.3d 68], citing People v. Johnson (1980) 26 Cal. 3d 557, 578 [162 Cal. Rptr. 431, 606 P.2d 738].) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re Michael D. (2002) 100 Cal. App. 4th 115, 126 [121 Cal. Rptr. 2d 909].)
1. Possession of Ammunition[*]
2. Attempted Robbery of Jessie Rider
Defendant contends he cannot be convicted of attempting to rob Rider because the marijuana he was trying to steal belonged to Johnson. We agree.
(1) "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) California follows "the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken." (People v. Nguyen (2000) 24 Cal. 4th 756, 764 [102 Cal. Rptr. 2d 548, 14 P.3d 221].) "`Robbery is an offense against the person . . . .'" (People v. Miller (1977) 18 Cal. 3d 873, 880 [135 Cal. Rptr. 654, 558 P.2d 552].) Accordingly, a victim can be any person who shares "some type of `special relationship' with the owner of the property sufficient to demonstrate that the victim had authority or responsibility to protect the stolen property on behalf of the *1065 owner." (People v. Scott (2009) 45 Cal. 4th 743, 753 [89 Cal. Rptr. 3d 213, 200 P.3d 837].) Persons with just such a special relationship include business employees and parents living with their adult children. (Scott, supra, 45 Cal.4th at pp. 752, 753-754; see People v. Jones (2000) 82 Cal. App. 4th 485, 491 [98 Cal. Rptr. 2d 329].)
In People v. Gordon (1982) 136 Cal. App. 3d 519 [186 Cal. Rptr. 373], the defendants entered a residence by ruse, threatened a couple with a firearm, and took drugs and money belonging to the couple's absent adult son. (Id. at pp. 523-524.) The appellate court noted neither parent physically possessed the items taken nor did either know about the marijuana or money, and the only evidence to support a finding of possession was the couple's ownership and residence in the home where the crime occurred. (Id. at p. 529.) The court upheld the jury's determination that the parents were robbery victims who possessed their son's items for purposes of the robbery statute. (Ibid.) The court noted various individuals have been designated as victims in a robbery, such as a purchasing agent in charge of payroll, store clerks, barmaids, janitors in sole occupation of premises, watchmen, and gas station attendants. (Ibid.) "Clearly, if those individuals . . . were responsible for the protection and preservation of the property entrusted to them, parents have at least the same responsibility to protect goods belonging to their son who resides with them in their home." (Ibid.)
The evidence at trial established defendant attempted to steal marijuana from Johnson, saying, "you're getting jacked." "Give [me] the weed." It was undisputed that Rider did not have actual possession of the marijuana, and Johnson stored the marijuana locked in a safe in his bedroom. There was no evidence Rider, who had been living with Johnson for only three to four months, had access to the safe. In fact, Rider did not even have a key to the apartment, most of the time coming and going only when someone else was home.
Unlike the victims in Gordon, there is no parent-child relationship between Johnson and Rider, nor was Rider an employee of Johnson's. Rider and Johnson were simply roommates. Thus, Rider had no obligation to protect Johnson's belongings. Furthermore, at the time of the robbery, Johnson was present to protect his own belongings and there was no evidence he expected Rider to assist him in that regard.
(2) Lacking any evidence that Rider owned, had access to, control over, or an obligation to protect the marijuana defendant attempted to steal, defendant's conviction for attempted robbery of Jessie Rider cannot be sustained and we reverse the conviction.
*1066 II[*]
DISPOSITION
Defendant's conviction for the attempted robbery of Jessie Rider (count three of the information) is reversed. The judgment is otherwise affirmed and the matter is remanded for the limited purpose of recalculating defendant's sentence in light of this court's decision to reverse the conviction on count three. After resentencing, the trial court is directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
Sims, Acting P. J., and Hull, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts IA., IB., IC.1. and II of the Discussion.
[*] Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] The roommates initially lied to the police, telling them defendant simply kicked in the front door and started waving a gun around, leaving out the fact that Johnson was selling drugs from the apartment. They later amended their story and explained that defendant was there to buy drugs from Johnson. Johnson was given immunity for his testimony.
[*] See footnote, ante, page 1060.
[*] See footnote, ante, page 1060. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267152/ | 999 F. Supp. 317 (1998)
UNITED STATES of America, Plaintiff,
v.
Adele SCHMITT, John Schmitt and Adam Schmitt d/b/a Channel Marine Suzucki and Schmitt's Marina, and Carl Mednica, individually and as President of Cave Diggers, Inc., and Adam Schmitt d/b/a Adams Fishing Station, Defendants.
John SCHMITT and Adam Schmitt, d/b/a Channel Marine Suzucki and Channel Marine Sales, Inc. known as Schmitt's Marina, Third-Party Plaintiffs,
v.
The CITY OF NEW YORK, Third-Party Defendant.
No. CV 89-2126 ADS.
United States District Court, E.D. New York.
March 31, 1998.
*318 *319 *320 *321 Zachary Carter, United States Attorney, Brooklyn, NY by Kevan Cleary, Senior Trial Counsel, for plaintiff.
Citak & Citak, New York City (Burton Citak, Gary Westfal, of Counsel), for defendants and third-party plaintiffs.
Paul Crotty, Corporation Counsel for the City of New York, New York City by Warren Shaw, Assistant Corporation Counsel, for third-party defendant.
MEMORANDUM DECISION AND ORDER
SPATT, District Judge.
The United States House of Representatives made the following observation of Jamaica Bay in a report on the proposed Gateway National Park:
The natural values of the area are astonishing. Here, one can escape the maddening crowds and be exposed to a wildlife sanctuary. Against the backdrop of the Manhattan skyline, he can observe numerous species of waterfowl and shorebirds that use the area as a nesting ground.
The saga of the development of the marina in Broad Channel known as the "Schmitt Marina," closely tracks the interesting history of the community in Queens County known as "Broad Channel," the only inhabited island in Jamaica Bay, known as the "Venice of New York" and the "Gateway to the Rockaways."
I. HISTORICAL BACKGROUND
During these many hearings, the Court was furnished with a number of maps and aerial photographs and a history of Jamaica Bay (Def.Ex. C) which greatly aided the Court's endeavors. Also, the Court notes that the defendant John Schmitt personally obtained from the City of New York and other sources a plethora of maps, charts, photographs and other documents. These documents were of valuable assistance to the Court in its task of discerning the evolving history of the Broad Channel Community and recording a chronological review of the events that are relevant to these proceedings.
*322 Jamaica Bay is located in the western portion of the south shore of Long Island. The Rockaway Peninsula is to the south of Jamaica Bay and is a long, narrow piece of land which forms a barrier between Jamaica Bay and the Atlantic Ocean. Jamaica Bay is bordered on the north by the mainland of Brooklyn, Queens and Nassau Counties.
Jamaica Bay is an estuary, meaning a body of ocean water diluted by fresh water runoffs from the land north of the Bay consisting of 18,000 acres of land and water in the shadow of the World Trade Center. It is one of the largest open spaces in Brooklyn and Queens, and is operated as a wildlife preserve. This grassy bay has become a haven for a multitude of fish, animal and floral wildlife. Jamaica Bay also is a stopover for migrating birds of all kinds. The grasses in the Bay provide prime spawning ground for a myriad of species of fish and minute animal life.
In the late nineteenth century there was a considerable development of Rockaway Beach, both in hotels and other residences. In the 1880s, a train track was constructed over the water of Jamaica Bay from the then Village of Jamaica south to the Rockaways. This rail line triggered further development of the Rockaways. On the path to the Rockaways, the trains stopped at a number of "fishing stations" along Jamaica Bay. These fishing stations, located in the middle of the bay, were docks at which fishing boats were tied up with a few buildings around the station.
One of the fishing stations in Jamaica Bay was called "Broad Channel," named for the channel near the station. The 1890 Hyde map and enlargement (Pl. Exs. 48 and 49)[1] reveal that the Broad Channel Fishing Station was comprised of four or five buildings located on a small island north of a larger, uninhabited, grass island called "The Big Egg Marsh," separated by a salt water channel. A photograph probably taken in the early 1900s, shows people waiting for a train at the "L.I.R.R. Ticket Office" at the "Broad Channel" station (Pl.Ex. 56).
A 1907 map of Jamaica Bay shows an area designated "sand filling" (Pl.Ex. 57, Tr. at 5459).[2] This area eventually became part of Jamaica Bay Boulevard, later renamed Cross Bay Boulevard, which traverses the Bay from the Belt Parkway area to the Rockaways in a generally north-south direction. (See the artist's rendering of Jamaica Bay Boulevard made in the early 1900, [Pl.Ex. 53].) During this period the saltwater passage between Broad Channel Island and Big Egg Marsh Island was filled in. From that time on, the two islands effectively merged into one, variously called Broad Channel and Big Egg Marsh.
A. The Noel Lease
In 1912, the New York State Legislature granted to the City of New York ("the City") title to the land and land under water in Jamaica Bay. On December 16, 1914, the City leased a boot-shaped parcel, which included Broad Channel and the Big Egg Marsh, to a developer named Pierre Noel, whose company was called the Broad Channel Corporation. Noel intended to use the leasehold for residential and commercial purposes (Def.Ex. B-152). The Jamaica Bay History (Def.Ex. C) records that in 1914 "all of Big Egg Marsh was leased to Pierre Noel for a term often years ... [with] the right to renew the lease for two ten-year terms." The area leased was described as comprising "454.22 acres" (Def.Ex. B-152). A 1914 map indicates that the entire Broad Channel area was called "Big Egg Marsh", was unsettled and without any buildings. (Def.Ex. B-152). However, by 1947, Broad Channel was divided into blocks and lots, and only the marsh area to the south and in the toe of the boot was called "Big Egg Marsh" (Def.Ex. 153).
An important document, often referred to during the trial, is what is known as the Noel Developer's Map (City Ex. DA). This map, entitled "Map of Broad Channel Beach," depicts Noel's development plan for a proposed "Broad Channel Beach." In this map, Noel laid out a network of streets and numbered blocks-lots in the portion of the boot-shaped *323 parcel that eventually was developed into a residential and commercial area. The area to be developed shows 19 small parallel canals running in an east-west direction, to be dredged on the west side of Jamaica Bay Boulevard (now known as Cross Bay Boulevard). The canals are interspersed with short streets coming off the west side of Jamaica Bay Boulevard at right angles. (See Appendix Figure 1).
The Noel Developer's Map reveals that a large part of the southerly portion of the boot-shaped leasehold, the foot of the boot, was left undeveloped and in its natural state. There were no streets or canals in that southern portion. This undeveloped southern portion is referred to as the "Big Egg Marsh," the same name as the entire large marsh island now known as Broad Channel was formerly known. This area, south of the flourishing Broad Channel Community, has remained undeveloped to this day, and is the home of countless fish, bird, animal and other wildlife species.
Noel leased portions of the developed land in Broad Channel to individuals for residential and business purposes. Apparently Noel encountered financial difficulties during the Depression, and the City terminated his lease in 1939. From that time on, the City assumed the role of direct landlord to the former subtenants of Noel and all other tenants of Broad Channel. These lessees, almost all residential, then became month-to-month tenants of the City. The leases issued by the City used the block and lot designations set forth on the Developer's Map. The southerly marsh area, including the Big Egg Marsh, remained natural and undeveloped.
In tracing the historical development of the Broad Channel Community, there is some confusion caused by the fact that in some documents the names "Broad Channel" and "Big Egg Marsh" were used interchangeably to describe the same property. A good illustration of this interchange of names is shown in the pamphlet entitled "Jamaica Bay, A History" (Def.Ex. C). The first map in the pamphlet dated in 1911, prior to the Noel development (Figure 16), refers to the entire boot-shaped area as "Big Egg Marsh." However, the third map in the pamphlet dated 1940 (Figure 18), designates only the southerly undeveloped portion of the boot as "Big Egg Marsh".
B. The Robert Moses Plan
By the 1930s, New York City Parks Commissioner Robert Moses had plans for the 18,000 acres of water, marshland and meadowland in Jamaica Bay as "offering unlimited possibilities for recreational and residential development ... [on] the natural grassy islands." He envisioned public use of the meadowlands adjoining Cross Bay Boulevard, including Big Egg Marsh, and purification of the Bay's polluted waters. (Def.Ex. C). Moses also proposed to transfer all the islands of the Bay to the Department of Parks for recreational use, including fishing and boating, and for the preservation of wild-life.
The Moses vision was realized when the City transferred most of the Bay and its marsh islands, except a portion of Big Egg Marsh, to be retained by the Bureau of Real Estate, to the New York City Department of Parks on July 15, 1945. (N.Y.C. Local Law Nos. 31 and 32; Def.Ex. B-319). The city park area was known as the Jamaica Bay Wildlife Refuge. As noted in all the local laws and documents, and is stipulated by the parties, the boot-shaped area known as Broad Channel and Big Egg Marsh was not part of this City park land.
In 1946, the City formally adopted a street map for Broad Channel (City Ex. DB). The City continued to issue leases for occupancy of portions of Broad Channel. By 1982 there were approximately 900 residential tenancies and 50 commercial tenancies on Broad Channel. (Tr. at 6857-6858). A 1941 map, updated to 1951 by the United States Engineer's Office (Pl.Ex. 40), clearly shows this developed area of Broad Channel and the undeveloped area known as the Big Egg Marsh.
C. The Gateway National Park
On October 27, 1972, Congress passed an act to establish the Gateway National Recreation Area. The actual conveyance of the property from the City of New York to the Federal Government occurred on March 1, 1974. The stated purpose of the Gateway Act is "to preserve and protect for the use *324 and enjoyment of present and future generations an area possessing outstanding natural recreational features." The Gateway National Park includes Jamaica Bay, Breezy Point and Sandy Hook. In the Gateway National Park is the Jamaica Bay Wildlife Refuge which encompasses "all islands, marshes, hassocks, submerged lands and waters in Jamaica Bay, Floyd Bennett Field, the lands generally located between highway Route 27A and Jamaica Bay up to the shoreline of John F. Kennedy International Airport." 16 U.S.C. § 460cc(a). The Gateway National Park does not include the Broad Channel Community.
Among the provisions of the Gateway Act is the following:
[t]hat the Secretary (of the Interior) shall administer and protect the islands and water within the Jamaica Bay Unit with the primary aim of conserving the natural resources, fish, and wildlife located therein and shall permit no development or use of this area which is incompatible with this purpose.
16 U.S.C. § 460cc(a).
In addition to the enthusiastic and descriptive language in the House of Representatives Report cited in the opening words of this opinion, the United States Senate report on the bill which became the Gateway Act also praised Jamaica Bay:
Jamaica Bay fascinates biologists and the nature-minded not only for its wealth of birdlife but also because of the seemingly sturdy health of its ecological communities in the midst of unhealthy conditions. Though poor in its water purity rating, it is rich in fish and wildlife. Some 200 species of birds have been reported in Jamaica Bay at breeding and migration periods. It is a strategic nesting ground for birds along the Atlantic flyway. To have this outdoor research laboratory within a region of 20 million people is of undeterminable value.
Sen. Report No. 92-345, p.4.
The map depicting the outer perimeter of the Gateway National Recreational Area, dated May 1972, was admitted in evidence as Def.Ex. B-555(a). As stated above, the Gateway Act excluded the Broad Channel Community. While the Gateway Act defined the outer perimeter of Jamaica Bay to be included within the national park, Congress did not fix the borders of the Broad Channel Community. The Gateway National Park boundaries were established by the United States National Park Service and the City in a "Gateway Conveyance Map" adopted in 1973 (Pl.Ex.38B-1).
A review of the crucial Gateway Conveyance Map reflects that the Broad Channel Community area was excluded from the Gateway conveyance by the City to the United States. Significantly, the southwestern, lower portion of the boot, labeled the "Big Egg Marsh," is clearly within the grant of the City to the Gateway National Recreational Area, and since 1973, is owned by and within the jurisdiction of the United States National Park Service. Thus, the Court finds that while the Broad Channel Community area was excluded from the Gateway National Park, Big Egg Marsh at the foot of the boot was included in the conveyance by the City to the United States.
By laws passed in 1973, the City decided to sell the Broad Channel property to its tenants. (Def.Exs. B-55 and B-555). In 1980 the City effectuated the plan to sell the Broad Channel property to "the homeowners" (see letter from Deputy Commissioner Herschman dated May 1, 1980; Def. Ex. B-411).
D. The Schmitt Leaseholds
There are three sets of leases that are relevant to the issues in this case. First, there are the leases directly involving the Schmitt Marina. Second, there are the leases to John Orean, in an area called John's Fishing Station, which eventually were assigned to the Schmitts. Third, are the leases involving the residence of Adam and Ernestine Schmitt. The Court separately will discuss each of the leases and the related documents.
The evidence reveals that Adele Schmitt ("Adele"), mother of the defendant Adam Schmitt ("Adam") and grandmother of the defendant John Schmitt ("John") purchased a small boatyard in Broad Channel on October *325 19, 1944. (Def.Ex.B-33) for "vacant tide and march [sic] land" at the Foot of West 20th Road. The area she occupied was used to rent row boats and included a houseboat as an office with an unpaved access road. Water traversed under the houseboat office. At that time Adele maintained a single dock in the water. This dock which will be referred to as "Dock A," was located near the foot of West 20th Road.
Adele obtained two permits for the area around the foot of West 20th Road. The first permit, dated January 9, 1945 (Del.Ex.SS, Pl.Ex.33)), covered an "area 50' × 100' of marsh land at foot of West 20 Road." The purpose of the occupancy was "For location of houseboat, to be used as a fishing station, and for no other purpose whatsoever." The rent was $8.33 per month on a month-to-month basis. The second permit was dated November 1952 for the location "Foot of West 20 Road, Part of Block 210 ... marshland." The purpose of this occupancy was boat storage and the rent was $25.00 per month. (Def.Ex.TT).
(1) The Schmitt Leases at Block 210Foot of West 20th Road
Among the voluminous documents in evidence, are the marina leases from the City to Adele. The first such lease is dated July 1, 1959 (City Ex. DK, Def.Ex. B-400). The rent was $134 per month with a deposit of $268 for this monthly lease. The description of the premises leased is "Foot of West 20th Road ... Block 210 ... Lot (marsh land) Queens (Broad Channel)" to be used for "boat storage and fishing station." A cover letter for this lease, dated July 1, 1959 (Def.Ex.401) stated that the premises to be leased was in Queens, Block 210, marsh land at the foot of West 20th Road. In connection with the July 1, 1959 lease, there is a memorandum in evidence dated August 12, 1959 (Def.Ex.B-402). The memorandum recites that the premises leased is "Foot of West 20 RoadBorough of Queens, Block 210Lot marsh land." Of importance is the description of the size of the leased premises, which is set forth as "Space200' by 200'." The memorandum also states that the "old agreements cancelled."
The next lease of this land is dated April 16, 1962 (Pl.Ex.27). The lessee is "Adele Schmitt D/B/A Adam's Fishing Station Foot of West 20th Road" residing at "Foot of West 19th Road ... Broad Channel, Queens, N.Y." The premises were described as "Foot of West 20th Road" at "Block 210 Lot Foot of West 20th RoadArea 40,000 sq. ft." The premises were to be used for "boat storage in connection with fishing station." The rental was raised to $150 per month with a deposit of $300. Like the one that preceded it, this lease was a month-to-month rental. There are no leases in evidence between the City and the Schmitts for land in Block 210 or "at the foot of West 20th Road" subsequent to the 1962 lease. Approximately three years later, in 1965, Adele retired. Adam and Ernestine, his wife, took over the Schmitt boat-yard. In a bill of sale dated July 5, 1965 Adele sold "a certain business" located at the foot of West 20th Road, known as Adam's Fishing Station to Adam and Ernestine (Def.Ex.B-39). The bill of sale also assigned to Adam and Ernestine the lease of the fishing station and boat storage yard.
At the time of the Gateway conveyance, on March 1, 1974, (Pl.Ex.5), the 1962 month-to-month lease by the City to Adele was still in effect. The lease encompassed the foot of West 20th Road, Block 210, covering an area of 40,000 square feet of waterfront land with dimensions of 200 feet by 200 feet. Indeed, this lease arrangement, which commenced in 1959, remains in effect to this day. The only changes in the terms and conditions of the successive month-to-month leases were increases in the monthly rent from $134 per month in 1959 to $229 per month at the present time, an astonishing bargain for 40,000 square feet of waterfront property (see Pl.Ex. 27, City Ex. DO). It is conceded that no part of this original 40,000 square feet of the Schmitt leasehold is on Gateway property.
Also in evidence with regard to the Schmitt Marina leased premises at Block 210, is a letter dated May 19, 1980 from the City to the tenant of Block 210, lot 99 (Def.Ex.B-50). The letter notes that the "lease with the City dated May 1, 1975 for the property referred to above expired on *326 April 30, 1980." The letter refers to "an interim measure" during negotiations for the sale of Broad Channel by the City to the residents, and states that the City renews the lease term for an additional one year period from May 1, 1980 to April 30, 1981, with a 50% increase in rent, and no other changes in the lease provisions.
The Schmitt Marina eventually developed into what was described as "the largest and most substantial marina in the Broad Channel area," with a capacity of 250 year round boats (Def.Ex.00). The manner in which the Schmitt Marina developed and enlarged its areas is a key issue in this case.
(2) The Orean Leases
Also relevant to this controversy are the leases by the City to John Orean. The first such lease in evidence is dated July 1, 1959 (Def.Ex.B-407). It lists John Orean as tenant, with his residence office at 73 West 19th Road, Broad Channel, New York. The premises leased are at the "Foot of West 19th Road," Block 209, lots 64, 66, 68, 72, 76, 78, 80, 82 and parts of 19th Road. This property apparently was adjacent to, and north of, the Schmitt Marina and also includes a residential area (see Def.Ex. B-408). The premises were to be used for "boat storage and fishing station" and the rent was $93.75 per month on a month-to-month basis. The leasehold is apparently known as "John's Fishing Station." There is also a part of a lease in evidence dated May 1, 1963 between the City and Orean, residing at 63 West 19th Road covering land in Block 209 (Def.Ex.B-408). On November 25, 1965, Orean assigned his "business, buildings, equipment and home" to his grandson Daniel Pasienza (Def.Exs.B-409, B-410). On April 20, 1968 Pasienza sold "John's Fishing Station" located at Block 209 to Adam and Ernestine (Def.Ex. 41).
(3) The Adam Schmitt Leases in Block 209
The third set of leases in this case concern an area in Broad Channel leased by Adam. The first such lease is dated June 15, 1973 (Def.Ex.B-503) for land located in Block 209, lots 52-62, and containing "approx. 15,000 sq. ft." to be used for the "storage of private boats." The rental charge was $60.00 per month on a month-to-month basis. The second lease in evidence involving this land is dated July 21, 1975 (Def.Ex.B-54). The description of the premises and the terms are the same as the June 15, 1973 lease.
Also in evidence is a May 1, 1969 lease between the City and Adam and Ernestine Schmitt covering the land at Block 209 lot 74 for a five year period at the rent of $100.00 per month. This lease covers the use of the property as a private dwelling. In 1988, the City sold this land to Adam. The sale of the property by the City was based on the use of this property for residential purposes.
II. THE PROCEEDINGS AT ISSUE
A. The Federal Court Action
This Federal Court action was commenced by the plaintiff United States in June, 1989. The complaint named defendants Adele Schmitt, John Schmitt and Adam Schmitt d/b/a Channel Marine Suzucki and Schmitt's Marina, as well as Adam Schmitt d/b/a Adams Fishing Station. Also named as a defendant was Carl Mednica, individually and as president of Cave Diggers, Inc.
The federal complaint alleged eight causes of action against all defendants, seeking various relief including: 1) a judgment declaring that defendants are trespassing on the plaintiff's property; 2) an injunction against the defendants from trespassing on the plaintiff's property; 3) monetary damages for the defendants' alleged use and occupancy of plaintiff's property; 4) a judgment declaring that defendants are violating 33 U.S.C. § 403 (The Rivers and Harbors Appropriation Act); 5) an injunction preventing defendants from operating a marina and requiring the defendants to remove the marina operation from the plaintiff's property; 6) a judgment declaring that defendants violated 33 U.S. § 1344 (The Clean Water Act); 7) an injunction preventing the defendants from discharging fill into navigable waterways and requiring the defendants to remove the condition allegedly caused by the defendants' unlawful discharge; and 8) monetary damages for the defendants' alleged trespass on plaintiff's property.
*327 The Schmitts interposed an answer, denying the allegations in the complaint and setting forth fourteen affirmative defenses. The defendants Carl Mednica and Cave Diggers, Inc. appeared in the case and participated in the 1989 and 1990 preliminary injunction hearings. Their attorneys were relieved by order of this Court in December 1992. Thereafter, Carl Mednica appeared pro se at the trial on August 30, 1993, but has not participated in any subsequent proceedings.
In March of 1993, the Court permitted the Schmitts to commence a third party action against the City of New York raising, among other things, the effect of the Gateway Conveyance on the issues in this case. The Schmitts seek a judgment declaring that they were lawfully leasing he property they occupy on Broad Channel Island from the City and have a right to purchase that property from the City. They also request that the Court redefine the property included in the 1974 Gateway transfer from the City to the United States, which, by its terms, excluded all portions of the "Broad Channel Community." Further, the Schmitts seek a declaration that the property leased by the Schmitts is not included in the property transferred by the City to the Federal Government under the 1974 Gateway Conveyance.
In response to the Schmitt third-party action, the City interposed an answer consisting of six affirmative defenses. Three counterclaims also were asserted, seeking: use and occupancy compensation from the Schmitts for the property they leased from 1945 to date; a judgment directing the Schmitts to restore the property and remedy any alleged damage caused by their occupancy and actions; and a judgment restoring the City to possession of the subject real property.
In July 1996, the Court granted permission to the Schmitts to serve a supplemental third-party complaint against the City, pursuant to FRCP 15(d), based upon the enactment of a new statute by the New York State Legislature in 1995. The City answered this additional third-party cause of action and asserted another counterclaim for damages.
B. The State Court Action
In June 1990, after receiving thirty-day notices from the City attempting to terminate their tenancy as of June 30, 1990, the Schmitts commenced an action in Supreme Court Queens County in the nature of a declaratory judgment to void the thirty-day notices and to compel the City to sell the leased property to them pursuant to the authority in Ch. 756 of the laws of 1973 and the 1982 Resolution 151 of the Board of Estimate.
In the Supreme Court Queens County action, the Schmitts obtained an injunction staying the termination of their tenancy and directing that the status quo be maintained. On the City's motion to dismiss, the State Supreme Court, (Hentel, J.), dismissed the Schmitts' claims that sought a Writ of Mandamus compelling the City to convey the leased property to the Schmitts. The Supreme Court converted the action into an Article 78 proceeding to determine if the City's actions were arbitrary and capricious. By stipulation, the Article 78 proceeding was removed to this Court and consolidated with the Federal actions.
III. THE PRELIMINARY INJUNCTION HEARING
After a ten-day hearing which concluded on February 16, 1990, the Court rendered an oral decision, later issued in writing, enjoining the Schmitts from putting any craft into a sheltered water area adjacent to the Schmitt Marina, known as the Cove. United States v. Schmitt, 734 F. Supp. 1035 (E.D.N.Y.1990). The parties, including counsel for defendant Mednica, agreed that all testimony at the preliminary injunction hearing "is deemed admitted in evidence at any future trial." Therefore, the Court will consider the evidence at the preliminary injunction hearing in its determination of the issues in this plenary trial.
Dr. John T. Tanacredi, a research ecologist and Chief of the Division of Natural Resources and Environmental Compliance at the National Park Service at Gateway, testified that Jamaica Bay is operated as a wildlife preserve and a haven for a multitude of fish, animal and floral wildlife. He stated *328 that the Schmitt Marina is located in the Big Egg Marsh which is a "protection zone." The Schmitt Marina consists of a land area, floats, floating docks and support structures, and has a capacity of approximately 250 boats. There were a number of floating docks and a walkway in the Cove. Dr. Tanacredi testified that the operation of the boats at the Schmitt Marina did and will contribute to polluting the environment in Jamaica Bay by the use of gasoline, sewage and waste products. He provided detailed testimony regarding the adverse impact on the ecology of the inter-tidal marshes and wildlife in the area of the Schmitt Marina as a result of the use and mooring of boats at the Schmitt Marina.
Dr. Arthur LaPerriere, an ecologist employed as Chief of Harbor Supervision, concurred with Dr. Tanacredi's opinion that ten acres of natural tidal marshland had been destroyed at the Schmitt Marina since 1976. Also, he stated that, as a result of the Schmitt Marina, these marshland acres were covered with construction debris. The Marina also discharged toxic pollutants into the navigable waters of Jamaica Bay. Dr. LaPerriere testified that the operation of the Schmitt Marina had an "adverse impact on the wildlife" in Jamaica Bay.
Michael P. Flynn, a lifetime resident of Broad Channel who worked at the Marina, testified about how the Schmitts placed more and more floating docks and boats in the Cove throughout the years. He described the two riprap walls that were built by the Schmitts. Flynn saw Adam using a bulldozer to push riprap to the northwest corner of the Marina. One of the riprap walls the Schmitts constructed was built in 1976-1977 in a semi-circle on an area partially surrounding the Cove known as the Hook. Adam talked to Flynn in 1977 or 1978 about extending the riprap wall. This wall was made of broken concrete, and its function "was to protect the marina from storms ... (and) to prevent storm damage" (PI Tr. at 547).[3]
Daniel Turbidy, another long time resident of Broad Channel, saw garbage trucks dumping industrial waste in the Schmitt Marina area, usually after 10:00 p.m. The trucks heaved this waste onto the green marshlands surrounding the Cove. Turbidy also saw bulldozers spread the garbage and place dirt and rocks over it.
John Burke, an environmental conservation officer for the New York State Department of Environmental Conservation ("DEC") testified that on November 19, 1984 while on routine patrol, he saw that a new breakwall had been built. During a conversation with John Schmitt on the same day, John admitted that he was responsible for building the breakwall, and for the backfilling (PI Tr. at 1195-1196).
John Schmitt testified that there was no written assignment of the lease of the Schmitt Marina from his father Adam to him. He is not the named tenant on the lease and is presently the manager of the Schmitt Marina with the permission of his father. John denied that he personally dumped on or filled in tidal wetlands. Significantly, he testified that the Schmitt Marina had no known or definite boundaries, no site markers and only unfixed, indefinite boundaries (PI Tr. at 1362).
In its decision, this Court determined the following:
(1) The evidence admitted at the hearing clearly demonstrated that the government has shown a likelihood of success on its claim that the Schmitts violated the Rivers and Harbors Appropriation Act, 33 U.S.C. § 403, with regard to the docks, floating docks and the walkway located in the Cove adjacent to the Schmitt Marina. In fact, in their post-hearing memorandum, the Schmitts stated that "there is no objection to that portion of plaintiff's motion that seeks to enjoin or restrain" the Schmitts from "`filling of tidal wetlands,'" although they deny that they have previously done so. (Schmitts' Post-Hearing Memorandum at p.1).
(2) The government demonstrated a likelihood of success on the merits that the Schmitts violated the Clean Water Act, 33 U.S.C. § 1344, in that they polluted navigable waters of the United States.
*329 (3) Irreparable harm is presumed where the Government seeks to enforce a statutory violation by way of a preliminary injunction expressly authorized by that statute. Further, the Court found that the Government proved irreparable harm with regard to the detrimental effect of the operation of the Schmitt Marina on the diverse ecology in the Cove and the damage caused to the marshlands and waters as a result of the construction of the riprap wall. The Court stated that "Clearly money damages cannot compensate the citizens of the United States for the loss of vegetation and marshland in the Schmitt Cove." Id. at 1054.
4) "The Government cannot be estopped from prosecuting its Rivers and Harbors Appropriation Act and Clean Water Act claims" Id. at 1056; the doctrine of laches is unavailable to the defendants as a defense Id. at 1057; and the Schmitts failed to establish a defense of selective enforcement Id. at 1057.
Based upon these finding and conclusions, the Court issued the following preliminary injunction:
(1) the defendants John Schmitt, Adam Schmitt d/b/a Channel Marine Suzucki and Schmitt's Marina, and Adam Schmitt d/b/a Adams Fishing Station are hereby preliminarily enjoined from placing or allowing the docking or storage of boats in the Schmitt Cove (see Plaintiff's Exhibit 3) until further Order of this Court; and
(2) the defendants John Schmitt, Adam Schmitt d/b/a Channel Marine Suzucki and Schmitt's Marina, and Adam Schmitt d/b/a Adams Fishing Station are hereby preliminarily enjoined from any further expansion of the Schmitt Marina into the Schmitt Cove or any portion of Jamaica Bay until further Order of this Court.
Following the issuance of the preliminary injunction, the parties modified the terms of the preliminary injunction, on consent, to permit the Schmitts to use one single dock in the Cove below the mean water parallel to the mapped 96th Street in a north-south direction for docking and boat storage. This dock is referred to in this opinion as "Dock A." Also permitted was a second smaller float approximately 20 feet in length and 10 feet in width, a few feet seaward of and parallel to Dock A. The parties further modified the preliminary injunction in a stipulation on the record on April 29, 1994. (See Tr. 1838-1843, subject to certain concerns by the City regarding environmental problems; see also problems in connection with this stipulation at Tr. 1860-1901).
IV. THE TRIALFINDINGS OF FACT
This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a). See Rosen v. Siegel, 106 F.3d 28, 32 (2d Cir.1997); Colonial Exchange Ltd. Partnership v. Continental Casualty Co., 923 F.2d 257 (2d Cir.1991). During this discussion, the Court will make findings of fact, which will be supplemented by additional findings later in the opinion.
A. The Schmitts' Case
The Schmitts offered the testimony of two expert witnesses seeking to establish that any docks placed in the Cove prior to 1968, could remain without a written permit. One expert witness, James Haggerty, Chief of the Eastern Permit Section of the Army Corps of Engineers, testified by deposition with regard to "nationwide permits." A Nationwide Permit is a general permit issued from headquarters in Washington, authorizing "many types of minor activities without going through a full blown permit process." There is another type of permit called a "grandfather" permit which provides that no permit is required for any completed structure built in navigable waters prior to December 18, 1968. Thus, a dock placed in navigable waters prior to December 18, 1968 would need no permit from the Corps of Engineers.
The second witness, James M. Mansky is an expert in ecology, and was formerly Chief of Compliance Section of the New York District of the Corps of Engineers. Mansky also discussed the issue of Nationwide permits. He testified that a Nationwide Three Permit authorizes the repair and rehabilitation, without a written permit, of a structure that was constructed and placed in the water prior to December 18, 1968.
THE COURT: If there are docks into the water before 1968, you say they could stay there without a permit?
*330 THE WITNESS: That's correct.
(Tr. at 96).
Mansky testified that he visited the Schmitt Marina on June 5, 1993 and again on August 29, 1993. In Mansky's opinion, three portions of the Schmitt Marina qualify for a Nationwide Three Permit: (1) the bulkhead close to the house, (2) the fill behind the bulkhead, and (3) the long dock with slips for boats parallel to the shore adjacent to the bulkhead, in the Cove. This permit would also cover a same size, same place replacement dock and the use of the dock to tie up boats. However, Mansky also stated that the other docks perpendicular to the main dock or walkway would not qualify for the Nationwide Three Permit.
According to Mansky, at the time of his visits to the scene, "the marsh and the site animals within the marsh were surviving and functioning within the normal condition and it did not appear that there was anything that the marina was causing as a disturbance." The Court does not credit this testimony. The overwhelming evidence is to the contrary.
During his visit, and after reviewing aerial photographs, Mansky observed "filling in" that took place in the Hook around the Cove over a two acre area. Mansky testified that he saw "fill in the Hook area" extending from the south and curving around the Cove shoreline. He stated that the filling of the Hook could have been done by dump trucks. Of importance, he observed asphalt in the fill area around the Cove and a substantial change in the vegetation along the shoreline. In sum, Mansky testified that there was significant filling in the Hook with two acres of fill which would be a violation of the law. (Tr. at 287-288, 309).
Mansky also testified that the Corps of Engineers had jurisdiction to the mean high water line and could not be deprived of jurisdiction because the area was filled in. In addition, he bolstered the Government's contentions that the Big Egg Marsh is vital to national wildlife abounding in Jamaica Bay:
Q Now, Big Egg Marsh, isn't it true that the marsh play a role in the food chain production of the estuary, Jamaica Bay?
A Yes.
Q Isn't it fair to say that the wetlands that were all around the marina in 1967 as clear from that photograph, they also played a part in food chain production, didn't they?
A Yes, they did.
Q And what about general habitat and resting, spawning, rearing and nesting sites for aquatic or land species? Isn't it true that small fish tend to hid in the grasses, in the Spartina at the high tides to prevent them from being eaten by the larger fish?
A Yes, they do.
Q Isn't it true that birds are generally shy, and if there is an area that they can nest that is protected by grasses, high grasses, that they may use it for spawning and nesting; is that true?
A Fish spawn and birds nest.
. . . . .
Q And they also provide resting sites for aquatic and land species? Don't these
A Yes, they do.
. . . . .
Q And isn't it true that Jamaica Bay is place where all species of birds stop by on their way in the fall and in the spring? It is a stop over area?
A It is a stop over area.
Q Isn't it true that those grasses as they existed in Exhibit 39, that 1967 beach erosion photograph, isn't it true that those grasses around the marina, isn't it true that they could have easily provided resting sites for various birds and stop over points for various birds?
A Yes.
Q You would expect birds to be there?
A They could be there.
Q They are not now because it has been buried with concrete?
A They could be off shore where the wetlands were before, but you would not tend to find them on top of the fill.
. . . . .
*331 Q And tomorrow it is supposed to rain, heavy rain tomorrow. If that piece of asphalt is sitting down in that cove, isn't it true a little may trickle off and leach down into the area?
A It's true.
. . . . .
Q So you don't build normal streets through marsh land if you want to protect it for the animal life, isn't that true?
A You would not normally put asphalt on top of a street with marsh land.
. . . . .
Q Okay.
Is it fair to say that it was a wetland set aside for study of aquatic environment or as sanctuaries or refuges, isn't that exactly what Big Egg Marsh is?
A As depicted on this map, yes.
(Tr. at 246-253) (emphasis supplied).
Significantly, Mansky testified that the marsh islands of Jamaica Bay are "unique":
Q Isn't it fair to say that the marshes the marsh islands of Jamaica Bay, which are part of the wildlife refuge, isn't it fair to say that they are unique in terms of their lack of development inside of the borders of New York City?
A Yes.
Q Isn't it fair to say they are scarce in New York City this kind of wetland and bird habitat?
A Yes.
(Tr. at 256-257).
Further, Mansky testified, after some evasion, that the boats in the Schmitt Marina did do some damage to the wetlands. (Tr. at 259).
Mansky testified in June and August 1993. On August 3, 1995, Mansky was recalled by the Schmitts. In his initial testimony, he was of the opinion that Dock A and a bulkhead were authorized under a Nationwide Three Permit. In his 1995 testimony, Mansky asserted that the Schmitts also were entitled to a Nationwide Two Permit under the provisions of 33 CFR § 330.6(2). This provision, in effect since 1988, authorized structures constructed in artificial canals in residential areas where the connection of the canal to navigable waters had been previously authorized. Thus, according to Mansky, the Schmitts can place and maintain any structure they want in an artificial canal. In Mansky's opinion, the Schmitts are entitled to a Nationwide Two Permit because there the Cove is an artificial canal in the Schmitt Marina area.
Mansky also testified, after reviewing the applicable maps and aerial photographs, that he concluded that the Cove was created between 1924 and 1938. Also, the water depths around Broad Channel vary from 2 feet to 11 feet, while the depth of water in the Cove is 16 feet. He then deduced that the Cove was created by dredging the area and was a man made artificial canal. According to Mansky, nature could not have made a 16 foot deep cove surrounded by shallower water. Mansky's conclusion is that the Cove is an artificial canal and the structures within the Cove are authorized by a Nationwide Two Permit, as long as the structures did not have a significant impact on navigation. As such, according to Mansky, the Schmitts do not need written authorization from the Army Corps of Engineers to maintain the docks in the Cove. He also stated that the docks in the Cove do not "appear" to impede navigation, although he admitted that a dock in the Cove would be an obstacle to navigation. However, he later reversed himself and contended that the Schmitt Marina docks had no effect on navigation.
Notwithstanding Mansky's view that the Cove was a "canal," he conceded that the Cove area is always reached by the sea and was formerly marshland. He also stated that a Nationwide Two Permit refers to a "residential development." In an 1896 map, the Big Egg Marsh was not a residential neighborhood (Pl.Exs. 48 and 49). In a 1923 sketch, it is apparent that the Cove was in the area of Big Egg Marsh that was not developed. In 1988, hundreds of boats were stored on the land near the Cove, which is a commercial use (Def.Ex.B-151). With regard to this claim that the Cove was a canal, John Schmitt brought in hundreds of documents on Broad Channel and stated that he could not produce a single map that referred to the *332 Cove as a canal. The Court finds that the Cove is not in a "residential development," is used in a commercial enterprise, and thus would not be subject to a Nationwide Two Permit.
Thomas C. Monaghan is an attorney who resides and has his office in Broad Channel, a mile north of the Schmitt Marina. He grew up in Broad Channel. The Court finds that Monaghan exhibited a definite bias and hostility against the City of New York. Monaghan testified that after 1975, no written leases were issued by the City. From that time, the City kept the tenant's name and leasehold on a computer, under block and lot numbers, with monthly bills issued by computer. He testified concerning the sale of the land in Broad Channel by the City to the tenants, commencing in 1981. Starting in the 1970s, one Ed Smith was in charge of the leases on Broad Channel. Surveys with regard to the sale of the property on Broad Channel were done by Albert A. Bianco, although many closings were consummated without surveys. The descriptions in the deeds were based on the streets in Broad Channel and not on metes and bounds. Some persons were permitted to buy properties in addition to their leased premises. The original sales were only for residential property. However, starting in 1984 or 1985, sales of non-residential parcels commenced.
Monaghan is familiar with the Schmitt property and the surrounding areas. He stated that the Pasienza property, formerly known as John's Fishing Station, is immediately adjacent to the Schmitt property. Both lessees were engaged in operating a marina and fishing station. The Schmitts occupied the Cove (he referred to that location as the cul-de-sac) with moorings where boats were docked. Both marinas were on land at the end of 19th Road; John's Fishing Station on the north side and the Schmitt Marina on the south side. John's Fishing Station also used the canal north of 19th Road to store rowboats.
Monaghan testified that the City sold properties to certain tenants which were fishing stations and marinas, but the City declined to sell to the Schmitts. Monaghan believed that the Schmitts were the only Broad Channel residents not given this opportunity by the City to buy their leased property.
According to Monaghan, the entire Broad Channel area, comprising the entire boot including Big Egg Marsh and the Cove, is excluded from the Gateway Conveyance. (See markings on Def.Ex. B-19). The Court does not credit this unreliable lay opinion testimony and finds that the portion of Broad Charnel excluded from the Gateway conveyance does not include the Big Egg Marsh and the Cove.
With regard to the fill added to the Hook, Monaghan testified, as follows:
Q Didn't there come a time there was some kind of alteration in the area we call the Hook? Did you ever see that change?
A Yes.
Q And what happened to it?
A It was built up.
. . . . .
Q How did it change?
A There was fill, there way land where marsh used to be.
Q Did you have any understanding of how that fill arrived on to the Hook?
A I never actually saw any trucks actually dumping. But I know that obviously they did.
(Tr. at 806-807).
Interestingly, Monaghan testified that almost all the tenants on Broad Channel encroached on City-held property. Indeed, a substantial number encroached on more than 100 percent of the land they leased and a few encroached on 200 to 1200 percent of the land they leased from the City. Monaghan defined the term encroachment to mean that tenants "expanded their property as far as they could go without offending an adjoining property owner."
The Court was not impressed with the testimony of Monaghan. He is clearly overly anxious to assist the Schmitts and his testimony as to the various boundary lines appears tailored to follow the "Fruchtman line," explained below, that the Cove and Hook are excluded from the Gateway conveyance.
*333 Irwin Fruchtman was an important witness for the Schmitts. As Chief Engineer of the City Planning Commission he prepared the map for the Gateway Conveyance. Fruchtman worked with the mapping division and other City agencies to draw the lines for the Gateway conveyance. The final map, dated January 11, 1974, contains his signature.
Fruchtman testified that the Broad Channel Community was excluded from the Gateway conveyance. Also excluded were three of the four proposed City parks, that were never adopted. According to Fruchtman, the Big Egg Marsh also was excluded. (See Def.Ex. B-20). Fruchtman also testified that the Broad Channel Community "is bounded by three of [the] four proposed parks." The words "bounded by" are important in the determination of some of the disputed issues in this case.
Also material to the question of the Gateway Broad Channel exclusion is the shading on the conveyance map, Def.Ex. B-19. The shaded areas were not to be conveyed to Gateway. Fruchtman conceded that none of the so-called park areas are shaded on the map. This important map, Def.Ex. B-19, showing the shaded portion of the Broad Channel not to be conveyed to the Federal Government for Gateway is in the Appendix at Figure 2. The Court finds that the Big Egg Marsh, including the Cove and the Hook around the Cove, were included in the Gateway conveyance. Accordingly, the Court finds that title to those lands, water and lands under water is, since 1974, in the Gateway National Park.
Adam Schmitt has lived in Broad Channel since 1936, when his parents acquired a house and land. In October 1944 his family purchased a houseboat on land at the foot of 20th Road that the Schmitt family occupied (see Bill of Sale, Def.Ex. B-33). His parents, Adam and Adele, are deceased. Adam took over the marina in 1965, and then lived there with his five children. Adam has a second residence on Broad Channel. In 1982 he moved into the house on the adjacent John's Fishing Station.
Adam described Schmitt's Marina as it was in 1944. At that time there was a small sand road "more or less" going to the marina and "there wasn't much land being used at the time." (Fr. at 713). Adam's initial description of the growth of the Schmitt Marina reveals how, over the years, the Marina kept expanding:
THE WITNESS: There was a small road going to the marina and there wasn't much land being used at the time. And over the years my father kept adding to it. There were many leases that he added here, added there, added here, added there. And it kept going.
Then in 1968 I bought what was called it was called John's Fishing Station. I bought it from Dan Pasienza.
So, in effect in 1968 the marina encompassed from the 19th Road canal south almost over to the day camp.
. . . . .
And including the cove, the water in the cove. There was one lease that specifically mentioned 40,000 square feet of water.
(Tr. at 713-714) (emphasis supplied).
In 1944, there was a small dock in the water parallel to the land. (See Def.Exs. W, X and Y). This small dock remained in approximately the same location, to the present date. Also, the bulkhead near the dock is, except for repairs, substantially the same since 1944. The bulkhead runs in a north/ south direction for approximately 200 feet in length.
When Adam took over the marina from his parents in 1965, the bill of sale from Adele dated July 5, 1965 (Def.Ex.B-39) described the "business" being sold as "located at the foot of West 20th Road," the same location as in the City leases. The bill of sale described the nature of the business "as a fishing station and boat storage yards." There is no mention of a "marina" in the bill of sale.
Adam testified that the lease from the City included the entire Cove and the land south to the Broad Channel Day Camp. Using a copy of the aerial photograph taken on August 8, 1984 (Pl.Ex.3) and a marker, Adam drew an orange line showing his view of the boundary of the Schmitt Marina. (Def.Ex.B-40). (This exhibit is designated *334 as Figure 3 in the appendix). (Editor's Note: Appendix not reproducible for purposes of publication.) In delineating his view of the borders of the Schmitt Marina, Adam includes the Cove and the water north of the Cove, but carefully excludes the Hook around the Cove. He also includes a large portion of the land east of the Cove.
In 1968 Adam expanded his holdings by purchasing John's Fishing Station, located adjacent to and north of the marina. Adam drew a yellow line on the map show his view of the location of the John's Fishing Station property (Def.Ex.B-42). The Court notes that Adam's view of the location of John's Fishing Station portrays a much smaller piece of land due north of the Schmitt Marina with little water surrounding it. (This exhibit is designated Figure 4 in the Appendix). (Editor's Note: Appendix not reproducible for purposes of publication.)
According to Adam, dumping of fill took place at John's Fishing Station in 1968 and 1969. The fill consisted mostly of concrete from the bridge being rebuilt on the Cross Bay Boulevard, with sand piled on top of the concrete. Adam did not know who dumped this fill on the John's Fishing Station property. The purpose of this fill was to "stabilize the land and raise it above the moon tides." (Tr. at 989). In 1982 Adam retired and turned over the marina to his son John. Adam was also the owner of Channel Marine Sales, which he apparently operated at and in conjunction with the marina. In 1988 Adam purchased his residential property from the City (Def.Ex.B-45).
Adam stated that the Hook was not part of the Schmitt Marina. He did not know who owned or leased the Hook property. Adam contends that the Schmitt Marina lease includes the water in the Cove, but not the land around the Cove known as the Hook. Adam denied that he or any member of his family "put the fill on that portion of the area known as the hook." (Tr. at 1005). This raises one of the important issues in this case, namely, who was responsible for filling in the marsh land around the Cove, which fill, dumped on top of the green marshland, created the riprap brown-appearing Hook?
Adam testified that Carl Mednica is a contractor and a customer who kept a boat in his marina. Adam first met Mednica in 1973 when he stored his boat at the marina. Curiously, Adam did not charge Mednica for storing his boat. He explained that the boat "never went in the water so I never charged him," and "we got to be friendly." (Tr. at 1014). Asked who was responsible for filling the Hook, Adam responded that he saw different trucking companies dumping on the Hook, and he saw Mednica with a bulldozer. He also saw Edward Smith, the City Broad Channel land manager "talking to the different truck drivers, who were dumping the fill" in "the whole area of the hook." (Tr. at 1006).
During his testimony, Adam described the filling in of the Hook:
Q Now, leaving aside rip-rap, because we will get to that, what you meant rip-rap then, but your testimony was that you didn't own the Hook; is that correct?
A Yes.
Q And that little parcel of land at the end of the Hook is the furthest projection of the Hook?
A The fill was Hook was filled in land. It was marsh. It was a continuation of marsh around the cove.
Q What year are you talking about that the Hook was marsh?
A Filled in in 1973, 1974.
Q Prior to 1973, 1974, the Hook was marsh land?
A Yes.
Q And the tides occasionally reached over the marsh?
A Yes.
(Tr. at 1023-1024).
Adam explained that he did not want to build up the Hook to protect the boats in the Cove because the winds and bad weather come from the northwest and building up the Hook, which is in the south, would not make any difference. Adam denied that he was associated with Mednica in any manner with regard to filling in the Hook, nor was it done on his behalf. In fact, Adam testified that he tried to block the dump trucks from coming on his land. He did permit dumping on his *335 property but not on the Hook. He also used Mednica's bulldozer in "knocking the weeds down." Also, Mednica stored equipment on the Schmitt Marina, including two olivers, a dump truck, a flatbed trailer with equipment, a bulldozer in pieces, and several fuel tanks. Adam also conceded that, at one time, he worked for Mednica, "pushed snow for him with a bulldozer;" knew how to operate Mednica's bulldozer and this bulldozer was "sitting" on his property, in pieces.
Adam conceded that he knew Mednica was dumping fill around the Hook:
Q Did you ever say to Midnica (sic) that you would like to have fill put in around that Hook to close in the area to prevent storm damage? Did you ever say something like that to Midnica (sic)?
A No.
Q Is there any reason why Midnica (sic) would believe that you wanted him to do that?
A Not that I know of.
Q He did it though, didn't he, Midnica?
A Yes.
Q You knew he was doing it at that time?
A Yes.
Q And you didn't object to it, right?
A By that time I had objected.
(Tr. at 1094).
Adam also admitted that someone visited him from the federal government and told him that he was filling in federal land. Also, his testimony on the erosion on the Hook and the filling of the area by way of a riprap wall in 1976 and the protection of the boats in the Cove is enlightening:
Q ... Isn't it true that someone from Floyd Bennett Field came to visit you and told you that part of your marina is on
A At one point they did, yes, that's correct.
. . . . .
Q Is it correct that there had been erosion in that end of the Hook, and that erosion had made the cove more vulnerable to wave action from the bay?
A Somewhat.
. . . . .
Q So this person is right again, that building a rip-rap wall in the right place would have prevented erosion and protected the boats in the marina; isn't that true?
A Yes....
(Tr. at 1144, 1146, 1148-1149).
On October 5, 1976, the Corps of Engineers sent a "cease and desist" letter to Ernestine Schmitt, Adam's wife, regarding the filling of material "upon the wetlands adjacent to your property" (Pl.Ex.18). This letter referred to the placement of fill material upon the wetlands "adjacent to your property," and that such fill was detrimental to the surrounding environment. The letter requested her to remove all the fill material, and warned that failure to comply would result in forwarding the case to the United States Attorney for appropriate action.
The Court finds that the Schmitts were warned about the very conditions at issue in this case, as far back as October 5, 1976, and chose to ignore all the warnings. Not only did they do nothing to rectify these conditions, but they exacerbated the situation by continuing to fill in the Hook area around the Cove and by increasing the docking facilities in the Cove.
At this point in the trial, the Government and the City stated their contentions as to the land and water claimed by them to be part of the Gateway acquisition and thus under the control of the United States.
THE COURT: Is it the Government's contention that this area here, marked was not conveyed?
MR. CLEARY: Yes.
THE COURT: And you say the area including the cove was? (Was conveyed to Gateway).
MR. CLEARY: Yes.
THE COURT: And was there any area in the ground part conveyed?
MR. CLEARY: The marshes.
THE COURT: But where Schmitt's Marina is?
MR. CLEARY: The line runs right along the shore.
*336 THE COURT: I am getting to the heart of the case now.
. . . . .
Your contention is it ruts along the shore here?
MR. CLEARY: Yes, and includes the cove and includes the marsh land.
. . . . .
MR. SHAW: It is the City's contention as well, but I would like to define it to the extent that it runs along the shoreline, except to the extent that the shoreline has been changed by the dumping and filling in that area.
(Tr. at 1335-1336).
Edward Weinstein is an architect and urban planner. He was formerly employed with the Corps of Engineers for four months and for 17 years with the City Department of Ports and Terminals. Weinstein is familiar with the City, State and Federal regulations involving the areas and issues in this case. Weinstein was retained by the Schmitt Marina in June 1991 to apply for a permit for certain floating docks and bulkheads at the marina. He viewed the marina at that time and described it as five acres of upland and five acres under water. The land under water includes the Cove containing floating docks. There is one main dock approximately 250 feet in length running parallel to the shoreline (Dock A) and several other floating docks and finger piers.
Shown the August 8, 1984 aerial map (Pl. Ex. 3), he pointed out Dock A, the dock closest to and parallel to the shore. After having reviewed the photographs taken over a period of fifty years, Weinstein testified that "Dock A existed in just about every photograph I have seen of this property going back to the late 1940s."
Weinstein testified that Dock A would be entitled to a Nationwide Three Permit because it was a structure existing prior to December 18, 1968, providing there was no interference with navigation. He was also of the opinion that the bulkhead alongside Dock A would be entitled to a Nationwide Three Permit since it has been in continuous existence since the 1950s. This Nationwide Permit would authorize the maintenance, repair, renovation and rehabilitation of the structures. The Court notes that it could not find or observe the bulkhead referred to by Weinstein on any of the aerial photographs, although a snapshot taken in 1966 reveals what the Schmitts contend is the bulkhead (Def.Ex. B-76). Weinstein further testified that a Nationwide Twenty-Eight Permit authorizes the reconfiguration of marinas, and that the Schmitt Marina had both such permits. Under these permits the Schmitts "would have the right to fix the dock and bulkhead so long as it existed at that location in substance prior to that December 18, 1968 date."
In addition, Weinstein testified that all the docks in the Cove as shown in the August 8, 1984 aerial photo (Pl.Ex. 3) "can continue to exist and can continue to be maintained and repaired because they are authorized under the Nationwide Permit." (Tr. at 1374). Weinstein based this opinion on the fact that in the 1950s as shown in Def.Ex. W, the entire Cove was filled with small boats at moorings. He stated that "a mooring and a dock are interchangeable and serve the same purpose. And, therefore I feel the reconfiguration from a mooring to a floating dock is allowed in accordance with Nationwide Permit 28.... And therefore the change from having approximately 200 boats at moorings, to approximately the same number of floating docks is a reconfiguration permitted under Nationwide Permit 28." (Tr. at 1374-1375).
Also, Weinstein stated that the "work" in the Cove would have been permitted "in accordance with the after-the-fact procedures of the Army Corps of Engineers." He explained that an "after-the-fact permit" is a permit authorizing work which is begun or completed without an individual permit, where the work can be presumed to have been allowed under the Nationwide Permit. Weinstein concluded that because the activities in the Cove, including the placement of the floating docks, as well as the repair and rehabilitation of the bulkheads and shoreline structures were permitted in accordance with Nationwide Three and Twenty-Eight Permits, *337 therefore, they would have been approved with an after-the-fact permit.
Weinstein also concluded that the construction of the marina and the reconfiguration of the floating docks in the Cove "has absolutely no interference with navigation" and would be environmentally less obtrusive. He stated that this area of Jamaica Bay is not significant to navigation, in that it is an area "used exclusively for recreational boating and not for interstate or foreign commerce." However, Weinstein conceded that a pier could be an obstruction to navigation. The Court finds that a dock could also be an obstruction to navigation.
Weinstein testified that in June 1991, the Schmitts made application to the Corps of Engineers for a permit for the docks and bulkheads and "kept getting a run around." It took a year for them to obtain an application number, which was "extraordinarily unusual." Finally, he was told that AUSA Cleary had the file and so the application could not be processed.
Touching on a critical subject, after being shown Def.Ex. B-27, Weinstein stated that the Big Egg Marsh was within the Broad Channel Community and was not part of Gateway National Park. As stated throughout this decision, the Court rejects this unsupported opinion and finds that the Big Egg Marsh is part of the Gateway National Park.
The Court observes that Dock A was of different lengths over the course of the years. For example, in the aerial photograph taken on April 11, 1969 (Pl.Ex. 24) Dock A was about 50 feet in length (Tr. at 1464), while on May 3, 1969, there were a number of floating docks totaling over 200 feet (Def.Ex. 78). Also, the Court finds that 33 CFR 330, Appendix A limits the scope of Nationwide Twenty-Eight Permit, as follows:
Modifications of existing marinas. Re-configurations of existing docking facilities within an authorized marina area. No dredging, additional slips or dock spaces, or expansion of any kind within the waters of the United States are authorized by this Nationwide Permit.
Reviewing the aerial map of Broad Channel in 1969 (Pl.Ex. 24) and in August 1984 (Pl.Ex. 3), Weinstein declined to concede the obvious fact that there were additional slips or docks added to the marina during that period of time. His evasive conduct did not enhance his credibility. The Court finds that the Schmitts did add additional slips and dock spaces to the existing docking facilities in violation of 33 CFR 330. See Appendix A.
The credibility of Weinstein was also undermined by his refusal to admit the obvious, namely, that the unshaded portions of Broad Channel on the various maps, demonstrates that the Big Egg Marsh portion of Broad Channel was included in the Gateway Conveyance. (Tr. at 1481-1484).
Also, during Weinstein's testimony evidence was adduced that the Schmitts substantially increased the number of slips in the Cove between 1984 and 1988. In Pl.Ex. 3, the August 8, 1984 aerial photograph, there were approximately 130 boat slips in the Cove. In the aerial photograph taken on March 17, 1988 (Pl.Ex. 46) there were 184 boat slips in the Cove, an increase of 54 boat slips.
Frank Papay had been until September 1986 the Director of Parkland and Planning for the Department of Parks of the City of New York. He is familiar with the conveyance to the Federal Government for Gateway, since most of the land conveyed was parklands. He is also familiar with the "neighborhood" of Broad Channel. Papay testified that Broad Channel was excluded form the Gateway conveyance because it was the City's policy "not to disrupt or dislocate people ... the intent of Gateway was to convey basically wetlands, beaches and other parkland. And it was not the intent of the City to dispose of residential areas." (Tr. at 1564). Although offered by the Schmitts, this testimony supports the contention that the marshland which constitutes the Big Egg Marsh and the Cove were conveyed to the Federal Government for Gateway.
Also, Papay testified that it was the intent of Congress and the mandate of the Parks Department to protect the marshes of Jamaica Bay for migratory birds. He also stated that the residential area of Broad Channel ended where the Big Egg Marsh began; that the Big Egg Marsh was an undisturbed bird *338 habitat "since time immemorial;" and that it would be consistent with his understanding of the reasoning of the Gateway Act that the Big Egg Marsh be included in Gateway. (Tr. at 1650). On cross-examination by the Assistant Corporation Counsel, despite the vacillation by Papay, it became clear that Big Egg Marsh was conveyed to the Federal Government and was included in Gateway:
Q Isn't it true, sir, that a considerable portion of the land within that boot shaped unhatched area was in fact conveyed to the federal government?
A Yes.
Q Including most of Big Egg Marsh?
A Yes.
(Tr. at 1653).
Steven Goverman is an Assistant Regional Attorney of Region II of the New York State Department of Environmental Conservation ("DEC"). He was first involved with Schmitt's Marina in April 1992 in a proceeding by DEC against John Schmitt. In that proceeding by DEC John Schmitt did not attend a hearing and an order was issued by the Commissioner of DEC, "which required the payment of a fine of $22,000 and the performance of certain remediation at the Schmitt Marina site." In addition, "there was a finding by the administrative law judge, confirmed by the Commissioner, that the marina had been the subject of filling activities in a 100 by 100 foot area, and a bulkhead had been placed further out...." (Tr. at 1546).
Goverman testified at length as to documents and certain DEC proceedings against Cave Diggers, Inc. and Mednica, including a consent order. Action against these two parties was not enforced because Cave Diggers went into bankruptcy and Mednica was not "available." In one of the agreements Cave Diggers and Mednica agreed to remove fill within 18 months to below mean high water. There was no reference to the Schmitts in these documents and no evidence that they were actively involved. However, Goverman testified that the Schmitts may be involved in that the violation occurred on property that was under their control.
Goverman reviewed certain documents pertaining to a violation at the Schmitt Marina in November 1984 (see Def.Ex. B-104). The DEC Certificate of Disposition dated November 19, 1984 describes the offense as: "Placing fill which consists of wood, cement and brick on a tidal wetland and constructing a retainer wall in a navigable body of water." In a tidal wetland map annexed to the documents it is noted "fill, approximately ten yards by ten yards ... retaining wall 80 feet." The owner of the property is listed as John Schmitt, "leased from the City." The photographs annexed show a bulldozer and a crane. These demonstrate two discrete violations, namely, the fill and constructing a retaining wall in a navigable body of water.
Also offered in evidence was Def.Ex. B-107, which is a DEC form dated January 22, 1985 alleging the following violations: "Placement of fill consisting of dirt, wood, cement rubble, and brick into navigable waters and tidal wetlands, including a large area of intertidal and high marsh. Construction of a retaining wall in navigable waters and tidal wetlands. All activities done without the required D.E.C. permits." This violation apparently was placed after a personal visit by a DEC staff member. The DEC person also stated in the report that there was a "massive filling of one of the largest and best salt marshes in New York City." A notice of hearing for November 15, 1985 (Def.Ex. B-108) stated the violation at issue as follows:
Inspections of Respondent's premises made by employees of the Department disclosed that Respondent has placed or caused to be placed, fill, consisting of wood and soil, rubble and brick into hangable (sic) waters and tidal wetlands, and constructing a retaining wall in navigable wetlands and tidal wetlands of Jamaica Bay around Broad Channel and its adjacent areas immediately adjacent to its premises at 64 West 20th Street, a navigable body of water and mapped tidal wetland, in violation of ECL §§ 15-0505 and 25-0401 and 6 NYCRR. Parts 608 and 661 and without obtaining the required permits from the Department.
On April 14, 1988 another violation complaint was filed against Schmitt's Marina *339 (Def.Ex. B-117). The charge directed "removal of vegetation, storage of boats." The complaint further states that: "This is an ongoing violation site at which vegetation has been removed, tidal wetland filled, and solid waste disposed. (Note unresolved enforcement case on file for years)." On November 15, 1988 another notice of violation was filed against John M. Schmitt with regard to tidal wetlands. (Def.Ex. B-123). The charges was "Placement of fill and grading such fill in the adjacent area to a tidal wetland without a required permit."
An administrative hearing was held on the DEC violations on July 6, 1989 before Administrative Law Judge Susan J. DuBois. The Schmitts declined to attend the hearing after being notified by certified mail, and were in default. The Schmitts never moved to vacate their default or to reopen the hearing. In her Hearing Report dated October 11, 1990 (Def.Ex. B-128), Judge DuBois made numerous detailed findings including rock, concrete and dirt fill placed in tidal wetland areas containing marsh grass; the construction of additional docks by July 19, 1988; additional docks constructed by August 23, 1988; and other violations. A copy of the report is found in the appendix at Figure 5. Among the recommendations of Judge DuBois was to require the Schmitts to remove the bulkhead and fill and restore the wetland. On October 11, 1990 an order was entered by the Commissioner of the DEC approving the recommendation of Judge DuBois (Def.Ex. B-128A).
Goverman reviewed the 1974 and 1984 aerial photographs and noted the differences in the area of the Schmitt Marina. These differences included "possibly five or more docks that were not in existence in 1974;" a substantial fill in area directly behind the dock causing it to be unvegetated; the fill projected "fairly far out into the cove;" and very substantial and extensive "amount of filling in the area designated intertidal marsh along the hook of the cove." Goverman testified that presently John Schmitt is not in compliance with the DEC orders; no remedial work has been done; and the civil penalty of $22,000 has not been paid. According to Goverman, "this fill by the Schmitts is a seven acre fill, and in terms of gross area it does represent the largest filling violation within the five boroughs of the City of New York."
While the initial DEC investigation of the filling revolved around Mednica, there was evidence of involvement by the Schmitts. Goverman convincingly explained the reasons for his opinion "that the Schmitts were in part responsible for the fill, particularly around the hook area"
What makes this (the fill dumping) unusual here is it takes a long linear form which is labor intensive and spread over a very discreet area, and it is a very irregular sort of fill. And what that says to me is that it was done not for disposal purposes let's say, but for a construction purpose.
There is some cost and effort and equipment used that would be associated in creating a fill of this nature, meaning it is not the haphazard fill one would expect for fewer disposal purposes, but, rather, for construction purposes.
. . . . .
Q If the person was in the construction business and trying to dispose of fill are you saying there would be no use to that person?
A In terms of equipment cost and time, it would make no use for the intended use, no. In terms of actual earth moving and grading and any other activities that might be associatedthe scale of the fill would be out of proportion to that use.
THE COURT: So, you are saying that there is no use to the fill?
THE WITNESS: The only use that would make sense, your Honor, is what Mr. Midnica (sic) was describing, and essentially access and the beginnings of a wall to shelter the marina. That would be appropriate to the scale of this kind of fill.
(Tr. at 2366, 2370-2371) (emphasis supplied).
The Court has compared the various aerial photographs and by doing so, the evolution and the growth of the Schmitt Marina is readily apparent. The aerial photographs taken on April 27, 1946 (Def.Ex.161) and April 28, 1949 (Def.Ex.B-162) show no docks *340 in the cove. By contrast, the aerial photograph taken on April 19, 1954 (Def.Ex.B-164) shows the dock we now refer to as Dock A. Apparently, this is the first photograph which shows the presence of Dock A. By June 24, 1959 Dock A is busily used and there are boats and, perhaps moorings for the boats in the cove. (See Def.Ex. B-169). In Def.Ex. B-171, an aerial photograph taken on May 6, 1960, only Dock A is a permanent visible dockthe boats in the Cove appear to be attached to moorings in an irregular fashion, leading the Court to find that these moorings are not permanent structures entitled to a Nationwide Permit. Also, comparing a November 20, 1966 photo (Pl.Ex.23) with a March 17, 1988 photo (Def.Ex.B-151) one can see the substantial increase of docks and slips in the Cove. In 1966 there was one long dock parallel to the shore (Dock A), while in 1988 there are ten docks in various lengths in the Cove.
Portions of the deposition of Carl Mednica taken on October 14, 1993 were read into the record. Mednica testified that he purchased and docked boats at Adam's Fishing Station starting in 1973. He did not pay Adam a fee because they were very good friends. Mednica kept a big bulldozer and a "dynahoe" at the marina. He had an understanding with Adam so that he could use both machines. Mednica testified that Adam needed concrete in the form of broken sidewalk to stabilize the grounds. The broken concrete came from broken sidewalks and was dumped into containers. Mednica advised Adam how to spread the concrete over the land. Adam used Mednica's bulldozer with his permission to pulverize the concrete. The following deposition testimony by Mednica is material on the issue of who placed the fill in the area of the Hook:
Question: Did Adam ever tell you why he wanted this concrete put on this land, what purpose he had? Did he ever tell you anything?
. . . . .
MR. CLEARY: Answer: The purpose of the, you know, of the particular idea to put the fill in, because they wanted to construct a wall to the boats. It's like a breaker, a water breaker, so the boats will not be pulverized when the boats come in. You see that? You know, right here, a big wall supposed to be there, so the boats
A Nor'Easter, so it hits the wall, so he would not pulverize the boats.
Question: So he?
Answer: The boats can be clear here and no damage.
Question: Meaning inside the Cove? In other words, he wanted to create a safe haven inside the Cove for the boats?
MR. WESTFAL: Objection, your Honor.
THE COURT: Overruled.
MR. CLEARY: Answer: Right here.
Question: Indicating the Hook around the Cove; is that right, is that true?
MR. WESTFAL: Objection.
THE COURT: Overruled.
MR. CLEARY: Answer yes.
(Tr. at 2300, 2301) (emphasis supplied).
Mednica also testified at the deposition that the filling and dumping of this area occurred in a short period of time, within one month to five weeks. He further stated that he did not know who was doing the dumping. The Court doubts the veracity of this latter statement and finds that the totality of the evidence including the photographs and documentary evidence compels the finding that the Schmitts, either directly or though an agent conducted the dumping and the filling in the Hook around the Cove.
Charles M. Neckers formerly was employed as an Assistant Commissioner in the City Division of Real Property from 1980 to November 1992. His duty was to oversee sales and leases of the City's surplus real estate. In the latter part of the 1980s the Broad Channel sales program was transferred to Neckers. The responsibility of his department was to manage the property, collect revenues from those who leased the property and eventually "to sell the (Broad Channel) properties to the existing tenants of record." With regard to the sale of the Broad Channel properties, his instructions were to sell the residential properties first, which involved 98% of the Broad Channel property. There were some commercial *341 properties "and they would be handled at the end." (Tr. at 3015). Because there was no accurate survey of all the properties leased to the "900 or so" tenants on Broad Channel, the Broad Channel Association hired a surveyor and had the property surveyed. The survey "sometimes included some adjoining property that was not leased to anyone." (Tr. at 2958). "And, if there was distance between another house, why have a sliver of city property between the two properties, let's split it and sell it to one or the two people on the side, so they can maintain it and they can own it." (Tr. at 2959).
Only preliminary appraisals were made of the Schmitt property. Neckers never saw a final appraisal of that property. However, Def.Ex. OO is a hand-written memorandum dated May 19, 1981 made by Charles R. Kamps, an appraiser. In this document it is indicated that the owner of Schmitt Marina sent a diagram of what he believed were the true boundaries. "It was felt that it (the Schmitt diagram) was fairly accurate although no formal survey was ever made." (Tr. at 2965). The same memorandum noted that "The land under water in this particular case is threatened by the federal government claim that it is part of the Gateway National Recreation Area and not owned by the marina." (Tr. at 3008). Also, the memorandum estimated the Schmitt Marina "as being approximately 226,000 square feet." (Tr. at 3021). Also in evidence is a letter to the Schmitt Marina from Assistant Commissioner Corrado dated May 20, 1981, which reads as follows:
We have reinspected the area that you diagrammed as being the site of the Schmitt Marina.
We have concluded that your diagram is generally correct as far as can be determined without a survey.
The total area occupied has been estimated to be 226,000 square feet.
The appraised value is still $234,000, (sic) and this valuation is slightly less than $1.04 a square foot.
(Def.Ex.B-58).
However Neckers never determined what area was leased by the Schmitts, and no accurate survey was ever performed. Neckers concluded that the Schmitts "encroached on City-owned property" based on what he was told by staff and other members of the Department of Real Property. (Tr. at 3027).
Ultimately, Neckers determined not to sell the marina property to the Schmitts. This determination was based on the Schmitt Marina's DEC violations, the inaccurate survey, the inability to define the actual boundary of the Schmitt Marina, and the resulting inability to agree on price. Another important paper in this documentary case is a memorandum from Neckers to Lori Fierstein, Assistant Commissioner, dated October 20, 1989, entitled "Broad Channel Lease Termination," recommending that the Schmitt Marina tenancy be terminated:
Please note that the tenant for this parcel has been cited for numerous DFC violations as evidenced in the attached Notice of Hearing and Complaint. An administrative hearing was held July 6, 1989 but as of this date, no decision has been rendered.
In addition, the tenant has expanded his marina operation, significantly exceeding the 40,000 square feet indicated in the 1962 lease. He currently occupies over 100,000 square feet which includes the use of land within the Gateway National Recreation area which is under the jurisdiction of the United States Department of the Interior. The Department of Interior has commenced an action in Federal District Court to remove the marina from Gateway. The case is being handled by Kevin (sic) Cleary, Assistant United State (sic) Attorney Eastern District. In the even you want to contact Mr. Cleary, he is located at 225 Cadman Plaza East Brooklyn, New York 11201 and can be reached at (718) 330-7100.
In light of the tenants apparent DEC violations, unauthorized expansion and trespass into Gateway, it seems necessary to terminate this lease.
(Def.Ex.B-474).
Neckers' reasons for terminating the Schmitt Marina tenancy were "A combination of violations thatalso that tenant had expanded his marine operations beyond the *342 40,000 square feet, and that there was an issue of whether he was in the Gateway National Recreation Area. And at this point, you know, they can't settle the DEC violations, they couldn't settle the issue with the government." (Tr. at 3419).
Despite the problems with the Schmitt Marina, the City conveyed the residential property to Adam. The Court commends the action of the City by Commissioner Neckers when he stated that "it seemed unfair to treat the house as part of a commercial business. And I instructed staff to see that it was surveyed and conveyed as part of the residential conveyance project." (Tr. at 3048).
Stuart Lowenthal is a licensed professional engineer and the Acting Director of the New York City Department of Business Services. His division examines applications for water-front construction, inspects sites and issues certificates of completion, which are similar to certificates of occupancy. His division received an application from John and Adam in February 1994. He processed the file and a work permit card was issued on June 7, 1994 for "rearrangement of existing floats as per Plan # 7374 at the foot of 19th Road, Broad Channel." (Def.Ex.B-507). This permit apparently was based on an application dated March 11, 1994 which stated, "In an existing marina, installation of a floating dock assembly for approximately 120 small water crafts." (Def.Ex.B-525). This application was for the foot of 19th Road, which apparently is not in the area of the Cove, at the foot of 20th Road. The application stated that Adam was the tenant and that the City Department of General Services was the owner of the property. Based on the applicant's statements, the property at issue was zoned residential and a marina was not a permitted use.
The Schmitt permit was revoked by Lowenthal's department on July 18, 1994 (Def.Ex.B-508). The reasons for the revocation were, first, the property described on the permit is in fact owned by Adam as residential property, and use of the property as a marina would constitute a non-conforming use in violation of the zoning. Second, "The work notice inadvertently authorizes the installation of additional dockage for 120 watercraft, when it was intended to authorize only the replacement of dockage legally existing in the marina." (Tr. at 3147) (emphasis in original).
In 1990, Lowenthal's department issued a permit to one Ronald Finke for 18 slips in Broad Channel. Finke operated a restaurant and he applied to maintain slips "which were to be used exclusively for his restaurant customers to come and tie up and ... eat at the restaurant, and therefore it is not categorized as a marina." (Tr. at 3180). A permit was issued to install piles and floats for 18 slips. The Finke restaurant and boat slips were on the east side of Broad Channel, on the opposite side from the Schmitt Marina. Lowenthal conceded that he made an error regarding the grandfathering of the Finke boat slips. He should have raised certain issues as to the Finke application, but the Finke permit was never revoked.
In analyzing both the Finke and Schmitt applications, Lowenthal assumed both facilities were grandfathered in full. However, he learned that the grandfathering rights of the Schmitt house on West 19th Road were not applicable to the marina on West 20th Road. In addition, the Schmitts applied to add 120 more slips instead of reconfiguring the original 120 slips. Upon hearing this additional information, he revoked the permit.
On March 6, 1992, Lowenthal's department received an application by Marilyn Martin for the Sunset Marina located at 64 West 10th Road in Broad Channel. The Sunset Marina is located on the west side of Cross Bay Boulevard, the same side as the Schmitt Marina. The application was "to reconstruct 203 feet of existing timber bulkhead and to install docks and floats." Although there was a dispute as to the correct zoning of this marina, the Martin application was approved. The City sold the Martin-Sunset Marina property to Mrs. Martin under the non-residential phase of the Broad Channel conveyance project. Lowenthal testified that although the marina was probably zoned in R3-2, which ordinarily would not include a marina, it was "probably" grandfathered in. (Tr. at 3292). He explained the "grandfather" procedure as follows:
*343 A The determining factor would be how many slips were there when the zoning resolution was adopted. So, theoretically if somebody had, let's say 100 slips in 1961, and had 50 slips last year, and asked to add 50 more to come up to the amount they had in 1961, it should be permissible.
(Tr. at 3295).
Lowenthal also testified that grandfathering rights cease if the use is discontinued for a period of two years or more. (Tr. at 3328). Also, the grandfather rights are related to the specific structure in use in 1961. For example, if in 1961, a marina had 100 mooring buoys in use, they could not be converted into 100 docks. As to the replacement sought by the Schmitts for their docks, the new docks would have to be the same number, type and size as those grandfathered in and placed in the same location. For example, grandfathering rights applicable to the marina on 20th Road could not be applied to Adam's house on 19th Road because they were separate sites.
However, the Court finds that another element must be considered with regard to the Cove. Namely, the contention by the United States that the land and water constituting the Cove was transferred by the City to the Federal Government for Gateway in 1974 and became federal land at that time. As such, it was no longer City land and was not subject to City zoning regulations, including the City grandfathering rules. In this regard, Lowenthal testified as follows:
THE COURT: I will ask it.
If the government receives this property as part of the Gateway National Park, any such property, assuming it received such property, Mr. Lowenthal, would your authority to permit the zoning or terminate the zoning in that Gateway Nation Park area terminate?
THE WITNESS: Yes.
THE COURT: You wouldn't have authority to do it?
THE WITNESS: Yes.
(Tr. at 3326-3327).
Robert Gleusner is the Supervising Permit Inspector of the New York City Department of Business Services. His duties include supervising field inspectors and issuing summonses for violations. Gleusner formerly was a field inspector and visited Broad Channel once very two or three weeks. He inspected the six or seven marinas and boat clubs on Broad Channel. He issued a violation to the Finke Sandbar Marina for renting some of the slips instead of using them for restaurant patrons only. On September 16, 1987 Gleusner issued a notice of violation to John Schmitt for "No float plans for marina and no permits for new piles and floats installed." He issued the notice of violation after a personal inspection of the Schmitt Marina; based upon a complaint by a man located on the north side of the marina. As a result of this violation notice, Gleusner issued two summonses, although he could find no record of the disposition of the summonses. John Schmitt told him that they had been dismissed. In November 1994, several weeks prior to the day he testified in this case, Gleusner served a revocation order on the Schmitt Marina. This was the only marina revocation order he served.
John M. Schmitt is the son of Adam and Ernestine and the grandson of Adele. John was born in 1951 and was 43 years of age when he testified at the trial. The Court notes that John Schmitt is a poised articulate witness. He is also obviously comfortable in a courtroom setting having testified hundreds of times as a police officer in Colorado. (Tr. at 5767). John lived in Colorado between 1976 and 1981, and visited the marina only periodically during that time. He obtained numerous documents from the Parks Department of the City of New York which were received in evidence.
According to John, the Broad Channel community includes the toe of the boot, now referred to in some maps and documents as "Big Egg Marsh" (see for example the red outline made by John on Def.Exs. B-59, B-138 and B-152). John testified that the area east of the Cove was land and not marsh, while west of the Cove there is marshland. John explained that the marshland is subject to the tide and is covered by water two times a day. In 1963 his family operated the marina and he was present on a regular basis. In an aerial photograph taken on May 3, 1969, *344 the area east of the Cove appears to be marshland with no riprap wall in the area of the Hook partially encircling the cove. (See Def.Ex. B-78). Notably, in an aerial photograph dated August 8, 1984, there is definite evidence of land in the Hook (see Plf.Ex. 3).
John testified at length regarding the location and size of the Schmitt Marina. As shown on an aerial photograph dated April 19, 1954 (Def.Ex.B-2) John estimated the size of Adam's Fishing Station, including the Cove and the land at 300,000 square feet. In the June 11, 1959 rental memorandum (Def. Ex.B-398), it was noted that "a new agreement being drawn for additional space at increased rental, to start, as of 6/1/59." On July 2, 1959, a new lease was issued (Def. Ex.B-400), again describing the property as "Foot of West 20th Road." On August 12, 1959 another lease was executed (Def.Ex. B-402). While the lease stated "Additional space. Old agreements cancelled," it nevertheless described the lease premises as "Foot of West 20th Road" and the space as "200' × 200'." However, viewing a June 24, 1959 aerial photograph, John estimated the size of the area occupied by the marina as 350,000 square feet. The Court is unable to ascertain how he arrived at this figure.
John described the area of John's Fishing Station acquired by his family from Pasienza in 1968. After the purchase, John's Fishing Station, and its customers, became part of the Schmitt Marina.
There are additional leases in evidence. The July 1, 1959 lease locates the premises as Block 210 "Foot of West 20th Road" for a "boat storage and fishing station." (Def.Ex.B-400). The August 12, 1959 lease describes the premises as "Foot of West 20th Road" in block 310. The space is listed as "200' × 200'" (Def.Ex.B-402). Also in a letter from the City to Adele dated January 18, 1962 the lease property vas described as "Block 210Foot of West 20th RoadArea 200 × 200 sq. ft." (Def.Ex.B-404). In addition, an application dated March 25, 1962 or March 28, 1962 also describes the area as "sq. ft. 40,000." (Def.Ex.B-149).
Reviewing the aerial photograph taken on June 24, 1959, when he was eight years old, (Def.Ex.B-169), John stated that Adam's Fishing Station used the water in the Cove and north of the Cove, while John's Fishing Station used the water in the West 19th Road canal. He described one long dock that went north to south (Dock A) and boats in the Cove on moorings. Also there were poles in the water in the Cove. He would row customers out to their boats moored in the Cove. According to John, the Cove belonged to the Schmitts. Notwithstanding the dimensions and locations set forth in all the marina leases, John "estimated" the square footage of both Adam's Fishing Station and John's Fishing Station in 1959, when he was very young, as a total of 400,000 square feet, including 300,000 square feet of land. (Tr. at 3645-3646).
John testified that the first photograph in which the Cove is shown was an aerial photograph taken some time between 1938 and 1940 (Def.Ex.B-155E). Prior to that time the photographs showed no Cove was in existence. According to John, the Cove "has been dug out" between 1924 and 1938. To demonstrate this point, John points to a 1924 aerial photograph which shows the toe of the boot without a Cove (Def.Ex.B-155C). John describes Broad Channel and its canals and streets as the teeth of a comb. He stated that the Cove and the canals in the teeth of the comb were man made and dug out after 1924.
John testified that block 210 "stands from Cross Bay Boulevard west all the way to the Raunt Channel." (Tr. at 3920). Therefore, the westerly boundary of the Schmitt Marina would be the Raunt Channel. The Court finds that the location of the "Raunt Channel" is somewhat confusing because various maps, drawn in different years and times in the development of Broad Channel, show the name "Raunt Channel" in various and imprecise locations. John says that this name was first used "in 1900 or even earlier," with regard to the "Raunt Channel." In this regard, the Court agrees with the Assistant United States Attorney, when he stated:
Secondly, there is a thing called the Raunt Channel. There is also a thing called the Raunt.
*345 The problem is Mr. Citak's argument proves too much because the Raunt is everywhere. If you go through the map, the Raunt is around the island, the Raunt is an island. The Raunt is a term that is used very generally out there and it is not something of absolute precision.
Okay. So that's what the Raunt is. Nobody knows what the Raunt is.
(Tr. at 3922).
Although John asserted that there was a "definite understanding" of the location of the Raunt, when asked to describe this location he stated that there were "only three locations known as the Raunt." The Court finds that the parties failed to prove any determinative relationship between the so-called "Raunt Channel" and the issues in this case. This is so, despite a City document describing the western boundary of the Schmitt property as the "Raunt Channel" (Def.Ex.MM). The problem is that other documents place the Raunt in different locations (see for example, Def.Exs. C, B-140 and B-147).
Another confusing and unclear area in this case is the different block and lot numbers in the many documents in evidence. The geographic maps, developer maps and tax maps over many years and a rapidly evolving area, apparently have different block and lot numbers. For example, on a tax map the block numbers show as 15350 (Def.Ex.B-147). How this tax map number relates to "block 210" as set forth in the lease documents, is unclear.
John testified that he took over the ownership and operation of the marina in 1981. The first notice he received of a claim by the Federal Government was in 1989. The Federal Government claimed that "the Schmitt Marina was trespassing and they wanted me to move my docks, my walks and my house." (Tr. at 4100). In 1990 or 1991 he received notice from the City that he was encroaching on City-owned land. A significant letter dated September 30, 1983, warned the Schmitts about John's "unauthorized grading and filling of unleased City-owned land, that adjoins property that you lease from the City of New York" (Def.Ex.B-417). The letter ordered John to "cease and desist from doing this again." He was further warned that "any repetition of this type activity in the future by you or any of your agents will cause the City to take appropriate action in the Courts." John stated that he was not filling in the area but "was just digging." (Tr. at 4132).
As stated above, Ronald Trenchetto, the Broad Channel Director, wrote to the Schmitts and to the commanding officer of the 100th Precinct on January 10, 1984 to follow up on the prior notification, (Def.Exhs. MM and B-421). Once again, the Schmitts were notified not to grade or fill on unleased City-owned property. Trenchetto wrote to the Schmitts again on February 29, 1984 and reiterated the City's warning that "any further repetition of this activity will result in the initiation of eviction proceedings and an immediate termination of your lease." (Def.Ex.B-424). This letter also refers to Carl Mednica and "the property he leases located next to your leased site." There is no documentary evidence to support the assertion that Mednica leased the area of the Hook.
Another document adding to the confusion about the exact boundaries of the Schmitt Marina is a letter from DEC to Neckers, Assistant Commissioner of City Division of Real Property dated April 29, 1986 (Def.Ex.B-111). In this letter, DEC recites certain violations with regard to "placement of fill and erection of a retaining seawall in navigable waters, tidal wetlands and adjacent areas" at a site leased to Schmitt's Marina. In this letter it is stated that after discussions by the City and DEC "it is clear that no specific boundaries exist under Schmitt's lease." The Court finds that the only clear delineation of the boundaries of the Schmitt Marina are in the original City leases which describe the property as at the foot of West 20th Road and 200' × 200' in area.
There is in evidence a handwritten appraisal by Franklin M. Glaspie, Jr., a City employee after an inspection on April 16, 1992 (Def.Ex.B-439). John was present at the time of this inspection and appraisal. This document relates the history of the Schmitt Marina, as follows:
*346 History of Subject Property
The subject property was first leased to Adele Schmitt on July 1, 1959 from the City of New York for $124.00 a month. There was a second lease in 1962 that set forth an area of 40,000 square feet to be leased for $150.00 a month. Currently the subject property, which comprises 506,089 square feet, is being leased for $229.00 a month. It is operated and occupied by John and Adam Schmitt and is known as Schmitts Marina.
John was questioned about the 1992 appraisal and the increase in the boundaries of the Schmitt Marina, which apparently took place over the passage of years and is of the view that the Schmitt Marina occupies more than 506,089 square feet:
Mr. Schmitt, is it your testimony that you leased that entire area?
A No, it is not.
Q Is it your testimony that the area you lease includes that entire area?
A Some of it.
Q Some of what?
A Some of that area includes, and some does not include.
Q So, in your view it is not an accurate depiction of your leasehold?
A That's correct.
. . . . .
Q Isn't it also true that this memorandum states that the tenant, that is to say, Schmitt's Marina, is occupying about 506,000 square feet of land?
A Yes.
. . . . .
Q Looking again to your notes to this appraisal, it says here the subject property was first leased to Adele Schmitt on July 1st, 1959 from the City of New York for 134 dollars a month.
Do you see where it says that?
A That's correct.
Q There was a second lease in 1962 that set forth an area of 40,000 square feet to be leased for $150 a month.
Do you see that?
A Yes, I do.
Q Currently the subject property which comprises 506,089 square feet is being leased for 229 dollars a month.
Do you agree with those statements? Do you think they are accurate?
In particular let me ask youlet me withdraw that.
Is it true that you present lease approximately 500,000 square feet; is that true?
A I believe it is closer to 600,000.
Q I want to hear what you have to say on this and why you think this is wrong.
So, your view is thathow large is the size of the July 1, 1959 lease mentioned in the first sentence for $134 a month? How large was that?
A 40,000 square feet short of 600,000.
(Tr. at 4487-4493).
John testified that the water in the Cove is included in the lease to his family, but was not included in the 1992 appraisal. If so, the claimed area of the Schmitt Marina is greatly in excess of 506,000 square feet, an unlikely circumstance.
As to the filling and dumping, John testified that the Schmitts did "legal filling" in the wetlands in and prior to 1968. For example, he acknowledged replacing a bulkhead at the shoreline where the land and the water meet and doing filling "behind the bulkhead" in 1984 and 1988. (Tr. at 5091-5092). Nevertheless, John denied that the Schmitts did any filling in the wetlands after 1968. (Tr. at 5038-5039). John consistently denied that the Hook was part of his leasehold, and he emphatically stated that the Schmitts never exercised any dominion and control over the area of the Hook. This was the area that DEC wanted the Schmitts to "clean up." The Court finds that it was convenient for the Schmitts to disclaim control over the Hook for two reasons. First, someone filled in the Hook and destroyed the natural habitat, with the ensuing potential liability to such a wrongdoer. Second, the Schmitts did not need to claim that their leasehold included the Hook. It was built to shelter their boats in the Cove and thus was beneficial to the operation of their marina, without the accompanying remediation problems. *347 Stated simply, the Schmitts wanted and obtained the benefit of the shelter of the Hook, without any of the liabilities.
All during this time, the City and the DEC attempted to obtain an accurate survey of the Schmitt Marina, without success John testified that he never authorized a survey and never saw a final survey of the marina property, although he asked the City for such a survey for years. (Tr. at 5098-5099). John adhered to his view that the Gateway map did not accurately describe the boundaries of Gateway, despite the fact that the metes and bounds in the Gateway map "precisely tracks the March 1, 1974 conveyance, which is Exhibit 5 in evidence." (Tr. at 5527). In fact, John stated a number of times during his testimony that the National Park Service did not know the boundaries of its own parks in the area of the Schmitt Marina. The Court disagrees and finds that the metes and bounds on the Gateway Conveyance Deed and Map accurately describe and show the Gateway boundary near the Schmitt Marina leasehold.
Another summons against John Schmitt was issued by the City on January 19, 1989 for placement of fill in regulated tidal wetlands without required permits. (Def.Ex. B-463). This case was dismissed after trial in the Criminal Court. After this dismissal, the DEC served a notice of violation against the marina. There was a hearing on this violation on July 6, 1989. John did not attend this hearing because he was sick. Following the placing of this DEC violation, John was contacted by the United States by letter dated January 4, 1989 (Def.Ex. N-1). John stated that this was the first notice to the Schmitt family from the Federal Government. This letter stated, in part:
Dear Mr. Schmitt,
[P]ortions of a marina facility owned and operated by you are trespassing onto United States Government Property. As Shown in the enclosed aerial photo, boundary map, and survey (Figures 1 - 3) all of the floating docks and mooring slips, and portions of structures and outbuildings are on property administered by the National Park Service. The exact location of the boundary will be surveyed in the near future.
In addition to the trespass problem, there has been extensive unauthorized filling of tidal wetlands. Information provided us by the New York State Department of Environmental Conservation indicates that this fill has been placed in conjunction with the operation of your marina, and that you have been issued cease and desist orders to halt.
By this letter, I am hereby notifying you that you are in trespass on property belonging to the United States, and that all structures, improvements, and associated materials and goods must be removed. Fill placed into tidal wetlands must be removed and the site restored to its original condition. In addition, this matter will be referred to the United States Environmental Protection Agency and United States Army Corps of Engineers.
. . . . .
If we have not heard from you within ten days of your receipt of this letter, this matter will be referred to the United States Attorney for prosecution.
John replied to this letter and in response Gateway wrote to John on February 3, 1989, enclosing a copy of the laws and deed transferring the City lands to the United States, together with 1984 aerial photographs. (Def.Ex. N-2). Thereafter a "public notice" was placed in the local newspaper, The Rockaway Wave, by the Assistant United States Attorney in charge of this case. (Def.B-476). According to John, as a result of this published advertisement about 200 of his 250 customers requested return of their deposits and departed the marina. Also, John stated that this notice had a "detrimental effect on the name of the family."
On May 10, 1990 the City served a "thirty day notice to vacate premises." (Def.Ex. B-479). One of the notices was for a 40,000 square foot expired lease and the other was for unleased property occupied by the Schmitts. Remarkably, John testified that he received about seventy thirty-day notices. The alleged violations of the lease include: (1) expanding beyond the boundaries of the *348 leasehold; (2) DEC violations; and (3) trespass into Gateway. After receiving the May 10, 1990 thirty-day notice, the Schmitts commenced a legal action in the Supreme Court, Queens County, to prevent the City from terminating the lease. ("The State Action"). In response to these charges, John testified that there was no change in the area used by the marina between 1970 and 1990. The Court disagrees and rejects this contention.
Presently, John is paying rent for the Schmitt Marina in the sum of $229.00 per month. He has continued to pay this rent to the City and, as of June 16, 1995, the date he testified on this subject, the City has continued to accept the rent.
B. The Alleged Conspiracy
The Schmitts claim that they are the victims of a conspiracy between the Federal Government, the State of New York and the City of New York. As John put it:
I believe that the City, the state and the federal government realized that there was a mistake made, and that it went on for so long they didn't know what to do. So they had a meeting and decided to try to put pressure on to me to go ahead and put me out of business; that the federal government requested that the docks could stay in place, but I was not allowed to have customers at my marina ... And not only that I loss income from my customers.
I believe that the City of New York has systematically reduced the size of what they believe to be my marina ... Systematically it kept decreasing where they took the one lease for 40,000 square feet, and went ahead and tried to relate that it's the whole that it is the whole leasehold interest, that it was only 40,000 square feet. They indicated that the 40,000 square feet is completely within theaway from the water; that not one inch of the marina water is available, even though the documents state that portions of the marina were constantly under water.
. . . . .
... And as soon as they talk about lease there is this 40,000 square feet of area that is up on land that is not anywhere near the water.
They systematically tried to say that block 210 is an exact location, that it is from a developer's map, although the documents show that block 210 whole area is the marina, that the whole area was called block 210 ...
. . . . .
I think there is ample evidence to show that we did have permits.
The Court was led to believe that Nationwide Permit was piece of paper, to the point where quite a few times I constantly said I had a Nationwide Permit.
I was told by the Army Corps of Engineers I had a Nationwide Permit.
. . . . .
I believe that all the little untruths or inaccurate statements add up to show that there was combined effort to go ahead and try to get me off the land. One may have wanted it for purposes of mitigation. Another one may have wanted it for purposes to clear out the problem, and some of them I believe was for personal gain. I believe that the concessionaire of Barren Island Marina pled guilty to bribery. He had to bribe somebody.
(Tr. 5257-5272).
In support of his "conspiracy" and "vindictiveness" theory, John points to the handwritten notes of Shelly Goldman, the City Director of Lease Enforcement, made in 1992, that our "Plan nowis to put Schmidt's (sic) against the wall so we can dictate the terms of a lease to him." (Def.Ex. B-495). As will be set forth later in this opinion, the Court finds that the Schmitts failed to prove any unlawful conspiracy or vindictiveness on the part of the United States, the City or the State of New York.
The Schmitts also allege an apparent equal protection or selective enforcement claim. John testified that there are 24 clubs and marinas on Broad Channel, some of which encroach on Gateway property. He points to the Sandbar Marina, located approximately 450 feet from the Schmitt Marina, as encroaching over the pier and dock lines. Also, the Sunset Marina on 10th Road, which is eight blocks away from the Schmitt Marina, *349 was permitted to use its docks. In addition, John contends that the Sandbar, JB and Sunset Marinas all received City permits, which was denied to the Schmitt Marina. After reviewing the aerial photographs and the relevant documents, the Court sees no massive encroachment similar to the Schmitt Marina Cove and Hook situation and the substantial self-enlargement of the Schmitt Marina property.
In this regard, John testified that he is the only resident of Broad Channel who was denied the right to purchase his leasehold. Also, he purportedly was discriminated against in connection with the installation of sewers in Broad Channel in 1991. Further, the Army Corps of Engineers gave a permit to the Barren Island Marina, but his application was never acted upon. The Court notes, however, that the Barren Island Marina is not on Broad Channel and its status is irrelevant to the factual situations involved in this case.
In his preliminary injunction hearing, and at this trial, John admitted that the boundaries of his lease were indefinite, without exact metes and bounds. He was questioned about this testimony at the preliminary injunction hearing:
Question: Perhaps, can you explain?
Answer: They rented the property down there, they had no markings or boundaries. Nobody ever knew where it was. When records changed, when people in the office, that is what I believe, started giving exact figures, someone put block 210, lot 99, they said put it down, 40,000 square feet, that's 4 0 0 0 0, 40,000 square feet. And the guy would come down every month from the Department of Real Estate collecting his rent. And that is going on for years.
Question by the Court: It is a very indefinite boundary?
The Witness: Yes.
(PI Tr. at 1362); (Tr. at 5583).
Edward Smith was the City Real Estate Manager for Broad Channel during the period of the 1960s and 1970s. John admits that Smith used to "hang out at the marina." On August 28, 1978, in a City disciplinary proceeding, Smith pled guilty to charges involving corruption. Having read the file involving the disciplinary proceeding, John testified that Smith was not an "honest civil servant" and "was a crook." (Tr. at 5606). The United States attempted to show that this corrupt City manager permitted the Schmitts to expand their 40,000 square foot lease to what they claim to be approximately 600,000 square feet for a rental of $150 to $229 per month. The Court agrees and finds that Smith permitted the Schmitts to expand their lease without valid authority by the City:
Q How many square feet includinglet's call it bottom lands, land under water. How many square feet of you claim you were leasing from the City of New York in the early 70's?
A I believe it to be around 600,000 square feet.
Q So you think $150 a month in the early 70's was a fair rent for 600,000 square feet of land, of city land?
A I can't answer thatdo I think $150?
Q Yes.
A No.
(Tr. at 5616).
Actually, the Schmitts paid more rent in 1962, namely $250 per month, than the $229 per month they now pay. Indeed, they have not paid any rent on the Orean-Pasienza leasehold since 1989, because of the eviction proceeding by the City.
John met with Gateway officials prior to the 1974 conveyance deed and knew that "The National Park was being set up on (his) doorstep." (Tr. at 5659). However, he did nothing to ascertain the exact boundaries of his lease, knowing that Gateway was at his doorstep and may very well have included a portion of the land and water which he claimed to be part of the Schmitt Marina. John apparently took his chances.
John testified that he knows Mednica as a contractor who stored equipment at the Schmitt's boatyard. John corroborated Mednica's testimony that the Schmitts permitted Mednica to store his equipment without charge, in return for allowing them to use his equipment. John was questioned about *350 Mednica's deposition testimony linking the Schmitts to filling the Hook. He stated that Mednica stored two boats on Schmitt Marina land and no fee was charged, even though their normal fee was $1200 per season, because they used Mednica's backhoe, which was stored at the boatyard. John denied that his family was involved in the filling of the Hook in 1975 and 1976. However, the Court notes that he was in Colorado on a local police force during that period and only returned periodically to Broad Channel. John admitted that his family strung rope and tires on the edge of the Hook, "to act as a breakwater." He also conceded that a riprap wall of broken concrete "would have done a better job than these tires on a rope."
Despite the number of City leases with the Schmitt family which state that the leased property is 200' × 200' or 40,000 square feet, John continued to deny this documentary fact. (Tr. at 5804, 5820-5823). The Court finds that John Schmitt was an evasive witness who repeatedly refused to admit facts clearly set forth in the documentary evidence. The Court further finds that all of the Schmitt leases set forth a leasehold consisting of 200' × 200' or 40,000 square feet, even though John now claims that the Schmitt Marina leasehold is in excess of 600,000 square feet. The Court finds no such support for the Schmitts claim of a 600,000 plus square foot marina. The Court finds that John Schmitt attempted to avoid the contrary clear documentary evidence merely by saying that "he doesn't agree" with this evidence.
As to the fraud cause of action by the Schmitts against the City, the complaint alleges that the Schmitt family was fraudulently induced to enter into leases that they would not otherwise have entered into, but for misrepresentations by various city officials at various dates from the 1960s through the 1980s. John contends that the misrepresentations were by City officials in that they underestimated the size of the Schmitt leasehold. However, John expressly denied that the Schmitts were fraudulently induced to enter any lease:
Q Mr. Schmitt, what lease did you enter into that you were fraudulently induced to enter into?
A I don't believe we were fraudulently induced to enter any lease, if that is what you are asking me?
(Tr. at 6217).
Other claims of fraud by the Schmitts include: (1) that the property they are leasing has been illegally taken away from them; (2) that the City is now stating that the leased premises is smaller than actually leased; (3) that the City gave testimony in the DEC trial that we leased certain property and then, later on, stated that we didn't lease that area; (4) that although the City represented that the Schmitts were treated fairly, they were the only tenant who was denied the right to purchase the land; (5) that the City alleged that the Schmitts "were scofflaws and committed DEC violations", while 50 percent of the people in Broad Channel also had violations; (6) the City refused to allow the Schmitts to use their water rights; (7) the City granted other marinas in Broad Channel the right to use water and docks outside of their lease boundaries; (8) in shutting off the water to the Schmitt's home; (9) in not stopping Mednica in filling the area around the Hook; and (9) in denying the Schmitts the right to hook up to the sewer system. The Court finds that none of these allegations, even if proved, would establish a viable tort action in fraud.
John also testified about the Schmitts' claim of breach of the implied covenant of quiet enjoyment. However, he conceded that there has never been an actual eviction or a constructive eviction, in that the Schmitts have never been physically removed from the property nor have they abandoned any part of the leasehold. John contends the eviction is evidenced by (1) shutting off their water; (2) refusing to let them put boats in a certain area of the marina. Insofar as the shutting off water contention, the initial problem occurred in the midst of the litigation, concerning the lease boundaries. Ultimately, the City offered John a standard license agreement to permit him to repair the water line (Def.Ex. B-489) and he declined to sign it. (Tr. at 6244-6245). Further, *351 in the 1959 lease (Def.Ex. B-400), and the 1962 lease (Pl.Ex. 27), the Schmitts agreed not to make any improvements without the written consent of the City, and they never obtained any such written consent.
At the time he testified in 1996, Edward Smith was 89 years of age and decidedly feeble appearing and sounding. As stated above, he was a real estate manager for the City Department of Real Estate, was in charge of the Department of Real Estate in Broad Channel, and, in that capacity he drew up leases. Smith vas familiar with that area and its boot shape and was also familiar with the Schmitt Marina, located "in the area of West 20th Road," which was one of the larger pieces of real property in Broad Channel, a portion of which was water. There were no markings in metes and bounds on Broad Channel.
Smith remembers the Schmitt family, "a very fine family." During his time at Broad Channel he became friends with Adam and "would like to help them." (Tr. at 6424). His signature appears on an application for permit dated March 25, 1962 (Def.Ex. B-149). He drew the diagram on the document which was for "additional portion which we charged X-amount of dollars more on the leasehold." (Tr. at 6382). However, when he was asked to explain what he meant by "additional land," Smith responded "I'm sorry. I just can't think straight." He wrote the space figure as "200 by 200" and "40,000 sq. ft." and that "portions of the area are constantly underwater." (Tr. at 6385-6386). Although this lease calls for an increase in rent, it does not say that the amount of land is being increased. Smith also signed the lease dated April 16, 1962, which refers to block 210, foot of West 20th Road, area of 40,000 square feet. (Pl.Ex. 27). However, Smith testified that even though the lease said 200' × 200' and 40,000 square feet, Adam's Fishing Station occupied a lot more land.
Smith recalls that the John Orean lease, which was purchased by Adam Schmitt was "about 20 by 20" in size. Orean stored boats at his marina along the 19th Road canal. Asked to describe the boundaries of Adam's Fishing Station (the Schmitt Marina), Smith stated "I couldn't tell you that." (Tr. at 6398). Of importance, Smith testified that he did not think the Cove was part of the leased property:
Q Do you recall, Mr. Smith, whether there was a cove in that area?
A There was a cove, yes.
Q And was the fishing stationwas the cove part of the fishing station?
MR. SHAW: Objection.
THE COURT: Overruled.
A I imagine Mr. Schmitt used to store boats there.
THE COURT: I'm sorry. Read it back.
(Record read.)
Do you remember the cove?
THE WITNESS: I remember the cove, yeah.
THE COURT: Was the cove part of the property that was involved in that document you just saw?
THE WITNESS: I don't think so.
(Tr. at 6401) (emphasis supplied).
Smith does not recall "any incident of Adam, Schmitt being involved with any fill." However, on cross-examination he conceded that he may have been aware of hundreds of dump trucks depositing concrete at the foot of 191 Road.
By deposition, Shelley Goldman, Director of Lease Enforcement for the City Division of Real Property, testified that legal action was initiated on only one situation on Broad Channel, namely, the Schmitt family and Marina.
Glen Chernick also testified by deposition. He was Assistant General Counsel in the City Division of Real Property and also was Project Manager in Broad Channel. He visited the Schmitt Marina one time in 1989, 1990 or 1991. Two thirty-day notices were served on the Schmitts in 1990. Questioned about the location of the Schmitt Marina, Chernick testified that the location is based on the lease description, namely, "Foot of 20th Road" and "40,000 square feet." He stated that he did not know where the 40,000 square foot area was located and he could never locate the boundaries of the Schmitt property or of the Raunt Channel.
*352 C. The Schmitt Damages
John testified as to the damages allegedly caused by the actions of the City, State and Federal Government in the so-called conspiracy against the Schmitt Marina. John testified that prior to May 1990 the marina rented 250 slips or spots in the water. He stated that when the preliminary injunction was issued in May 1990, the marina lost all its customers and could not rent any spots in or out of the cove. The marina lost both summer and winter storage customers. The summer customers rented from April 10th to October 10th. The winter customers rented from October 10th to April 10th. In May 1990, the fee charged was $1200 per year per boat, for both summer and winter. Because they only had one dock from 1990, they suffered a substantial loss of docking fees. Their boats had to be stored on land and they were compelled to purchase a forklift for the sum of $150,000.
In addition, the marina sold Monarch boats and had two other boat dealerships. The marina lost these dealerships when the water portion of the marina was shut down. The marina presently has one engine and one cruiser dealership. John testified that he could not put a value on these lost dealerships. The Schmitts also incurred legal expenses, court costs and the expenses for expert witnesses. In addition, the engineering work to obtain permits cost between $30,000 to $40,000. The Schmitts introduced a handwritten chart setting forth their alleged damages as of August 1995, as follows:
DAMAGES
Attorneys fees incurred (app) $400,000
Court Reporter 11,000
Engineering Expenses 64,000
Loss of Dockage
1200 per slips × 250 300,000
# of years 4
Total Loss $1,200,000
1200 per slips × 210 252,000
__________
Total $1,927,000
However, as to damages, John testified in his deposition that he still had 75 "high and dry" customers at $1200 per year. At the trial, John changed his mind and testified that, he "counted them" and only had 40 such customers. The Court notes that the Schmitts did not have any "high and dry" customers prior to the issuance of the preliminary injunction, so these any "high and dry" customers would mitigate their damages.
In addition, John conceded that the year prior to the imposition of the injunction, namely 1989, was not a profitable year. In fact, John testified that he couldn't say whether there ever was a net profit from the operation of the marina since 1981, and that in 1986, he had less customers than in 1989. Also, John testified that the industry seems to be going to a high and dry rack storage business and the boats are stored on land rather than in the water.
D. The United States Rebuttal Case
Andrew B. Karn, a licensed professional engineer, was formerly an Assistant Chief Engineer in the Department of City Planning, and is a licensed professional engineer. The Court finds Karn to be an articulate and credible witness. In 1974 he was involved in mapping the Gateway National Park Conveyance. The City never before faced such a massive conveyance of real property. Fruchtman, who testified on behalf of the Schmitts, was the Chief Engineer and Karn's immediate supervisor.
Karn reviewed the Gateway Conveyance Map (Pl.Ex. 38 B-1). The exclusions from Gateway include the shaded area of Broad Channel. He stated that the foot of the boot is called the "Big Egg Marsh," which is part of Gateway. In this regard he disagrees with Fruchtman. So does the Court. The Court finds that the toe of the boot, now referred to as the Big Egg Marsh and the Cove and Hook were included in the Gateway Conveyance and are part of the Gateway National Park. Karn also disagrees with Fruchtman's definition of "bounded by," in that it means not included within, or forming a boundary. (Tr. at 6673-6674). Again, the Court agrees.
Joseph J. Seebode is Chief of the Regulatory Branch of the New York District of the United States Army Engineers. He testified that a nationwide permit "is a type of general permit that authorizes work of a minimal character with little or no paperwork ... to allow decisions to be made very quickly on minor projects with minimal individual or *353 cumulative adverse impacts." There is a Nationwide Two Permit that allows the building of a dock in artificial canals in a primarily residential area. The canals described as the teeth of a comb on Broad Channel are such artificial canals in primarily residential areas. For such "mom and pop" docks in these artificial canals no individual permit is required.
On the other hand, Seebode testified that the Cove would not be characterized as a canal, and it is not in a primarily residential area. After reviewing the aerial photographs, Seebode agreed that the Cove was man made and was created some time between 1924 and 1938. He stated that the circular dredged Cove in the marshland was not a linear "canal" in a primarily residential area. In this regard Seebode disagrees with Mansky. Seebode testified that the Cove is a facility that had more than 200 boat slips; was obviously a revenue generating commercial operation; and could not be classified as a primarily residential area. The Court agrees and finds that the Cove is not an artificial canal and the docks in the Cove are not entitled to a Nationwide Two Permit.
Seebode conceded that if Dock A was in existence prior to December 1968, it would be permitted today under the grandfather clause previously referred to. The 19th Road canal would also be similarly permitted. He further testified that if any other dock, mooring, piling or buoy was in the water in the Cove prior to December 1968, they could be grandfathered as well. However, if such physical appurtenances cease to exist for two years, they would lose the grandfathering rights. Also, if the docks were substantially altered or expanded they would lose the grandfathering rights. In sum, such docks, moorings and pilings would have to continuously keep their form as they existed in December 1968.
The Court finds that the only structure in the Cove that continuously kept its form substantially in the same condition as it was in December 1968, was Dock A and its small appurtenance. It is the only Schmitt Marina structure that is entitled to remain in the Cove as part of the Schmitt Marina in its present condition.
E. The Case of Third Party Defendant the City of New York
Margo Moehring has been Executive Director of Strategic Planning of the City Division of Real Estate Services since 1982. In that capacity, she is the Project Manager at the Broad Channel Conveyance Project. Moehring visited Broad Channel a number of times including one visit by police launch to see the Schmitt Marina from the water. Moehring was a key City witness, who is very credible. Using the developer's map (City Ex. DA) and a City map dated April 5, 1946 (City Ex. DE), Moehring identified the foot of West 20th Road and 96th Street. She testified that the western edge of 96th Street and West 20th Road is the border between City and federally owned land. The intersection of 96th Street and West 20th Road is where 20th Road ends and is the "Foot of West 20th Road." On Pl.Ex. 41, Moehring pointed out West 20th Road, 96th Street, and the "Foot of West 20th Road." The entire length of West 20th Road is not paved and the pavement stops short of the intersection with 96th Street. The Court agrees with the Moehring description of the Foot of West 20th Road and the line of demarcation between City and Federal property. The Court finds that the border of the Gateway National Park in that area are the lines formed by the intersection of 96th Street and West 20th Road.
The Conveyance Project was a plan to convey the Broad Channel property only to tenants of record and of good standing. Moehring explained that a tenant in good standing meant "that you haven't violated any of the provisions of your lease" and you "would have to not be in violation of any laws or regulations of other governmental bodies and not have any outstanding obligations." (Tr. at 6866-6867). Broad Channel tenants who were determined to be not of "good standing" included Corbo (using leased premises as a maritime junkyard); Rich (outstanding DEC violations and illegally occupying property); Monaghan (stopped payment on money orders) and Schmitt. Of these four tenants, only Monaghan was permitted to buy his property, after a lawsuit and a settlement. If tenants of record cannot be *354 found, occupants were permitted to purchase the land. Also, under certain circumstances, tenants can purchase adjacent, non-leased property.
The sale of the Broad Channel properties to the tenants commenced in 1982. At that time, there were approximately 900 residential tenants and 50 non-residential tenants on Broad Channel. As of the present date, about 900 sales have been consummated. Of course, the City could not and never did sell any Gateway property. Moehring acknowledged that the Schmitt Marina is a tenant in Broad Channel, and a potential purchaser of leased City property. However, no offer was made to the Schmitt Marina because "they were not a tenant in good standing with the City of New York." This determination was made by Charles Neckers after consultation with Lori Fierstein, an Assistant Commissioner of the Division of Real Property. At that time a memorandum was issued by Commissioner Neckers, summarizing the City's problems with the Schmitts, including DEC violations, unlawful expansion of the marina operations, and encroachment.
The Schmitts repeatedly were warned about these transgressions to no avail. For example, as far back as September 30, 1983 the Broad Channel Director wrote to Adam, Adele and Ernestine to "advise you that any repetition of this type of activity in the future by you or any of your agents will cause the City to take the appropriate action in the Courts." (Def.Ex. B-417) (emphasis supplied). In a letter dated June 4, 1985, Adele again was notified that the City would not sell the land to any tenant who was in violation of governmental regulations. (See Def. Ex. B-425).
Apparently, as a result of inefficiency, bureaucratic morass and/or corruption, the City officials in charge neglected to take any action until the Federal Government took the initiative by bringing this action. Not even the warnings by the State DEC stirred the City to action. On April 29, 1986, the DEC Regional Attorney wrote to Assistant Commissioner Neckers complaining of environmental violations by the Schmitt Marina, and requesting the City to determine the proper boundaries of the Schmitt Marina so that the environmental violations could be resolved. (see Def.Ex. B-111).
Moehring reviewed the history of the Schmitts at Broad Channel starting with the sale from Huntsinger & Meyer to Adele Schmitt in 1944, covering an area located at the foot of West 20th Road including "vacant tide and marsh land," meaning where the land and the water meet. The first City document involving the Schmitts is dated January 9, 1945 and refers to the "foot of West 20th Road." The subsequent leases refer to the "Foot of West 20th Road" in an area of "200' × 200'" or "40,000 square feet," as has been previously noted in this opinion.
The last lease entered into with the Schmitt Marina was in 1962 (Def.Ex.DO). The lease recited the same 40,000 square feet at the foot of West 20th Road for use as a boat storage and fishing station. This area is to the north of 20th Road and does not extend west of 96th Street. Moehring stated that the Schmitt Marina lease does not extend west of 96th Street, which is land totally under water. Mednica was the tenant to the south of the Schmitt Marina. Moehring testified that neither she, Edward Smith, Nicholas Corrado, Ronald Trenchetto, Edward Sadowsky, Joseph Donahue or Charles Neckers have any authority to bind the City of New York to orally extend the area of a written lease.
Since 1962, the City entered into no additional leases with the Schmitts for the land at the foot of West 20th road. There were leases after 1962 for the 19th Road property. Rent for the Schmitt Marina increased to $229 per month in 1980. Since 1980 the Schmitts have been paying $229 per month in rent for the Schmitt Marina. Moehring testified that this is not fair rental value. The Court agrees.
As a basis for the City's counterclaim, Moehring referred to the terms of the 1962 lease (Def.Ex.DO) and the stated obligations of the Schmitts as tenants, as follows: (1) the tenant agrees to take care of the premises and be responsible for all acts of waste; (2) the tenant agrees to hold harmless landlords, representatives and employees from any claims for damages by reason of injury to *355 persons or property occurring on said property; (3) the tenant agrees to comply with all laws, rules, regulations and orders of federal, state and city authorities; (4) the tenant agrees to make all interior and exterior repairs at his own cost and expense, and keep the demised premises and the adjacent site in good repair and free from deposit of objectionable materials; and (5) the tenant agrees not to make any improvements or alterations without the prior written consent of landlord.
Moehring testified that the Schmitts violated all of these stated obligations under the lease, "by encroaching on federal property, by violating the Rivers and Harbors Act, by getting state DEC violations, and by squatting on city owned property," by filling and dumping on the site, and constructing "buildings and docks ... without the prior approval of the landlord." (Tr. at 6997-6998).
The City did sell Adam the 19th Road leasehold containing his residence. Although the original lease was for commercial purposes (John's Fishing Station), Adam advised the City that he no longer intended to use the property for commercial purposes and it was sold to Adam as residential property.
Moehring testified that the phrase "Broad Channel community" means the inhabited area of Broad Channel, while "Big Egg Marsh" is the uninhabited toe of the boot. Based on all the testimony and the documentary evidence in this case, the Court agrees and so finds.
Moehring made a valiant effort to verbally describe the area of the Schmitt Marina lease. In the Court's view, it was the clearest description of the Schmitt Marina adduced at this trial.
Q Go ahead.
A Beginning at the foot of West 20th Road ... it includes West 20th Road, so thatone moment, and let me figure out my directions.
. . . . .
So the southern boundary would be 200 feet along the southern side of West 20th Road, and including it.
The western boundary would be 200 feet, extending from approximately the foot of West 20th road in a northern direction. Then there would be another 200 foot boundary going east, and connecting at a right angle to the southern boundary of West 20th Road, and including it, and it would be a square.
THE COURT: It is in the form of a square?
THE WITNESS: Yes.
THE COURT: Not bad, not bad. I don't know whether it is accurate or not, but it is not bad.
Q And clearly, Ms. Moehring, what you testified to is that the Schmitt leasehold interest as far as you know was a square piece of property?
A Yes.
Q 200 by 200 square?
A Yes.
(Tr. at 7513-7517).
Reviewing the various leases, Moehring stated that the 1959 lease consolidated the 1949 and 1952 leases, added a little land, and for the first time set forth the dimensions "200 × 200" or "40,000 square feet" with some of the property under water, also located "at the foot of West 20th Road."
Emanuel Bornstein, a professional engineer, formerly was employed as Director of Surveys and Asset Management of the City Division of Real Property. Bornstein was qualified as an expert in area measurements. He is familiar with the configuration of the Schmitt Marina and surveyed it in 1993 for Assistant Corporation Counsel Shaw. Bornstein concluded that the land occupied by the Schmitt Marina was "under 300,000 square feet" in the shape of an "irregular polygon." He made the survey with two other men, using a transit and other instruments.
In this regard, the Court notes that an April 16, 1992 report records that "currently the subject property ... comprises 506,089 square feet .. leased for 229.00 a month." (Def.Ex.B-439). There is much confusion in the City records with regard to the area actually occupied by the Schmitts as differentiated by the area actually leased to them. This additional area occupied by the Schmitts is the source of the problem. This additional space was never validly leased to the *356 Schmitts. The marina lease was for 40,000 square feet only. The Schmitts occupied the additional massive space without permission and they did so at their own peril.
Robert Gochfeld is the team leader for mapping in the Technical Service Unit of the New York City Department of City Planning. Gochfeld reviewed the Gateway Conveyance Maps (Pl.Ex. 38A-1 and 38B-1). He testified that the Broad Channel shaded area was not to be conveyed to the Federal Government for Gateway. This shaded area did not include the Big Egg Marsh the Cove and the Hook, which areas were conveyed to form part of Gateway. According to Gochfeld the toe of the bootwhich includes the Big Egg Marsh, the Cove and the Hookwas conveyed to Gateway. (Tr. at 6034-6035).
F. The Damages Alleged by the City
Michael Haberman is a real estate appraiser retained by the City to appraise the property occupied by the Schmitt Marina in Broad Channel and to estimate its "economic rental value." He appraised only the property the City contends is the non-leased occupied property, and not the 40,000 square feet of the leased property. Thus, Haberman appraised 258,000 of square feet of a total of 298,000 square feet.
Haberman visited the marina in 1996 and described the property:
A It is primarily a vacant, unimproved site which is bulkheaded. It has floating slips. It has a two-story commercial and residential dwelling, about 2,500 square feet. It has about an 800 square foot shed. And the remaining property, which is about 250,000 square feet, is basically unimproved, with wild bush growing on it, and a large part of it covered with boats.
(Tr. at 7869).
Haberman could not find a comparable lease and went into the marketplace and used nine sales of comparable marinas. Haberman testified that the Schmitt Marina, as presently constituted, was approximately six acres and the economic value per acre was between $200,000 and $250,000 depending upon the various dates and conditions. Haberman also considered the number of available boat slips. The basic unit was 250 slips, but this was substantially reduced in 1990 and to the present time by this court's preliminary injunction and the stipulation by the parties limiting the usage. Haberman's opinion as to the market value of the unleased portion of the Schmitt Marina is as follows:
PERIOD SUBJECT PROPERTY (×) ECONOMIC UNIT (=) MARKET VALUE
6/1/87 5.94 ac. $200,000. Rd. $1,188,000.
6/1/88 5.94 225,000. $1,336,500.
6/1/89 5.94 250,000. 1,485,000.
6/1/90 5.94 250,000. 1,485,000.
For the period June 1, 1991 - June 1, 1993, when the Subject functioned without slips, economic units are reduced by 20%. Continuing the time trend and inclusive of this additional refinement produces the following market values:
PERIOD SUBJECT PROPERTY (×) ECONOMIC UNIT (=) MARKET VALUE
6/1/91 5.94 Ac. $180,000. $1,069,200.
6/1/92 5.94 160,000. 950,400.
6/1/93 5.94 160,000. 950,400.
As of June 1, 1994 when the Subject again has boat slip utility (65 slips), an increment of 15% appears warranted to the stabilized June 1, 1993 unit value:
PERIOD SUBJECT PROPERTY (×) ECONOMIC UNIT (=) MARKET VALUE
6/1/94 5.94 Ac. $185,000. $1,098,900.
Haberman testified that the aggregate use and occupancy charge owing to the City from the Schmitts for the unleased portion of the *357 Schmitt Marina from June 1, 1968 to June 1, 1996 is $2,900,190, excluding interest. (See summary in City Ex. AL-1 in the Appendix). This covers the extended 258,000 square feet of unleased land and does not include the 40,000 square feet comprising the leased marina.
The Court questions the evaluations by Haberman. First, the 258,000 square feet appraised is only an estimate given to Haberman by the City. There is no credible evidence that the unleased portion was of that size. Second, the fluctuating areas developed by the Schmitts and the use of the areas make any appraisal uncertain and speculative. Third, Haberman made no inquiries about the other existing marinas in Broad Channel and found no comparable sales involving Broad Channel marinas. Fourth, Haberman did not consider a number of marinas that were sold for substantially less than the figures Haberman espoused. Fifth, Haberman did not consider the fact that part of the property was in the bed of the streets and that there was no public water service and sewer service to the property. Further, Haberman did not consider the present actual rental being paid for the property. It is noted that Haberman's appraisal differs markedly with other appraisals done over the course of the years. The Court finds it strange that, when presented with other sales of City owned property in the area for substantially less money, Haberman adhered to his opinion. In the Court's view, Haberman's opinion that vacant land used for storing boats is worth from $160,000 to $250,000 an acre, is incredulous.
G. The Aerial Photographs
In addition to the assistance afforded to the Court by the effort of four highly competent and hardworking attorneys, the Court's responsibilities have been greatly facilitated by the remarkably helpful aerial photographs introduced into evidence. These aerial photographs graphically demonstrate the use of the "Cove" and the area used by the operators of the Schmitt Marina. A chronological review of the area is in order.
In a series of aerial photographs the use of the Cove by the Schmitts was graphically demonstrated. The earliest aerial photograph is dated April 27, 1947 (Def.Ex.B-161). It shows the Cove surrounded by marshland with no clearly delineated Hook, apparently a very small dock attached to the western shoreline and small boats in the Cove. There are only scattered houses built on the streets in Broad Channel. The next aerial photograph is dated April 28, 1949 (Def.Ex.B-162) and shows essentially the same objects in the Cove as the 1947 photograph. A series of four aerial photographs, all dated April 19, 1954 shows what appears to be a long thin dock lying in a north-south direction in the westerly portion of the Cove, with no visible boats near the dock. In the June 24, 1959 aerial photograph (Def.Ex.B-169), the single long dock has a number of boats attached to it. In addition, the boats in the Cove appear to be moored in symmetrical lines. The Cove is still surrounded by marshland.
Curiously, by the May 6, 1960 photograph (Def.Ex.B-171), the long single dock has been shortened, with fewer boats affixed to the dock in the Cove. Yet on July 16, 1960, perhaps the height of the boating season, the photograph again shows the long single dock and the symmetrical mooring of many boats in the Cove. (See Def.Exs. B-173 and B-174). The same condition exists in the June 17, 1963 aerial photograph (Def.Ex.B-176), namely the single dock and the boats moored in the Cove in an orderly manner.
In the aerial photograph dated April 11, 1969 (Pl.Ex.24), the Cove is almost empty of all boats, the long single dock is gone and is almost empty of all boats. There appears a small dock attached to the land at the easterly border with several small white dots which may be boats in irregular fashion. This condition may be present because of the time of year, namely, April.
In the aerial photograph taken thirteen months later (Pl.Ex.17), on May 28, 1970, there is again increased activity in the Cove. The long single dock described above is back in place. As before, there are boat slips clearly visible attached to both sides of the dock and there are approximately 10 boats in the Cove, away from the dock. However, by 1984, there was considerably increased and different dock activity in the Cove. In the aerial photograph taken on August 8, 1984 *358 (Pl.Ex.3), there were now four long docks in the Cove, each with many slips for boats on both sides of the docks.
The dock space in the Cove was again substantially increased by 1988. In the aerial photograph dated March 17, 1988 (Pl. Ex.46), there were now eight docks in the Cove, with one long dock extending from the southerly part of the Cove into the water north of the Cove.
V. CONCLUSIONS
The Federal causes of action brought on behalf of the United States and the affirmative defenses and counterclaims of the Schmitts and the claims by the City will be reviewed and determined together. It is noted that a number of findings of fact have already been made by the Court, and some will be repeated in connection with the conclusions of law set forth below.
A. The Cove and the Hook
To begin this discussion, the Court has already determined that the Cove and the Hook are within the territory ceded to the United States by the City in 1974 known as the Gateway National Park. Therefore, to use the area of the Cove for their docks, mooring buoys and boats, the Schmitts must have a permit from a United States agency. Since the Schmitts concede that they do not have a written permit, the Court must determine whether they are entitled to a Nationwide Permit. The Court finds that the Schmitts have a Nationwide Three Permit only for Dock A and its adjoining smaller dock, and for no other docks, buoys or other structures in the Cove. Thus, the Schmitts are entitled to a declaratory judgment permitting them to use Dock A and its smaller adjacent dock, in its state as of 1968.
With respect to the remaining myriad causes of action, counterclaims and third-party actions, the Court first will determine the claims of the Schmitts, then review the claims of the United States, and finally determine the claims of the City.
B. The Quiet Title Act of 1972 (28 U.S.C. § 2409A)
In Block v. North Dakota, 461 U.S. 273, 103 S. Ct. 1811, 75 L. Ed. 2d 840 (1983) the Supreme Court held that "The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress." Further, when there is a waiver of the sovereign immunity of the United States, the precise condition of the waiver must be strictly observed and exceptions are not to be lightly implied. See e.g., Lehman v. Nakshian, 453 U.S. 156, 160-161, 101 S. Ct. 2698, 2701-2702, 69 L. Ed. 2d 548 (1981). When the waiver contains a statute of limitations, this is a condition of waiver which also should be strictly construed. United States v. Kubrick, 444 U.S. 111, 117-118, 100 S. Ct. 352, 356-357, 62 L. Ed. 2d 259 (1979).
By their first counterclaim, the Schmitts request a declaratory judgment that they are in legal possession of the property they claim for the Schmitt Marina, including the Cove. The second Schmitt counterclaim seeks a finding that the Secretary of the Interior was without authority to accept title to any portion of the Schmitt Marina and asks for a declaratory judgment to reform the deed to remove title to the property of the Schmitt Marina from the United States. These counterclaims squarely implicate provisions of the Federal Quiet Title Act, which provides that:
any civil action under this section ... shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.
28 U.S.C. § 2409a(g).
By deed dated March 1, 1974, the City conveyed most of Jamaica Bay, its islands and the surrounding lands to the Federal Government for a national park to be called the Jamaica Bay Wildlife Refuge, a part of the Gateway National Recreation Area. The deed (Pl.Ex.5) set forth the boundaries of the grant in detail (Pl.Ex.41). The deed was recorded in the office of the Kings County Register on July 22, 1974. The Government contends that any action against the United States "accrued" on July 22, 1974, when the deed was recorded which "gave notice to the *359 world of this conveyance." (Government's Memorandum of Law at p. 53). In addition, the Government contends that "John Schmitt acknowledged at trial that he was aware of the Gateway Conveyance at the time of the conveyance because he had attended public hearings." (Government's Memorandum of Law at p. 55).
On the other hand, the Schmitts contend that the deed and the supporting documents indicate that the "Broad Channel Community" was to be excluded from the Gateway Conveyance and the exact boundaries of Gateway were not clear. Therefore, the Schmitts argue that they first knew of the claim of the United States when the Government commenced this action in 1989 and their counterclaims interposed in 1995, therefore are timely. The Court finds, for the reasons expressed by the Schmitts, that they proved, by a preponderance of the evidence, that their counterclaims attacking the title of the United States to the Cove did not "accrue" more than twelve years prior to the interposition of the counterclaims. Thus, the issues concerning title to the land and water at issue are not barred by the provisions of the Quiet Title Act.
C. A Resolution of the Area of the Schmitt Marina Leasehold
The Court finds that the United States and the City have proven, by a preponderance of the credible evidence, as set forth in all the leases in evidence, that the Schmitt leasehold, occupied by the Schmitt Marina, is a 200 by 200 square feet piece of land, also described as 40,000 square feet, at the foot of West 20th Road at the point of its intersection with the mapped but unopened 96th Street.
The proof further reveals that this leased parcel is located wholly on land owned by the City. The Schmitts' leasehold, including the Schmitt Marina, is not located on Gateway National Park property. The Court already has related the history and the development of the boot-shaped Broad Channel Community. There are four leases in evidence between the Schmitts and the City covering their leasehold in Block 210 in the developer's map at the foot of West 20th Road. All of the leases clearly describe the leasehold as 200 by 200 square feet or 40,000 square feet at the foot of West 20th Road.
In this regard, the Schmitts and the City have stipulated that the bulkhead portion of the Schmitt Marina lies directly in the line of West 20th Road. This landmark establishes the location of the foot of West 20th Road as the area where the land and water meet, which is the westerly border of the Schmitt Marina leasehold. Thus, the Schmitt's 40,000 square foot parcel has access to the water and provides the Schmitts with the riparian rights necessary for the operation of a marina.
The Schmitts' contention that their 40,000 square foot leasehold, has been extended to more than 600,000 square feet by after-the-fact letters and oral representations by City officials, including the land underwater in the Cove, is without merit. None of this evidence would extend or create a viable lease. The only lease now in effect between the City and the Schmitts is referred to in the January 18, 1962 letter from the City to Adele, stating that the tenancy is "Block 210, foot of West 20th Road, Area 200 × 200 sq ft" and that "a lease is being drawn and will be forwarded for your signature." This lease is for the "Foot of West 20th Roadarea 40,000 sq ft" at a rental of $150 per month. (Copies of this lease are in evidence as Pl.Ex. 27 and City Ex. DO). The Court finds that the present rent of $229 is for the same parcel as set forth in the final April 16, 1962 lease.
The Schmitts also claim leasehold rights in Block 209, the block directly north of Block 210, bounded on the south by West 19th Road. This claim arises from their acquisition of "John's Fishing Station," a business formerly operated by John Orean and transferred to his grandson Daniel Pasienza. In addition, Adam obtained residential leases from the City for land in Block 209 beginning in 1969. These residential leases were included in Adam's purchase of the land from the City by deed dated June 24, 1988. John Schmitt testified that after Adam purchased John's Fishing Station, he closed the business and removed the docks in that facility. *360 (Tr. at 3596-3597). Although there is some confusion as to the Orean and Adam Block 209 leases, the Court finds that, other than the parcel conveyed to Adam, the City's books and records show that the other Block 209 leases have been terminated. (See, e.g., City's Exs. BV, BX and BY and Def. C and B-438). Certainly, the Adam Schmitt property can only be used for residential uses and the Schmitts concede that they have not paid any rent for any property on Block 209 since 1988 when Adam purchased his home. (Tr. at XXXX-XXXXX, 5924-5928). Thus, the former Orean lease is no longer in effect.
In sum, the Schmitts' only commercial leasehold is located on the City side of the Gateway National Park border and is known as the Schmitt Marina, whose dimensions have been previously determined in this decision. In this regard, the Court credits the testimony of Director Margo Moehring that the 200 × 200 square foot leasehold extends north of West 20th Road with some portion of the northeast corner of the square "continually under water." (See Def.Ex. B-149A). The areas to the south were leased to Mednica. As stated above, the Schmitt Marina and leasehold is entirely on the City side of the Gateway border.
As a result of a combination of inefficiency, bureaucratic morass and corruption on the part of the City employees and agents, coupled with aggressive trespasses and takings by the Schmitts, they substantially increased the size of their marina at Broad Channel from the validly leased 200' by 200' or 40,000 square feet to approximately 600,000 square feet. This represents an increase in their leased property 15 times the original area. The Court concludes that this occupation of the increased land and water was unauthorized. The Court also finds that the Cove and Hook were not within the original leased property. In addition, the Court determines that the Cove and Hook were conveyed by the City to the United States to form part of Gateway and presently are part of this national park.
D. The Doctrine of Estoppel Does Not Lie Against the City
The Schmitts point to certain letters and oral statements by various City officials, which, they contend, authorized the expansion of the Schmitt Marina. The Court finds that there is no evidence that the persons who wrote these letters and made the alleged oral representations had the authority to bind the City. Without exception, all of the City employees relied upon by the Schmitts lacked the authority to bind the City as to the leases in Broad Channel. These statements cannot bind the City as a matter of law, nor is the City estopped from denying such unauthorized representations. Certainly, they could not bind the Federal Government. In any event, most of these letters and statements do not specifically define the leasehold, but only concern what land is occupied by the Schmitts.
"Estoppel" generally means that one party in a dispute should not be permitted to reap any benefit from its own misrepresentations. The New York Court of Appeals has repeatedly held that estoppel will not lie against municipalities, public agencies or governmental subdivisions. In Matter of Parkview Associates v. the City of New York, 71 N.Y.2d 274, 525 N.Y.S.2d 176, 178, 519 N.E.2d 1372 (1988), rearg. den., 71 N.Y.2d 995, 529 N.Y.S.2d 278, 524 N.E.2d 879 app. dism. cert. denied 488 U.S. 801, 109 S. Ct. 30, 102 L. Ed. 2d 9 (1988), in which a developer was ordered to remove eleven stories of a building, it was stated:
[W]e have only recently once again said that "[g]enerally, estopped may not be invoked against a municipal agency to prevent it from discharging its statutory duties" (Scruggs-Leftwich v. Rivercross Tenants' Corp., 70 N.Y.2d 849, 523 N.Y.S.2d 451, 517 N.E.2d 1337, citing Matter of Daleview Nursing Home v. Axelrod, 62 N.Y.2d 30, 33, 475 N.Y.S.2d 826, 464 N.E.2d 130; Matter of Hamptons Hosp. & Med. Center v. Moore, 52 N.Y.2d 88, 93, 436 N.Y.S.2d 239, 417 N.E.2d 533; see also Matter of E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 526 N.Y.S.2d 56, 520 N.E.2d 1345). Moreover, "[e]stoppel is not available against a local government unit for the purpose of ratifying an administrative error" (Morley v. Arricale, 66 N.Y.2d *361 665, 667, 495 N.Y.S.2d 966, 486 N.E.2d 824).
See also Granada Buildings, Inc. v. City of Kingston, 58 N.Y.2d 705, 458 N.Y.S.2d 906, 907, 444 N.E.2d 1325 (1982) ("because a governmental subdivision cannot be held answerable for the unauthorized acts of its agents ... we have frequently reiterated that estoppel is unavailable against a public agency"); Public Improvements, Inc. v. Board of Education of the City of New York, 56 N.Y.2d 850, 453 N.Y.S.2d 170, 171, 438 N.E.2d 876 (1982) ("estoppel is unavailable against a public agency"); Henry Modell & Co., Inc. v. the City of New York, 159 A.D.2d 354, 552 N.Y.S.2d 632 (1st Dept.1990) app. dism. 76 N.Y.2d 845, 560 N.Y.S.2d 129, 559 N.E.2d 1288 (1990) ("those dealing with municipal agents must ascertain the extent of the agents' authority, or else proceed at their own risk") Matter of Wood v. Cordello, 91 A.D.2d 1178, 459 N.Y.S.2d 150, 152 (4th Dept.1983) ("Estoppel may not be invoked to prevent a municipality from disclaiming the unauthorized or unlawful act of its employees"); Pauk v. Board of Higher Education of the City of New York, 62 A.D.2d 660, 406 N.Y.S.2d 46, 49 (1st Dept.1978) aff'd 48 N.Y.2d 930, 425 N.Y.S.2d 92, 401 N.E.2d 214 (1979) ("a long, impressive line of cases ... has firmly established as fundamental the principle that one dealing with a municipality through its officials must take great care to learn the true nature of their power and authority. One relies on the self-asserted, naked representation of an official's power and authority to bind the municipality at one's peril").
Accordingly, even if the letters and oral representations allegedly enlarging the area of the Schmitt Marina were made, they could not bind the City or expand the written lease.
E. As to the Schmitts' Claims
1. The Schmitts have failed to establish a due process violation.
The Schmitts contend in the State Court action that the City violated their right to procedural due process by seeking to terminate their leasehold interest. To prevail on a procedural due process claim, the Schmitts must allege facts demonstrating that the City deprived them of a protected property interest without affording constitutionally adequate procedures. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1492, 84 L. Ed. 2d 494 (1985). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must instead have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). A legitimate claim of entitlement to a benefit may be derived from state laws or understandings that support claims of entitlement to certain benefits. Roth, 408 U.S. at 577, 92 S. Ct. at 2709.
Thus, in analyzing a procedural due process claim, the Court must first determine whether the Schmitts have a property interest protected by the Constitution. See Roth, 408 U.S. 564, 92 S.Ct. at 2702-03, 33 L. Ed. 2d 548; Narumanchi v. Board of Trustees, 850 F.2d 70, 72 (2d Cir.1988), cert. denied, 502 U.S. 909, 112 S. Ct. 302, 116 L. Ed. 2d 246 (1991). If a protected interest is identified, the Court must next determine whether the City deprived the Schmitts of that interest without providing the constitutional minimum due process. See Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Narumanchi v. Board of Trustees, 850 F.2d at 72.
Here, at best, the Schmitts are month-to-month tenants. As such, they were subject to termination of their lease by a thirty-day notice under the provisions of New York Real Property Law § 232-a. A month-to-month tenancy, terminable at will by the service of a thirty-day notice cannot give rise to a "legitimate claim of entitlement" to remain in possession. Therefore, the Court finds that the Schmitts' lease or tenancy does not have a "property interest" protected by the Constitution.
The Schmitts also contend that the enactment of the Broad Channel Conveyance Act of 1973, granting the Broad Channel leaseholders the "right" to purchase their leasehold from the City, affords them a *362 "property right." According to the Schmitts, the decision by the City not only not to sell them their leasehold property, but instead evict them without a notice or an opportunity to be heard, violates their procedural due process rights. The Court disagrees.
The right to purchase their leasehold property was a matter subject to administrative discretion. When an unsuccessful applicant to purchase leased property claims that the City has violated due process in rejecting it application, as stated above, the framework for evaluating the claim is the well-developed property interest analysis, which has its origins in the Supreme Court's decision in Board of Regents v. Roth, supra. The focus of this analysis is on the nature of the applicant's interest in the approval being sought, specifically whether the applicant has a clear entitlement to the approval sought from the administrative body. See, e.g., RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911 (2d Cir.1989) (analyzing whether applicant possessed property interest in building permit), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989); Sullivan v. Town of Salem. 805 F.2d 81, 84-85 (2d Cir.1986) (analyzing whether applicant possessed property interest in certificate of occupancy); Yale Auto Parts v. Johnson, 758 F.2d 54, 58-60 (2d Cir.1985) (analyzing whether applicant possessed property interest in permit to use property as automobile junkyard).
In Yale Auto Parts, 758 F.2d at 59, the Second Circuit held that a "legitimate claim of entitlement" exists where, "absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted." This test centers on the degree of discretion committed to the issuing authority, not the estimated probability that the authority would act favorably in a particular case. See RRI Realty, 870 F.2d at 918.
The key to determining the existence of a property interest is the extent to which the deciding authority may exercise discretion in reaching its decision, rather than on the estimate of the likelihood of a certain decision. Walz v. Town of Smithtown, 46 F.3d 162 (2d Cir.) cert. denied, 515 U.S. 1131, 115 S. Ct. 2557, 132 L. Ed. 2d 810 (1995); RRI Realty Corp., 870 F.2d at 918. If the governing body has discretion in deciding whether to sell the leased land, the federal courts will not sit as a superseding body to the decisions of local administrative agencies. See Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir.1995); Sullivan, 805 F.2d at 82. If there is an adequate property interest, the Schmitts must then show that the City acted in an arbitrary or irrational manner depriving him of that interest. See Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996).
Of particular relevance to this analysis are the Second Circuit's decisions in Walz and Crowley. In Walz, the town code provided that upon the satisfaction of certain threshold requirements, namely that permit applications be filed in writing and contain specified information, "a permit shall be issued in the name of the Superintendent of Highways of the town of Smithtown." Walz, 46 F.3d at 168 (emphasis added). Relying on this mandatory language, the Court held that the Superintendent had "no discretion to decline to issue a permit" where the application contained the required information. As a result, the plaintiffs had a property right in the permit sufficient to invoke the due process clause. Id.
In Crowley, however, the Court reached the opposite conclusion. In that case, the Zoning Board had discretionary authority to grant variances where "there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter [of the regulations]." Crowley, 76 F.3d at 52. The regulations further contained "[g]uiding principles" for the exercise of authority, including a provision that "[e]very variance granted by the [Zoning Board] may be made subject to such conditions and safeguards as the Board shall deem to be applicable to the particular case." Id. Relying on the discretion provided to the Zoning Board under these provisions, the Second Circuit held that the plaintiff did not have a sufficient property interest to maintain a substantive due process claim. Id.
Applying these standards, the Court finds that the plaintiff's due process claim is closer to Crowley than Walz. The Broad Channel *363 Conveyance legislation provides for the sale of City property on Broad Channel only to tenants of "good standing." The language in the legislation is not mandatory, and directs that the City sell the leased property only in the event that certain predicate requirements are satisfied. Accordingly, the Court finds that under Chapter 756 of the Laws of 1973, the City retained sufficient discretion with respect to the decision to sell, so as to defeat the Schmitts' due process claim.
2. The Schmitts Have Failed to Establish Either an Equal Protection or Selective Enforcement Claim.
The Court concludes that the Schmitts abandoned these issues by failing to mention, much less address them in either of their memoranda of law. Regardless, their claims are unavailing. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)). The Schmitts' equal protection claim is not a challenge to the state statute itself, but rather an attack on the purported "selective enforcement" of the Act. It has been held that selective enforcement is a "murky corner of equal protection law in which there are surprisingly few cases," LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir.1980) cert. denied, 450 U.S. 959, 101 S. Ct. 1418, 67 L. Ed. 2d 383 (1981). Nevertheless, the Second Circuit ruled that such a claim is proper when it is established that: (1) the person, compared with other similarly situated, was selectively treated; and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. Zahra v. Town of Southold, supra; FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir .1992); accord La Trieste Restaurant & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir.1994); Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1352 (2d Cir.1994); LeClair, 627 F.2d at 609-10.
Upon reviewing the record and considering the evidence, the Court concludes that the Schmitts failed to establish an equal protection violation, as a matter of law. The Schmitts failed to prove that the land was not sold to them because of their race, religion, or to prevent them from exercising a constitutional right. Nor is there any evidence in the record of a malicious or bad faith intent to injure. See, e.g., FSK Drug, 960 F.2d at 10; LeClair, 627 F.2d at 610.
Further, there is a rational relationship between the decision not to sell the land to the Schmitts and the legislative purpose. The decision not to sell to the Schmitts and to terminate their leasehold was taken when the City learned that the Schmitts substantially encroached on City-owned land; apparently violated both federal and state environmental statutes; and breached their obligations under the lease. The Broad Channel tenants who were permitted to purchase their leasehold property had no such major impediments. Accordingly, the Schmitts' constitutional claims based on equal protection and selective enforcement are dismissed.
3. As to the Schmitts' "Taking" Claim
The thrust of the Schmitts' "taking" claim seems to be that the City deeded portions of the Schmitt Marina property to the United States as part of Gateway, and that the City "was not authorized to convey any portion of the Schmitt Marina property to any person or entity other than the Schmitts" (Third party complaint, sixth cause of action, ¶ 61).
Initially, the Court notes, as stated above, the Schmitts do not have an enforceable property interest which would support a claim of an "unjust and unlawful taking by the City of New York" (Third amended complaint, sixth cause of action, ¶ 70). Second, even if Broad Channel tenants acquired any enforceable rights to purchase their land as a result of the Broad Channel Conveyance Act, those rights could not have vested prior to 1981, when the Board of Estimate began *364 issuing enacting resolutions. The Gateway Conveyance occurred in 1974, seven years earlier. Accordingly, the conveyance to the United States by the City could not have constituted a "taking," as a matter of law. Moreover, the New York State Gateway Act (Laws of 1973, Ch. 759) trumped the Broad Channel Conveyance Act in that the Gateway Act authorized conveyance of land for Gateway "notwithstanding any inconsistent provision of law." Finally, any "taking" claim occurred in 1974, at the time of the conveyance to the United States and is time barred under the six year residual statute of limitations. See CPLR 213(1). Thus, the sixth cause of action in the third party complaint premised upon a "taking" by the City is dismissed.
4. The Schmitts' Second Cause of Action to Reform the Deed from the City to the United States.
In this cause of action, the Schmitts contend that the lands occupied by the Schmitts are part of the "Broad Channel Community" which is excluded from the Gateway conveyance. This contention is without merit.
The City and the Federal Government had the right to determine between them the appropriate boundaries for the Gateway Conveyance and the Broad Channel exclusion. The boundaries of the Gateway Conveyance are set forth in Pl.Ex. 38-B-1, Map 4030. As stated above, the Court credits the testimony of Andrew Karn, the City Planning Engineer who actually supervised the creation of the conveyance maps, that the unshaded toe of the bootthe Big Egg Marshwas included in the Gateway Conveyance. Indeed, this boundary interpretation is reasonable in that it places in Gateway those portions of the boot which have never been inhabited or developed, and which remain wetlands and suitable breeding and nesting grounds.
Even if the claim was factually supported, which it is not, the Court would conclude that it is barred by the statute of limitations. A cause of action for reformation of a deed is subject to the six year limitations set forth in the omnibus provision of CPLR 213(1) ("an action of which no limitations is specifically prescribed by law"). This statute governs actions in equity, such as a claim to reform a deed. A cause of action for reformation of a deed is governed by the six year limitation in CPLR 213(1) and, except in cases of fraud, begins to run from the date of delivery of deed. Incorporated Village of Island Park v. Island Park-Long Beach, Inc., 81 N.Y.S.2d 407 (S.Ct. Nassau Co.), aff'd 274 A.D. 930, 83 N.Y.S.2d 542 (2d Dept.) rearg and app denied 274 A.D. 994, 85 N.Y.S.2d 510 (2d Dept.1948); see also Dubin v. Muchnick, 108 Misc. 2d 1042, 438 N.Y.S.2d 920 (Sup.Ct.N.Y.1981) mod. on other grounds 87 A.D.2d 508, 447 N.Y.S.2d 472 (1st Dept. 1982). Accordingly, the Schmitts' second cause of action is dismissed.
5. As to the Schmitt's Third Cause of Action Based on Adverse Possession.
In this claim, the Schmitts asserted title to the land they occupy under the doctrine of adverse possession. By a letter to the Court from Burton Citak, Esq., a counsel for the Schmitts, dated June 9, 1993, this cause of action has been withdrawn.
6. As to the Schmitts' Fourth Cause of Action Sounding in Fraud
This claim is based on the false representations by City officials over the years concerning the area covered by the Schmitts' leasehold. These representations during the period in the 1960s through the 1990, were that "the Schmitts leased or occupied land covered (sic) an area in excess of 220,000 sq. ft. and/or approximately 600,000 sq. ft." (Third Party Complaint ¶ 51). The third party complaint further alleges that "as a result of which the Schmitts were induced to and did enter into certain lease agreements with the City of New York basing the rent amount paid and to be paid on the representations regarding the extent of the area of the leased property". The Schmitts assert that they would not have entered into the lease agreement for the agreed upon rent with the City of New York except for their reliance upon the false representations of the City. The Schmitts further contend they relied on the City's representations, occupied *365 and worked the land, built a business and enhanced the Broad Channel Community and as a result "the Schmitts have been damaged in the amount of ten million ($10,000,000.00) dollars."
At first blush, this argument is ludicrous. Here the Schmitts have occupied in excess of 600,000 square feet of City land as a result of aggressive unauthorized acquisition of all the property except their original 40,000 square feet, all of this at a minimal rental. Now they claim they were induced to do so by fraudulent misrepresentations. This claim is totally without merit and borders on being frivolous.
Initially, the Court notes that John Schmitt testified that contrary to the allegations in his complaint, the Schmitts were not fraudulently induced to enter into any leases. After the pertinent paragraphs of the third party complaint were read to him, John stated that "I don't believe we were fraudulently induced to enter any lease, if that is what you are asking." (Tr. at 6217). In addition, a condition precedent to pursue the tort of fraud against the City requires that the Schmitts file a notice of claim, which they apparently failed to do. See General Municipal Law § 50-e(1)(a). Also, most, if not all of their allegations of fraud are barred by the one year and ninety day limitation period. See New York General Municipal Law § 50-1(1)(e).
As to the plethora of claims made by the Schmitts under the fraud rubric, none are meritorious. The City had an absolute right to convey the Big Egg Marsh portion of Broad Channel, including the Cove and the Hook, to the United States as part of Gateway. This conveyance would not support a fraud cause of action even though the Schmitts claim to be the only Broad Channel tenant whose leasehold was conveyed, especially as a result of the dispute and confusion with regard to the exact location of the Schmitt Marina. None of the unauthorized misrepresentations of the City officials, whatever their motive, could support a fraud claim against the City. The claim that the City's view of the Schmitt Marina has grown smaller over the years, is unsupported by the evidence, and, in any event, would not support a fraud claim.
The Schmitts also claim that they were the only Broad channel tenant who were denied an opportunity to purchase their leasehold the Court already has determined that the Schmitts have no viable equal protection or selective enforcement claim. Even if this assertion of such sole exclusion is true, it could not form the basis for a cause of action in fraud. Moreover, the acts established at this trial, the substantial encroachment on City-owned land, the violation of state environmental statutes, the unauthorized destruction of national park land, and the violation of federal law, as will be set forth later, are ample rational reasons to support the decision to deny the Schmitts of the benefit of the right to purchase the leased property.
The Schmitts were granted a permit to construct a new dock facility in the water for 120 slips in front of Adam's home on West 19th Road on June 7, 1994. The permit itself stated that it was for the "rearrangement of existing floats as per Plan # 7374." (Def.Ex.B-507). This permit was revoked by the Department of Business Services on July 18, 1994 on two grounds. First, the property described in the permit is owned by Adam as residential property, and any use for a commercial marina would constitute a nonconforming use of the property in violation of the R3-2 zoning. Second, the permit inadvertently authorized the installation of additional docks for 120 craft, when the permit was intended to authorize only the replacement of docks legally existing in the marina. (Def.Ex.B-508).
In this regard, the Schmitts point to other marinas in Broad Channel who did obtain permits for docks or floats. The Court finds that Adam purchased this property in 1988, six years prior to the date of his permit application, and had no docks in the water on that area since 1968, 26 years prior to the permit application. Therefore, there can be no grandfathered rights to the commercial use of that property. Further, the revocation of this permit was mandated by law, based on a rational basis and could not be the basis for a fraud claim.
*366 The Schmitts also claim that the water supply to their home was shut off and the City refused to "hook up" the Schmitts to the newly installed sewer system. As to the water supply, the City repaired it several times. Also, the City sent the Schmitts a license agreement (Def.Ex.B-489) under which the Schmitts would be permitted to enter into City property and repair the water line, but the Schmitts refused to sign this agreement. As to the claim that the City refused to "hook up" the Schmitts to the newly installed sewer system, the City does not "hook up" anyone to the sewer mains. That task is imposed on each individual owner or tenant, and, in that regard, the Schmitts have been treated no differently than any other Broad Channel resident.
The Schmitts' fraud cause of action is dismissed in its entirety as factually and legally baseless.
7. As to the Schmitts' Fifth Cause of Action Asserting a Breach of the Covenant of Quiet Enjoyment
The Court need not tarry long with this cause of action. First, the Schmitts failed to prove that there was any actual or constructive eviction from any part of their leasehold, even when measured by their grandiose version of the boundaries of their property. Second, the allegations in the third party complaint allege a "superior right of possession ... (and) title" by the United States. In fact, there appears to be no claim that the City violated the implied covenant of quiet enjoyment. Nor, as stated above, can the Schmitts rely on the "shut off" of their water or the revocation of their permit for docks in front of West 19th Road. Accordingly, the Schmitts' fifth cause of action in the third party complaint based on a breach of the covenant of quiet enjoyment is dismissed.
8. The Schmitts' Conspiracy Claim
Initiated by a letter dated April 18, 1988, from Michael and Mary Flynn, the Schmitts' neighbors (Pl.Ex.14), to a number of City and Federal agencies, eventually involving the area congressman, the City Fire Department and the State DEC, numerous investigations of the Schmitt Marina activities and "place in the sun," were instigated. A meeting between City, State and Federal agency representatives occurred on October 25, 1988. An agreement was arrived at that additional information was needed, and the various agencies agreed to keep each other informed. Not only is it not unusual for the various jurisdictions and agencies to work together, but it would be an obvious waste of resources and a departure from accepted practice to do otherwise. That governmental and regulatory agencies acted in accordance with their duties in response to a citizen's complaint, is not evidence of a conspiracy. Stated simply, there is no evidence of a conspiracy and that cause of action is dismissed.
9. The Schmitts' Supplemental Third-Party Complaint Based on the 1995 New York State Broad Channel Conveyance Act
This cause of action was advanced by the Schmitts in 1996, during the pendency of this trial. The Schmitts seek a judgment declaring that they have a right to purchase their leasehold and adjacent property pursuant to the 1995 State Broad Channel Conveyance Act and ask the Court to direct the City to sell such property to them. Initially, the Court notes that the Schmitts' claims under this 1995 legislation may not be ripe for adjudication. Moehring testified without refutation, that the City has not yet completed the legally mandated public review process, nor has the City yet determined the terms of the sale. (Tr. at 6829-6830). However, assuming that this obstacle was not present, the Schmitts cannot prevail under this supplemental statutory cause of action.
A review of the new legislation reveals that it provides no new rights to the Schmitts. The City is vested with ample discretion to sell the Broad Channel property to certain designated lessees, tenants or occupants in possession. The Act provides that the Mayor "may authorize the sale" of City-owned property in Broad Channel to three categories of potential purchasers.
By the terms of the 1995 statute, similar to its predecessor, sales of leased and adjacent properties is at the discretion of the City. Under the provisions of this statute, the *367 Schmitts remain confronted with the problems of the true dimensions of their lease and whether they are tenants in good standing. There is a provision stating that the occupants and owners of improvements can obtain the right to purchase, only if the land was leased as of August 19, 1982 and the tenant cannot be found. Most of the land claimed by the Schmitts were not leased in August 19, 1982, except for the original 40,000 square foot area. However, with regard to the land formerly leased to Carl Mednica and now occupied by the Schmitts, they failed to prove that he "cannot be found" and the Schmitts can obtain no new rights, under the 1996 legislation, with regard to the Mednica leasehold.
Viewing this supplementary complaint in the light most favorable to the Schmitts, at best, this claim is premature, and the supplemental third party complaint is dismissed.
10. As to the Damages Claimed by the Schmitts against the City
In addition to the grounds for dismissal set forth above, the Schmitts have to contend with the settled rule that the City's administrative determinations not to sell the leased land to the Schmitts and to evict them, must, generally, initially at least, be judicially reviewed. In this case, the Schmitts have included most of their present claim in their mandamus petition in the State Court action, which petition was dismissed. Under the doctrine of res judicata, the Schmitts may not relitigate these issues. Cornwall Warehousing Inc. v. Town of New Windsor, 238 A.D.2d 370, 656 N.Y.S.2d 329 (2d Dept.1997); Brooklyn Welding, Corp. v. The City of New York, 198 A.D.2d 189, 604 N.Y.S.2d 87 (1st Dept.1993); Patsy Bello Nurseries, Inc. v. The City of New York, 94 A.D.2d 722, 462 N.Y.S.2d 258 (2d Dept.1983).
In addition, the Schmitts proffered no evidence of monetary damages for any of their claims. For example, the claim that the Schmitts are the only Broad Channel tenant not to have an opportunity to purchase, even if true, would not support a claim for monetary damages, there being no evidence to support such a claim. Nor can damages be awarded for the loss of the expectancy that some day in the future the Schmitts may have the opportunity to purchase their leasehold. Indeed, the very size of the marina was a source of dispute and is just now resolved in this opinion. Accordingly, all of the monetary damages claims by the Schmitts against the City are dismissed.
F. As to the Claims Involving the United States
1. The Schmitts' claim that the boundaries of Gateway and/or Broad Channel were drawn in an arbitrary and capricious manner.
The review of an administrative agency's interpretation of its own enabling legislation and its own determination, is based on whether it is arbitrary and capricious, or contrary to law. This standard is highly deferential to the agency. The Second Circuit stated the rule in Henley v. Food & Drug Administration, 77 F.3d 616 (2d Cir.1996), as follows:
An agency rule may be deemed arbitrary, capricious or an abuse of discretion "if the agency has relied on factors which congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Assoc. of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983); see also New York Council, Assoc. of Civilian Technicians v. Federal Labor Relations Auth., 757 F.2d 502, 508 (2d Cir.), cert. denied, 474 U.S. 846, 106 S. Ct. 137, 88 L. Ed. 2d 113 (1985).
The scope of judicial review is narrow and deferential. As long as the agency has considered all important aspects of the issue and stated a rational explanation for its choice, it will be sustained. Certainly, a reviewing court cannot "substitute its judgment for that of the agency," Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136 (1971).
*368 In this case, there is no evidence that the agencies involved did not consider all the important aspects of the Gateway Conveyance and its boundaries. In addition, the Congressional purpose in enacting this important legislation was to preserve the marshes in the Bay in their natural state, and to nourish and sustain the myriad of wildlife dependent on Jamaica Bay as a wildlife preserve. In particular, the Big Egg Marsh is one of the largest surviving natural marshlands in Jamaica Bay. Dr. John Tanacredi, Gateway's Research Ecologist and Chief of the Division of Natural Resources and Environmental Compliance of the National park Service testified that the 17,000 acres of bay bottom and marshland of the Jamaica Bay Wildlife Refuge constitute the largest open space in New York City. This area comprises 95 percent of all the open space in the City. He testified that the Big Egg Marsh is a stopover along the Atlantic Flyway, the major migratory route for birds along the Atlantic coastline.
Dr. Tanacredi predicted that if the Big Egg Marsh was eliminated by development, the migratory birds which nest and breed in it also will be eliminated. In addition, the Big Egg Marsh serves the important purpose of cleansing the waters of the bay. Also, the Big Egg Marsh is the home of a large variety of small mammals, terrapins, snakes, frogs, salamanders and butterflies, in addition to 326 species of birds, including the egrets, terns, bald eagles, ospreys and peregrine falcons and hundreds of fish species. The creation of Gateway was not only rational, it was commendable.
Accordingly, the Schmitts failed to prove that the boundaries of Gateway, which include the Big Egg Marsh and the Cove and the Hook, were drawn in an arbitrary and capricious manner or are contrary to law.
2. The Trespass Claim by the United States Against the Schmitts
The United States and the City established the boundaries of Gateway, the Jamaica Wildlife Refuge and the Broad Channel Community exception to the Gateway Conveyance. As stated above, the Court has found that the United States proved that the Big Egg Marsh, including the Cove and Hook, were included in Gateway and not included in the Broad Channel exemption. Thus, after 1974, the date of the Conveyance, the Schmitts could not legally construct or maintain docks on national park bay bottom lands without a permit from the Secretary of Interior.
Prior to 1974, when Gateway was established, the Schmitts had a single dock in the water. That one dock, known as Dock A, is grandfathered in on the national park land. However, the Schmitts could not build any new docks after 1968 without a Rivers and Harbors Appropriation Act permit, or after 1972 without a Clean Water Act permit or after 1974 without a National Park Service permit.
That Congress has the power to protect public land is a given precept. Under the delegation of Congress, the Secretary of the Interior has been given the responsibility to manage the public wildlife lands. The courts have consistently upheld the power of the Secretary of Interior in the management of public lands. "The Secretary of the Interior is responsible for maintaining our national parks ..." Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm., 393 U.S. 186, 187, 89 S. Ct. 354, 21 L. Ed. 2d 334 (1968). This power includes the right to restrict the riparian rights of property owners abutting a national park. As stated in Stupak-Thrall v. United States, 843 F. Supp. 327, 331 (W.D.Mich.1994); "Riparian rights are not, however, absolute rights. They may be regulated under the police powers of governmental units."
The National Park Service clearly has the discretion to prevent new dock construction and the filling of marshes on Gateway property. The Cove and the Hook are Gateway property and the National Park Service has the right to prevent the proliferation of docks by the Schmitts in the Cove, with the exception of Dock A and the 20 foot raft for landing passengers, in which the Schmitts have grandfathering and national permit rights. The Schmitts added up to eight new docks in the Cove without authority or permission. *369 They could not remain on Gateway property.
In addition, in 1976, with the help of Adam's friend Mednica, the marshlands comprising the Hook was covered with hundreds of tons of construction debris to create a riprap wall and access road. This wall was build to shelter the boats in the cove from storms. The latest photographs show that the entire Hook around the Cove is solid land. Gone, perhaps forever, are the marshlands and vegetation, fish and animals formerly living in that marshland.
Accordingly, the Government has established, by a preponderance of the evidence, that the Schmitts have trespassed on Gateway property. As to damages, the record reveals that the United States has not offered any proof of monetary damages, per se. The remedy for this violation will be discussed later in the opinion.
3. The Rivers and Harbors Appropriation Act Claim
This part of the Rivers and Harbors Appropriation Act of 1899, never amended, provides as follows:
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.
33 U.S.C. § 403 (emphasis supplied).
Similar to the findings at the 1990 preliminary injunction hearing, the Court finds that Jamaica Bay and the Cove are within navigable waters as defined in the Corps of Engineers regulations, as follows:
Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.
33 C.F.R. § 329.4.
Dr. Arthur LaPerriere, then Chief of Harbor Supervision, New York Region, Army Corps of Engineers, testified that Jamaica Bay and the Schmitt Marina are in navigable waters. He testified that Jamaica Bag is a waterway used to transport interstate and foreign commerce. (PI Tr. 66-67, 1029-1030, 1236-1239, 1252-1257). The Court credits this testimony.
With regard to Schmitts' claim of a Nationwide Permit, the United States contends that the Schmitts' docks interfere with navigation and therefore violate the provisions of 33 C.F.R. § 330.3(b), which covers Nationwide Permits involving "structures or work completed before December 18, 1968 [provided] there is no interference with navigation." Even assuming that the Schmitts' docks do not interfere with navigation, the United States proved that Dock A was the only one constructed in the Cove prior to December 18, 1968. As shown in the photographs in evidence, this single dock is approximately 175 to 200 feet in length, 8 feet in width and runs parallel to 96th Street, and to the west line of the marina, closest to the shore. In addition, the photographs show that there was a second structure approximately 20 feet long and 8 feet wide which appears to be a raft attached to pilings. These two structures, together with the bulkhead adjacent to *370 the house and Dock A, have a Nationwide Permit.
Also, the Schmitts are authorized under the Nationwide three Permit to repair, rehabilitate or replace Dock A, its appurtenances and the bulkhead close to the house and dock, without the need for any additional permit. The Court finds that all of the subsequently constructed docks in the cove, believed to be eight in number, are not covered by this Nationwide Permit and, therefore, the presence of these docks violate the Rivers and Harbors Appropriations Act. In addition, as stated above, the Court agrees with the Government that the mooring buoys or pilings in the Cove prior to December 1968 are not "docks" for the purpose of a Nationwide Permit. In this regard, the Court declines to "substitute its judgment for that of the Agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136 (1971).
Further, as already considered by the Court, the United States proved that the Cove is not an artificial canal within the meaning of Nationwide Permit 33 and C.F.R. § 330.5(a)(2), which provides for such a permit with regard to: "Structures constructed in artificial canals within principally residential developments where the connection of the canal to a navigable waters of the United States has been previously authorized." (See 33 C.F.R. § 322.5(g) [Definition of a canal]).
Stated simply, the Cove is not an "artificial canal" in a "principally residential development." To the contrary, the Schmitt Marina is a commercial enterprise, as was the Mednica leasehold. Also, the Cove is an artificial hole or depressed area created by the extraction of fill to build the Broad Channel Day Camp. It was not intended to be a "canal." The distinction between a "canal" and the Cove can be seen in viewing the narrow canals that run in an east-west direction between Cross Bay Boulevard and Jamaica Bay. Further, as already stated, the Cove is not in a "principally residential development." It is bounded by wetlands and marshes, except for the riprap wall created by Mednica and the Schmitts. For these reasons, the Cove is not a "canal" for Nationwide Permit purposes.
In sum, the burgeoning nine docks in the cove, together with the mooring buoys and pilings and the riprap wall replacing the marshland around the Cove constituted obstructions to the navigable capacity of these waters within the Gateway National Park, in violation of the Rivers and Harbors Appropriation Act. The remedy for this violation will be discussed later in the opinion.
4. The Clean Water Act Claim
The Federal Clean Water Act provides in relevant parts:
The Secretary may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
33 U.S.C. § 1344(a).
Except as in compliance with ... sections ... 1344 of this title, the discharge of any pollutant by any person shall he unlawful.
33 U.S.C. § 1311(a).
In addition, 33 C.F.R. § 323.3(a) provides:
Except as provided in § 323.4 of this Part, [Department of Army] permits will be required for the discharge of dredged or fill material into waters of the United States.
The Clean Water Act makes it unlawful to discharge fill material into the waters of the United States without a permit from the Army Corps of Engineers. The United States District Court has jurisdiction to require compliance with the Act:
The Secretary [of the Army] is authorized to commence a civil action or appropriate relief including a permanent or temporary injunction for any violation in which he is authorized to issue a compliance order under paragraph (1) of this subsection. Any action under this paragraph may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance.
33 U.S.C. § 1344(5)(3).
The United States contends that the shoreward limit of the Army's jurisdiction is the *371 "spring high tide" (§ 328.3[d]) which would include the wetlands and the tidal marshes of the Big Egg Marsh which is subject to periodic flooding by the tides, supporting vegetation and marsh grass. It further asserts that the Schmitts have violated the Clean Water Act by causing concrete and asphalt debris to be dumped in the Big Egg Marsh on the Hook; by building eight new docks in the Cove; and by adding additional fill to the west shore along 96th Street in front of the new Schmitt combination home and office.
On the other hand, the Schmitts deny that they violated the Clean Water Act. First, the Schmitts deny that they were responsible for the dumping of fill in the Hook. That factual issue has already been decided by the Court against the Schmitts. Next, the Schmitts contend that any dumping of fill on wetlands above the high water line prior to July 1975 did not violate the Clean Water Act. The Court need not decide this issue since it has already found that the dumping on and fill of the Hook occurred, at least in part, after July 1975, and in any event, this dumping occurred in waters below the high water line and was not affected by the July 27, 1975 statute.
The Court finds the Government proved, by a preponderance of the evidence, that the Schmitts violated the Clean Water Act only with regard to the dumping of fill on the Hook. The Court further finds no violation of the Clean Water Act with regard to the eight additional docks or the filling in of the shore along the westerly side of 96th Street. The latter filling apparently did not violate the 1972 statute and probably was grandfathered in with regard to the 1975 statute. Again, the remedy for this violation will be discussed later in the opinion.
G. As to the Claims of the City of New York
1. First CounterclaimUse and Occupancy
The City's first counterclaim is for a money judgment with regard to the Schmitts' use and occupation of City-owned lands not leased to them. The City's expert, Michael Haberman, testified that the Schmitts occupied approximately 298,000 square feet based on a survey performed by Emanuel Bernstein. (Tr. 7338-7399). Excluding the 40,000 square feet which is their only leased property, Haberman appraised the additional 258,000 square feet illegally occupied by the Schmitts. Without reviewing all his computations, which was previously done in this opinion, Haberman testified that the monetary value of the City's use and occupancy claim from 1968 to 1996 for the wrongfully occupied area was the total amount of $2,900,190. This estimate was based on sales of nine allegedly comparable units and was adjusted for size and location. The 1968 starting date was based on the Schmitts' assertion that the marina reached its present size at that time.
Initially, the Schmitts respond that the City's acceptance of rent from them with knowledge of the alleged violations or defaults waived all objections to their continued tenancy. The Schmitts fail to recognize the foundation for such a waiver theory. As they correctly cite in their Westfal memorandum of law, "When rent is accepted with knowledge of particular conduct which is claimed to be a default, the acceptance of such rent constitutes a waiver by the landlord of the default." Atkin's Waste Materials, Inc. v. May, 34 N.Y.2d 422, 426, 427, 358 N.Y.S.2d 129, 132, 314 N.E.2d 871 (1974). The New York Court of Appeals in Atkin's went on to say that "The acceptance of rent is in effect an election by the landlord to continue the relationship of landlord and tenant." Id. 358 N.Y.S.2d at 132.
In this case, the acceptance of the monthly rent by the City, continued the landlord-tenant relationship as to the written leasehold, namely the 40,000 square feet at the foot of West 20th Road. The acceptance of rent under the terms of the written lease did not create a new lease, one of a claimed 600,000 square feet. A waiver is an intentional abandonment or a relinquishment of a known right or advantage which, but for such waiver, the party would have enjoyed. Wolff & Munier, Inc. v. The Whiting-Turner Contracting Co., 946 F.2d 1003 (2d Cir.1991). In effect, the Schmitts claim that, by accepting the rent under the written lease of 40,000 *372 square feet, the City consented to their tenancy of an additional huge amount of land. The Court disagrees with this contention. Despite the verbal and written statements by City representatives who were without authority to bind the City and without the benefit of a written lease, the receipt of the rent on the 40,000 square feet leased property gives the Schmitts no right to the additional property, based on a waiver doctrine. As stated in Readco, Inc. v. Marine Midland Bank, 81 F.3d 295 (2d Cir.1996), "There is no waiver where the failure to exercise this right was the result of negligence, oversight or thoughtlessness." See also Agati v. Agati, 92 A.D.2d 737, 461 N.Y.S.2d 95 (4th Dept.) app. den. 59 N.Y.2d 830, 464 N.Y.S.2d 743, 451 N.E.2d 490 (1983). Here, by accepting rent under the written lease, there was no intentional waiver by the City of the right to contest the Schmitts' improperly occupied additional land.
However, by the acceptance of the monthly rent by the City to the present time, there was a waiver of the alleged violations or defaults by the Schmitts as to the land described in the written leases, namely the 200' by 200', 40,000 square feet at the foot of West 20th Road. Stated simply, the Schmitts are entitled to the possession of the 40,000 square foot written leasehold, subject to a future eviction proceeding, if any, as to defaults not nullified by a waiver.
Moreover, the Court agrees with the Schmitts (see Westfal memorandum of law at 55, 56) that the testimony of Haberman that the fair rental value of the illegally occupied property, since 1968 is the sum of approximately $2,900,000, with a yearly rental value in excess of $110,000, is unbelievable and this opinion is rejected. The City was apparently content with a rental of $239 per month for 40,000 square feet, and the figures mentioned by Haberman simply are not credible. The Court finds that there is no believable evidence in the record as to the rental value of the occupied land. Accordingly, the City's first counterclaim to recover for the use and occupancy of the wrongfully occupied City property, is dismissed.
2. Second Counterclaimto Restore the City-owned Land
In the second counterclaim, the City seeks a judgment directing the Schmitts to remedy the filling and dumping on City-owned land in the vicinity of the Schmitt Marina. As to the 40,000 square feet in the leased premises, the City has failed to prove any condition that needs to be restored. With regard to the huge areas of land upon which the Schmitts have trespassed all these years, the Court finds that the City failed to prove, by a preponderance of the credible evidence, in what manner and to what extent the Schmitts have filled or dumped. Certainly, the City failed to prove any monetary damages to the City for such actions by the Schmitts. The Schmitts are trespassing and will be removed from the property illegally occupied. The City failed to prove that any of the City-owned property wrongfully occupied by the Schmitts requires restoration. The Schmitts' obligation to restore is limited to the United States owned property on the Hook. Accordingly, the City's second counterclaim is dismissed.
H. The Schmitts' Request to Compel the City to Sell to Them the Leased Property
The Court determines that the City has the right to decline to sell any of the City-owned land to the Schmitts. The City's determination that the Schmitts are not tenants of good standing is supported by the record. This decision by the City is rationally based on the Schmitts' many violations as set forth in this decision, including the major trespass violation; the usurpation of the Cove; the unauthorized expansion of the network of docks; and the dumping and filling of the natural marshlands in the Hook and elsewhere. Indeed, it is very understandable under the remarkable circumstances in this case.
I. As to Carl Mednica
The Court finds that, together with the Schmitts, the defendant Carl Mednica was responsible for filling the Hook during the mid 1970s. There is joint and several liability on the part of the Schmitts and Mednica to restore the Hook.
*373 VI. THE REMEDIES
The most difficult part of this decision is to determine the remedies resulting from the many determinations made by the Court. These are the initial determinations resulting from the Court's finding of fact and conclusions of law:
1. The Schmitts have the right to maintain possession of the 200' by 200', 40,000 square foot piece of land at the foot of West 20th Road, until the City properly acts to evict, if desired.
2. The City and the Schmitts are directed to survey this 40,000 square foot piece of land so as to delineate and firmly fix the boundaries. The method of doing this will be discussed at the April 24, 1998 conference referred to below.
3. The Schmitts are to vacate all the other property in Broad Channel presently occupied by them or as the Schmitt Marina, except as to Dock A and the adjoining dock, within sixty days of the date of this decision.
4. The Schmitts have the right to use Dock A and the smaller adjacent dock.
5. The Schmitts are not to place, use or maintain any other docks, mooring buoys or piles in the Cove.
6. The Schmitts and Carl Mednica are directed to restore the Hook to its condition prior to the creation of the riprap wall or compensate the United States for the cost of such restoration. The manner in which this will be done will be a subject at the conference with all the parties and counsel to be present on April 24, 1998 at 3:30 p.m.
7. For the purpose of a determination of the other remedies for the violations by the Schmitts and Mednica, all the parties are directed to appear at the conference on April 24, 1998 at 3:15 p.m.
8. The parties are directed to advise the court in writing within ten days of the date of this decision, as to their recommendations for the accomplishment of the restoration of the Hook and the remedies for the violations by the Schmitts and Mednica.
SO ORDERED.
APPENDIX
Figure 1 City Ex. DAThe Developer's Map; Pp. 5, 6
Figure 2 Ex. B-19Shaded area not conveyed to United States in Gateway
Figure 3 Def. Ex. B-40Adam Schmitt placed orange lines on map to show the area of his marina (Included the Cove but not the Hook) (Editor's Note: Appendix not reproducible for purposes of publication.)
Figure 4 Def. Ex. B-42Adam Schmitt's view of John's Fishing Station (Editor's Note: Appendix not reproducible for purposes of publication.)
Figure 5 Def. Ex. B-128Administrative Law Judge Report
Figure 6 City Ex. BRMap of Gateway National Recreation Area
Figure 7 City Ex. AL-1Claim by City for additional rent for unleased land occupied by Schmitts AL-1 = total of $2,900,190.
*374
*375
*376
*377 PROCEEDINGS
Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State Of New York ("6 NYCRR") Part 622, an administrative enforcement hearing was held to consider allegations by the Department of Environmental Conservation (the "Department") against John Schmitt (the "Respondent"), 64 West 20th Street, Broad Channel, New York 11693. The Department alleged that the Respondent violated Environmental Conservation Law ("ECL") Article 15 (Protection of Water) and Article 25 (Tidal Wetlands) and 6 NYCRR Part 608 (Use and Protection of Waters) and Part 661 (Tidal Wetlands Land Use Regulations) by placing fill, clearing, grading, and constructing a bulkhead at a marina located at 64 West 20th Street, Broad Channel, New York (the "Site").
This hearing was held on July 6, 1989 at the Department's Region 2 Office, Hunter's Point Plaza, 47-40 21st Street, Long Island City, New York, before Administrative Law Judge ("ALJ") Susan J. DuBois.
The Respondent was served with a Notice of Hearing and Compliant by certified mail, return receipt requested, on June 8, 1989. This Notice set the time and place of the hearing as 10 A.M. on July 6, 1989, at the Region 2 Office at the above address. On June 21, 1989, a Notice of Adjournment was sent to both Parties stating that the hearing was adjourned by one hour, to begin at 11:00 A.M. on July 6, 1989.
At the time scheduled for the hearing, neither the Respondent nor any representative of the Respondent was present at the hearing location. The Department appeared at the hearing by Cyril H. Moore Jr., Esq., Regional Attorney. At approximately 11:25 A.M., Mr. Moore stated that he had called the Respondent a few minutes before that and that a woman at the Respondent's office had stated that the Respondent was in the yard. Mr. Moore further stated that he had asked her to ask the Respondent to call Mr. Moore. No response was received from the Respondent and the hearing proceeded at 11:25 A.M. as a default. The Respondent had not appeared and had not contacted Mr. Moore or the ALJ by 1:25 P.M. when the hearing concluded.
The Department called as witnesses the following persons: Environmental Conservation Officer ("ECO") John Burke; Glen Chernick, City of New York Division of Real Property; Charles Hamilton, Chief of the Marine Regulatory Section, Bureau of Marine Habitat Protection, NYSDEC Division of Marine Resources; and ECO Edward B. Moore, Coastal Zone Management Officer for Region 2.
The stenographic transcript of the hearing was received on August 3, 1989 and the hearing record was closed on that date.
On or about August 15, 1990, Gary Westphal, Esq., an attorney representing Mr. Schmitt in another matter, contacted ALJ DuBois to inquire whether this hearing had been held and whether an Order had been issued. ALJ DuBois informed Mr. Westphal that the hearing had been held but that no Order had yet been issued, and that there was a transcript of the hearing which Mr. Westphal could review. No request for reopening the record has been received.
Charges and Relief Sought
The Department charged that the Respondent placed fill, cleared, graded, and constructed a bulkhead at the Site without a permit, in violation of the Tidal Wetlands Act and ECL Article 15, and placed fill and graded the fill in the adjacent area of a tidal wetland without a permit for this work. The Department sought imposition of a civil penalty of at least $120,000 ($45,000 for the tidal wetland violations and $75,000 for the Article 15 violations), an order prohibiting work on the Site in violation of the ECL, and an order requiring restoration of the areas affected by the work already done in contravention of the ECL. At the hearing, the Department requested that the Respondent be ordered to restore the area filled in 1988 partly as high marsh and partly as intertidal marsh.
The proposed penalty was calculated on the basis of $3,000 per day times 15 days for violation of the Tidal Wetlands Act and $5,000 times 15 days for violation of ECL Article 15. The Department stated that a larger penalty could have been requested since the violation was in effect for more than 15 days, but that the requested penalty had *378 been limited in order not to create a hardship.
The Answer
No written answer was filed and the Respondent did not appear at the hearing.
FINDINGS OF FACT
1. The Site of the alleged violations is a marina located at 64 West 20th Street, Broad Channel, New York. Broad Channel is located on Jamaica Bay in Queens County. John Schmitt (the "Respondent") is the proprietor of the marina. He resides upstairs from the marina office and also has a residence in Colorado.
2. At the time of the hearing, the land at the Site was owned by the City of New York and had been leased since at least 1959 to Adele Schmitt, doing business as Adams Fishing Station. The relationship between Ms. Schmitt and the Respondent was not identified.
3. On November 19, 1984, Environmental Conservation Officer ("ECO") John Burke went to the Site and observed that a wooden breakwall or bulkhead had recently been constructed in a mudflat area, below the mean high water mark. He also observed that rock, concrete and dirt had recently been placed in a tidal wetland area located below mean high water and containing marsh grass, behind the bulkhead. These materials partially filled the area behind the bulkhead but they had not yet been built up as high as the top of the bulkhead. The bulkhead was approximately 80 (eighty) feet long and the area of fill behind the bulkhead was described as "approximately ten yards by ten yards".
4. ECO Burke then spoke with the Respondent, who stated that he was the person conducting the work on the Site. ECO Burke asked to see the permit for the work. The Respondent answered that he did not have a permit and was not aware that one was required for the work which was taking place. ECO Burke told the Respondent that the activities were illegal and that a permit from the Department was required. The Respondent said that he would contact the Department.
5. The Respondent submitted an application for removal and replacement of an existing bulkhead, construction of additional new bulkhead, and placement of fill. The application was dated November 30, 1984 but also bore a note stating "Sent 12-5-84". There was no indication of whether the application was determined to be complete or incomplete, nor of any further proceedings pursuant to the Department's permit application procedures (6 NYCRR Part 621). No permit for these activities was issued by the Department. The area in which the bulkhead was built is identified on the Department's tidal wetlands map as "SM" or shoals and mudflats.
6. Additional fill was placed landward of the bulkhead at some time between ECO Burke's inspection and August 23, 1988 when an additional photograph of the bulkhead was taken by another Department employee.
7. Remediation of the bulkhead location would involve removing the bulkhead and the fill and relocating them to a location at or above the mean high water as that existed immediately prior to construction of the bulkhead. It would also involve planting to replace any intertidal marsh vegetation that had been destroyed.
8. On July 19, 1988, Charles Hamilton visited the Site at the request of the Department's Region 2 Attorney. Mr. Hamilton spoke with the Respondent and told him that a permit was required for regulated activities in or adjacent to tidal wetlands. Mr. Hamilton testified that he observed two additional violations of the Environmental Conservation Law at the Site on that date, but did not identify or describe such violations.
9. On August 23, 1988 Mr. Hamilton visited the Site again and found that some additional docks had been constructed. Mr. Hamilton again spoke with the Respondent about the need for a permit on that date.
10. On both September 7, 1988 and November 15, 1980, Mr. Hamilton visited the Site for additional inspections. On November 15, 1988, he found a new area of fill south of the marina and measuring approximately 100 feet by 100 feet, which had been graded. This area had not contained fill at the time of *379 Mr. Hamilton's earlier visits. In addition to the graded fill, the area contained 15 piles of fill, approximately ten cubic yards each, which had not been graded. Mr. Hamilton spoke with the Respondent again on November 15, 1988. The Respondent did not indicate to Mr. Hamilton why the additional fill had been placed. At the hearing Mr. Hamilton testified that in his opinion the fill appeared to have been placed for an extension of an almost full boat storage area located north of the filled area. In December of 1988, ECO Edward Moore observed boats stored on the graded fill.
11. The nature of this filled area immediately prior to the placement of the fill is not clear from the testimony and the exhibits. It was, however, at least the adjacent area of a wetland if not actually tidal wetland.
12. With regard to the area which was filled in late 1988, the Department proposed that 80% of this area be revegetated as intertidal marsh and that the remaining 20% be revegetated as high marsh, corresponding with the vegetation depicted on the tidal wetlands map. As part of this work, the Department proposed that the intertidal marsh portion be regraded to an elevation below mean high water and that the high marsh portion be regraded to an elevation between mean high water and spring high water.
13. This second filled area had been high marsh and intertidal marsh at the time when the tidal wetlands maps were made, and there is no indication that the map was amended to reflect any later disturbances. There is also no indication that any permits were issued for activities at this location or in the wetland area south of the marina generally.
14. Vehicle access to the areas of the bulkhead and the November 1988 fill area is somewhat limited and requires driving past the marina office, where the Respondent also lives at least part of the time.
DISCUSSION
As noted in Finding No. 10, the record is unclear regarding the nature of the area in which fill was placed in late 1988. As a result, there is some difficulty in identifying what should be done to restore this area to its condition prior to the violation.
The approximate location of the filled area, as outlined on a photocopy of the Department's Tidal Wetlands Map No. 598-494, is about one-quarter HM (high marsh) and three-quarters IM (intertidal marsh). The general area south of the marina was designated as IM and HM on the tidal wetlands map. In the aerial photograph on which the tidal wetland boundaries were drawn to make the map, the area south of the marina contained no conspicuous boats or other human-made features.
This same area appears in two aerial photographs which were taken on June 15, 1988, one of which shows scattered boats, vehicles and other objects stored south of the marina. The other June 15, 1988 photograph also shows several boats lying on the ground where the fill was later placed. The nature of the vegetation in this area is not apparent from the June 15, 1988 photograph and was not described in the testimony. It appears in the June 15, 1988 photograph to be low vegetation, with a few shrubs and no trees.
At the hearing, the filled area was described as being "eleven feet landward of an existing tidal marsh which would be identified as a high marsh dominated by salt hay". A photograph taken of the filled area on November 15, 1988 (Exhibit 14) shows an area of intertidal marsh between the photographer and the fill, with high marsh between the intertidal marsh and the fill. There was no testimony that intertidal marsh or high marsh existed within the filled area at the times of the July, August or September, 1988 inspections. This area was only described as not containing the fill at the times of Mr. Hamilton's first three inspections and as being accurately represented by the June 1988 photos. The filled area was described in the Complaint as the adjacent area of a tidal wetland.
It appears likely that this location was gradually disturbed and filled to some extent over the years between when the map was prepared and November, 1988. Although any such disturbances might have been *380 caused by the Respondent, the person responsible was not identified.
If the area which was filled in 1988 area had been tidal wetlands, the placement of fill would have destroyed whatever biological and hydrological benefits the wetland would have provided. If this area had instead been the adjacent area of a wetland at the time when the fill was placed, the effects would have been less. Adjacent areas do, however, serve a function as buffers to protect the adjoining tidal wetlands. It would be necessary to remove the fill and restore the filled area, but the record is not clear regarding the conditions existing prior to the violation.
The conditions at the filled area at the time when the fill was placed are also relevant to whether or not the filling was in violation of Environmental Conservation Law Article 15. It was not proven that this area was below mean high water nor that it was wetland which was adjacent and contiguous to navigable waters, and the record does not support drawing an inference that either of these conditions existed.
CONCLUSIONS
1. Environmental Conservation Law Section 25-0401 provides, in pertinent part, that after completion of the tidal wetland inventory (the tidal wetland maps) "... no person may conduct any of the activities set forth in subdivision 2 of this section unless he has obtained a permit from the commissioner to do so." The regulated activities identified in ECL subdivision 25-0401.2 include "... any form of dumping, filling, or depositing ... of any stones, sand, gravel, mud, rubbish: or fill of any kind; the erection of any structures or roads, the driving of any pilings or placing of any other obstructions, whether or not changing the ebb and flow of the tide, and any other activity within or immediately adjacent to inventoried wetlands which may substantially impair or alter the natural condition of the tidal wetland area."
2. ECL Section 25-0103 defines tidal wetlands as "those areas which border on or lie beneath tidal waters, such as, but not limited to, banks, bogs, salt marsh, swamps, meadows, flats or other low lands subject to tidal action, including those areas now or formerly connected to tidal waters;" and lists plant species which grow in tidal wetlands, including salt hay (Spartina patens) and low marsh cordgrass (Spartina alterniflora).
3. 6 NYCRR Subdivision 661.4(b) defines the adjacent area of tidal wetlands. In the present case, there is no indication of any structures or topographic features in the area south of the marina which would modify the 150 foot width of the adjacent area applicable within the City of New York. Thus, the landward boundary of the adjacent area would be 150 feet landward of the most landward tidal wetland boundary.
4. 6 NYCRR Subdivision 661.5(b) lists various uses of tidal wetlands and designates whether a permit is required for such uses. Construction of bulkheads (Item No. 29) is an activity which requires a permit if done in any type of tidal wetland or in the adjacent area. It is presumptively incompatible with intertidal marshes and high marshes and generally compatible, although a permit is still necessary, in shoals and mudflats. Filling (Item No. 30) also requires a permit if done in any type of wetland or in the adjacent area. Filling is presumptively incompatible with shoals and mudflats, intertidal marsh, and high marsh. Filling is generally compatible with the adjacent area, although a permit is required.
5. The Respondent violated ECL Article 25 and 6 NYCRR Part 661 by constructing a bulkhead in a tidal wetland in 1984 and by filling in the tidal wetland behind the bulkhead, without a permit for these activities. The Respondent admitted responsibility for these activities, by his statement to ECO Burke as described in Finding No. 4. There was a further violation at some time between November 19, 1984 and August 23, 1988 in that additional fill was placed behind the bulkhead. It can be concluded that the Respondent was responsible for the second violation as well, since it is a continuation of his earlier activity, since it was carried out at his marina, and since it is unlikely that it would have been done other than at his direction.
6. ECL Section 15-0505 provides, in pertinent part, that: "No person ... shall excavate *381 or place fill below the mean high water level in any of the navigable waters of the state, or in marshes, estuaries, tidal marshes and wetlands that are adjacent to and contiguous at any point to any of the navigable waters of the state and that are inundated at mean high water level or tide without a permit issued pursuant to subdivision 3 of this section." 6 NYCRR Section 608.4(a) contains a similar provision.
7. The Respondent violated ECL Article 15-0505 and 6 NYCRR. Section 608.4(a) by placing fill behind the bulkhead, on a mudflat below the mean high water level and on the adjacent marsh, some time shortly before November 19, 1984. The Respondent further violated CL Article 15-0505 by placing or causing the placement of additional fill at this location at some time between November 19, 1984 and August 23, 1988.
8. The placement of fill at the area south of the marina, as observed on November 15, 1988, was in violation of ECL Article 25 and 6 NYCRR Part 661 regardless of whether tidal wetlands conditions actually existed at the filled area immediately prior to placement of the fill. The filled area was at least within the adjacent area of a tidal wetland, by being 11 feet from the landward edge of high marsh vegetation. The filled area is also depicted as tidal wetland on the current tidal wetlands map. The Respondent was under an obligation to obtain a tidal wetlands permit and/or to request an amendment of the tidal wetlands map before placing the fill.
9. The filled area south of the marina is only accessible by going past the marina. It is unlikely that numerous truckload of fill would have been brought in and graded without the Respondent's knowledge and permission or, for that matter, without the Respondent having paid for or otherwise obtained the fill. In addition, the Respondent was using the filled area for boat storage in December of 1988. It can be concluded that the Respondent is responsible for placement of this fill as well.
10. It was not shown that the filled area was below the mean high water level in late 1980 at the time when the fill would have been placed. Thus, it cannot be concluded that this filling was in violation of ECL Article 15.
11. With respect to violations of ECL Article 25, ECL Section 71-2503 authorizes the Commissioner "to direct the violator to cease his violation of the act and to restore the affected tidal wetland or area immediately adjacent thereto to its condition prior to the violation, insofar as that is possible within a reasonable time and under the supervision of the commissioner."
12. The Department proposed that the Respondent be required to remove the bulkhead and the fill and to relocate the bulkhead to a location at or above the former mean high water line and to restore any marsh vegetation that might have been covered by the fill. Prior to the 1984 violation, this area was shoals and mudflats, with some amount of intertidal or high marsh as indicated by the marsh grass observed by ECO Burke. The values of this wetland, in terms of fish and wildlife use or hydrological values, are not in the record. The wetland had already been covered with fill at the time of ECO Burke's inspection, and its condition prior to the violation could no longer be observed. The filled area, as it presently exists, provides none of the values which are attributed to tidal wetlands generally. In order to restore the wetland, and for it to have any value as a wetland, the bulkhead and fill would need to be removed. The environmental effects, if any, of the temporary disturbance caused by removing the bulkhead and the fill were not an issue in the hearing and were not evaluated.
13. Although the Respondent applied for a permit for a bulkhead, which may or may not correspond with the work which had already been carried out, no permit was issued. The work which was done involved placing fill in a tidal wetland, an activity presumptively incompatible with shoals/mudflats, intertidal marsh and high marsh. The record provides no indication of any need for placing the bulkhead and the fill in the wetland. On the basis of this record, it appears unlikely that the bulkhead and the fill behind it would have been permitted at the location where the Respondent placed them.
*382 14. With respect to the second filled area, south of the marina, the condition of this area at the time immediately prior the violation which occurred in 1988 is uncertain. It was not proved that this area had been intertidal marsh or high marsh at the time of the violation, and it may instead have been adjacent area. This area would need to be restored by removing the fill and replanting the filled area with adjacent area and/or marsh plants as appropriate in order to restore its prior condition.
16. ECL Section 71-2503, as it read at the time of the violations and at the time of the hearing, provided that any person who violates any provision of ECL Article 25 shall be liable for a civil penalty of not to exceed $3,000 for every such violation. ECL Section 71-1107 provides for a civil penalty of not more than $5,000 for a violation of ECL Section 15-0505. ECL Section 71-1107 and former Section 71-2503 do not provide for each day's continuance of the violation to be treated as a separate violation.
RECOMMENDATIONS
The above violations took place in 1984 through 1988, prior to the January 1, 1990 effective date of the 1989 amendments to ECL Section 71-2503 (Laws of 1989, Chapter 666), which changed certain provisions regarding penalties for tidal wetlands violations. The violations and the hearing on them also took place prior to the issuance of the Department's Tidal Wetlands Enforcement Guidance Memorandum, which was issued on February 9, 1990. The penalty recommendations of this Hearing Report reflect the penalties found in Orders issued for tidal wetlands violations in the late 1980's, prior to the amendments and the new enforcement guidance.
In view of the Findings and Conclusions of this Hearing Report, it is recommended that:
1. The Respondent be required to remove the bulkhead and the fill placed in 1984 and at the unknown subsequent date, and to restore the wetland in accordance with more specific directions and a timetable to be provided by the Department Staff.
2. The Respondent be required to remove the fill which was placed in the 100 by 100 foot area south of the marina in late 1988, to restore this area to its condition prior to the violation in accordance with a restoration plan approved by the Department Staff, and to submit a restoration plan acceptable to the Department Staff, such plan to be submitted within 30 days of the service of a conformed copy of the Order upon the Respondent.
3. The Respondent be assessed a civil penalty in the amount of $10,500 (ten thousand five hundred dollars), calculated as follows: $2,500 for the initial construction of the bulkhead and backfilling, $5,000 for the placement of additional fill after having been informed that this activity was in violation of the Environmental Conservation Law, and $3,000 for placement of the fill south of the marina in 1988. Of this $10,500 penalty, $5,000 would be payable within 30 days following service of a conformed copy of the order upon the Respondent, and $5,500 would be suspended conditioned on satisfactory completion of the remedial work described in Recommendations 1 and 2 above, to become payable if the remedial work were not satisfactorily completed by the required dates.
*383
*384
_________________________________________________________________
| FILE # 93085154 - SCHMITTS MARINA |
| BROAD CHANNEL ISLAND, QUEENS,N.Y. |
| CPI INDEXING OF VALUES AND RENTALS |
|________________________________________________________________|
_________________________________________________________________
| YEAR | INDEX | FACTOR | VALUE | RATE | RENTAL |
| | | | | | |
| 6/1/68 | 35.9 | 0.305 | $362,048 | 8.0% | $28,964 |
| 6/1/69 | 38.3 | 0.325 | 386,251 | 9.0% | 34,763 |
| 6/1/70 | 41.2 | 0.350 | 415,497 | 10.0% | 41,550 |
| 6/1/71 | 43.6 | 0.370 | 439,701 | 10.0% | 43,970 |
| 6/1/72 | 45.3 | 0.385 | 456,846 | 9.0% | 41,116 |
| 6/1/73 | 48.1 | 0.408 | 485,083 | 9.0% | 43,657 |
| 6/1/74 | 53.2 | 0.452 | 536,516 | 10.0% | 53,652 |
| 6/1/75 | 57.1 | 0.485 | 575,847 | 10.5% | 60,464 |
| 6/1/76 | 60.9 | 0.517 | 614,170 | 10.0% | 61,417 |
| 6/1/77 | 64.4 | 0.547 | 649,467 | 10.0% | 64,947 |
| 6/1/78 | 68.0 | 0.577 | 685,772 | 10.0% | 68,577 |
| 6/1/79 | 73.5 | 0.624 | 741,239 | 11.0% | 81,536 |
| 6/1/80 | 82.1 | 0.697 | 827,969 | 13.0% | 107,636 |
| 6/1/81 | 89.5 | 0.760 | 902,598 | 14.0% | 126,364 |
| 6/1/82 | 95.7 | 0.812 | 965,124 | 14.0% | 135,117 |
| 6/1/83 | 99.7 | 0.846 | 1,005,483 | 14.0% | 140,765 |
| 6/1/84 | 104.3 | 0.885 | 1,051,854 | 14.0% | 147,260 |
| 6/1/85 | 108.3 | 0.919 | 1,092,194 | 13.0% | 141,985 |
| 6/1/86 | 111.7 | 0.948 | 1,126,482 | 11.0% | 123,913 |
| 6/1/87 | 117.8 | 1.000 | 1,188,000 | 11.5% | 136,620 |
| 6/1/88 | | | 1,336,500 | 11.5% | 153,698 |
| 6/1/89 | | | 1,485,000 | 11.5% | 170,775 |
| 6/1/90 | | | 1,485,000 | 11.5% | 170,775 |
| 6/1/91 | | | 1,069,200 | 11.5% | 122,958 |
| 6/1/92 | | | 950,400 | 11.5% | 109,296 |
| 6/1/93 | | | 950,400 | 11.5% | 109,296 |
| 6/1/94 | | | 1,098,900 | 11.5% | 126,374 |
| 6/1/95 | | | 1,098,900 | 11.5% | 126,374 |
| 6/1/96 | | | 1,098,900 | 11.5% | 126,374 |
|__________|________|_________|____________|_________|___________|
____________________________________________
| TOTAL $2,900,190 |
--------------------------------------------
NOTES
[1] Plaintiff's Exhibits are referred to as "Pl.Ex.," Defendant Schmitt Exhibits are referred to as "Def.Ex." and Third-Party Defendant City of New York Exhibits are referred to as "City Ex.".
[2] Tr. refers to the pages in the trial transcript.
[3] PI Tr. means transcript of the preliminary injunction hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267163/ | 174 Cal. App. 4th 464 (2009)
___ Cal.Rptr.3d ___
RITO GARCIA et al., Plaintiffs,
v.
PAULINA SANTANA et al., Defendants;
SHARON GREEN, Intervener and Respondent;
CUAUHTEMOC LOPEZ et al., Interveners and Appellants.
No. B206513.
Court of Appeals of California, Second District, Division Seven.
May 28, 2009.
*467 Adams Kessler and Mark A. O'Brien for Interveners and Appellants.
Bahar Law Office and Sarvenaz Bahar for Intervener and Respondent.
OPINION
ZELON, J.
Appellants seek review of the trial court's determination to award no attorney's fees against the respondent, who is indigent and became self-represented during this litigation. Acknowledging that they might be unable to collect any amount of such fees awarded, they nonetheless concede that they do not wish tenants who have disputes "to think that they're free to file or defend litigation without risk of exposure to a fee award." Using fee awards as an instrument to deny access to the courts is neither the policy of the State of California, nor the purpose of the statute in question. Indeed, California Rules of Court, rule 10.960, subdivision (b), adopted effective July 1, 2008 states: "Providing access to justice for self-represented litigants is a priority for California courts." We remand to the trial court for reconsideration of the amount of fees consistent with these principles.
*468 FACTUAL AND PROCEDURAL BACKGROUND
Sharon Green was a member and tenant of Amar Plaza,[1] a housing cooperative for low-income tenants. She had lived there, with the assistance of a federal housing subsidy, for approximately 31 years until she was evicted in January 2007.
In February 2005, other tenants of the complex filed suit against the complex and its managers and directors; those pleadings are not at issue here. Green initially sought to intervene in that litigation in October 2006. In April 2007, she filed her first amended complaint in intervention, alleging violations of the Corporations Code and the bylaws of Amar Plaza in the management and operation of the complex. Although she was represented by counsel at that time, her counsel withdrew on July 7, 2007, and she thereafter acted as a self-represented litigant. The Amar Plaza parties have not provided this court with a record sufficient to determine the disposition of the claims raised by the other parties, although they suggest those claims were voluntarily dismissed; we cannot determine the outcome of any portion of the litigation other than Green's claims, or determine whether the merits of the matter in which she intervened were ever determined.
Twenty days after her counsel withdrew, Green was served with the Amar Plaza parties' motion for summary judgment. She did not respond; the trial court granted the unopposed motion on November 5, and entered judgment on November 7, 2007. We have not been asked to review that judgment.[2]
Following the entry of judgment, the Amar Plaza parties moved for attorney's fees of $48,328 pursuant to Civil Code section 1354, subdivision (c). After several briefs were filed by the parties, and after Green filed various documents to support her claim of indigency, including a copy of the waiver of court fees and costs under Government Code section 68511.3, the court awarded no attorney's fees in light of Green's financial condition on March 4, 2008. The Amar Plaza parties timely appealed.
STANDARD OF REVIEW
The issue of a party's entitlement to attorney's fees is a legal issue which we review de novo. (Connerly v. State Personnel Bd. (2006) 37 Cal. 4th 1169, *469 1175-1176 [39 Cal. Rptr. 3d 788, 129 P.3d 1]; Leamon v. Krajkiewcz (2003) 107 Cal. App. 4th 424, 431 [132 Cal. Rptr. 2d 362]; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal. App. 4th 132, 142 [118 Cal. Rptr. 2d 569].) However, the determination of the amount of fees to be awarded is reviewed for abuse of discretion. (See, e.g., MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal. App. 4th 1372, 1397 [23 Cal. Rptr. 3d 622]; Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal. App. 4th 664, 669 [17 Cal. Rptr. 3d 427].)
The trial court in this matter acknowledged the right, under the governing statute, for the prevailing parties to recover their attorney's fees. We review that determination de novo. Having done so, it was then obligated to determine the amount of fees to be awarded. It is that determination that is, at base, at issue in this appeal. We will disturb the trial court's exercise of discretion in the determination of a reasonable attorney's fee "only where there has been a manifest abuse of discretion." (Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal. App. 3d 215, 228 [168 Cal. Rptr. 525]; see also Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550, 1556-1557 [47 Cal. Rptr. 3d 206].)
DISCUSSION
The Governing Statute Supports an Award of Attorney's Fees
Green, in her complaint in intervention, sued Amar Plaza as a common interest development, subject to the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.), on claims arising from its bylaws. Civil Code section 1354, subdivision (c) provides: "In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs." The Amar Plaza parties assert that the action is properly deemed one to enforce the governing documents, and thus that the trial court was required to award reasonable fees to the prevailing parties.
Green does not dispute that the Amar Plaza parties were entitled to seek an award of fees pursuant to the statute, and, for purposes of this appeal, establishes no basis to disturb that determination by the court below. Nor does any party dispute the court's analysis of the amount of fees claimed. We find no legal error in either determination. The issue before this court arises, instead, from the determination that the reasonable amount of fees in this case, considering all of the circumstances, was properly zero, based only on Green's financial condition. We turn to that determination now.
*470 The Trial Court Did Not Abuse Its Discretion in Considering Green's Financial Condition in Setting the Amount of Attorney's Fees
The Amar Plaza parties assert that their entitlement to legal fees, as reflected in the statute, prohibits the trial court from considering Green's financial condition, as the losing party, in determining the amount of fees to be awarded. Urging that to hold otherwise would impose in this and future cases burdensome discovery obligations on the parties, would result in extra proceedings in the courts, would encourage "poor or insolvent parties to pursue protracted, pointless litigation" and would cause confusion because of a lack of guidance in the case law, they urge this court to rule that the trial court cannot properly consider the impact of a fee award on the litigant against who it is made except as follows: "While Appellants recognize that they may have trouble collecting any fees from Green, Green's financial condition could change in the future, whether from hard work or good luck. Moreover, since Amar Plaza has many other tenants who sometimes have legal or corporate disputes with it, Amar Plaza does not want those tenants to think that they're free to file or defend litigation without risk of exposure to a fee award."[3]
(1) The Amar Plaza parties, however, point to nothing in the statute, or its history, indicating that the Legislature intended to create additional barriers to access to the courts for indigent persons in California, whether they reside in federally subsidized housing or not. None of the cases on which they rely either address the policy underlying the fee shifting provision, or consider whether the financial status of the party to be assessed fees is fairly considered in determining a reasonable award.[4] Nor do they address the long-standing precedents in this state creating an unbroken line of authority that the legal processes followed in the courtrooms of California are not to be applied in a way that denies access to those courts because of a litigant's financial status.
*471 Californians Have the Right to Access the Courts
To trace the origins of California's commitment to access to justice for all Californians, without respect to income, we begin with the right to proceed in forma pauperis, as Green did in this case. In 1917, the Supreme Court, in Martin v. Superior Court (1917) 176 Cal. 289 [168 P. 135], held that the courts have the inherent authority to allow indigent parties, on a proper showing, to proceed without payment of court fees and costs, despite the absence of specific legislative authorization to do so. Looking to the common law, the court found the inherent power to remit fees: "And this one would naturally expect to find since, imperfect as was the ancient common-law system, harsh as it was in many of its methods and measures, it would strike one with surprise to be credibly informed that the common-law courts of England shut their doors upon all poor suitors who could not pay fees, until parliament came to their relief. Even greater would be the reproach to the system of jurisprudence of the state of California if it could truly be declared that in this twentieth century, by its codes and statutes, it had said the same thing. . . ." (Id. at p. 294.)
Our Supreme Court returned to this issue in Isrin v. Superior Court (1965) 63 Cal. 2d 153 [45 Cal. Rptr. 320, 403 P.2d 728], where the court faced the issue of whether a plaintiff, who otherwise qualified for in forma pauperis relief, could nonetheless be denied such relief because she was represented by counsel acting under a contingent fee contract. The court held that the right to proceed may not be denied under those circumstances, in part because the indigent should not be limited to choosing only from among counsel who would agree to subsidize those costs. (Isrin v. Superior Court, supra, at p. 165.) Moreover, a rule denying such relief would improperly restrict the cases that would come to court. While cases in which liability, or the lack of liability, is apparent would not be affected by such a rule, it is precisely those cases where it is not clear that liability lies, or that merit is totally absent, where the law often is developed. Whether those cases should be brought should not depend on the payment of court costs: "The natural consequence of the . . . rule is that the indigent with an uncertain claim may go without counsel and, being a layman, may simply fail to assert what rights he has. To the extent that [the rule] has the practical effect of restricting an indigent's access to the courts because of his poverty, it contravenes the fundamental notions of equality and fairness which since the earliest days of the common law have found expression in the right to proceed in forma pauperis. (See Martin v. Superior Court (1917) supra, 176 Cal. 289, 293-297.)" (Isrin v. Superior Court, supra, 63 Cal.2d at p. 165.)
These fundamental principles of fairness and access extend to issues other than the right to proceed in forma pauperis. In Baltayan v. Estate of Getemyan *472 (2001) 90 Cal. App. 4th 1427 [110 Cal. Rptr. 2d 72], the court considered whether the indigency of the plaintiff should be considered in determining the amount of the undertaking required by Code of Civil Procedure section 1030, which requires an undertaking by an out-of-state plaintiff where defendant has shown the reasonable possibility of a successful defense. Holding that the failure to consider the financial status of the plaintiff, which resulted in the dismissal of the case because of his failure to post the required undertaking, was an abuse of discretion, the court explained, "dismissal of appellant's case resulted in a manifest miscarriage of justice. It effectively precluded appellant from litigating his claims simply because he is indigent and respondents proved a reasonable possibility of success." (90 Cal.App.4th at p. 1435.) In the court's view, a showing that a case may be without merit was insufficient to bar access on financial grounds, even in the context of a statutory scheme designed to protect California defendants from the costs of lawsuits without demonstrable merit.
(2) Justice Johnson's concurring opinion in Baltayan traced the historical antecedents of the right to proceed in forma pauperis, and the rights of the indigent to access to California courts before and after the Supreme Court's decision in Martin. Noting that the Statutes of Henry VII and Henry VIII were incorporated into California law, the opinion noted that those statutes provided not only for waiver of pretrial fees and costs, but also for relief from automatic payment of the costs of the opponent should the indigent litigant lose. (Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at pp. 1437-1438.) The consequences of such a loss, instead, were left to the discretion of the courts. (Id. at p. 1447.) The compelling lesson drawn should not be forgotten in the case at hand: "In ruling indigents are entitled to waiver of security for costs, both England and California are saying one party's economic interest in receiving its costs of litigation should it win cannot be used to deny an indigent party his fundamental right of access to the courts. In other words, access trumps comfort." (Id. at p. 1442, fn. omitted; see Alshafie v. Lallande (2009) 171 Cal. App. 4th 421 [89 Cal. Rptr. 3d 788] [hearing on financial condition required to determine if out-of-state plaintiff must post bond; citing concurring opinion].)
This court recently confirmed the guiding principle that litigation costs are not intended to be used as a tool to deny access to the courts, nor to deter persons from asserting their rights at the cost of their ability to provide for the necessities of life. In Cruz v. Superior Court (2004) 120 Cal. App. 4th 175 [14 Cal. Rptr. 3d 917], we held that a hearing was required in the event of an evidentiary conflict concerning eligibility for in forma pauperis relief. The fact that a litigant had some limited resources was insufficient to deny such a person the right to proceed, an entitlement grounded "in a common law right of access to the courts and constitutional principles of due process. (Earls v. *473 Superior Court (1971) 6 Cal. 3d 109, 113-114 [98 Cal. Rptr. 302, 490 P.2d 814].)" (Cruz v. Superior Court, supra, at p. 185.)
An argument similar to the Amar Plaza parties' assertion that consideration of financial status would lead to a failure to discourage the indigent from filing claims of limited, or no merit, was asserted on behalf of imposing discovery referee fees on indigent parties as a means of discouraging abuse of the discovery rules. The court rejected that assertion squarely in Solorzano v. Superior Court (1993) 18 Cal. App. 4th 603, 616-617 [22 Cal. Rptr. 2d 401]. There, instead, trial courts were directed to consider whether any allocation of fees could be fair and reasonable under the circumstances.[5]
At base, the Amar Plaza parties' arguments founder on the shoals of these cases, and the principles of access to justice. In exercising its discretion to consider financial condition, the trial court properly declined to abandon these principles.[6]
The Statute Requires the Fee to Be Reasonable
The Amar Plaza parties asserted in the trial court that their fees were properly determined by determining the number of hours of legal services provided, and multiplying that number by a reasonable hourly rate. In urging that the analysis both began and ended with that calculation, however, they ascribed no meaning to the statute's inclusion of the requirement that the fee be reasonable. That requirement is, however, meaningful.
(3) As a matter of statutory interpretation, we must give meaning to all of the statute's terms. We begin with the fundamental principle that "[t]he objective of statutory construction is to determine the intent of the enacting body so that the law may receive the interpretation that best effectuates that intent. [Citation.]" (Fitch v. Select Products Co. (2005) 36 Cal. 4th 812, 818 *474 [31 Cal. Rptr. 3d 591, 115 P.3d 1233].) To ascertain that intent, "we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.]" (Nolan v. City of Anaheim (2004) 33 Cal. 4th 335, 340 [14 Cal. Rptr. 3d 857, 92 P.3d 350].) The statute's every word and clause should be given effect so that no part or provision is rendered meaningless or inoperative. (Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal. 4th 257, 274 [41 Cal. Rptr. 2d 220, 895 P.2d 56]; DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal. 4th 382, 388 [20 Cal. Rptr. 2d 523, 853 P.2d 978].) Whenever possible, no part should be rendered "`useless or deprived of meaning.'" (Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal. 3d 458, 478 [156 Cal. Rptr. 14, 595 P.2d 592].)
Reading the language of the statute to include all of its terms, we must ascribe meaning to the word reasonable. We do so in the context of "`the whole system of law of which it is a part so that all may be harmonized and have effect. [Citations.]'" (Landrum v. Superior Court (1981) 30 Cal. 3d 1, 14 [177 Cal. Rptr. 325, 634 P.2d 352].)
(4) In PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084 [95 Cal. Rptr. 2d 198, 997 P.2d 511], the Supreme Court addressed the method of determining a reasonable fee as follows: "`After the trial court has performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the [Civil Code] section 1717 award so that it is a reasonable figure.'" (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at pp. 1095-1096, quoting Sternwest Corp. v. Ash (1986) 183 Cal. App. 3d 74, 77 [227 Cal. Rptr. 804].) That determination is made "`after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.'" (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096, quoting Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 623-624 [134 Cal. Rptr. 602].)
While PLCM involved contractual attorney's fees, the use of its lodestar method in determining statutory fees was expressly approved by the Supreme Court in Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1134-1136 [104 Cal. Rptr. 2d 377, 17 P.3d 735]. In that case, involving the mandatory fee provision of Code of Civil Procedure section 425.16, the court reviewed the broad range of statutory fee cases in which the use of the lodestar had been approved, and concluded that the Legislature appeared to have endorsed the method generally, except in the limited instances in which it expressly limited the method. Finding no limitation in section 425.16, the court approved its *475 use; here too, the Legislature used no language indicating a restriction on the method of calculating the fee other than it be reasonable.[7]
(5) Green's argument that the trial court, in setting a reasonable fee, properly considered her financial condition as one of the circumstances of the case, relies on cases that recognized an award of attorney's fees should not impose an unreasonable financial burden on the losing party. Green relied below on Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal. App. 4th 859 [110 Cal. Rptr. 2d 903] (Rosenman), for the principle that attorney's fees should not result in "financial ruin." That case, brought under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) involved an award of attorney's fees to a prevailing defendant. Under the FEHA, the court has the discretion to award reasonable attorney's fees and costs to the prevailing party. (Gov. Code, § 12965, subd. (b).) In Rosenman, following federal employment discrimination law, this court limited recovery to a prevailing defendant to a case where the plaintiff's action was "frivolous, unreasonable, or groundless" to avoid discouraging litigants with meritorious claims from enforcing antidiscrimination laws. (Rosenman, supra, 91 Cal.App.4th at pp. 868-869.) Even in such a case, however, the court required consideration of the financial status of the party subject to the award: "The trial court should also make findings as to the plaintiff's ability to pay attorney fees, and how large the award should be in light of the plaintiff's financial situation. As the Ninth Circuit Court of Appeals held in Patton v. County of Kings (9th Cir. 1988) 857 F.2d 1379, 1382, the trial court `should consider the financial resources of the plaintiff in determining the amount of attorney's fees to award to a prevailing defendant.' We wholeheartedly agree with the Ninth Circuit's holding an award of attorney fees `"should not subject the plaintiff to financial ruin.'" (Ibid.)" (Rosenman, supra, at p. 868, fn. 42.)
(6) The Amar Plaza parties correctly assert that the relevant Civil Code provision, unlike the FEHA and civil rights cases, calls for the assessment of fees on the losing party whether plaintiff or defendant. Unlike FEHA cases, defendants need not show that the case was frivolous to recover fees, and there is no incentive in the statute here, as there is in those cases, to encourage plaintiffs to assert their rights. The Amar Plaza parties are also correct that those cases provide the established authority for consideration of the financial status of the losing plaintiff in setting fees even where the case is determined to be frivolous, a determination this court is unable to make in this case. Nonetheless, they point to nothing in the Civil Code that indicates a legislative determination that parties should be punished for bringing unsuccessful cases, when the threat of an award of fees untethered to any *476 consideration of ability to pay would mean the denial of meaningful access. We find no such directive in the statute sufficient to overcome the fundamental rights of access to our courts: "Access to the courts is indeed a right guaranteed to all persons by the federal and state Constitutions. It is regarded as arising from the First Amendment right to petition the government for redress of grievances [citations], a right also protected by article I, section 3 of the California Constitution. (See also Cal. Const., art. I, § 16 [inviolate right to jury trial].) Numerous cases, in a variety of contexts, may be cited for the obvious importance of this right to our system of government and, indeed, to the very fabric of our society. [Citations.]" (Jersey v. John Muir Medical Center (2002) 97 Cal. App. 4th 814, 821 [118 Cal. Rptr. 2d 807].)
To the contrary, the arc of our cases demonstrates the strength of our commitment that financial disabilities should not bar access for litigants, nor unduly discourage them from seeking available remedies. For example, in In re Marriage of Norton (1988) 206 Cal. App. 3d 53 [253 Cal. Rptr. 354], the trial court awarded attorney's fees as a sanction for bringing a frivolous claim in a marital proceeding. The court affirmed the trial court's action, which took into consideration the financial status of the party being sanctioned: "Even though the award of attorney fees in this action is in the nature of a sanction, the court should not impose an unreasonable financial burden upon the sanctioned party." (Id. at p. 59.)
So too, in other contexts. Code of Civil Procedure section 998 provides for the shifting of certain costs and fees in order to encourage settlement of litigation. To do so effectively, it must, by definition, impose economic consequences on a party which fails to evaluate its case appropriately in light of a meaningful settlement offer. Even in that situation, however, the trial court must consider the economic circumstances of the unsuccessful party in determining the award because "If the goal of Code of Civil Procedure section 998 is to encourage fair and reasonable settlementsand not settlements at any costtrial courts in exercising their discretion must ensure the incentives to settle are balanced between the two parties. Otherwise less affluent parties will be pressured into accepting unreasonable offers just to avoid the risk of a financial penalty they can't afford. Thus, when two competing parties possess vastly disparate economic resources, this may require the trial courts to `scale' the financial incentives (in this instance the section 998 cost awards) to the parties' respective resources." (Seever v. Copley Press, Inc. (2006) 141 Cal. App. 4th 1550, 1561-1562 [47 Cal. Rptr. 3d 206].)
(7) In determining the amount of fees to be awarded to the prevailing party where the statute, as here, requires that the fee be reasonable, the trial court must therefore consider the other circumstances in the case in performing the lodestar analysis. Those other circumstances will include, as appropriate, the financial circumstances of the losing party and the impact of the *477 award on that party. (8) Here, the trial court did consider those financial circumstances, but did not clearly consider all of the other circumstances in setting the amount of fees. As a result, we are unable to determine whether the court exercised its discretion to balance all of the relevant factors against each other, or whether the determination that the amount to be assessed was zero was the result of such a balance. Because a trial court's failure to exercise discretion is "itself an abuse of discretion" (In re Marriage of Gray (2007) 155 Cal. App. 4th 504, 515 [66 Cal. Rptr. 3d 87]), we will remand for the court to do so.
(9) In exercising that discretion, the trial court, having heard the matter and reviewed Green's showing as to the effect of a fee award on her ability to carry on with the requirements of daily life, may properly determine that no allocation of fees can be made within the fair exercise of its authority. That will not be the result in every case, may not be the case here, and may not often be the case. But, in the proper case, the trial court does have the discretion to determine that the award that is reasonable is zero.
Moreover, the fact that a litigant was able, for a short period of time, to be represented by counsel before she was required to become self-represented, cannot be asserted as the basis to justify denial of her access to the courts by making a fee award that she is unable to pay without financial ruin. It cannot be the law of this state, in this century, that additional financial burdens, burdens beyond the capacity of the parties to bear in the face of demonstrated indigency, are placed to provide extra deterrence to those parties against pursuing their rights in our courts. That has not been so since at least 1917; it is not consistent with our Rules of Court; the Legislature did not require it. Nor will we.
DISPOSITION
The award of attorney's fees is reversed and the matter is remanded for further proceedings consistent with this opinion. Each party is to bear its own costs on appeal.
Woods, Acting P. J., concurred.
WOODS, Acting P. J., Concurring,
I respectfully concur in the judgment.
It appears to this concurring justice that whether one adopts the majority view articulated in the majority opinion or the view expressed by the dissent, the ultimate destination point is the same. A reversal is required. I explain with more specificity hereafter.
*478 The core issue in this appeal is whether the trial court properly exercised its discretion in ruling that the prevailing party on the merits was to receive "zero" dollars in attorneys' fees, a ruling which is tantamount to refusing to award any attorneys' fees in my opinion. That determination was apparently made on the basis respondent was currently an in propria persona indigent and unable financially to pay any award of attorneys' fees at the time the award was determined.
As the dissent observes, however, Civil Code section 1354, subdivision (c) appears to be at loggerheads with that ruling in that the Legislature has provided that upon prevailing, an award of attorneys' fees shall be made. I agree with the dissent in maintaining that the use of the word shall in a statute generally indicates a mandatory application as stated by our high court in People v. Allen (2007) 42 Cal. 4th 91, 102 [64 Cal. Rptr. 3d 124, 164 P.3d 557].
The majority, however, opines that the record made by the trial court does not lend itself to a definitive answer of whether or not the court properly exercised its required discretion in making the award because, apparently, the only factor considered by the trial court was the financial condition of the respondent at the time the award was made. Other factors, says the majority, should include application of the well litigated and settled concept commonly called the lode star method, but adjusted for consideration of other factors depending on the facts presented in a particular case. I agree that financial condition is one such other factor to be considered by the trial court in considering an award of attorneys' fees.
It is clear to this concurring justice that the trial court erred in arriving at a zero determination in fixing attorneys' fees, which is tantamount to refusing to award attorneys' fees, in my opinion. The matter should be reversed and remanded to the trial court for it to reconsider awarding attorneys' fees as is mandated by Civil Code section 1354, subdivision (c) and in exercising its discretion as to the amount to make manifest what factors it is utilizing in making the award.
I also write separately to express some discomfort with the separate concurring opinion of Justice Johnson in Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427 [110 Cal. Rptr. 2d 72] on which the majority in this case places extensive reliance. Justice Johnson opined in a scholarly manner that an out-of-state indigent defendant cannot be required to post a bond before accessing and defending a law suit in the State of California. Initially, I note that the facts in Baltayan are clearly distinguishable from the instant case, raising a question of the precedential value of Baltayan to this case. Secondly, Justice Johnson sums up his concurring opinion by stating "In other words, access, trumps comfort."
*479 In spite of the lofty and appealing principle sought to be illuminated by Justice Johnson, the words are unsettling to this concurring justice. By implication, the scales of justice must always tip in favor of access. I do not find that to always be the case. One example comes immediately to mind pertaining to vexatious litigants. In applying the vexatious litigant statute, access to the courts is curtailed, and indeed precluded in some instances, by requiring prior court ordered permission to access the courts by an offending party. (Code Civ. Proc., § 391 et seq.) I find the bright-line concept of Justice Johnson's concurrence to be noble and high minded but too broad to be of utility in all cases.
I respectfully concur in the judgment for the reasons stated.
JACKSON, J., Concurring and Dissenting.
While I concur in the majority's holding that the attorney's fees award must be reversed, I respectfully dissent as to the rationale. In my view, the trial court abused its discretion in awarding no attorney's fees based solely on Green's indigency, and it should not consider Green's indigency in making its award.
Civil Code section 1354, subdivision (c) (section 1354(c)), provides that "[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs." It is this statute which governs our review of the trial court's award of no attorney's fees.
In the construction of statutes, our primary goal is to ascertain and give effect to the intent of the Legislature. (Code Civ. Proc., § 1859; Troppman v. Valverde (2007) 40 Cal. 4th 1121, 1135 [57 Cal. Rptr. 3d 306, 156 P.3d 328].) Our role "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." (Code Civ. Proc., § 1858; see California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal. 4th 342, 349 [45 Cal. Rptr. 2d 279, 902 P.2d 297].)
We look first to the language of the statute; if clear and unambiguous, we will give effect to its plain meaning. (Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007) 42 Cal. 4th 217, 227 [64 Cal. Rptr. 3d 407, 165 P.3d 133].) When construing the statute, we turn first to the words themselves, giving them their usual, ordinary meanings. (People v. Allegheny Casualty Co. (2007) 41 Cal. 4th 704, 708-709 [61 Cal. Rptr. 3d 689, 161 P.3d 198].) If possible, each word and phrase should be given significance. (People v. Mays (2007) 148 Cal. App. 4th 13, 29 [55 Cal. Rptr. 3d 356].) The words used "must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible." (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 *480 Cal.3d 836, 844 [157 Cal. Rptr. 676, 598 P.2d 836]; accord, Troppman v. Valverde, supra, 40 Cal.4th at p. 1135, fn. 10.)
The language of section 1354(c) is clear and unambiguous. It provides that "the prevailing party shall be awarded reasonable attorney's fees and costs." "Shall" is generally construed to mean "mandatory." (People v. Allen (2007) 42 Cal. 4th 91, 102 [64 Cal. Rptr. 3d 124, 164 P.3d 557].) Thus, the only interpretation of section 1354(c) which gives effect to each word in the section is that the section entitles the prevailing party to an award of reasonable attorney's fees and costs.
As the majority recognizes, the Supreme Court has stated that, in determining reasonable attorney's fees under Civil Code section 1717, subdivision (a), the court "ordinarily begins with the `lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. `California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.'" (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095 [95 Cal. Rptr. 2d 198, 997 P.2d 511].) The court may then adjust the lodestar figure based upon factors specific to the case before it, including "`the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.'" (Id. at pp. 1095-1096.) Nothing in the Supreme Court's opinion as to the calculation of a reasonable attorney's fees award, or in section 1354(c) itself, suggests that an award of attorney's fees may essentially be denied based solely on the losing party's indigence, or that the court is even to consider the losing party's indigence.
While the courts may have the inherent authority to permit indigent parties to litigate their cases without payment of court fees, this does not mean the courts have inherent authority to permit indigent parties to litigate their cases without payment of statutorily authorized attorney's fees and costs to the opposing party. It is one thing for the court to forego collection of its fees to allow indigent parties to litigate their cases. It is quite another to force parties to forego attorney's fees and costs to which they would otherwise be entitled to enable indigent parties to pursue litigation against them. Certainly, if the indigent parties prevailed in the litigation, they would insist upon being awarded attorney's fees and costs as the prevailing parties. Basic fairness demands that the opposing parties be able to recover their attorney's fees and costs as well. Previous decisions by this court cited by the majority do not compel a contrary conclusion.
Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427 [110 Cal. Rptr. 2d 72] involved a request for a waiver of the undertaking required of *481 an out-of-state plaintiff under certain conditions. We noted that "[w]here the plaintiff establishes indigency, a trial court has discretion to waive the posting of security under Code of Civil Procedure section 1030." (Baltayan, supra, at p. 1433.) Since the plaintiff in that case had been granted in forma pauperis status, we held that "the trial court acted arbitrarily and capriciously in refusing to either vacate or reduce the amount of the undertaking." (Id. at p. 1435.)
Thereafter, we noted that "dismissal of [the plaintiff's] case resulted in a manifest miscarriage of justice. It effectively precluded [him] from litigating his claims simply because he is indigent and [defendants] proved a reasonable possibility of success." (Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1435.)
Baltayan does not support the proposition that an indigent plaintiff, who was granted access to the courts but lost the case, is exempt from paying the damages to which the defendant is entitled, including, where applicable, attorney's fees and costs. In his concurring opinion, Justice Johnson noted that there is no basis for treating an out-of-state indigent plaintiff differently than a resident indigent plaintiff: "`In either instance the likelihood of a prevailing defendant collecting his costs is nil, because the plaintiff in each circumstance is a pauper.'" (Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1442.) The defendant is still entitled to his costs and attorney's fees upon prevailing, he just may be unable to collect them. The court merely exempts an indigent out-of-state plaintiff from paying them up front as security in order to litigate his case.
Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal. App. 4th 859 [110 Cal. Rptr. 2d 903] involved a discretionary award of attorney's fees awarded under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). We noted that, in making an award, "[t]he trial court should . . . make findings as to the plaintiff's ability to pay attorney fees, and how large the award should be in light of the plaintiff's financial situation." (91 Cal.App.4th at p. 868, fn. 42.) We expressed concern that "an award of attorney fees `"should not subject the plaintiff to financial ruin."'" (Id. at p. 869, fn. 42.) Because attorney's fees were discretionary in Rosenman, the decision does not support a conclusion that a plaintiff's indigence precludes an award of attorney's fees where such an award is mandated by statute.
Patton v. County of Kings (9th Cir. 1988) 857 F.2d 1379 similarly involved a discretionary attorney's fees award in a civil rights case. The court agreed that the trial court should consider the plaintiff's financial resources in awarding attorney's fees. It added, however, that "`a district court should not *482 refuse to award attorney's fees to a prevailing defendant . . . solely on the ground of the plaintiff's financial situation.'" (Id. at p. 1382.) That is exactly what occurred here.
If the Legislature had intended that an award of attorney's fees and costs under section 1354(c) be contingent upon a party's ability to pay in order to ensure access to the courts, it certainly had the ability to specify this to be the case in the statute. For example, Family Code section 2030, subdivision (a), provides: "(1) In a proceeding for dissolution of marriage . . . and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [¶] (2) Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward." That the Legislature did not use similar language in section 1354(c) suggests that it intended the award of attorney's fees and costs to be mandatory, and that it did not intend to exempt indigent plaintiffs from paying such an award.
I disagree with the majority's position that an award of attorney's fees in this case would constitute the denial of access to the courts or punishment for bringing an unsuccessful lawsuit. Plaintiff was not denied access to the court: she was permitted to file and pursue her litigation. She was not punished for bringing an unsuccessful lawsuit; the award of attorney's fees was not a sanction imposed at the discretion of the trial court (e.g., In re Marriage of Norton (1988) 206 Cal. App. 3d 53, 59 [253 Cal. Rptr. 354]). She was simply required to pay attorney's fees as a cost of bringing an unsuccessful lawsuit. This requirement is no different that requiring the losing party in a suit upon a contract containing an attorney's fees provision to pay such fees.
Requiring the losing party to pay reasonable attorney's fees and costs pursuant to statute is not a denial of access to the courts. Indigent litigants have access to the courts by way of fee waivers, not only to file their cases but also for other matters, including fee waivers for jury fees. I do not believe that enforcing a mandatory award of reasonable attorney's fees and costs will *483 have a chilling effect on litigation by indigent litigants. Moreover, I do not believe it is right to penalize a defendant who prevails in litigation into which he has been involuntarily thrust by preventing him from recovering what the Legislature has determined to be a just award.
Since the trial court failed to consider the relevant factors but arbitrarily awarded Amar Plaza no attorney's fees and costs based solely on Green's indigence, I would hold the award to be an abuse of discretion. (Ohton v. Board of Trustees of California State University (2007) 148 Cal. App. 4th 749, 766 [56 Cal. Rptr. 3d 111].) I would therefore reverse and direct the trial court to award Amar Plaza reasonable attorney's fees and costs, after considering the appropriate factorswhich do not include Green's indigencyas set forth in PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at pages 1095-1096.
NOTES
[1] Defendants named in the complaint in intervention were: Cuauhtemoc Lopez, Rosario Vigil, Amparo Sierra, Rampart Properties Inc., Frank Acevedo, and Javier Flores. They will be referred to for ease of reference as "the Amar Plaza parties."
[2] The Amar Plaza parties have not included in the record the motion for summary judgment. Although they assert that Green's claims were without merit, we are unable to make that determination based on the record before us. The party seeking to challenge an order on appeal has the burden to provide an adequate record. (Maria P. v. Riles (1987) 43 Cal. 3d 1281, 1295-1296 [240 Cal. Rptr. 872, 743 P.2d 932].)
[3] The Amar Plaza parties appear to believe that Green has funds and has abused her status as an indigent to obtain benefits in this matter: "No one has denied Green access to the courts. She apparently used her poverty to obtain waivers of the various filing and motion fees." They also complain that Green was able at one time to retain counsel and has been able to obtain counsel on appeal. Finally, the Amar Plaza parties appear to assert that Green's failure to obtain contingent counsel reflects the merits of her case; as discussed below, however, access to our courts is not based on whether contingent counsel is available to a party in a particular case.
[4] Chee v. Amanda Goldt Property Management (2006) 143 Cal. App. 4th 1360 [50 Cal. Rptr. 3d 40]; Parrott v. Mooring Townhomes Assn., Inc. (2003) 112 Cal. App. 4th 873 [6 Cal. Rptr. 3d 116]; Kaplan v. Fairway Oaks Homeowners Assn. (2002) 98 Cal. App. 4th 715 [120 Cal. Rptr. 2d 158].
[5] We note that, because the Amar Plaza parties failed to provide the record concerning the summary judgment motion (see fn. 2, ante), we cannot determine the basis on which that motion was granted. For example, we do not know whether the court relied on the failure of the self-represented litigant to file a separate statement of disputed material facts, or reached the merits of the matter. We thus cannot determine that Green's claims were without merit or the complaint-in-intervention was abusive in any manner.
[6] The fact that Green was self-represented for a majority of the proceedings in the case represents a growing trend in our courts, which the Supreme Court has urged us to be cognizant of in conducting our business and developing our rules and procedures. (See Elkins v. Superior Court (2007) 41 Cal. 4th 1337 [63 Cal. Rptr. 3d 483, 163 P.3d 160] [striking down rules limiting the presentation of evidence in family law matters as contrary to protections for a litigant's day in court].) Just as family law litigants "should not be subjected to second-class status or deprived of access to justice" (id. at p. 1368), self-represented litigants should also be assured of the protection of their rights to access the courts and present their claims.
[7] Code of Civil Procedure section 425.16, by contrast, contains no such restriction requiring only reasonable fees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267197/ | 999 F. Supp. 97 (1998)
Priscilla VILLINES, Plaintiff,
v.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Defendant.
Civil Action No. 96-1886 (RMU).
United States District Court, District of Columbia.
March 31, 1998.
*98 Abe W. Weissbrodt, John P. Racin, Weissbrodt, Racin & Mielke, Washington, DC, for Priscilla Villines.
Warren Gary Kohlman, Bredhoff & Kaiser, P.L.L.C., Willow Jean Prall, Decarol, *99 Connor & Selvo, Washington, DC, Gerald V. Sekvo, Decarlo, Connor & Selvo, Los Angeles, CA, for United Brotherhood of Carpenters and Joiners of America.
James Peter Holloway, Proskauer, Rose, Goetz & Mendelsohn, L.L.P., Washington, DC, for Humana Group Health Plan, Inc.
MEMORANDUM OPINION AND ORDER
URBINA, District Judge.
Granting Defendant's Motion for Summary Judgment or, in the alternative, Motion for Summary Adjudication in Part, and Denying it in Part
I. INTRODUCTION
Plaintiff Priscilla Villines brings this action alleging race and sex discrimination, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (1994), Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1994), and the District of Columbia Human Rights Act ("DCHRA"), D.C.Code § 1-2501 et seq. (1992). In a subsequent pleading, the plaintiff withdrew her sex discrimination claims.[1] The remaining claims include three counts of race discrimination and three counts of retaliation.
This matters comes before the court on Defendant United Brotherhood of Carpenters and Joiners's ("UBC") Motion for Summary Judgment. There are four issues for the court to decide: whether (1) defendant's conduct over a six year period represents a series of related discriminatory events to constitute a continuing violation; (2) defendant's alleged conduct created a racially hostile work environment; (3) this hostile work environment made working conditions intolerable as to constructively discharge the plaintiff from her employment; and (4) defendant retaliated against the plaintiff during her employment for exercising her statutory right to complain of unlawful employment practices.
Upon consideration of the parties' submissions, the applicable law and the record herein, the court concludes that there are genuine issues of material fact in dispute concerning the existence of a racially hostile work environment and retaliation that allegedly resulted in the constructive discharge of the plaintiff. The court further concludes that plaintiff failed to establish a continuing violation of her rights and may not base her claims on events outside the applicable statute of limitations. As a result, the court grants the defendant's Motion for Summary Judgment in part and denies it in part.
II. BACKGROUND
Plaintiff Priscilla Villines, a female African-American, began employment with defendant UBC in September 1974 as a research analyst. In 1986, the plaintiff was assigned to a wage and benefit analyst position in the defendant's Pension Department, where she was the only non-white employee. In 1990, a white male employee, Mr. Timothy Dunbar became plaintiff's supervisor. Plaintiff alleges that from May 1990 until her constructive discharge on August 18, 1995, Mr. Dunbar subjected her to persistent verbal intimidation and harassment on the basis of her race and treated her differently from white employees working in the office.[2]
Plaintiff's complaint is based on several events. First, the plaintiff avers that in May 1990, Mr. Dunbar singled her out for verbal abuse when she and a white co-worker left the office a few minutes before their scheduled coffee break.[3] The plaintiff alleges that Mr. Dunbar screamed at her to return to her desk, but allowed a white co-worker to leave for a break.[4] The plaintiff complained to Mr. Fred Reese, her union shop steward, about the incident. Mr. Reese arranged a meeting with himself, the plaintiff, Mr. Dunbar, and Ms. Barbara Wilson, defendant's Personnel Manager. At this meeting, Mr. Dunbar allegedly admitted that he yelled at the plaintiff and exhibited a different attitude towards *100 her.[5] Plaintiff alleges that racial bias motivated Mr. Dunbar's disparate treatment. Defendant, on the other hand, attributes Mr. Dunbar's conduct to managerial and personality shortcomings rather than racial animus.[6]
Second, the plaintiff alleges that Mr. Dunbar's discriminatory treatment reached a "crisis point" in the spring of 1992.[7] After the May 1990 incident, the plaintiff alleges that Mr. Dunbar's continued his disrespectful and discriminatory conduct towards her.[8] In response, the plaintiff filed informal complaints with Mr. Reese.[9] The plaintiff confronted Mr. Dunbar and accused him of being a racist.[10] Plaintiff avers that this accusation prompted an outburst from Mr. Dunbar and he raised his arm as if to strike her.[11] A meeting with Mr. Dunbar, Mr. Reese, Ms. Wilson, and Mr. Tim Sears, defendant's Union Director, was held to discuss the plaintiff's allegation. Mr. Reese, at his deposition, testified that during this meeting Ms. Wilson questioned Mr. Dunbar whether race in fact motivated his disparate treatment of the plaintiff. Mr. Dunbar allegedly replied, "Well, she's black, isn't she?"[12] Mr. Reese testified that this comment confirmed his ongoing suspicion that Mr. Dunbar exhibited prejudice towards the plaintiff.[13] The defendant attributes Mr. Dunbar's statement to his frustration and displeasure with being branded a racist by the plaintiff.[14]
Third, plaintiff relies on a reprimand that Mr. Dunbar received in the fall of 1993 for allegedly drawing swastikas on a file cabinet situated near the desk of a Jewish co-worker, his disparaging remarks associating the plaintiff with Mayor Marion Barry after his arrest for drug use, and the lack of complaints from white co-workers as evidence of Mr. Dunbar's racial animus.[15] Plaintiff also alleges that Mr. Dunbar retaliated against her for making informal complaints to her union shop steward and personnel manager in complaining of conduct she reasonably believed to be discriminatory.[16]
Finally, plaintiff points to a series of incidents in June through August 1995 that she alleges culminated in her constructive discharge from her employment. Plaintiff asserts that Mr. Dunbar isolated plaintiff's work station from the rest of her co-workers and subjected her to more frequent and intense verbal abuse and intimidation because of missing checks and missing files.[17] On July 27, 1995, plaintiff contacted Ms. Wilson regarding Mr. Dunbar's behavior and when no action was taken, she filed a grievance with her union.[18] On August 2, 1995, the plaintiff met with Ms. Wilson to discuss another incident where Mr. Dunbar yelled and screamed at the plaintiff. At this meeting, plaintiff requested a transfer to a comparable position under a different supervisor because she felt she could no longer work with Mr. Dunbar.[19] Defendant denied her transfer request. On August 18, 1995, the plaintiff again met with Ms. Wilson and sought an unpaid leave of absence due to severe stress and resulting health problems.[20] On December 20, 1995, plaintiff filed an administrative *101 charge of discrimination with the EEOC. The defendant formally terminated the plaintiff's employment on August 1, 1996. Subsequently, on August 13, 1996, the plaintiff filed this action.
III. DISCUSSION
A. Legal Standard for Summary Judgment
Fed.R.Civ.P. 56(c) provides that, "summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) mandates summary judgment if a party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In such a situation, there is no genuine issue of material fact since there is a failure of proof concerning an essential element of the non-moving party's case that renders all other facts immaterial. Id. at 322-323. The moving party meets its burden if it illustrates that there is an absence of evidence to support the non-moving party's case. Id. at 325. The party opposing a motion for summary judgment may not rely on mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Credibility determinations, the weighing of the evidence and the drawing of legitimate inferences from the facts are jury functions. Anderson, 477 U.S. at 249. The court must accept the evidence of the nonmovant as true, and all justifiable inferences are to be drawn in his favor. Id. Moreover, because discriminatory intent and proof of disparate treatment are difficult to establish, courts must view summary judgment with special caution and therefore must be particularly careful to view all of the evidence in the light most favorable to the plaintiff. Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C.1994). If a reasonable fact finder could infer discrimination based on the evidence submitted, then summary judgment is inappropriate. Hayes v. Shalala, 902 F. Supp. 259, 264 (D.D.C.1995).
B. Continuing Violation
Defendant argues that the plaintiff cannot base her claims of race discrimination and retaliation on events occurring in May 1990 and spring of 1992 because they fall outside of the statute of limitations. Plaintiff, however, argues that those alleged events constitute a continuing violation and thus are properly before the court. Therefore, as a threshold matter, the court must determine whether the plaintiff has established a continuing violation for claims in May 1990 and spring 1992.
A Title VII plaintiff must file an administrative charge of discrimination with the EEOC within 300 days of the "alleged unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1).[21] Untimely allegations are time-barred. DuVall v. Postmaster General, U.S. Postal Serv., 585 F. Supp. 1374, 1376 (D.D.C.1984), aff'd, 774 F.2d 510 (D.C.Cir. 1985). Recovery for acts falling outside the statute of limitations period requires the plaintiff to prove that the conduct constitutes a continuing violation of Title VII. Palmer v. Kelly, 17 F.3d 1490, 1495 (D.C.Cir.1994). The question of whether a violation is continuing must be addressed on a case-by-case basis. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980). To establish a continuing violation, a plaintiff must demonstrate either "a series of related discriminatory acts, of which one or more fall within the limitations period, or the maintenance of a discriminatory system both before or during the limitations period." Palmer, 17 F.3d at 1495 (quoting Berger v. Iron Workers Reinforced Rodmen Local 201, *102 843 F.2d 1395, 1422 (D.C.Cir.1988); Albritton v. Kantor, 944 F. Supp. 966, 970 (D.D.C. 1996)). In addition, a plaintiff must show a nexus between the untimely filed claim and the claim that is timely filed. Albritton, 944 F.Supp. at 970. Therefore, in analyzing a claim of continuing violation of Title VII, the court must make two determinations. First, the court must ascertain whether an actual violation of Title VII occurred during the statutory period. Palmer, 17 F.3d at 1496 (stating that "emphasis should not be placed on mere continuity: the critical question is whether any present violation exists") (citing United Air Lines v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977)). Second, the court must then determine whether the discriminatory conduct was part of a pattern or series of related discriminatory acts, or was caused by a discriminatory system in effect both before and during the statutory period. Id. at 1496. Here, the defendant does not contest that the plaintiff satisfies the first element because she timely filed an EEOC administrative charge with regard to the alleged discriminatory events occurring in June through August 1995. The more difficult question for the court is whether the plaintiff can establish a nexus between untimely filed claims occurring in May 1990 and the spring of 1992, and the timely filed claims occurring in June through August 1995.
To determine whether a nexus exists between the untimely claims and those filed within the statute of limitations, courts widely use a three-part test set forth in Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir.1983). The three factors include: (1) the subject matter or type of discrimination; (2) the frequency of the acts; and (3) the degree of permanence of the alleged misconduct. See Berry, 715 F.2d at 981. This last factor examines whether the acts possess a degree of finality that would alert an employee of a need to assert his or her rights. Id. If the employee could not have perceived the discrimination until a series of acts occurred, then the employee should be able to plead the earlier, time-barred claim. Id.
The permanence factor requires that an employee sue as soon as harassment becomes sufficiently palpable that a reasonable person would realize she had a Title VII claim. Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1166 (7th Cir.1996). This factor takes into account that a plaintiff subjected to a hostile work environment may not be immediately alerted to the fact that the defendant's conduct is actionable because conduct that creates an offensive or hostile environment generally does not have the degree of permanence as, for example, the loss of a promotion. Waltman v. International Paper Co., 875 F.2d 468, 476 (5th Cir.1989). Nonetheless, a plaintiff may not reach back and base her suit on conduct that occurred outside the statute of limitations unless it would be unreasonable to expect the plaintiff to sue before the statute ran on the alleged discriminatory conduct. Galloway, 78 F.3d at 1167. For example, if the conduct could be recognized as actionable harassment only in light of the events that occurred later within the statute of limitations, a continuing violation may be found. Id. A claim that is continuing only because a putative plaintiff knowingly fails to seek relief earlier is exactly the sort of claim Congress intended to bar with the statute of limitations period. Sabree v. United Brotherhood of Carpenters, 921 F.2d 396, 402 (5th Cir.1990).
In this case, it is the permanence factor that undermines the plaintiff's theory of a continuing violation. The record indicates that the plaintiff had definite knowledge of the defendant's alleged discriminatory conduct as early as May 1990, but knowingly failed to bring suit. Indeed, plaintiff admits in her responses to defendant's interrogatories that she was aware of the defendant's alleged misconduct and actually notified defendant's management of the racially discriminatory conduct.[22] Furthermore, plaintiff *103 conceded in her affidavit that she "worked at [defendant] UBC for a long time in spite of abusive conduct from Mr. Dunbar that [she] thought was racially motivated."[23] According to the plaintiff's admissions, she knew of the discrimination and recognized the need to assert her rights more than five years before she filed an EEOC charge of discrimination in December 1995.[24]
Based on her admissions, it is clear to the court that the plaintiff realized the racially hostile environment was permanent in nature. Under these circumstances, the plaintiff may not rely on a continuing violation theory to base her discrimination and retaliation claims on events that occurred in May 1990 and spring of 1992. See Sabree, 921 F.2d at 402 (holding that when plaintiff admits knowledge of discriminatory conduct, theory of continuing violation must fail). For each remaining claim alleged, the plaintiff is limited to conduct that occurred within the applicable statute of limitations.[25] Specifically, the plaintiff may not rely on events occurring prior to August 13, 1993, to assert her claims of race discrimination and retaliation. The court, therefore, grants defendant's motion for summary judgment on the continuing violation claim.[26]
C. Race Discrimination
The plaintiff alleges that Mr. Dunbar's discriminatory and disparate treatment of her resulted in a racially hostile work environment. Title VII prohibits an employer from creating or condoning a discriminatorily hostile or abusive work environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).[27] "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris *104 v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (quotation omitted). A hostile work environment may be abusive to employees because of their race, gender, religion, or national origin. Park v. Howard Univ., 71 F.3d 904, 906 (D.C.Cir.1995) (quoting Harris, 510 U.S. at 23). Conduct that does not create hostile or abusive environment is beyond the purview of Title VII. Harris, 510 U.S. at 21.
To establish a claim of hostile work environment, a plaintiff must demonstrate "(1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996). A finding of a hostile work environment depends on the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee's work performance. Harris, 510 U.S. at 23. The harassment need not be racial in content to create a racially hostile work environment, rather it must be shown that "had the plaintiff been white she would not have been treated in the same manner." Aman, 85 F.3d at 1083.
In this case, interpreting all facts in the light most favorable to the plaintiff, the court finds that the plaintiff produced sufficient evidence upon which a reasonable jury could conclude that she was subjected to pervasive and severe discriminatory working conditions. Indeed, the plaintiff offers four separate incidents occurring from June through August 1995 when Mr. Dunbar allegedly chastised and mistreated her.[28] The first incident involved several checks that were stolen from the plaintiff's desk drawer. The plaintiff alleges that Mr. Dunbar yelled at her and blamed her for the stolen checks. The second episode involved Mr. Dunbar ordering several file cabinets be placed in front of the plaintiff's desk. These file cabinets blocked her view to her colleagues and visitors entering the office. The final two incidents concerned missing files. The plaintiff alleges that on two separate occasions Mr. Dunbar yelled at her when he could not locate his files; however, in one instance, the file was in fact found in his office. The plaintiff alleges that the cumulative impact of these four incidents taxed her emotional, psychological, and physical well being. The plaintiff claims that her experience resulted in so much stress that her primary care physician recommended that she seek psychological evaluation. Furthermore, the plaintiff avers that none of the white co-workers under Mr. Dunbar's supervision received the same frequent and hostile treatment.[29]
Discriminatory intent and disparate treatment in employment discrimination cases are difficult to prove. Ross, 859 F.Supp. at 21-22. Therefore, the court must consider the plaintiff's allegations in the totality of circumstances. Harris, 510 U.S. at 23. In this regard, the court concludes that, given the frequency and pervasiveness of the alleged misconduct, a reasonable jury could infer discrimination based on the plaintiff's race from these facts. Indeed, a reasonable jury could find that had the plaintiff been white, as her co-workers were, Mr. Dunbar would not have singled her out and subjected her to harassment. Accordingly, the court concludes that the plaintiff satisfied her burden in establishing a hostile work environment and denies defendant's motion for summary judgment on these claims.
D. Constructive Discharge
Plaintiff Villines alleges that six years of employment in a racially hostile work environment created intolerable conditions that operated to constructively discharge her from her job. For a plaintiff to recover on a constructive discharge theory she must show (1) the existence of intentional discrimination, (2) that the employer "deliberately made working conditions intolerable and drove the employee into an involuntary quit," and (3) that the constructive discharge was justified *105 by the existence of aggravating factors. Clark v. Marsh, 665 F.2d 1168, 1173-74 (D.C.Cir.1981) (internal modifications and citation omitted); see also Bishopp v. District of Columbia, 788 F.2d 781, 790 (D.C.Cir. 1986). This inquiry focuses on whether the employer "creates or condones discriminatory working conditions that would drive a reasonable person to resign." Katradis v. Dav-El, 846 F.2d 1482, 1485 (D.C.Cir.1988) (citation omitted).
A finding of intentional discrimination is a necessary predicate for a finding of constructive discharge. Bishopp, 788 F.2d at 790. Here, because both the plaintiff's claims of constructive discharge and hostile work environment require a finding of intentional discrimination, the viability of the constructive discharge claim is inextricably linked to the hostile work environment inquiry. As reasoned above, the plaintiff carried her burden of establishing alleged intentional discrimination on the basis of race. The plaintiff also produced evidence to demonstrate that a reasonable jury could find her working conditions intolerable as to cause her to take unpaid medical leave. Indeed, the plaintiff described how these four harassing incident affected her physical, psychological, and emotional state to the point where her physician suggested that she seek therapy. For these reasons, the court concludes that a reasonable jury could infer that these alleged incidents constitute aggravating factors which contributed to her constructive discharge. Accordingly, the court denies the defendant's motion for summary judgment on the plaintiff's constructive discharge claims.
E. Retaliation
Plaintiff Villines alleges that the defendant retaliated against her for filing informal complaints with defendant's management. Plaintiff further alleges that defendant's retaliation contributed to her constructive discharge.[30] Title VII prohibits an employer from discriminating or retaliating against an employee because he or she has opposed an unlawful employment practice. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she was engaged in a protected activity, (2) she was subjected to adverse action by the employer, and (3) there existed a causal link between the adverse action and the protected activity. Thomas v. National Football League Players Ass'n, 131 F.3d 198, 202 (D.C.Cir.1997).
In this case, a threshold matter is whether plaintiff had engaged in an activity protected by Title VII. The plaintiff claims that the informal complaint she lodged in the spring of 1992 constitutes a protected activity.[31] Specifically, plaintiff alleges that her complaint to her union shop steward and personnel manager infected Mr. Dunbar's racially hostile misconduct with retaliatory animus.[32] Plaintiff, however, may not rely on the informal complaint in the spring of 1992. As discussed above, the plaintiff fails to establish a continuing violation of Title VII and thus cannot salvage untimely filed claims. Therefore, she cannot reach back and rely on conduct outside the statutory limitations to serve as the basis for her retaliation claim. See Galloway, 78 F.3d at 1167.
The plaintiff, however, also filed informal complaints on July 27 and August 2, 1995, complaining of incidents where Mr. Dunbar yelled, cursed, and screamed at the plaintiff.[33] These informal complaints constitute protected activity for purposes of alleging retaliation under Title VII. See Thomas, 131 F.3d at 206 (finding that conversations regarding discrimination against women and African-Americans constitute an informal complaint). Furthermore, the plaintiff has *106 suffered an adverse personnel action when the defendant failed to transfer her to another department. The D.C. Circuit has broadly defined adverse personnel action as any employment decision taken by the employer regardless of whether that decision adversely affects the promotion or causes other tangible or economic loss. Palmer v. Shultz, 815 F.2d 84, 97-98 (D.C.Cir.1987). Under Palmer, the defendant's failure to transfer the plaintiff out of her abusive working environment can be seen as an adverse personnel action. This failure to transfer required the plaintiff to continue working in a hostile environment, which ultimately led to her constructive discharge.
Finally, the plaintiff produced facts to establish the existence of a causal connection between her protected activity and the adverse action. "`The causal connection component of the prima facie case may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after the activity.'" Hayes v.. Shalala, 902 F. Supp. 259, 264 (D.D.C.1995) (quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985)). Here, the record indicates that the defendant had actual knowledge of the plaintiff's protected activity because she filed several complaints with the defendant's management. Subsequent to these complaints, the defendant declined to transfer her out of her the abusive environment. Plaintiff alleges that this environment resulted in her constructive discharge from her employment. Given these facts, a reasonable jury could infer a causal link between her filing of complaints and the defendant's alleged adverse action against her. Accordingly, the court concludes that the plaintiff met her prima facie burden and denies defendant's motion for summary judgment on the retaliation claims.
IV. CONCLUSION
For the reasons stated above, the court grants Defendant's Motion for Summary Judgment in part and denies it in part.
Accordingly, it is this 31st day of March, 1998,
ORDERED that Defendant's Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication be and is hereby GRANTED in part and DENIED in part; it is
FURTHER ORDERED that Defendant's Motion to Strike Portions of Plaintiff's Affidavits be and is hereby DENIED; it is
ORDERED that Plaintiff's Motion for Leave to File Supplemental Memorandum in Opposition to Defendant's Motion for Summary Judgment be and is hereby GRANTED nunc pro tunc; it is
ORDERED that Defendant's Motion for Order to Show Cause Re Contempt for Failure to Comply with Subpoena be and hereby is DENIED; and it is
ORDERED that the above-captioned case is scheduled for a status hearing on April 14, 1998, at 11:00A.M. E.S.T.
SO ORDERED.
NOTES
[1] Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Opposition") at 4 n. 9.
[2] Plaintiff's First Amended Complaint ("FAC") ¶¶ 6-7, 10.
[3] Plaintiff's Opposition at 5.
[4] Id.
[5] Reese Memorandum, May 1990, Exhibit 1 to Plaintiff's Opposition; Plaintiff's Opposition at 2. Mr. Reese wrote this memorandum at the time of the meeting and it bears his signature and that of the plaintiff.
[6] Defendant's Motion for Summary Judgment at 10-11.
[7] Plaintiff's Opposition at 7.
[8] Chronology of Events ¶¶ 8-9, Exhibit 1 to Plaintiff's EEOC Charge of Discrimination.
[9] Id.
[10] Plaintiff's Opposition at 7-8.
[11] Id. at 8.
[12] Id.
[13] Id. at 8-10.
[14] Defendant's Reply at 15.
[15] Plaintiff's Opposition at 11-16.
[16] Id. at 32-33.
[17] Chronology of Events ¶¶ 13-14; Plaintiff's Opposition at 16-19.
[18] Chronology of Events ¶ 14.
[19] Id. at ¶ 15; FAC ¶ 11.
[20] Chronology of Events ¶ 16.
[21] Plaintiff sets forth claims under Title VII, Section 1981, and the DCHRA. Because claims arising under Section 1981 and the DCHRA borrow from Title VII jurisprudence, each claim will be addressed in the Title VII context to the extent it is analogous for each cause of action. See Hodges v. Washington Tennis Serv. Int'l, 870 F. Supp. 386, 387 n. 1 (D.D.C.1994).
[22] 10. STATE the date YOU first ... became aware that ... UBC was engaging in the unlawful conduct underlying the violations alleged ... INCLUDING a DESCRIPTION of the incidents [sic] involved.
Response: Some time before the meeting of May 10, 1990 involving Barbara Wilson, Timothy Dunbar, Fred Reese and plaintiff, Mr. Dunbar screamed loudly at plaintiff to return to her desk until precisely 10:00 a.m. before taking a coffee break, while saying nothing to a colleague who had also left the office with plaintiff a minute or so before the hour.
11. STATE the first date YOU notified the UBC that ... it was engaging in the unlawful conduct allege [sic] ... AND DESCRIBE the details of that notice.
Response: On or about May 10, 1990 plaintiff informed Barbara Wilson, defendant's Personnel Manager, that Mr. Dunbar was subjecting her to abusive conduct, and that she believed it was motivated by her race and sex.
Plaintiff's Responses to Defendant's First Set of Interrogatories 10, 11 (emphasis added).
[23] Villines Affidavit ¶ 6 (emphasis added).
[24] Some courts make a distinction between a plaintiff's realization that she is being discriminated against and the realization that there is a duty to file a charge with the EEOC. Lowery v. Carrier Corp., 953 F. Supp. 151, 158 (E.D.Tex. 1997). In this case, Villines was aware of both the discriminatory conduct and her statutory right to complain of unlawful employment practices. In May 1990, spring of 1992, and on subsequent occasions, plaintiff made several complaints to her union shop steward and informed defendant UBC's Personnel Manager of Mr. Dunbar's discriminatory conduct. This fact alone demonstrates that she has knowledge of her right to oppose unlawful conduct.
[25] Title VII requires that a charge be filed within 300 days of the alleged discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1). The time for filling a discrimination charge under the DCHRA is one year. D.C.Code § 1-2544(a). For claims brought pursuant to Section 1981, however, there is no requirement to file an administrative charge and the statute of limitations is measured from the date the suit is filed. The D.C. Circuit has applied the District Columbia's three-year personal injury statute of limitations to Section 1981 claims instead of the one-year statute of limitations embodied in the DCHRA. See Harris v. Perini, 948 F. Supp. 4, 6 (D.D.C.1996) (citing Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416 (D.C.Cir.1986)). In this case, conduct occurring during the three years preceding plaintiff's August 13, 1996 filing date is appropriately before the court under the Section 1981 claims.
[26] The court's elimination of these untimely events does not preclude their admissibility in later proceedings. The Supreme Court has held that time-barred acts "may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue," although they can create no present legal consequence. Evans, 431 U.S. at 558; see also Sabree, 921 F.2d at 401-402 (citing Evans).
[27] Title VII makes it an unlawful employment practice for an employer to "discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or nation of origin." 42 U.S.C. § 2000e-2(a)(1). As made clear in Meritor, the language "terms, conditions, or privilege" is not limited to economic or tangible discrimination and may include psychological harm. Meritor, 477 U.S. at 64.
[28] Plaintiff's Opposition at 16-19.
[29] Id. at 15-16.
[30] Plaintiff does not argue that her termination from UBC was a form of retaliation. Rather, "the only retaliation claims plaintiff advances at this point are founded on a constructive discharge theory." Plaintiff's Opposition at 31 n. 30.
[31] FAC ¶ 9; Plaintiff's Opposition at 32-33. Defendant does not dispute that informal complaints constitute opposition to unlawful employment practices under Title VII. Defendant's Motion for Summary Judgment at 23.
[32] Id.
[33] Chronology of Events ¶¶ 14-15. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726585/ | 465 So. 2d 606 (1985)
LIBERTY MUTUAL INSURANCE COMPANY, a Foreign Corporation, and Aventura Country Club, a Florida General Partnership D/B/a Turnberry Isle Country Club and Turnberry Isle Yacht and Raquet Club, Appellants,
v.
Rose KIMMEL, Appellee.
No. 84-133.
District Court of Appeal of Florida, Third District.
March 19, 1985.
*607 Richard Hardwick, Coral Gables, Daniels & Hicks and Mark Hicks, Miami, for appellants.
Wolfson & Diamond and Robert L.F. Polsky, Miami Beach, for appellee.
Before BARKDULL, NESBITT and JORGENSON, JJ.
PER CURIAM.
The appellant contends that the Supreme Court opinion reported in Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983), requires the reversal of this jury verdict, with directions to enter a verdict for the defendant because the plaintiff's injury occurred when she fell at a change in levels while exiting the defendant's country club. We do not agree.
First, the accident did not occur in a private home as was the circumstances in Schoen, supra, and second, there was undisputed evidence that the walkway in question was built contrary to the South Florida Building Code, which in and of itself is evidence of negligence. Grand Union Company v. Rocker, 454 So. 2d 14 (Fla. 3d DCA 1984).
The appellant also urges that it is entitled, if not to a directed verdict, a new trial, because of alleged error on the part of the trial court in the admission of incident reports relative to prior and subsequent similar accidents at the site in question. We find no abuse of discretion by the trial court in permitting the introduction of these reports to establish notice before the accident of the dangerous condition of the walkway, or afterwards, as the condition remained the same. Lawrence v. Florida East Coast Railway Company, 346 So. 2d 1012 (Fla. 1977); Perret v. Seaboard Coast Line Railroad Co., 299 So. 2d 590 (Fla. 1974); Nance v. Winn Dixie Stores, Inc., 436 So. 2d 1075 (Fla. 3d DCA 1983); Lasar Manufacturing Company, Inc. v. Bachanov, 436 So. 2d 236 (Fla. 3d DCA 1983).
Therefore the final judgment here under review be and the same is hereby affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384911/ | 125 S.W.3d 55 (2003)
FARMERS INSURANCE EXCHANGE; Truck Insurance Exchange; Fire Insurance Exchange; Mid-Century Insurance Company; Mid-Century Insurance Company of Texas; Farmers New World Life Insurance Company; Farmers Texas County Mutual Insurance Company; Texas Farmers Insurance Company; and Farmers Group, Inc., Appellants,
v.
Michael LEONARD and Michael Sawyer on Behalf of Themselves and all Others Similarly Situated, Appellees.
No. 03-01-00649-CV.
Court of Appeals of Texas, Austin.
April 10, 2003.
*59 Thomas T. Rogers, Sean D. Jordan, Jackson Walker L.L.P., Austin, William T. Barker, Sonnenschein, Nath & Rosenthal, Chicago, IL, for appellants.
Bobby G. Pryor, Dana G. Bruce, Pryor & Bruce, Rockwall, Melanie Hunter, Robert Kalinke, Dean Boyd, Hunter, Kalinke & Boyd, Dallas, for appellees.
Before Justices KIDD, PATTERSON and PURYEAR.
OPINION
MACK KIDD, Justice.
After our opinion issued and before appellants filed their amended motion for rehearing, the Texas Supreme Court released its opinion in Schein v. Stromboe, 102 S.W.3d 675 (2002). Schein provided additional guidance on the appellate standards under which we are to review a class action certification by the trial court. Therefore, we will reexamine our opinion applying the principles enunciated in the Schein decision. Consequently, we grant the motion for rehearing, withdraw our judgment and opinion of August 30, 2002, and substitute the following therefor.
Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, Mid-Century Insurance Company of Texas, Farmers New World Life Insurance Company, Farmers Texas County Mutual Insurance Company, Texas Farmers Insurance Company, and Farmers Group, Inc. (collectively "Farmers"), bring this interlocutory appeal challenging the trial court's order certifying a class action. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(3) (West Supp.2002). By four issues, Farmers contends that the trial court erred in certifying the class action brought by appellees, Michael Leonard and Michael Sawyer. Farmers contends that the class does not meet the requirements for class certification under rule 42 of the Texas Rules of Civil Procedure, and urges reversal and decertification. We will affirm the trial court's order.
BACKGROUND
This case involves a number of essentially unilateral bonus award contracts that Farmers gives its agents each year to reward them for meeting certain profitability and sales requirements. Although Farmers offers a number of award programs, only four distinct bonus programs are implicated in this dispute. The four bonus contracts, and the years in which Leonard and Sawyer claim Farmers breached the agreements, are the Underwriting Contract Value Bonus for 1995-1999, the Agency Profitability Bonus for 1995-1999, the Auto Retention Bonus for 1999, and the Life Performance Bonus for 1996-1999. Farmers sent these bonus contracts to 13,000 agents in twenty-nine states.
Because these contracts may change, Farmers explains the bonus programs in annual Achievement Award Brochures, Field Bulletins, and the Farmers Agent Guide. These written explanations contain the rules, eligibility criteria, and qualification requirements for each bonus award available that year. Each bonus is calculated by Farmers, based on an individual agent's sales and profitability. Accordingly, the written explanations for the bonus contracts notify the agents that "[p]roduction qualifications are based on official Company production records for the qualifying period for each award." Farmers also furnishes its agents with a copy of *60 their individual production records so that they will be able to monitor their individual sales, production, and profitability, as determined by Farmers. Leonard and Sawyer claim that Farmers uniformly breached the four bonus contracts at issue by improperly calculating and awarding the bonuses due to the class members. Accordingly, Leonard and Sawyer filed this suit as a putative class action.[1]
After a six-day certification hearing, the trial court certified the class. Farmers appeals that decision and raises the following four issues for our consideration: (1) the trial court erred in determining that California's substantive law should apply in this case; (2) the decision to allow Leonard and Sawyer to represent multiple subclasses was an abuse of discretion; (3) the determination that Leonard and Sawyer are adequate representatives typical of the class was in error and amounts to an abuse of discretion; and (4) the requirements of rule 42(b)(4) have not been met because individual issues do not predominate, the class action is not superior to individual actions, and the proposed trial plan is unworkable.
STANDARD OF REVIEW
In a class action, the trial court is charged with the duty of actively policing the proceedings and guarding the class interests. See General Motors Corp. v. Bloyed, 916 S.W.2d 949, 954 (Tex. 1996). Therefore, the trial court is afforded broad discretion in defining the class and determining whether to grant or deny a class certification. See Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 406 (Tex.2000). In making its class certification decision, the trial court can consider the pleadings and other material in the record, along with the evidence presented at the hearing. Employers Cas. Co. v. Texas Ass'n of Sch. Bds. Workers' Comp. Self-Ins. Fund, 886 S.W.2d 470, 474 (Tex.App.-Austin 1994, writ dism'd w.o.j.). The evidence on which a trial court bases its certification ruling need not be in a form necessary to be admissible at trial. See Texas Commerce Bank Nat'l Ass'n v. Wood, 994 S.W.2d 796, 801 (Tex.App.-Corpus Christi 1999, pet. dism'd w.o.j.); Microsoft Corp. v. Manning, 914 S.W.2d 602, 615 (Tex.App.-Texarkana 1995, writ dism'd). On appeal, we are limited to determining whether the trial court abused its discretion in ordering class certification; however, the appellate court is to apply a cautious approach to class certification. Southwestern Ref. Co., Inc. v. Bernal, 22 S.W.3d 425, 439 (Tex. 2000). "A trial court has discretion to rule on class certification issues, and some of its determinations-like those based on its assessment of the credibility of witnesses, for example-must be given the benefit of the doubt." Schein, 102 S.W.3d at 691 . However, the trial court's exercise of discretion is not to be supported by every presumption that can be made in its favor. As the Supreme Court observed in Schein, actual and not presumed conformance with the class certification rules is indispensable. Id. (citing Bernal, 22 S.W.3d at 439).
Although the standard of review, generally, for class certification decisions is an abuse of discretion, because Farmers challenges the trial court's choice of law determination, we must apply a different standard for that discrete issue. The determination of which state's law applies is a question of law for the court to decide. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex.2000). Therefore, we must review the trial court's decision to apply *61 California law in this case de novo. See Minnesota Mining & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex.1996). But determining the state contacts to be considered by the court in making this legal determination involves a factual inquiry. Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 204 (Tex.2000). Texas courts apply the Restatement's "most significant relationship" test to decide choice of law issues. Torrington, 46 S.W.3d at 848; Restatement (Second) of Conflict of Laws § 6 (1971).
Our review of the record in this case supports the trial court's decision to apply California law and our conclusion that the trial court did not abuse its discretion in certifying the class. The trial court conducted a thorough certification hearing in which it went well beyond the parties' pleadings in order to examine each of the claims, defenses, and relevant facts, along with applicable substantive law of this case, to make a meaningful determination of the certification issues. The record before us indicates that the trial court conducted a rigorous analysis of all issues presented and arrived at a reasoned decision in certifying the class.
REQUIREMENTS OF CLASS CERTIFICATION
Texas rule 42, governing class actions, is patterned after its federal counterpart. Consequently, federal decisions and authorities interpreting current federal class action requirements are persuasive authority. Bernal 22 S.W.3d at 433. The class action serves as a mechanism to eliminate or reduce the threat of repetitive litigation, prevent inconsistent resolution of similar cases, and provide a means of redress for individual claims that are too small to make independent actions economically viable. See Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex.2000). The principal purpose of the class action device is the efficiency and economy of litigation. See id. (discussing origins and general design of class action device). Thus, when properly used, a class action saves the court's and the parties' resources by allowing class-wide issues to be tried in an economical fashion. See id. at 452 (citing General Tel. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).
All class actions must satisfy the following four threshold requirements: (1) numerositythe class is so numerous that joinder of all members is impracticable, (2) commonalitythere are questions of law or fact common to the class, (3) typicalitythe claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) adequacy of representationthe representative parties will fairly and adequately protect the interests of the class. See Tex.R. Civ. P. 42(a); Bernal, 22 S.W.3d at 433. Additionally, class actions must satisfy at least one of four subdivisions of rule 42(b). Here, the trial court certified the class under rule 42(b)(4), which requires that common questions of law or fact common to the class predominate over questions affecting only individual members and that class treatment be superior to other available methods for the fair and efficient adjudication of the controversy. Tex.R. Civ. P. 42(b)(4); see also Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Bernal, 22 S.W.3d at 433.
DISCUSSION
Choice of Law
In its first issue, Farmers contends that the trial court erred in determining that California's substantive law should apply to the claims of all class members. Farmers argues that, under a *62 proper choice of law analysis, each agent's claim should be decided under the law of the state in which that agent worked and resided. In an interesting juxtaposition, Farmers further argues that the application of California law to class members from other states is unfair to those class members because they would have a better chance of success under the law of their home states. Specifically, Farmers argues that California law, more so than the law of other states, allows for the introduction of extrinsic evidence in contract disputes that could aid Farmers in undermining the class members' claims. Farmers contends that a proper choice of law analysis requires the application of the law of all twenty-nine states in which the class members live. It follows, according to Farmers, that the class must be decertified because the individual issues would predominate and a class action would no longer be the superior method of adjudicating this dispute. We disagree. Applying the relevant sections of the Restatement of Conflict of Laws to the facts of this dispute leads us to the conclusion that the trial court was correct in determining the proper substantive law to be applied in this case is that of California.
We begin our choice of law analysis with the Restatement's "most significant relationship" test. See Torrington, 46 S.W.3d at 848; Restatement (Second) of Conflict of Laws § 6 (1971). That section requires us to apply the following factors to the facts of this case:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Restatement (Second) of Conflict of Laws § 6(2).
The basic principles of section 6 favor the application of California law. Because all drafting, mailing, calculating, and awarding of bonuses originated from California, it is reasonable to assume that Farmers and its agents expected that California law would control any disputes that arose between the parties concerning the bonuses. See id. § 6(2)(d) (protection of justified expectations). No other state involved in this dispute has equal interests to California in having its law applied. While each agent's home state has a great interest in having its law applied to disputes arising within its borders, the only actions in dispute here occurred in California. While the agents sold insurance policies in their home states, the dispute here concerns the calculation of bonuses which occurred only in California. See id. § 6(2)(c) (relative interests of states in determining particular issue). Also, with virtually all activity involving the bonus contracts having originated in California, and the relative uniformity in the various states' laws governing this dispute, the ease of determination and application factor favors California law. See id. § 6(2)(g) (ease in determination and application of law to be applied). Finally, in a class action such as this one, where the class members reside in twenty-nine states but all of the defendants' alleged breaches of contract occurred in California, the desire for certainty, predictability, and uniformity of result lean heavily toward application of California law. See id. § 6(2)(f) (certainty, predictability, and uniformity of result).
*63 However, our inquiry does not end with section 6. Because these unilateral contracts did not have choice of law provisions, we must also examine the factors listed in section 188. See Restatement (Second) of Conflict of Laws § 188 (1971). Section 188 provides the following:
(2) In the absence of an effective choice of law by the parties ..., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue. Id. § 188(2).
Although not all of the appellants have their principal place of business in California, the most integral actor with regard to the class members' allegations, Farmers Group, Inc., does maintain its primary office in California.[2] Farmers Group, Inc. is the only appellant that is not an insurance company. However, Farmers Group, Inc. acts as the agent for Farmers in administering the bonuses that form the crux of this case. Farmers Group, Inc. drafted the bonus contracts, collected the data, determined how that data would be applied in the calculations, and issued the bonuses to Farmers' agents. Furthermore, although the class members reside in twenty-nine states, a plurality live in California. Based on these facts, the trial court found that California had the most significant relationship to the bonus contracts at issue and the parties to the lawsuit.
Taking into account the requirements of section 188, we conclude that the trial court was correct in ruling that California law applied to the claims of the class. Particularly relevant is the place of performance of the contract. See id. § 188(2)(c). Farmers argues that the place of performance is the place where the agents performed the functions that qualified them for the bonuses in question-in other words, the place of performance is where the insurance agents sold the insurance products. Farmers' argument overlooks the nature of the bonus contracts at issue. The relevant performance for the purposes of this dispute is that of Farmers. Once these unilateral bonus contracts were formed, Farmers had an obligation to accurately calculate and remit bonus payments to their agents.[3] The calculation of these bonuses, the central issue in this case, was performed by Farmers in California. In the context of these bonus contracts, *64 the actions of the agents in selling and maintaining various insurance products merely provides the measuring stick that Farmers uses in performing its obligations under the contract. Thus, the relevant place of performance of these bonus award contracts was California.
The remaining factors listed in section 188 also point to the application of California law. Because these bonus award contracts were drafted solely by Farmers in California and then sent from California to the class members without the possibility for further input from those class members, the place of contracting factor indicates that California law should apply. See id. § 188(2)(a) (place of contracting). The location of the subject matter of the contracts is also California because Farmers maintained all official company production records for the calculation of the bonuses in California. See id. § 188(2)(d) (location of subject matter of contract). Finally, with regard to the relative importance of these particular contracts, the party solely responsible for performance, Farmers Group, Inc., has its principal place of business in California. See id. § 188(2)(e) (place of business of parties).
Farmers attempts to overcome the strong indication from sections 6 and 188 that California law should apply by arguing that section 196 of the Restatement, the section governing service contracts, trumps the other sections. Section 196 provides the following:
The validity of a contract for the rendition of services and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires the services, or a major portion of the services, be rendered, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.
Restatement (Second) of Conflict of Laws § 196 (1971).
Because the agents provided the service of selling insurance products in their home states, Farmers contends that the contracts in question should be governed by the law of the states in which those sales took place. We disagree. We have already discussed the place of performance for these bonus contracts in our discussion of section 188, and we conclude that the proper law to be applied in this case is that of California.
Although our examination of the relevant sections of the Restatement has brought us to the conclusion that the trial court properly determined that California law should apply to the class members' claims, Farmers urges that the differences in the parol evidence rules between California and the other twenty-eight jurisdictions involved in this case require the application of each states' substantive law in order to protect the absent class members' interests. The essence of Farmers' argument is as follows: if the law of Farmers' home state of California applies to the claims raised by the class, class members from other states will suffer because the more liberal California law on parol evidence will allow Farmers to defeat the claims of the class. Therefore, rather than using the liberal rules of its own state's law against the class, Farmers urges this Court to protect the interests of the absent class members and decertify the class, thus allowing each class member a better opportunity to successfully bring an individual breach of contract claim against Farmers in that class member's home jurisdiction.
*65 Ignoring the irony of Farmers' position, we are unpersuaded by this argument concerning the differences in the twenty-nine states' parol evidence rules. As applied to this case, the parol evidence rules of all twenty-nine states, including California, function in a substantially similar manner and would allow extrinsic evidence to be admitted. Farmers correctly asserts that California's parol evidence rule does not restrict contract disputes to the four corners of an unambiguous document. Cal. Civ.Proc.Code § 1856 (2001) (extrinsic evidence admissible unless meant to contradict writing by showing prior agreement or contemporaneous oral agreement). However, California's rule only differs from the parol evidence rules of the other twenty-eight states when the contracts in question are unambiguous because those jurisdictions limit the examination of unambiguous contracts to the four corners of the documents. See, e.g., Butts v. Lawrence, 22 Kan.App.2d 468, 919 P.2d 363, 367 (1996); Ruble v. Reich, 259 Neb. 658, 611 N.W.2d 844, 849-50 (2000); Geo. B. Smith Chem. Works, Inc. v. Simon, 92 Nev. 580, 555 P.2d 216, 217 (1976); Spring Brook Acres Water Users Assoc. v. George, 505 N.W.2d 778, 780 (S.D.1993); Wolter v. Equitable Res. Energy Co., 979 P.2d 948, 951 (Wy. 1999).
Although both Farmers and the class members argue that the contracts in question are unambiguous, they dispute which documents constitute the contracts. Thus, a question of intent concerning contract formation is raised. A disagreement as to what documents form a contract is a latent ambiguity that allows for the admission of parol evidence. See, e.g., Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282-83 (Tex.1996) ("A latent ambiguity exists when a contract is unambiguous on its face, but fails by reason of some collateral matter when it is applied to the subject matter with which it deals."); Wolter, 979 P.2d at 952 (existence of latent ambiguity allows parties to explain intent with extrinsic evidence). Therefore, regardless of which state's law is applied to this case, the rules governing the admission of extrinsic evidence remain constant.
Finally, while we remain steadfast in our decision that California's substantive law should apply in this case, we are equally convinced that Farmers' argument concerning the parol evidence rule does not result in the need to decertify the class.[4] Because the same rules governing parol evidence apply to every state once a latent ambiguity is found in the contract, a decision to apply the law of any of the twenty-nine states involved would result in the same effect on the parties. We overrule Farmers' first issue.
Representation of Absent Class Members
Farmers' second and third issues challenge the trial court's ruling that Leonard and Sawyer can protect the interests, and serve as adequate representatives, of every class member. The trial court's order has divided the class into four subclasses. The definitions for each subclass correspond to the type of bonus contract the agents in that subclass were eligible to receive. Thus, we will refer to the subclasses as (1) the Agency Profitability subclass, (2) the Underwriting Contract Value subclass, (3) the Auto Retention subclass, and (4) the Life Performance subclass. The trial court ordered that both Leonard and Sawyer would serve as the representatives for the Agency Profitability, Underwriting Contract Value, and Life Performance subclasses, but only Sawyer would *66 represent the Auto Retention subclass. In its second issue, Farmers contends that, initially, the trial court abused its discretion because a conflict exists within the Life Performance subclass and, secondly, another conflict may be created by allowing Leonard and Sawyer to represent multiple subclasses with possibly divergent interests. The latter argument relies on the assumption that the subclasses will compete with one another to maximize each subclass's share of the available funds if the parties settle the lawsuit. In its third issue, Farmers challenges Leonard's and Sawyer's credibility and personal integrity. Absent a proper finding that these representatives possess these two qualities, Farmers contends it was error for the trial court to allow Leonard and Sawyer to represent the various subclasses.
Adequacy of representation is a question of fact addressed to the sound discretion of the trial court, and the trial court does not abuse its discretion in finding adequacy if there is evidence to support the finding. See Glassell v. Ellis, 956 S.W.2d 676, 681-82 (Tex.App.-Texarkana 1997, pet. dism'd w.o.j.). Only a conflict that goes to the very subject matter of the litigation will defeat a finding of adequacy. Nissan Motor Co., Ltd. v. Fry, 27 S.W.3d 573, 583 (Tex.App.-Corpus Christi 2000, pet. denied). Speculative allegations concerning potential conflicts are insufficient to show that the trial court abused its discretion in finding the representatives to be adequate. Employers Cas., 886 S.W.2d at 476.
At the certification hearing, Dean Edward F. Sherman testified for the plaintiff class members that dividing the class into four proposed subclasses would provide superior means for trying the breach of contract issues in this case. On cross-examination, Farmers attempted to elicit testimony from Sherman showing a potential conflict within the Life Performance subclass. However, Sherman's testimony established that no conflict existed because, by definition, the subclass excluded agents with a potential conflict of interest. The trial court's certification order includes the class definition for the Life Performance subclass that excludes such agents. Because the trial court's order is supported by the evidence presented and we have found no conflict within the subclass, we conclude that the trial court did not abuse its discretion in overruling Farmers' objection. See Glassell, 956 S.W.2d at 682.
Next, Farmers speculates that allowing both Leonard and Sawyer to represent multiple subclasses will create a conflict if a settlement opportunity occurs because these classes will be competing for the maximum return from a limited settlement fund. Farmers claims that each subclass requires its own representative in order to adequately represent the interests of each member of that particular subclass. Additionally, Farmers argues that the presence of both former and current agents in the competing subclasses will exacerbate the conflict because the former agents do not need to maintain an ongoing business relationship with Farmers. In support of its argument, Farmers cites us to two cases involving settlement classes in which conflicts were present between subclasses. See Amchem, 521 U.S. at 597, 117 S.Ct. 2231; Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999).
We are unpersuaded by Farmers' reliance on these two cases. Both Amchem and Ortiz dealt with the certification of a proposed settlement class in personal injury class actions based on the class members' exposure to asbestos. Therefore, the posture of those cases that led to the development of intra-class conflicts differs *67 from the posture of this case. The class in our case does not involve personal injury causes of action, nor has a proposed settlement been negotiated by the parties prior to the certification hearing. The problems which led to a conflict in the asbestos cases were unique to personal injury cases. In Amchem and Ortiz, the proposed settlement had already been established but the damages to each class member were largely undefined and could vary based on time and severity of exposure to asbestos. That situation created a conflict because not all members of the class had suffered the same amount of damages, but all would be competing for a portion of the same settlement fund.
Farmers' case differs from Amchem and Ortiz because the amount of damages for each subclass can be determined mathematically based on the amount of the bonus due to each class member according to the bonus award contracts. Thus, the damages for each class member are identifiable and questions about the mathematical calculations to be applied for each class member could be answered by the fact finder. Furthermore, this case does not involve a settlement class. Because the parties have not negotiated a settlement, Farmers' argument that possible conflicts between the subclasses could develop if the opportunity to settle presents itself is purely speculative. Farmers presented no evidence at the certification hearing that it would be limited in its ability to pay the class members' claims if a jury determined a breach occurred, and thus, there is nothing in the record to suggest a limitation on Farmers' ability to pay damages. The conflicts present in Amchem and Ortiz do not exist in this case. We overrule Farmers' second issue.
In its third issue, Farmers contends that Leonard and Sawyer fail to meet the requirements of rule 42 concerning adequacy of representation. Two elements must be considered for determining if the named plaintiffs adequately represent a class: (1) it must appear that the named plaintiffs will vigorously prosecute the class claims through their attorneys, and (2) there must be an absence of antagonism or conflict between the named plaintiffs' interests and the interests of the absent class members. Sun Coast Res., Inc. v. Cooper, 967 S.W.2d 525, 538 (Tex. App.-Houston [1st Dist.] 1998, pet. dism'd w.o.j.). Among the factors affecting the adequacy determination are (1) adequacy of counsel, (2) potential for conflicts of interest, (3) personal integrity of the plaintiffs, (4) whether the class is unmanageable because of geographical limitations, (5) whether the plaintiffs can afford to finance the class action, (6) the representatives' familiarity with the litigation and belief in the legitimacy of the grievance, and (7) the representatives' willingness and ability to take an active role in and control the litigation, and to protect the interests of the other class members. Forsyth v. Lake LBJ Inv. Corp., 903 S.W.2d 146, 150 (Tex. App.-Austin 1995, writ dism'd w.o.j.); Glassell, 956 S.W.2d at 682. A class representative should be familiar with the basic issues, including composition of the class and damages sought. See Microsoft, 914 S.W.2d at 615.
Farmers disputes Leonard's capacity to serve as a representative on the grounds that he breached a fiduciary duty he owed to Farmers. Although this matter does not directly bear on the breach of contract claims asserted by the class, Farmers claims that Leonard's purported breach provides Farmers with an affirmative defense as to Leonard individually, thus rendering Leonard atypical of the class. Farmers also challenges the personal integrity of the class representatives by claiming that both Leonard and Sawyer *68 suffer from a lack of credibility. Farmers bases its contention largely on the fact that Leonard and Sawyer made a large number of errata sheet corrections to their deposition testimony. Farmers also contends that Sawyer concealed facts after he had resigned as an agent and then sought reinstatement. Farmers believes that Sawyer's failure to disclose that he had been in discussions with Leonard and class counsel about the possibility of filing this lawsuit because Farmers breached the bonus contracts, demonstrates that Sawyer is dishonest and unsuitable to serve as class representative. Farmers also doubts that class counsel can provide adequate representation for the class because class counsel permitted Leonard and Sawyer to change their depositions. However, Texas Rule of Civil Procedure 203.1 allows a witness to change deposition responses. Tex.R. Civ. P. 203.1(b). Although the errata sheet changes totaled 163 combined corrections, we note that the Leonard and Sawyer depositions lasted for approximately fourteen hours, and resulted in 873 pages and 21,000 lines of testimony. Farmers presented these arguments at the certification hearing. Although Farmers reiterates these arguments on appeal, we recognize that the trial court is in the best position to weigh the credibility of Leonard and Sawyer as well as to determine the ability and integrity of class counsel to represent the entire class. See Schein, 102 S.W.3d at 690 (trial court's assessment of the credibility of witnesses must be given the benefit of the doubt).
After the certification hearing concluded, the trial court found that class counsel possessed the qualifications and experience to handle this class action litigation.[5] Furthermore, the trial court found that Leonard and Sawyer would fairly and adequately protect the interests of the class and that their individual interests were not antagonistic to the members of the subclasses which they represent. The trial court also found that each class representative demonstrated personal integrity, possessed sufficient knowledge, interest, and understanding of the litigation, and believed in the legitimacy of his case. Farmers' arguments, based on Leonard's and Sawyer's credibility and that they made too many changes to their depositions, do not persuade us that the trial court abused its discretion in determining that Leonard and Sawyer met their burden on the adequacy of representation requirement. Therefore, we overrule Farmers' third issue.
Predominance and Superiority
In its fourth issue, Farmers claims that the trial court abused its discretion in certifying the class because the predominance and superiority requirements have not been met. See Tex.R. Civ. P. 42(b)(4). Farmers asserts that the certification order does not contain an adequate trial plan describing how the trial court anticipates the common and individual issues in the case will be tried. Within its attack on the trial plan, Farmers opines that the common issues in the case do not predominate over the individual issues. Farmers also contends that the class action device in this case is not the superior means for trying the class members' claims because individual adjudication is plausible.
*69 In conducting the initial evidentiary review at the certification hearing, the trial court must conduct a rigorous analysis to determine whether all prerequisites have been met before ruling on class certification. Bernal, 22 S.W.3d at 435. Trial courts may not adopt a "certify now and worry later" approach to class certification. Id. However, we accord trial courts an abuse of discretion standard because the class certification decision occurs early in the litigation process, before the parties have had the opportunity to fully develop the case and such issues as trial plan will have only been determined as a preliminary matter. The trial court must approach the certification decision cautiously in order to balance the requirements of rule 42 and the difficulties presented by the case's infancy. See id. Thus, the trial court's certification order must explain adequately how each class action claim "could be tried manageably in a class action," Schein, 102 S.W.3d at 684 in order to show "actual, demonstrated compliance with Rule 42." Id., 102 S.W.3d at 690.
After thoroughly reviewing the record, we are convinced that the trial court rigorously analyzed the issues presented in this case and properly arrived at the determination to certify the class. In addition to hearing multiple motions from both parties prior to the certification hearing, the trial court conducted a six-day certification hearing. During this lengthy hearing, the trial court thoroughly reviewed all of the parties' claims and was presented with an enormous amount of evidence. The record in this case comprises a seven-volume clerk's record containing 1,579 pages, a five-volume first supplemental clerk's record containing an additional 1,974 pages, and a ten-volume reporter's record. The trial court heard testimony from ten witnesses and received deposition transcripts from a number of other witnesses. During the hearing, nearly 260 exhibits, including expert witness reports and all of the contracts at issue, were admitted into the record. The trial court based its certification decision on the extensive development of the issues presented in this case, and we cannot say that its decision was improper. The trial court's order and the state of the record assure us that the trial court's decision was informed, cautious, and made in compliance with the requirements of rule 42.
In Bernal, the supreme court stated that a trial court abuses its discretion if it certifies a class without knowing how the claims can and will likely be tried. Bernal, 22 S.W.3d at 435 (citing Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996)). The trial court's certification must include a trial plan addressing each class claim. Schein, 102 S.W.3d at 689. Each class claim must be subjected to rigorous analysis and a specific explanation of how it will proceed to trial. Id.
The certification order in this case contains a detailed explanation of the anticipated trial plan. Following the certification hearing and a review of all of the evidence before it, the trial court determined that the substantive matters at issue in Leonard's and Sawyer's breach of contract claims are identical to the issues of all class members. The trial court found that the bonus documents and the manner in which they were applied were identical for the class. Therefore, a determination of all questions raised in Leonard's and Sawyer's pleadings resolve all of the issues for the class. Furthermore, the trial court found that the calculation of any damages for Leonard and Sawyer would establish a formula by which all class members' damages, if any, could be computed. These findings demonstrate that *70 the issues common to the class predominate over individual issues.
Based on these findings, the trial court announced in the order that the case could be tried as a single breach of contract action in a bench trial. The order continues with the following statement:
Issues such as whether any or all of the bonus documents constitute one or more contracts, the identity of the parties to any such contracts, the terms of the offers, the meaning of the terms, words, and phrases contained within any such contracts, and the interpretation of any such contracts are questions of law which the Court anticipates can be determined at a summary judgment or bench trial.
Recognizing that other issues, such as a determination that the bonus award contracts were in fact ambiguous, may develop in the course of this litigation, thereby requiring a reevaluation of the trial plan, the trial court included the following alternative to the trial plan:
In the event fact issues of contract interpretation develop, the Court anticipates presenting a single jury with specific questions concerning the disputed terms and, once receiving the jury's findings, utilizing those findings to determine as a matter of law the correct contract interpretation and, depending upon the findings, establishing a damage formula applicable to all Class Members.
The trial court's findings and statements regarding a trial plan comply with the mandate articulated in Bernal and Schein. The trial court's order demonstrates that based on the parties' claims and defenses, the relevant facts, all of the evidence in the record, the applicable substantive law, and the parties' anticipated theories of the case, the trial of this case may proceed under one of two alternative paths, both of which will be manageable and protect the interests of all parties. Unlike the plan in Schein, this trial plan lays out an adequate trial plan for dealing with the eventualities of trial that are foreseeable based on the record available to the trial court in the certification proceeding. In Schein, the trial plan was inadequate because the plaintiffs sought recovery under several causes of action. As the supreme court observed, the trial plan failed to provide for the handling of the plaintiffs' individual reliance claims. By contrast, in the instant cause plaintiffs seek recovery under a single cause of action, breach of contract.
Finally, Farmers contends that this case does not comply with the requirement that class treatment be superior to other available methods for the fair and efficient adjudication of the controversy. See Tex.R. Civ. P. 42(b)(4); Bernal, 22 S.W.3d at 433. Among the factors a court should consider in determining superiority are (1) the interests of members of the class in individually controlling the prosecution or defense of separate actions, (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (3) the desirability or undesirability of concentrating the litigation in the particular forum, and (4) the difficulties likely to be encountered in the management of a class action. Bernal, 22 S.W.3d at 433-34. Farmers bases its superiority challenges on the fact that the damages for each class member could be substantial enough to make individual adjudication not only possible, but the superior method of disposing of these claims. However, a marginal case value for individual cases, while important in determining superiority in some class actions, is not an absolute prerequisite to certification under the rule. See Tex.R. Civ. P. 42(b)(4).
The trial court found class adjudication to be superior to individual actions for a number of reasons. Trying this case as a *71 single action provides great economic benefits, as opposed to the alternative of trying 13,000 individual actions. And with no other lawsuits having been filed regarding these particular issues, the economic benefit has not been diluted. Furthermore, individual adjudication of identical fact patterns poses the risk of inconsistent results. Finally, because many of the unnamed class members are current Farmers agents, class treatment can quell the fears of retaliation by Farmers if individual lawsuits were filed. Based on this reasoning, we cannot say the trial court erred in determining that class issues predominate over individual issues and that class treatment is superior to the pursuit of 13,000 individual actions. We overrule Farmers' fourth issue.
CONCLUSION
Having reviewed the record and considered the arguments of both parties, we conclude that the trial court did not abuse its discretion in ordering class certification. The trial court's order is affirmed.
NOTES
[1] Although each of the four bonuses involve different methods of calculation in order to determine an agent's eligibility and the size of the bonus awarded, an explanation of the intricacies of each bonus is unnecessary for purposes of this opinion.
[2] Of the nine appellants, five have their principal place of business in California. Those five are Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, and Farmers Group, Inc. Three others, Mid-Century Insurance Company of Texas, Farmers Texas County Mutual Insurance Company, and Farmers Texas Insurance Company, maintain their principal place of business in Texas, and a fourth, Farmers New World Life Insurance Company, maintains its principal place of business in Washington.
[3] While it is true that the acceptance, and thus the formation, of these unilateral bonus contracts was triggered by the agents selling a certain amount of insurance policies, the dispute between the parties does not focus on contract formation. All issues in this case revolve around the breach of contract which allegedly occurred during Farmers' performance of its obligations under these contracts.
[4] Of course, if class members feel disadvantaged by applying the law of a foreign state to their claims, they may opt out of this class action litigation and pursue an individual breach of contract claim individually in their home state.
[5] Farmers points to that portion of the record wherein the trial court admonished class counsel for certain alleged misstatements and inaccuracies regarding some submitted case authority. However, we note that, in exercising its discretion in ruling on the adequacy of representation, the trial court concluded in its findings of fact and conclusions of law that class counsel possessed the qualifications and experience to represent the class and conduct this litigation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384997/ | 125 S.W.3d 589 (2003)
Barbara BURNS, Appellant,
v.
BAYLOR HEALTH CARE SYSTEM, Appellee.
No. 08-02-00159-CV.
Court of Appeals of Texas, El Paso.
September 19, 2003.
*592 Elizabeth Allison Florence, Dallas, for appellant
Joann N. Wilkins, Burford & Ryburn, Dallas, for appellee.
Before Panel No. 5 McCLURE, J., CHEW, J., and HILL, C.J. (Ret.).
OPINION
DAVID WELLINGTON CHEW, Justice.
Barbara Burns appeals a motion to strike expert testimony and the summary judgment granted in favor of Appellee Baylor Health Care System ("Baylor") in a premises liability action. Ms. Burns raises two issues on appeal: (1) the trial court abused its discretion by striking the expert witness's testimony; and (2) the trial court erred in granting summary judgment in favor of Appellee Baylor Heath Care System because there was a material issue of fact in this case. We reverse the trial court's judgment and remand this cause to the trial court for further proceedings.
FACTUAL SUMMARY
On October 6, 1999, Ms. Burns and her daughter traveled to the Baylor University Medical Center Campus for a doctor's appointment and parked in one of the facility's underground parking lots. After the appointment, Ms. Burns and her daughter took an elevator back to the parking garage. Ms. Burns and her daughter exited the elevator and proceeded to walk towards the direction in which they had parked their car. Ms. Burns took a few steps and then fell from the curb in front of the elevators. Ms. Burns asserts that she fell because the parking garage floor and curb in front of the elevators were painted in such a manner as to create the illusion that there was no curb. Deposition photographic exhibits and testimony show that the curb top was painted yellow and the parking garage floor had a section of diagonal yellow stripes marking the area in front of the elevators.
In the trial court, Appellee Baylor moved for summary judgment under Texas Rules of Civil Procedure 166a(c) and 166a(i) on two elements of premises liability: whether the curb was a condition posing an unreasonable risk of harm and whether Baylor had no actual or constructive knowledge of the premises defect, if any, of which Ms. Burns complained. Ms. Burns timely filed a response to Baylor's motion and provided summary judgment evidence that included the affidavit and curriculum vitae of Jack Madeley, a safety engineering expert. Baylor filed a reply brief and a motion to strike the testimony of Ms. Burn's expert witness. The trial court granted Baylor's motion and granted summary judgment in favor of Baylor. The trial court denied Ms. Burns' motion *593 for reconsideration. Ms. Burns now brings this appeal.
DISCUSSION
Motion to Strike Expert Testimony
In her first issue, Ms. Burns contends that the trial court abused its discretion in its decision to exclude the testimony of her expert witness, Jack Madeley. Baylor objected to Mr. Madeley's affidavit testimony on grounds that Mr. Madeley was not qualified to be an expert and that his opinions did not meet the requirements for expert testimony. See Tex.R.Evid. 702.
We review a trial court's exclusion of expert testimony for an abuse of discretion. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex.1998); Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. E.I. du Pont de Nemours & Co. v. C.R. Robinson, 923 S.W.2d 549, 558 (Tex.1995). A reviewing court cannot conclude that a trial court abused its discretion if, in the same circumstances, it would have ruled differently or if the trial court committed a mere error in judgment. Id. Because the trial court did not specify on which ground it excluded Mr. Madeley's testimony, we will affirm the trial court's ruling if any ground is meritorious. See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000).
Expert Witness Qualifications
Texas Rule of Evidence 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Rule 702 contains three requirements for admission of expert testimony: (1) the witness must be qualified; (2) the proposed testimony must be scientific, technical, or specialized knowledge; and (3) the testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue." Tex.R.Evid. 702; Robinson, 923 S.W.2d at 556. The party offering the expert's testimony bears the burden to prove that the witness is qualified under Rule 702. See Gammill, 972 S.W.2d at 718; Broders, 924 S.W.2d at 151. The role of the trial court in qualifying experts is to ensure "that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion." Broders, 924 S.W.2d at 152. The offering party must demonstrate that the expert witness possesses special knowledge as to the very matter on which he proposes to give an opinion. Gammill, 972 S.W.2d at 718. In addition, the requirements of reliability and relevance apply to all expert testimony offered under Rule 702. See Gammill, 972 S.W.2d at 725.
Ms. Burns argues that the trial court abused its discretion in excluding Mr. Madeley's affidavit because he has specialized knowledge in the principles of safety engineering and the rules of hazard control, and he has built his entire career on assessing risks to people and attempting to engineer solutions to lessen those risks. In its motion to strike Mr. Madeley's affidavit testimony, Baylor argued that while Mr. Madeley had experience with safety issues, he did not have specialized knowledge related to building construction and design.
Ms. Burns had the burden to show that Jack Madeley was qualified to be an expert based on his knowledge, skill, experience, training, or education on the specific issues in this case. See Broders, 924 S.W.2d at 153-54. The evidence before *594 the trial court showed that Mr. Madeley is the owner and principal consultant of Madeley Safety Engineering Consultants. Mr. Madeley holds a bachelor's degree in Industrial Engineering and a master's degree in Safety Engineering from Texas A & M University. Mr. Madeley is a board certified safety professional and a member of the American Society of Safety Engineers, the System Safety Society, and the National Safety Council. From 1990 to 1997, Mr. Madeley worked as a consultant for Nelson & Associates, advising in the following areas: accident cause analysis; industrial and consumer product safety engineering; industrial and consumer product accident reconstruction; construction safety; fire protection engineering; industrial (workplace) and product safety management; industrial and product safety program development and evaluation; premises safety (stairs, ramps, level surfaces); offshore and land-based oilfield safety; human factors engineering analysis of workplace, premises, and equipment (product) systems; risk assessment; and system safety analysis. From 1975 to 1989, Mr. Madeley worked as a Safety Engineer and Construction Engineer for Marathon Oil Company and provided services which included personnel safety, accident rate reduction, and safety system design review at both onshore and offshore facilities.
Mr. Madeley has an extensive background in the field of safety engineering and is board certified as a safety professional. Further, Mr. Madeley's qualifications included specialized knowledge in premises safety and accident cause analysis. Therefore, we conclude that Ms. Burns carried her burden to provide proof of Mr. Madeley's expert qualifications and specialized knowledge on the issues relevant to her claim.
Expert Testimony That Will Assist the Trier of Fact
Even if Mr. Madeley's credentials and experience were not determinative, it was also within the discretion of the trial court to exclude his testimony if it was within the common knowledge of the trier of fact. Possession of knowledge and skill not held by people generally does not in and of itself mean that such expertise will assist the trier of fact. See Broders, 924 S.W.2d at 153; Honeycutt, 24 S.W.3d at 360. Expert testimony assists the trier of fact when the expert's knowledge and experience on a relevant issue are beyond that of the average juror and the testimony helps the trier of fact understand the evidence or determine a fact issue. Honeycutt, 24 S.W.3d at 360. When the jury is equally competent to form an opinion about the ultimate fact issues or the expert's testimony is within the common knowledge of the jury, the trial court should exclude the expert's testimony. Id.
Mr. Madeley's affidavit formed a significant part of the summary judgment evidence Ms. Burns offered in reply to Baylor's summary judgment motion. For the purposes of preparing his affidavit testimony, Mr. Madeley reviewed deposition testimony, color copies of photographs of the curb and parking garage area, striping service invoices, and Baylor's plans for re-striping the parking garage. Mr. Madeley also relied on his understanding of literature related to safety engineering, safety management, standard safety analysis techniques, human factors engineering, and visual discrimination and awareness.
In his affidavit, Mr. Madeley provided background information on the accident process which he stated was a concept which recognizes that with reasonable forethought, root causes of any resulting injury can be reasonably anticipated and prevented. Mr. Madeley then provided *595 general fall type accident statistics and stated that prevention of falls should be a major concern to employers, engineers, architects, builders, and administrators of any building, facility, or surface area. Further, Mr. Madeley described the human vision during the walking process, including the following points: (1) a person's general attention while walking is centered on various ever-changing points; (2) the focusing of one's line of sight takes time for eye movement and focus, significantly limiting the number of specific objects that can be truly seen and understood while walking; (3) vision shifts involving differences in focal distance take additional time; (4) most of what is seen while walking is perceived with peripheral vision and in order to become aware of potential hazards in the walking surface, such hazards must be conspicuous enough, unusual enough, and threatening enough to attract special attention from a distance; and (5) if a walking surface hazard is not specifically focused on and recognized as a hazard from a distance, perception becomes particularly difficult after one approaches within the distance that defines the outer or periphery limits of one's normal line of sight. Mr. Madeley also briefly discussed the core principles of safety engineering and cardinal rules of hazard control, including the following points: hazards are first to be controlled by (1) hazard elimination or inherent safety designed or planned, followed by (2) minimizing necessary hazards through the use of add-on safety devices or features and remaining hazards are to be addressed by (3) the development and publication of safe product, machine, equipment, or facility use methods and practices.
After his outline of general principles, Mr. Madeley then offered ten foundational opinions and nine summary opinions and conclusions. The ten foundational opinions addressed areas of knowledge that Mr. Madeley believed Baylor knew or should have known: (1) its responsibility to exercise reasonable care in establishing and maintaining a premise free of recognized hazards; (2) the basic elements of premises accident prevention programming; (3) the core principles of safety engineering and the cardinal rules of hazard control; (4) safety engineering and safety management techniques to identify, evaluate, and control reasonably foreseeable potential premises safety hazards; (5) the severe injury potential associated with falls, that falls are a leading cause of injury, and that such injury potential would dictate focused attention on elimination or control of related hazardous conditions or factors; (6) safer and reasonable alternative design of the garage facility that would have prevented or significantly reduced the risk of injury; (7) Baylor knew or should have specifically known the safety literature that relates to single steps and visual acquisition of hazards while walking in addition to minimum requirements of specific codes, standards, and regulations; (8) as people increase in age the amount of light needed for visual acquisition and discrimination generally increases; (9) Baylor knew or should have known that a premises containing a hidden fall hazard, if allowed to be used by patrons, only awaits the exposure of a certain number of persons to such hazards before potential injury is certain to occur; and (10) proper accident cause analysis must focus on the "accident process."
On appeal, Ms. Burns asserts that Mr. Madeley's specialized knowledge on the human visual process assists the trier of fact by explaining visual focus while walking and how the way the curb was painted and the parking garage floor may have created the optical illusion of a flat surface. Ms. Burns also contends that Mr. Madeley's *596 testimony assists the trier of fact to understand that the curb and parking garage floor should have been painted in a way that would not have created an optical illusion, that it was possible for Baylor to identify, evaluate, and control the hazard before someone fell, and that a stair is a hazard and painting hazards in a certain way can decrease the risk of injury.
Mr. Madeley's affidavit testimony provides depth or precision to the trier of fact's understanding of a relevant issue in this case. "Rule 702 makes inadmissible expert testimony as to a matter which obviously is within the common knowledge of jurors because such testimony, almost by definition, can be of no assistance." Honeycutt, 24 S.W.3d at 360, quoting Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir.1986). Mr. Madeley possesses specialized knowledge of the human visual process, which is not obviously within the common knowledge of jurors. Therefore, we conclude that Ms. Burns carried her burden to provide proof that Mr. Madeley's opinions would have assisted the trier of fact to understand the evidence or to determine a fact in issue and were beyond the common knowledge of the trier of fact.
Relevance and Reliability of Expert Witness Testimony
In its motion to strike, Baylor also argued that Mr. Madeley's opinions were not relevant to the issues in the case and it questioned the reliability of Mr. Madeley's research methods. Rule 702 requires that an expert's testimony be relevant and based on a reliable foundation. Robinson, 923 S.W.2d at 556. To be relevant, the proposed testimony must be "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." Id., citing United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985). Mr. Madeley's affidavit testimony had a clear relationship to the issues of premises liability and safety disputed in the case. The trial court could not have based its exclusion of Mr. Madeley's testimony on relevancy grounds.
Turning to Baylor's reliability challenge, the trial court was required to "evaluate the methods, analysis, and principles relied upon in reaching the opinion... [in order to] ensure that the opinion comports with applicable professional standards outside the courtroom and that it `will have a reliable basis in the knowledge and experience of [the] discipline.'" Gammill, 972 S.W.2d at 725-26. "The trial court is not to determine whether an expert's conclusions are correct, but only whether the analysis used to reach them is reliable." Id. at 728. In Robinson, the Texas Supreme Court identified several factors to consider in determining whether scientific evidence is reliable and thus, admissible under Rule 702.[1]Robinson, 923 S.W.2d at 557. However, the Court in Gammill recognized that the Robinson factors for assessing the reliability of scientific evidence cannot be applied to non-scientific testimony. See Gammill, 972 S.W.2d at 726. For such instances, the Gammill Court adopted the "analytical gap" analysis for assessing reliability by which the trial court may determine that *597 there is too great an analytical gap between the data the expert relies upon and the opinion offered. Id. at 727; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002). Such an analytical gap exists if an expert fails to demonstrate how his or her observations support his or her conclusions. See Gammill, 972 S.W.2d at 727.
From his affidavit testimony, it is clear that Mr. Madeley's opinions were based on the application of his knowledge and training to the underlying facts in the case, rather than on scientific methods. As a board certified safety engineer, Mr. Madeley reviewed deposition testimony, color photographs of the location of Ms. Burn's fall, particularly the curb and its surroundings, consulted research related to safety engineering, safety management, standard safety analysis techniques, human factors engineering and visual discrimination and awareness, and reviewed Baylor's re-striping plans.
In his affidavit, Mr. Madeley provided significant detail on his knowledge of the accident process and description of the human visual system while walking. Mr. Madeley also discussed the core principles of safety engineering and hazard control. Based on this methodology, Mr. Madeley opined that: (1) Baylor failed to properly design and/or mark the walkway surface of the parking lot; (2) the unsafe condition and/or causative factor was a poorly-marked curb step that appears difficult to visually discriminate under certain conditions; (3) Baylor failed to provide a premises free of recognized and reasonably foreseeable hazards likely to result in death or severe injury to persons using the premises; (4) Baylor failed to establish and/or failed to properly implement the basic elements of premises safety programming; (5) Baylor failed to utilize the core principles of safety engineering and rules of hazard control, relying instead on workers and patrons to cope with unguarded physical hazards rather than removing or safeguarding against those hazards; (6) Baylor apparently failed to properly inspect and evaluate the design and marking of the curb and walkway; (7) Baylor failed to provide a safer reasonably available alternative design; (8) Baylor failed to exercise ordinary care to adhere to authoritative references and standards relating to the hazards that should have been identified; and (9) the above conditions were more than likely producing and proximate causes of the incident and related injuries that occurred to Ms. Burns.
From Mr. Madeley's research and observations of the underlying facts in the case, Mr. Madeley arrived at his conclusions regarding what he considered an unsafe conditiona poorly designed and/or marked curb stepand then made subsequent inferences as to Baylor's failure to remedy the hazard. Mr. Madeley's extensive background in safety engineering and safety management, along with his affidavit testimony concerning the application of his knowledge and experience to the underlying facts, sufficiently demonstrate that his opinions were reliable. The trial court's function was not to determine whether Mr. Madeley's conclusions were correct, but only whether the analysis used to reach them was reliable. See Gammill, 972 S.W.2d at 728. After reviewing all of Baylor's contentions, we find that there was no basis for the trial court to have stricken Mr. Madeley's testimony. Accordingly, we conclude that the trial court abused its discretion in excluding Mr. Madeley's testimony under Rule 702. Issue One is sustained.
Granting of Summary Judgment
In Issue Two, Ms. Burns asserts that the trial court erred in granting summary judgment in favor of Baylor because *598 there were fact issues regarding whether the curb presented an unreasonable risk of harm and Baylor's actual or constructive knowledge of the condition. Baylor moved for summary judgment on both traditional and no-evidence grounds. Without specifying the basis for its ruling, the trial court granted summary judgment in favor of Baylor. When the summary judgment does not specify the grounds relied on, it will be affirmed on appeal if any of the grounds presented in the motion are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).
Standard of Review
The movant for traditional summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex.R.Civ.P. 166a(c). A defendant is entitled to summary judgment when he or she disproves, as a matter of law, one of the essential elements of each of the plaintiff's causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In deciding whether there is a disputed material fact issue precluding summary judgment, all admissible evidence favorable to the non-movant must be taken as true; all reasonable inferences must be indulged in favor of the non-movant and all doubts resolved in the non-movant's favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Collins v. County of El Paso, 954 S.W.2d 137, 145 (Tex.App.-El Paso 1997, pet. denied).
A no-evidence summary judgment is essentially a pretrial directed verdict and, as such, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App-El Paso 2000, no pet.). The party moving for no-evidence summary judgment must specifically state the elements as to which there is no evidence. Tex.R.Civ.P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. Id. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. See id.; Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). More than a scintilla of evidence exists when reasonable and fair-minded people would differ in their conclusions. Havner, 953 S.W.2d at 711. When reviewing a no-evidence summary judgment, we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id.
Challenged Elements of the Premises Liability Claim
The elements of a premises liability cause of action are: (1) the owner/operator had actual or constructive knowledge of some condition on the premises; (2) the condition posed unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk of harm; and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injuries. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983). In its hybrid motion, Baylor urged that, as a matter of law, the curb was not a condition presenting an unreasonable risk of harm and Baylor had no actual or constructive knowledge of the premises defect, if any. Baylor also asserted that there was no evidence of a condition that posed an unreasonable risk of harm and no evidence that Baylor had actual or constructive knowledge of that *599 condition, if any. We first address the no-evidence grounds contained in Baylor's motion.
Condition Posing an Unreasonable Risk of Harm
Ms. Burns argues on appeal that there was evidence that the curb in Baylor's parking garage presented an unreasonable risk of harm because of the lighting, the construction, the method of painting, and the optical illusion it created. Specifically, there was probative evidence that the way the curb was painted posed an unreasonable risk in that it created an optical illusion that there was no curb. "A condition presenting an unreasonably risk of harm is one in which there is such a probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen." Wyatt v. Furr's Supermarkets, Inc., 908 S.W.2d 266, 269 (Tex. App.-El Paso 1995, writ denied), citing Seideneck v. Cal Bayreuther Assoc., 451 S.W.2d 752, 754 (Tex.1970).
In response to Baylor's summary judgment motion, Ms. Burns submitted the following summary judgment evidence: Mr. Madeley's affidavit and curriculum vitae, her deposition with photograph exhibits and the deposition of Keith Howse, the Assistant Director of Public Safety for the Baylor University Medical Center Campus, with photograph exhibits. In her deposition testimony, Ms. Burns was asked to describe the accident. According to Ms. Burns, she and her daughter came off the elevator and were headed to the parking lot. The next thing she knew, she heard her head hit the cement and she was down on the pavement. Ms. Burns stated that she did not see a curb. When asked whether she recalled where she was looking at the time, Ms. Burns stated that she was probably looking straight ahead.
In his deposition, Mr. Howse noted his familiarity with the area where Ms. Burns fell and stated that he conducts a general patrol of that garage several times a week. After reviewing a photograph exhibit, which depicts the area from the perspective of someone coming out of the elevators and walking forward towards her vehicle, Mr. Howse acknowledged that the curb was difficult to see under those conditions as they appear in the photograph.
In her summary judgment evidence, Ms. Burns included numerous photographs of the location of her fall in the Baylor parking garage. The photographs clearly lend support to Ms. Burn's claim that the way the curb and surroundings were painted made that curb difficult to see. Together with deposition testimony by Ms. Burns and Mr. Howse, Ms. Burns produced some evidence that created a fact issue as to whether the curb posed an unreasonable risk of harm.
Actual or Constructive Knowledge
The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge. Keetch, 845 S.W.2d at 265. Creating the condition does not establish knowledge as a matter of law for purposes of premises liability, however, creation of the condition is circumstantial evidence of knowledge. See id. at 266. In premises cases, constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex.2000).
In its motion, Baylor also asserted that there was no evidence that it had actual or constructive knowledge of a condition posing an unreasonable risk of harm. In response, Ms. Burns presented summary *600 judgment evidence to raise a fact issue as to whether Baylor had constructive knowledge of the condition of the curb. In his deposition testimony, Mr. Howse stated that as Assistant Director of Public Safety at Baylor, he supervises the parking division, which consists of forty personnel who operate the campus parking lots. Mr. Howse is also in charge of physical security and transportation services related to the parking division. Part of Mr. Howse's general supervisory duties include general patrol and personnel review in the parking garage where Ms. Burns fell. Mr. Howse stated that in October 1998, a year before Ms. Burns fell, the parking garage was re-striped. Though Mr. Howse was Assistant Public Safety Director for the parking division at that time, he did not know why the garage was re-striped. Upon viewing a photograph of the area where Ms. Burns fell, as one would exit from the elevators walking forward, Mr. Howse acknowledged that the curb was difficult to see under those conditions as they appeared in the photograph. It is undisputed among the parties that use of the elevator entrance in the parking garage was a principle egress and ingress into the Baylor facility. Mr. Howse regularly patrolled the parking garage for the facility and therefore we can reasonably infer that he had ample opportunities to inspect the re-striped curb and surroundings during the year before Ms. Burns fell.
More than a scintilla of evidence exists if the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711. Viewing the evidence in the light most favorable to Ms. Burns, and disregarding all contrary evidence and inferences, we hold that there was more than a scintilla of evidence as to whether Baylor had constructive knowledge of the curb's dangerous condition. See Nixon, 690 S.W.2d at 548-49. The same evidence precluding no-evidence summary judgment precludes granting traditional summary judgment against Ms. Burns. Accordingly, we find that the trial court erred in granting summary judgment in favor of Baylor. Issue Two is sustained.
We reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
HILL, C.J., (Ret.) (Sitting by Assignment).
NOTES
[1] The Robinson factors include, but are not limited to: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. Robinson, 923 S.W.2d at 557. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267057/ | 171 Conn. 312 (1976)
ANTHONY AGUIRE, JR.
v.
LORRAINE R. AGUIRE
Supreme Court of Connecticut.
Argued March 10, 1976.
Decision released July 27, 1976.
HOUSE, C. J., LOISELLE, BOGDANSKI, LONGO and BARBER, JS.
David S. Maclay, with whom, on the brief, was Donald W. Bicknell, for the appellant (plaintiff).
Richard Fuchs, with whom, on the brief, was Frank J. Hennessy, for the appellee (defendant).
PER CURIAM.
This appeal arises from an action brought by the plaintiff, Anthony Aguire, Jr., for the dissolution of his marriage to the defendant, Lorraine R. Aguire, on the ground that it had *313 broken down irretrievably. In her cross complaint, the defendant also requested that the marriage be dissolved on that ground and claimed alimony, counsel fees, and such further relief as the court deemed proper. By judgment rendered October 23, 1974, the marriage was dissolved and the plaintiff was ordered to convey to the defendant his one-half interest in the marital domicil, to assign to the defendant a loan representing a debt owed the plaintiff, and to pay periodic alimony to the defendant in the amount of $20 per week. The plaintiff appealed to this court from that judgment, and the issue on appeal is whether the trial court erred in awarding periodic alimony to the defendant.
The award of alimony by the court was made pursuant to General Statutes § 46-52, which provides, in part, that "[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court ... shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46-51."
The well established judicial standards of review of awards of alimony which were developed under General Statutes § 46-21 apply to review of those awards made under § 46-52. See Chambliss v. Chambliss, 171 Conn. 278, 279, 370 A.2d 924; Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835. "[T]rial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding *314 circumstances and the appearance and attitude of the parties are so significant." LaBella v. LaBella, 134 Conn. 312, 318, 57 A.2d 627. The trial court, therefore, has broad discretion in determining the type, duration, and amount of alimony which is proper in each case. Krieble v. Krieble, 168 Conn. 7, 357 A.2d 475; Baker v. Baker, 166 Conn. 476, 488, 352 A.2d 277. As we stated in DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709, cited in Pasquariello v. Pasquariello, supra: "`The action of the trial court is not to be disturbed unless it abused its legal discretion, and "[i]n determining this the unquestioned rule is that `great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.' Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591...." Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352.' Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714. In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew's Enterprises, Inc. v. Surabian, 146 Conn. 608, 611,153 A.2d 463."
The plaintiff attaches great significance to the fact that the marital relationship was of only six months duration, and cites several decisions of the courts of other jurisdictions for our examination. We have considered those cases and we conclude that each domestic relations case must be decided on the basis of the facts unique to it and that great weight must be given to the decisions of the trier. See Laird v. Laird, 203 Cal. App.2d 806, 21 Cal. Rptr. 924; Howard v. Howard, 314 Ky. 685, 236 S.W.2d 932; Thompson v. Thompson, 222 Ore. 505, 353 P.2d 241; Frank v. Frank, 18 Utah 2d 228, 419 *315 P.2d 199. The trial court is guided in the exercise of its discretion by the listing in § 46-52 of the factors to be considered in awarding alimony, and the finding indicates that duration was duly considered by the court. The duration of a marriage is but one factor, and to hold that it is determinative would attach to that single factor a significance not intended by the legislature. To hold that the court's award of alimony constituted an abuse of discretion because the marriage was of only six months duration would substitute our judgment of the weight to be given that factor for that of the trial court.
The finding reveals that the trial court acted under the authority of and in compliance with the provisions of General Statutes § 46-52 and, in making its award of alimony, considered the factors enumerated therein. There is no indication that the trial court abused its broad discretion in awarding alimony to the defendant in the amount of $20 per week.
Although the plaintiff has assigned error in many of the trial court's findings of fact and in several of its conclusions, few corrections are warranted and those corrections do not alter our holding that the trial court did not abuse its discretion.
There is no error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267069/ | 174 Cal.App.4th 231 (2009)
___ Cal.Rptr.3d ___
THE PEOPLE, Plaintiff and Respondent,
v.
ANTHONY JEROME HAIRSTON, Defendant and Appellant.
No. C057504.
Court of Appeals of California, Third District.
May 26, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*233 William I. Parks, 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, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
NICHOLSON, J.
A jury convicted defendant Anthony Jerome Hairston of three misdemeanor counts of resisting arrest (Pen. Code, § 148, subd. (a)(1)),[1] but it deadlocked on one felony count of making a criminal threat (§ 422). On retrial, a second jury convicted defendant of one count of criminal threat. (§ 422.) It also determined that defendant personally used a handgun in making the threat (§ 12022.5, subd. (a)), but it found not true an allegation that defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
The trial court sentenced defendant to a prison term totaling 13 years, based on the upper term of three years on the criminal threat count, plus the upper term of 10 years for the personal handgun use enhancement. The court also sentenced defendant to concurrent one-year terms in the county jail for the three resisting arrest counts.
Defendant appeals, raising the following contentions:
1. Insufficient evidence supports the criminal threat conviction;
2. The trial court erred in failing to instruct sua sponte on the lesser included offense of attempted criminal threat;
3. The court erred by not bifurcating trial on the gang enhancement;
*234 4. The court improperly instructed the jury on the concept of reasonable doubt by using CALCRIM Nos. 220 and 222;
5. The jury erred in convicting defendant of three separate counts of resisting arrest instead of one count, and defendant suffered ineffective assistance of counsel when trial counsel failed to make a motion to dismiss two of the counts;
6. The court violated section 654 by imposing separate jail terms on the resisting arrest counts;
7. The court erred by imposing the upper term sentence on the gun use enhancement without stating its reasons for doing so, and defendant suffered ineffective assistance of counsel when his trial counsel failed to object on this ground; and
8. The trial court committed Cunningham[2] error when it imposed the upper term sentence on the criminal threat count.
We affirm the judgment in all respects.
FACTS
Braulio Meraz lived in an Oak Park apartment complex with his wife and four children. On February 20, 2007, Meraz was outside in the complex's parking lot talking with a friend who was working on a car. Patrice Watson was also there.
A maroon, four-door sedan pulled into the parking lot, with rap music blaring from inside. Three people exited the car. Defendant, the car's driver, was rapping and singing.[3] Meraz told his friend that defendant's singing sounded like a song Elmo from Sesame Street had rapped.
Defendant heard Meraz's remark. He asked Meraz if he was trying to be funny. Surprised, Meraz stood back and went about his business. He also replied angrily and called defendant "boy." Watson testified that defendant told Meraz to watch his "M F" mouth, and then words went back and forth.
Defendant and his companions walked up a flight of stairs and into an apartment. Watson stated that before defendant went inside, he broke the window of one of the apartments. Meraz did not see that act or hear any glass breaking.
*235 A man nicknamed "Pumpkin" came out of the upstairs apartment and asked Meraz if the three men had been "tripping" with him. Pumpkin said he would handle it. Meraz, thinking the incident amounted to nothing, did not respond, and he went back to talking with his friends.
Eventually, defendant and his two companions came out from the apartment. Watson testified that defendant stood at the railing, telling Meraz he did not know whom he was messing with. Defendant said he ran Oak Park. As defendant walked down the stairs, he told Meraz, "I've got something for you." Defendant and Meraz renewed their verbal confrontation. Meraz told defendant he was not scared. At the bottom of the stairs, defendant told Watson to tell Meraz he had better respect him.
Meraz testified that he did not hear, or could not recall, any of these statements by defendant. He claimed he did not exchange any words with defendant while defendant was coming down the stairs. He did, however, watch defendant come down the stairs, and he gave defendant "hard looks" while he walked back to his car. His fists may even have been clenched. Meraz was prepared to fight.
Defendant and his companions got back into their car. Meraz walked up to the car in an aggressive manner. When he put his hands on the passenger door and looked in, he saw defendant seated in the driver's seat holding a handgun up to his chest. The gun was pointed away from Meraz. Defendant repeatedly asked Meraz, "[I]s there a problem, bitch? Is there a problem bitch? Is there a fucking problem, bitch?" Defendant put his left hand down to the side, pulled out another gun, and handed it to his front seat passenger. The passenger in the backseat leaned forward and also displayed a gun.
Meraz suddenly felt his life was in danger. He threw up his hands, backed away from the car, and told defendant he did not want any trouble "like that." Meraz backed away as far has he could to a fence. As defendant backed the car up to leave, he and his passengers continued calling Meraz a "bitch" and asking if there was "a fucking problem." Meraz believed they were doing anything they could to get him to respond. Afraid of being shot, Meraz said nothing. He "sort of blacked out to what they were saying" at that time. However, as the car drove away, Meraz heard someone from inside the car say, "[Y]ou better not be here when we get back."
Watson testified she saw defendant point his gun at Meraz as he started to back the car out. At that point, Watson moved away from Meraz. One of the passengers in the car said to her, "[Y]eah, mom, go in the house." Believing the three men "were about to light [Meraz] up," Watson went into her apartment. She told her daughter and niece to take her grandchild into the room and lie down on the floor.
*236 Meraz was able to remember the car's license plate. He ran to his apartment and called 9-1-1. He feared for his life and that of his family, and he believed the men would return to harm them. He told the operator the three men were going to come back because that was what they had said, and he wanted the police to get to the complex quickly in case the men returned.
Approximately 15 minutes after receiving the dispatch based on Meraz's call, Sacramento County Sheriff's Deputy Donny Vettel noticed he was driving behind defendant's car. Defendant pulled into an apartment complex and parked the car. Deputy Vettel activated his lights. Defendant and the rear seat passenger got out of the car and ran. The deputy yelled at the men to stop, but they ran around a building and out of sight. Deputy Vettel did not pursue them. No one remained in defendant's car.
As Sheriff's Deputy Robert Patton drove past the apartment complex, he saw defendant and another person running through the complex and jumping over a wall surrounding a garbage dumpster. Deputy Patton exited his car, identified himself, and ordered the two men to put their hands over their heads. Defendant and his companion looked at the deputy, jumped back over the wall, and ran through the complex. Deputy Patton ran after them, but when the two men ran in separate directions, the deputy stopped his pursuit.
Sheriff's Deputy Robert White arrived at the complex to assist Deputy Vettel. As Deputy White was driving around the complex, defendant ran towards Deputy White's car. Defendant's right hand was in his pants. Deputy White slammed on his brakes, got out of his car, pointed his gun at defendant, and commanded defendant to stop. Defendant turned, ran away through a parking lot, and ran behind a concrete retaining wall and out of the deputy's sight.
Seconds later, defendant ran around the retaining wall and jumped over a fence into a park. Both of defendant's hands were now visible. Deputy White jumped onto the fence, pointed his gun at defendant, and told him to lie down and give up. Defendant did.
Deputy White searched the area. Behind the retaining wall, he found a black wool jacket and a sock containing a .38-caliber handgun. There were five expended shell casings in the gun but no live ammunition.
Sacramento County Sheriff's Department Detective John Sydow testified that defendant was a validated member of the Oak Park Bloods criminal street gang. A tattoo on the back of defendant's hand indicated he was affiliated with the 33d Street subset of the Oak Park Bloods.
Detective Sydow related two examples of the Oak Park Bloods' primary activities, neither of which involved defendant. In the first incident, a gang *237 member was exchanging words with a man from a rival gang in 2005. The other man stated he was from Oak Park and asked the Bloods member why he had not seen him around Oak Park. Believing he had been "disrespected," the Bloods member responded by shooting the man five times. The man survived.
The second incident occurred in April 2004. A Bloods member attempted to steal a car and yelled at the Russian driver to get out of the car. When the Russian man refused to get out, the Bloods member shot him in the chest. The man ultimately died from the shooting.
Detective Sydow stated the apartment complex where Meraz and Watson lived was generally controlled by the Oak Park Bloods and specifically by the Ridezilla subset of the Oak Park Bloods for the sale of narcotics.[4] Ridezilla and Oak Park Bloods gang members would intimidate the residents and neighbors to prevent them from reporting the gang's drug sales to the police. The police received many calls from residents, but when officers responded, the complaining residents could not be found or would deny placing the call.
Detective Sydow opined that in a hypothetical situation based on the facts of this case, the criminal threats were done for the benefit of the Oak Park Bloods. If a citizen of the apartment complex were to stand up to a Bloods member, others would watch to see whether the gang member would respond. In the deputy's opinion, the gang member could not let the confrontation pass without responding. In order to earn respect for him and his gang, the member would do whatever was necessary to intimidate the citizen. Without earning this type of respect, the gang would be unable to accomplish its crimes.
DISCUSSION
I-IV.[*]
*238 V
Multiple Convictions of Violating Section 148
Defendant claims error occurred when he was convicted of three separate misdemeanor counts of resisting a peace officer in the discharge of his duty. (§ 148, subd. (a).) He asserts that because the multiple counts arose from a single, nonviolent act, he can be convicted at most of only one count. Alternatively, he claims he suffered ineffective assistance of counsel because his trial counsel did not move to dismiss two of the counts. We disagree with both of his arguments. Defendant can be convicted for each peace officer he resisted.
(1) Unless the Legislature says otherwise, if a defendant commits a single criminal act that affects multiple victims, he can be convicted of multiple counts of violating the same statute only if the gravamen of the offense "is centrally an `act of violence against the person.'" (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351 [211 Cal.Rptr. 742, 696 P.2d 134], quoting Neal v. State of California (1960) 55 Cal.2d 11, 20 [9 Cal.Rptr. 607, 357 P.2d 839].)
Regarding section 148, the Legislature has said otherwise. It has treated violations of section 148 similar to how the courts treat a violent criminal act that affects multiple victims. A defendant can be convicted under section 148 for each peace officer he obstructs, even if he engages in only one act of obstruction. This rule is found in subdivision (e) of section 148. The statute reads, in pertinent part: "A person may be convicted of multiple violations of this section [section 148] if more than one public officer, peace officer, or emergency medical technician are victims." (§ 148, subd. (e).) (Neither party cited this subdivision to us.)
The Legislature could not have been clearer. If, in the course of resisting an officer, a defendant resists another officer, he is guilty of committing a second separate offense and may be convicted separately for that offense.
The facts of this case highlight why section 148, subdivision (e), is good policy. The pursuing deputies attempted to apprehend defendant while knowing he might have been armed, and one of the deputies drew his weapon to make the arrest. Defendant put himself, the deputies, and the public at risk of harm each time, and in each place, he refused to obey the deputies. His conduct in this case makes him more culpable than a person who resists arrest by only one officer in one location.
Defendant relies on People v. Garcia (2003) 107 Cal.App.4th 1159 [132 Cal.Rptr.2d 694] (Garcia) to assert he is subject to only one conviction, but *239 that case is distinguishable. There, the defendant was convicted of three counts of felony evading a peace officer (Veh. Code, § 2800.2, subd. (a)). (Garcia, supra, at pp. 1161-1162.) The Court of Appeal reversed two of the counts. Although the pursuit had involved multiple peace officers in multiple vehicles, "the evading was an uninterrupted single course of conduct, i.e., one continuous act of driving lasting 30 minutes. The statutory language . . . contemplates a continuous course of driving, which may transpire over a short or long period of time." (Id. at p. 1163.)
Here, even if defendant's acts of resisting arrest were one continuous act, the statutory language is different. Unlike the statute at issue in Garcia, section 148 expressly states a defendant can be convicted for each officer whose exercise of duty he resists. Garcia does not apply to this case.[5]
(2) The evidence shows defendant resisted arrest by three different peace officers. Under the express language of section 148, defendant could be convicted for each officer whose exercise of duty he resisted. Thus, there was no error, and defense counsel did not render ineffective assistance by not moving to dismiss two of the counts.
VI
Multiple Punishments on Section 148 Counts
We turn from the issue of multiple convictions to the issue of multiple punishments. Defendant claims the trial court violated section 654 when it imposed concurrent one-year jail terms for each violation of section 148. He argues section 654 required the court to stay imposition of sentence on two of the misdemeanor counts because the three convictions were based on a single course of conduct and the acts of resisting were incident to one objective. We disagree.
Section 654, subdivision (a), provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential *240 term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ."
(3) Case law has expanded the meaning of section 654 to apply to more than one criminal act when there was a course of conduct that violates more than one statute but nevertheless constitutes an indivisible transaction. (People v. Latimer (1993) 5 Cal.4th 1203, 1211 [23 Cal.Rptr.2d 144, 858 P.2d 611].) "Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the `intent and objective' of the actor. (Neal v. State of California[, supra,] 55 Cal.2d [at p. 19].) If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. (People v. Perez (1979) 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 63].) If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639 [105 Cal.Rptr. 681, 504 P.2d 905].)" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268 [104 Cal.Rptr.2d 641].)
"The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.]" (People v. Saffle (1992) 4 Cal.App.4th 434, 438 [5 Cal.Rptr.2d 648].)
Defendant claims the facts at best support a finding that he violated section 148 with one and the same objectiveto avoid arrest by the officers. The Attorney General argues the evidence supports the trial court's implicit determination that defendant violated section 148 three times with an independent criminal objective for each violationto avoid arrest by each particular officer.
We agree with the Attorney General. Defendant formed a new and independent intent with each officer he encountered. Moreover, each encounter by an armed peace officer and an armed, fleeing felon carried with it the potential for death or great bodily injury for the officer, for defendant, and for differing sets of residents of the apartment complex where the three encounters occurred. We conclude on the facts of this case that substantial evidence supports the trial court's implicit determination that defendant had a separate objective for each violation of section 148.
*241 VII, VIII[*]
DISPOSITION
The judgment is affirmed.
Scotland, P. J., and Robie, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, II, III, IV, VII and VIII.
[1] All subsequent undesignated references to sections are to the Penal Code.
[2] Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856].
[3] Meraz and Watson both identified defendant at trial as the driver of the car.
[4] Detective Sydow testified that in his experience, it was very common for members of different gang subsets to intermingle and hang out together due to their common gang membership. For instance, a member of the 33d Street Bloods would hang out with members of Ridezilla because they were friends and had a common gang affiliation with the Oak Park Bloods.
[*] See footnote, ante, page 231.
[5] We are aware the federal Ninth Circuit Court of Appeals has stated that "under California law, persons who violate § 148(a)(1) in a number of respects in the course of a single incident may be charged and convicted only once." (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 699, fn. 5 (Smith).) We refuse to give the Smith court's statement any weight to the extent the statement can be interpreted to limit the number of section 148 convictions to one no matter how many officers are victims. The Smith court made no mention of the Legislature's contrary directive in section 148, subdivision (e), perhaps because the defendant in that case pleaded guilty to only one count of violating section 148, even though he violated the statute numerous times against at least two peace officers. (Smith, supra, at pp. 693-694, 696-697.)
[*] See footnote, ante, page 231. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384939/ | 746 P.2d 574 (1987)
Gayla Goo GABRIEL, Plaintiff,
v.
Leonard GABRIEL, Defendant,
In re Max Nakata GARCIA, Real Party in Interest, Appellant.
No. 11711.
Intermediate Court of Appeals of Hawaii.
December 2, 1987.
*575 Walter R. Schoettle, Honolulu, for appellant.
Susan L. Gochros, Deputy Atty. Gen., Dept. of the Atty. Gen., Honolulu, for Judge Evelyn B. Lance.
Before BURNS, C.J., and HEEN and TANAKA, JJ.
TANAKA, Judge.
Appellant Max Nakata Garcia (Garcia), attorney for defendant-husband in a divorce proceeding, appeals his criminal contempt of court conviction. Finding that the family court violated Garcia's procedural due process right of sufficient notice of hearing, we vacate the judgment of criminal contempt.
I.
On November 19, 1985, plaintiff Gayla Goo Gabriel (Wife), represented by attorney John D. Himmelmann (Himmelmann), filed a complaint for divorce against defendant Leonard Gabriel (Husband). Appearing for Husband, Garcia filed an answer to the complaint.
On August 11, 1986, Wife filed a motion to compel discovery. Himmelmann's affidavit stated that on June 4, 1986, he had served copies of a request for production of documents and interrogatories on Garcia and Husband had not responded to the request and interrogatories. At the hearing of the motion on August 25, 1986, Himmelmann apprised District Family Court Judge Evelyn B. Lance that the purpose of the discovery was to obtain information relating to an alleged asset by way of investment in or loan to Bright Aviation, Inc. Garcia represented to the court that the only document his client had regarding Bright Aviation was a September 23, 1983 letter[1] indicating a $5,000 "cash investment" in Bright Aviation, which Garcia had "provided to" Himmelmann. August 25, 1986 Transcript at 6, 7. Himmelmann denied that Garcia had provided him with the letter, stating that his own client had given him the document "back in January[.]" Id. *576 at 10. At the close of the hearing, Judge Lance stated:
The Court will order that the answers to interrogatories be provided on or before September 15th, 1986 at 4:00 p.m. and the Court will set a hearing on September 19th at 8:15 in the morning in regard to sanctions for any potential non-compliance with today's orders.
At that hearing on September 19th, Mr. Garcia, you may show cause to this Court why you should not be found guilty of contempt of Court for telling the Court an untruth this morning.
Id. at 13-14.
On September 19, 1986, at 7:51 a.m. an "Order Re: Motion to Compel Discovery" was filed. That order included the following provisions:
IT IS HEREBY ORDERED THAT:
1. Plaintiff shall be entitled to subpoena directly from Bright Aviation, Inc. all documents related to the parties financial involvement therein and Defendant and/or his counsel shall be liable for costs.
2. Defendant shall serve Answers to First Request for Answers to Plaintiff's Interrogatories to Defendant Leonard Gabriel and First Request for Production of Documents and Things to Defendant Leonard Gabriel no later than 4:00 o'clock p.m., on September 15, 1986.
3. This matter shall come on for further hearing on September 19, 1986, at 8:15 a.m. for determination of the following:
a. Sanctions for non-compliance, if any, of Orders 1 and 2 above.
b. Counsel for Defendant shall show cause why he should not be held in contempt of court for making a false statement to the court at the hearing on August 25, 1986, concerning Bright Aviation documents he allegedly provided to Plaintiff's counsel.
c. The date on which Plaintiff's counsel served Defendant's counsel with a filed copy of the Motion to Compel Discovery, and sanctions against Defendant's counsel, if any, for not appearing for said Motion on time.
Record at 97.
Judge Lance presided at the September 19, 1986 hearing and examined both Himmelmann and Garcia.[2] Garcia was given full opportunity to explain the charges made against him. At the conclusion of the hearing, Judge Lance excused Garcia's late appearance at the August 25, 1986 hearing, but found him
in contempt of Court for failing to comply with a request for production of documents, for failing timely to submit interrogatories to his client for his client to respond to them and for actively misleading the Court at the hearing on August 25th, 1986 in regard to his conduct of the case.
September 19, 1986 Transcript at 18.
In its judgment of criminal contempt filed on October 6, 1986, the court concluded, inter alia, that:
Garcia is guilty of criminal contempt in violation of HRS Section 710-1077(1)(c) and (3)(b) based upon the following facts:
1. Garcia failed to timely submit Plaintiff's First Request for Answers to Interrogatories sent to him on June 4, 1986 to his client for response.
2. Garcia actively misled the Court at a hearing held on August 25, 1986 in regard to Plaintiff's Motion to Compel Discovery, by stating to the Court that he had provided to Plaintiff's attorney in response to Plaintiff's First Request for Production of Documents a letter dated September 1, 1983[3] regarding the value of Defendant's interest in Bright Aviation Corp. [sic], when in fact Plaintiff's attorney had received the document from Plaintiff.
Record at 101-102.
Thereafter, Garcia timely appealed.[4]
*577 II.
Preliminarily, we note that in this jurisdiction there are two types of contempt of court, civil and criminal. See Murray v. Murray, 60 Haw. 160, 587 P.2d 1220 (1978); Hawaii Pub. Employment Relations Bd. v. Hawaii State Teachers Ass'n, 55 Haw. 386, 520 P.2d 422 (1974). Criminal contempt, in turn, may be classified as either summary (direct) contempt or constructive (indirect) contempt. Summary contempt occurs when "the offense [is] committed in the immediate view and presence of the court, or under such circumstances that the court has knowledge of all of the facts constituting the offense[.]" Hawaii Revised Statutes (HRS) § 710-1077(3)(a) (1985). See also In re Nam, 65 Haw. 119, 648 P.2d 1101 (1982). Other contumacious offenses are deemed constructive criminal contempt. See HRS § 710-1077(3)(b) (1985); State v. Ryan, 59 Haw. 425, 583 P.2d 329 (1978); In re Bettencourt, 55 Haw. 430, 521 P.2d 668 (1974).
The parties concur that the alleged misconduct in this case constituted constructive criminal contempt, rather than summary criminal contempt. We agree. It appears that Judge Lance treated the constructive criminal contempt as a petty misdemeanor. See HRS § 710-1077(3)(b).
III.
We start with the precept that "[c]riminal contempts are crimes and the accused is entitled to the benefit of all constitutional safeguards[.]" Hawaii Pub. Employment Relations Bd. v. Hawaii State Teachers Ass'n, 55 Haw. at 392, 520 P.2d at 426. Two of those safeguards are the procedural due process rights to reasonable notice and an opportunity to be heard. Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697, 41 L. Ed. 2d 897 (1974); Miranda v. Southern Pac. Transp. Co., 710 F.2d 516, 522 (9th Cir.1983).
In proceedings for constructive criminal contempt,[5] "the alleged contemner must be given notice of the purpose of the hearing, including the nature of the acts of contempt that he is alleged to have committed." People v. Razatos, 699 P.2d 970, 974 (Colo. 1985). Moreover, procedural due process requires that the accused be accorded adequate notice of, and time to prepare for, a contempt hearing. United States v. McAnlis, 721 F.2d 334, 337 (11th Cir.1983), cert. denied, 467 U.S. 1227, 104 S. Ct. 2681, 81 L. Ed. 2d 877 (1984); United States v. Hawkins, 501 F.2d 1029, 1031 (9th Cir.), cert. denied, 419 U.S. 1079, 95 S. Ct. 668, 42 L. Ed. 2d 674 (1974).
Applying these standards to the facts of this case, we hold that Garcia's procedural due process right to sufficient notice was violated and the judgment of criminal contempt cannot be permitted to stand.[6]
A.
The written notice of hearing containing the contempt charges against Garcia is contained in the September 19, 1986 order which was filed 24 minutes before the scheduled commencement of the contempt hearing. Clearly, this notice was insufficient for it failed to give Garcia a reasonable time to prepare for the hearing.
B.
The statute provides that when an alleged constructive criminal contempt of court occurs and the court elects to treat it as a petty misdemeanor, "the court shall order the defendant to appear before it to answer a charge of criminal contempt of *578 court[.]" HRS § 710-1077(3)(b). Although some jurisdictions have, by rule, permitted oral notice of the charges in a constructive contempt situation, see e.g. Rule 42(b), Federal Rules of Criminal Procedure, no such rule exists in this jurisdiction. See Hawaii Rules of Penal Procedure. In the absence of such a rule, it is our view that the order called for in HRS § 710-1077(3)(b) should be in the form of a written order to show cause served on the accused.
Assuming for discussion purposes, however, that Judge Lance's August 25, 1986 oral order constituted the order required under HRS § 710-1077(3)(b), that order was inadequate because it failed to give Garcia "notice of the specific charges[.]" Taylor v. Hayes, 418 U.S. at 499, 94 S.Ct. at 2703, 41 L.Ed.2d at 908.
First, although Judge Lance found Garcia "guilty of criminal contempt in violation of HRS Section 710-1077(1)(c),"[7] Record at 101-102, there was no mention of that statute in the August 25, 1986 oral order.
Second, although in the judgment of criminal contempt Garcia was found to have "failed to timely submit [the interrogatories]... to his client for response," Record at 102, Judge Lance did not orally charge Garcia with criminal contempt in that regard. Judge Lance ordered Garcia to provide the answers to the interrogatories on or before September 15, 1986 and set the September 19, 1986 hearing "in regard to sanctions for any potential non-compliance with today's orders." August 25, 1986 Transcript at 13-14. At the August 25, 1986 hearing, Judge Lance used the term "contempt of Court" only with reference to "telling the Court an untruth this morning." Id. at 14. Nonetheless, in the October 6, 1986 judgment, Judge Lance found Garcia in contempt of court for both having actively misled the court and having failed to submit the interrogatories to his client in a timely manner.
Thus, the court failed to give Garcia adequate notice of the specific charges for which he was held in criminal contempt of court.
We therefore vacate the October 6, 1986 judgment of criminal contempt.
NOTES
[1] At the August 25, 1986 hearing, the document was referred to as the "letter dated September 23rd, 1983[.]" August 25, 1986 Transcript at 10. In the judgment of criminal contempt filed on October 6, 1986, the document is referred to as the "letter dated September 1, 1983[.]" Record at 102. Since the letter is not part of the record, we do not know which date is correct.
[2] Neither Himmelmann nor Garcia was sworn as a witness.
[3] See note 1, supra.
[4] On November 21, 1986, Garcia withdrew as counsel for defendant-husband and was replaced by other counsel.
[5] Procedural due process protections are excepted in summary criminal contempt proceedings since "`instant action is necessary to protect the judicial institution itself.'" Miranda v. Southern Pac. Transp. Co., 710 F.2d 516, 522 (9th Cir.1983) (quoting In re Gustafson, 650 F.2d 1017, 1022 (9th Cir.1981)).
However, even in a situation involving summary contempt, where the trial court postpones announcing the punishment for the offense that has occurred in its presence during trial, the contemner "should have reasonable notice of the specific charges and opportunity to be heard in his own behalf." Taylor v. Hayes, 418 U.S. 488, 499, 94 S. Ct. 2697, 2703, 41 L. Ed. 2d 897, 908 (1974).
[6] Since our holding on procedural due process grounds is dispositive of the appeal, we do not discuss the other issues raised by Garcia.
[7] Hawaii Revised Statute § 710-1077(1)(c) (1985) provides:
(1) A person commits the offense of criminal contempt of court if:
* * *
(c) As an attorney, clerk, or other officer of the court, he knowingly fails to perform or violates a duty of his office, or knowingly disobeys a lawful directive or order of a court[.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384953/ | 125 S.W.3d 651 (2003)
Freddy CRENSHAW, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-02-00743-CR.
Court of Appeals of Texas, Houston (1st Dist.).
December 4, 2003.
Discretionary Review Refused March 31, 2004.
*652 Allen C. Isbell, Houston, TX, for Appellant.
Dan McCrory, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
Panel consists of Justices HEDGES, NUCHIA, and HIGLEY.
OPINION
ADELE HEDGES, Justice.
Introduction
Appellant, Freddy Crenshaw, was charged with capital murder. A jury found appellant guilty, and the trial court sentenced him to life in prison. In six points of error, appellant contends that (1) the trial court erred in limiting his cross-examination of Orlando Castaneda (Orlando) and Vanessa Reyes (Vanessa) (points 1 and 2), (2) the trial court erred in excluding testimony from Audra Berlanga about an alleged robbery committed by Orlando and Vanessa (points 3 and 4), and (3) the trial court erred in refusing to allow appellant to cross-examine Orlando and to elicit testimony from Audra Berlanga about the robbery allegedly committed by Orlando and Vanessa (points 5 and 6). We affirm.
*653 Factual Background
On August 18, 2001, Orlando and his wife, Vanessa, went to appellant's home to eat dinner and drink beer. Around midnight, appellant asked Orlando to drive him to a friend's home to pick up some money. Orlando agreed, and drove appellant and two other individuals, Chris and Isaac, to a nearby apartment complex.
Orlando parked, and everyone except Orlando exited the vehicle. Approximately five minutes later, appellant and the other two individuals returned to the car. Orlando noticed that appellant was carrying a bloody cane when he reentered the vehicle, and that both appellant and Isaac had blood on them. Appellant informed Orlando that he had just robbed someone. After being informed of the robbery, Orlando initially refused to drive appellant home; but after appellant informed him that he would suffer certain "consequences" if he refused to comply, Orlando relented. Orlando testified that he was unaware that appellant intended to commit a robbery and had no involvement in the planning of the robbery; he thought that he was giving appellant a ride to a friend's home to pick up some money.
After returning to appellant's home, appellant told all present about the crime. He informed everyone that he had hit the victim in the face, knocked him to the ground, and beat him with the cane, intending to either kill him or render him unconscious so that the victim would be unable to identify him.
Appellant's victim died as a result of multiple blunt trauma injuries, which included several skull fractures, rib fractures, and an arm fracture.
At trial, Vanessa testified that appellant, Orlando, Chris, and Isaac left appellant's home, and that Orlando informed her that he intended to give appellant a ride. When they returned to appellant's home, she saw that there was blood on the clothes being worn by appellant, Chris, and Isaac, that appellant had a bloody metal cane in his hand, and that he demonstrated for all present how he hit his deceased victim with the cane.
Cross-Examination of Orlando and Vanessa, and Testimony of Audra Berlanga
In his first two points of error, appellant contends that the trial court deprived him of his right to confrontation of witnesses when it refused to allow him to cross-examine Orlando and Vanessa about their alleged involvement in an unadjudicated robbery that appellant contends occurred seven days prior to the commission of the offense giving rise to appellant's conviction. He contends on appeal that the trial court erred in excluding this testimony because the evidence regarding the alleged unadjudicated robbery demonstrated a potential motive for both Orlando and Vanessa to testify against him.
In his third and fourth points of error, appellant contends that the trial court erred in refusing to allow Audra Berlanga to testify about Orlando's and Vanessa's alleged commission of the extraneous robbery. He argues the testimony would have shown that Orlando and Vanessa were potentially biased against appellant, and that the trial court denied him the right to present a meaningful defense by excluding Audra's testimony.
Standard of Review
We review the trial court's decision to exclude evidence under an abuse of discretion standard, and will not reverse its ruling unless it falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd).
*654 Exclusion of Testimony
The constitutional right of confrontation is violated when appropriate cross-examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). The general rule is that specific instances of misconduct are inadmissible for the purpose of attacking a witness' general character for truthfulness. Tex.R. Evid. 608(b). Specific instances of misconduct are, however, admissible to demonstrate that a witness is biased or has an interest in the outcome of the case. Tex.R. Evid. 613(b); Dixon v. State, 2 S.W.3d 263, 271 (Tex.Crim.App.1999). While great latitude should be allowed in cross-examining witnesses to reveal possible bias, prejudice, or self-interested motives to falsify testimony, appellant bears the burden of demonstrating the relevance of the proffered evidence to the issue of bias or prejudice. Chambers v. State, 866 S.W.2d 9, 26-27 (Tex.Crim.App.1993). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex.R. Evid. 401. In order to demonstrate that the proffered testimony is relevant to the issue of bias or prejudice, appellant must establish a specific connection between the witness' testimony and an actual bias or interest. Willingham v. State, 897 S.W.2d 351, 358 (Tex.Crim.App.1995); See also Ellis v. State, 99 S.W.3d 783, 789 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (proffered testimony not relevant to determine fact at issue).
Appellant has failed to show the relevance of the excluded testimony to the merits of the case and to the issue of bias. He provides no specific authority supporting the proposition that the proffered testimony was relevant, but only recites general principles of constitutional law and the law of evidence. Appellant's naked allegations suggesting that Orlando and Vanessa were involved in a robbery or attempted robbery seven days prior to the date of the offense do not fairly tend to raise an inference that Orlando and Vanessa had a motive to testify falsely for the State concerning this offense. See Ellis, 99 S.W.3d at 789; Massey v. State, 826 S.W.2d 655, 658 (Tex.App.-Waco 1992, no pet.).
In an attempt to show the relevance of the excluded testimony to the merits of the case and to the issue of bias, defense counsel examined Officer Leroy Benavidez, one of the Houston Police Department officers assigned to investigate the murder of the deceased victim, on bill of exception outside of the jury's presence. Officer Benavidez was questioned concerning whether he had investigated the background of Orlando and Vanessa. Defense counsel demonstrated that Officer Benavidez was aware that Orlando was charged in August of 1999 with aggravated robbery, but that complaint was dismissed in October of 1999. Benavidez testified that he had no information leading him to believe that Orlando and Vanessa were involved in the alleged robbery that appellant contends took place one week prior to the commission of the instant offense. Benavidez speculated that, although he was unaware of Orlando and Vanessa's purported involvement in the alleged robbery, his partner at the time, Investigator Sosa, may have been aware of the purported incident. Defense counsel did not, however, call Investigator Sosa to further develop the issue.
Because there was no evidence supporting appellant's contention that Orlando and Vanessa were suspected of committing the alleged extraneous offense, their testimony was irrelevant on the issue of whether they lied to curry favor with the State. Willingham, 897 S.W.2d at 358. We therefore *655 hold that the trial court did not abuse its discretion in refusing to allow appellant to cross-examine Orlando and Vanessa regarding their purported involvement in the alleged robbery. We also hold that the trial court did not abuse its discretion in refusing to allow Audra Berlanga to testify regarding Orlando's and Vanessa's purported involvement in the alleged extraneous offense to show a potential interest or motive for testifying against appellant.
Appellant also contends that the trial court's refusal to allow the testimony of Audra Berlanga deprived him of his right to present a meaningful defense. Specifically, he contends that "if the jury had the benefit of [Berlanga's] testimony, that she witnessed Vanessa Reyes and Orlando Castaneda commit a similar robbery only a week before, the jury likely would have considered both as accomplice witnesses as a matter of fact in the instant case." In other words, if Orlando and Vanessa had committed the alleged earlier robbery, the jury would assume that they were also involved in the robbery committed by appellant. We reject that argument. Extraneous offense evidence is not relevant to show character conformity. Wolfberg, 73 S.W.3d at 443. The trial court did not abuse its discretion in refusing to permit Audra Berlanga's testimony.
We overrule appellant's first four points of error.
False Impression Created During Cross-Examination of Orlando
In his fifth and sixth points of error, appellant contends that the trial court violated his right to effective cross-examination when it refused to allow him to cross-examine Orlando and when it refused to allow Audra Berlanga to testify about the alleged extraneous robbery, because the testimony was admissible to correct a false impression arising from Orlando's testimony.
Appellant contends that the following testimony, which occurred during defense counsel's cross-examination of Orlando, created a false impression with the jury that Orlando was a law-abiding citizen:
[Defense Counsel]: And you said before, you didn't take any money, other than the 20, right?
[Orlando]: Correct.
[Defense Counsel]: And as you said before, you didn't see how it got divided, but you know, don't you, Orlando, that if you had taken more than 20, if you'd taken your cut out of that money, that sure wouldn't look good when you talked to the police?
[Orlando]: Because I did not knowin the first place, I would not want a cut. If they just committed a crime, I would not want nothing to do with it.
[Defense Counsel]: Are you telling me that if someone committed a robbery, you would not want any of the money from it?
[Orlando]: Correct.
[Defense Counsel]: You wouldn't do that sort of thing, would you?
[Orlando]: Correct.
[Defense Counsel]: You would never commit a robbery, would you?
[Orlando]: Correct.
[Defense Counsel]: And you haven't committed a robbery, have you?
[Orlando]: Correct.
[Defense Counsel]: May I approach the bench.
[The Court]: Yes.
(At the Bench, on the record.)
[Defense Counsel]: Judge, I think it goes to his motive to lie and his credibility. It's like opening a door.
[The Court]: You asked those questions. You cannot open your own door.
*656 [Defense Counsel]: He can't get up there and lie like that.
[The Court]: I don't understand why the State didn't object because they're not proper questions. The State should have objected, but you cannot open your own door like that. You cannot.
Appellant contends that Orlando volunteered a response that made him appear to the jury to be a law-abiding citizen; therefore, he opened the door to the admission of evidence regarding the admission of the extraneous robbery.
As a general rule, prior conduct of a witness for the purpose of attacking or supporting the witness' credibility may not be inquired into on cross-examination of the witness or proved by extrinsic evidence. Tex.R. Evid. 608(b). If, while testifying, a witness creates a false impression of law abiding behavior, she "opens the door" on her otherwise irrelevant past criminal history, and opposing counsel may expose the falsehood. Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App.1993). This exception to the general rule of inadmissibility does not, however, apply to permit opposing counsel to rely on his own interrogation during cross-examination to contradict the witness and then admit evidence of collateral matters which would otherwise be inadmissible. See Shipman v. State, 604 S.W.2d 182, 184-85 (Tex. Crim.App.1980).
In the instant case, Orlando's response was induced by the leading question propounded by defense counsel during cross-examination. Defense counsel's question suggested that Orlando's motivation was "to look good" when he talked to the police, and his answer was in response to that question. Because the exception to the general rule of inadmissibility does not apply to permit opposing counsel to rely on his own interrogation during cross-examination to contradict the witness and then admit evidence of collateral matters which would otherwise be inadmissible, we hold that the trial court was correct in refusing to allow the admission of evidence regarding the alleged extraneous robbery.
We overrule appellant's fifth and sixth points of error.
Conclusion
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384965/ | 746 P.2d 1179 (1987)
In the Matter of the ADOPTION OF M.L.T., Jr., Minor Child.
No. 860335-CA.
Court of Appeals of Utah.
December 10, 1987.
James D. Mickelson, Salt Lake City, for appellant.
David L. Wilkinson, State Atty. Gen., Diane Wilkins, Asst. Atty. Gen.
Before GARFF, JACKSON and ORME, JJ.
OPINION
GARFF, Judge:
This is an interlocutory appeal taken from an order denying appellant's motion to excuse an adopted child from appearing in court.
On March 14, 1986, the appellant, who was also the child's step-mother, filed a petition for adoption of the above-referenced child. The child had lived with the appellant and the father of the child for over nine years without knowledge that appellant was not the child's natural mother. On March 28, 1986, the natural mother appeared before the court and consented to the adoption. Appellant attempted to finalize the adoption without the child's presence, but was informed by the judge that the child's presence was required in court.
On April 24, 1986, appellant filed a motion to excuse the child from court, which requested the judge to interpret Utah Code Ann. § 78-30-8 (1977) to allow finalization of the adoption without the presence of the child in court.[1] The trial court denied appellant's motion.
This case presents an issue of first impression as to whether a child must appear and be examined in an adoption proceeding.
We affirm the district court ruling.
The appellant asserts that the word "must" in Utah Code Ann. § 78-30-8 is directory, rather than mandatory in nature, and, therefore, an appearance of the child at the adoption proceeding is not required. *1180 Also, when it appears that it would be in the child's best interest not to appear, the district court judge should excuse the child from being present at the hearing. However, if the wording of Utah Code Ann. § 78-30-8 is in question, then the wording of Utah Code Ann. § 78-30-9 (1977) is also at issue[2] when it states:
The court must examine all persons appearing before it pursuant to the preceding provisions, each separately, and, if satisfied that the interests of the child will be promoted by the adoption, it must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting.
The basic rule for statutory construction is that words used in statutes should be given their ordinary, plain meaning: "the presumption is that the words are used in their ordinary sense, and if a different interpretation is sought it must rest upon something in the character of the legislation or in the context which will justify a different meaning." Deseret Sav. Bank v. Francis, 62 Utah 85, 217 P. 1114, 1115 (1923). See also Gord v. Salt Lake City, 20 Utah 2d 138, 434 P.2d 449, 451 (1967).
The purpose of the adoption statutes is to protect the rights of the parties involved and secure for the child a permanent, stable environment. This is a legitimate state and societal interest. To that end, the legislature crafted very carefully the language and the words it chose to reflect its intent. Further, "[a]doption proceedings are statutory in nature and we are not inclined to give the statute a meaning not intended by the Legislature." In re Adoption of Jameson, 20 Utah 2d 53, 432 P.2d 881, 882 (1967). The use of the word "must" is clearly mandatory.[3]
Also, the Utah Supreme Court, in Taylor v. Waddoups, 121 Utah 279, 241 P.2d 157, 159 (1952), although primarily addressing the issue of relinquishment, makes no allowance for a selective appearance by the interested parties: "The adoptive parents, the child adopted, and the natural parents or persons whose consent is necessary, must appear before the district court where the consent must be signed, and the agreement executed that the child shall be treated as the lawful child of the adopted parents." We conclude that the appearance requirement of the person adopting the child, the child adopted, and the consenting parent must be strictly construed and is jurisdictionally required, and that, without compliance, the adoption could be nullified.
The appellant argues that the best interest of the child requires the absence of the child from the hearing, although no evidence was presented to substantiate that conclusion. It is for this precise reason the statute requires the appearance of the child, so the judge can not only be assured the child actually exists, but can also draw his or her own conclusion as to what the best interest of the child demands. Not to require the appearance of the child would, in a sense, be an abdication of the court's responsibility to ascertain the best interest of the child. The legislature obviously wanted that assessment to be made by the court, not by the adoptive parents.
The state is interested in being assured that before a child, who is an innocent party, shall be adopted its interest and welfare must be safeguarded, and only after a district judge, set up by the statute to protect the child, has determined that the child's best interest will be assured, will an order be made.
*1181 Riding v. Riding, 8 Utah 2d 136, 329 P.2d 878, 881 (1958).
However, we note that there is no legislative direction as to how or when the appearance is to be made, nor what should transpire at the hearing. Obviously, there are many variables that would influence the nature of the proceedings, such as the age and degree of understanding of the child, whether it was a step-parent adoption, as in the instant case, or an agency adoption or independent placement. It is left to the discretion of the court as to how fully aware the child must be regarding the nature and purpose of the hearing. It would also be advisable to consider most carefully the judgment and feelings of the adoptive parent(s), especially in a step-parent adoption where the child has resided with the adoptive parent for a number of years.
The ruling of the district court is affirmed and the matter is remanded for further proceedings consistent with this opinion.
ORME, Judge (concurring):
I concur fully in Judge Garff's opinion. I write separately to expand on the concern touched upon in the concluding paragraphs of that opinion.
At oral argument before this court, it became clear that appellant's motive in seeking to have the child excused from court attendance was concern by the adoptive mother, with whom the child had lived since infancy, and her husband, the child's biological father, that the child not be made aware at this time of the fact that "mom" was not in fact his biological mother. It was suggested that the trial court had perhaps not been sympathetic to this concern and, indeed, held the view that a child of nine years should be told the facts so as to understand the change in legal status which his adoption would bring about.
The statutes clearly require appearance of the child in court, Utah Code Ann. § 78-30-8 (1977), and also require the court to examine the child as part of its solemn obligation to determine whether the adoption would be in the child's best interest. See Utah Code Ann. § 78-30-9 (1977). It does not, however, follow that the child must receive full and complete disclosure, at the court's own instance, of the purpose of his attendance and the nature of the proceeding. In this case, it is the child's father and de facto mother who best know the child and his particular psychological and emotional needs. It is the court's business to view and question the child and decide whether adoption is best. However, in the case of children under the age of twelve,[1] it is not the court's business to handle such a private and potentially delicate matter in a way inconsistent with the wishes of the child's family.
Although conventional and perhaps even learned wisdom[2] holds that children should be told as soon as feasible that they were or are about to be adopted, decisions about the timing and extent of such disclosures are clearly ones for the family, and not the judicial system, to make.
So far as I am concerned, it would be an abuse of discretion for a trial court, in a case like the instant one, not to honor the family's request that the nature and effect of the proceeding be obscured from the child. As the main opinion ably demonstrates, the purpose of the statute is to assure the court an opportunity to see that the child exists, to observe his general health and well-being, to ascertain that he is free from obvious physical abuse, and to interrogate the child as appropriate. Those objectives can be as readily served in the context of a low-key, in camera chat with *1182 "a nice person whom mommy and daddy know and who works down by the library" as in the formal and absolutely candid context which appellant fears.
JACKSON, J., concurs.
NOTES
[1] Utah Code Ann. § 78-30-8 (1977): "The person adopting a child and the child adopted, and the other persons whose consent is necessary, must appear before the district court of the county where the person adopting resides, and the necessary consent must thereupon be signed and an agreement be executed by the person adopting to the effect that the child shall be adopted and treated in all respects as his own lawful child... ."
[2] The general rule is that all sections of a legislative enactment should be construed together. C. Sands, Sutherland Statutory Construction § 46.05 at 91 (4th ed. 1984), states: "the general purpose, intent or purport of the whole act shall control, and ... all the parts [should] be interpreted as subsidiary and harmonious. [sic] to its manifest object."
[3] See Grant v. Utah State Land Bd., 26 Utah 2d 100, 485 P.2d 1035, 1036-37 (1971), which states: "if the legislature had intended an applicant to have an absolute right of reinstatement, instead of saying that an applicant `may have his contract reinstated,' it could easily have used the word `shall' or `must,' and thus have rendered a mandatory meaning clear" (emphasis in original).
[1] Utah Code Ann. § 78-30-6 (1977) requires that children over the age of twelve years consent to their adoption. Obviously, such children must be told the facts, incident to giving their knowing and voluntary consent.
[2] "Letting your child grow up with the knowledge that he or she is adopted is not only the most open approach but also the least complicated." J. McNamara, The Adoption Adviser 150 (1975). "There really isn't any need to labor the point that the adopted child must be told of his adoption as soon as he is old enough." L. Raymond, Adoption and After, 77 (1974). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384937/ | 44 Cal. 3d 216 (1987)
746 P.2d 452
242 Cal. Rptr. 477
THE PEOPLE, Plaintiff and Respondent,
v.
PRENTICE JUAN SNOW, Defendant and Appellant.
Docket No. Crim. 22774.
Supreme Court of California.
December 24, 1987.
*218 COUNSEL
Ellen Bailer Fondiler, under appointment by the Supreme Court, J. Courtney Shevelson, Joel Franklin and Prentice Juan Snow, in pro. per., for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Susanne C. Wylie, John R. Gorey and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
*219 OPINION
LUCAS, C.J.
Defendant Prentice Juan Snow appeals from a judgment imposing the death penalty following his conviction of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), accompanied by a special circumstance finding (§ 190.2, subd. (a)(10) [killing a witness to prevent his testimony]) and a firearm-use finding (§ 12022.5). As will appear, we conclude that the entire judgment must be reversed for Wheeler error (People v. Wheeler (1978) 22 Cal. 3d 258 [148 Cal. Rptr. 890, 583 P.2d 748]) that occurred during the jury selection process. In addition to discussing the Wheeler issue, we also, for guidance on retrial, reach one of defendant's other claims of error.
I. THE FACTS
The information charged defendant with intentionally killing Alfred J. Koll to prevent his testimony in another criminal proceeding against defendant. The record indicates that on August 27, 1979, defendant and codefendant James Phillips robbed the Koll Professional Pharmacy in Pasadena. Following their arrest, Mr. Koll was the only witness at the preliminary examination to identify defendant as one of the robbers. Trial was set for November 3, 1980; Koll was subpoenaed as a prosecution witness.
On the morning of trial, defense counsel Lara discussed with the prosecutor the possibility of a plea bargain. Lara consulted with defendant, who indicated he wished to consider the matter during the lunch hour. Trial recessed at 11:30 a.m. Defendant was seen making a phone call and then leaving the building dressed in a suit and tie.
A witness thereafter saw a man enter the Koll pharmacy. He was wearing blue denim pants and matching jacket, gloves, and a blue or blue-green motorcycle helmet with a "bubble shield." Shortly thereafter several shots were heard emanating from within the pharmacy. Witnesses next saw the same man walking quickly away from the area, carrying the helmet and bubble shield and using them as a mask to cover his face while his other hand was concealed inside his jacket.
Police were called to the scene, where they found Koll's body. He had been shot seven times. Evidently nothing of value was taken from the pharmacy. A .38 caliber bullet fragment was found in one wound during Koll's autopsy.
Mr. Haney, the prosecutor in defendant's robbery case, was told of Koll's death during the noon recess. He returned to court at 1:25 p.m. Defendant *220 arrived with Attorney Lara around 1:45. Haney asked Lara if defendant would accept the plea bargain previously discussed, and Lara informed Haney that defendant had decided to "go to trial." Haney then told Lara and defendant about Koll's death. Although Lara appeared "dumbfounded," defendant showed no sign of surprise or other emotion.
Officers investigating the Koll shooting asked defendant to take a gun powder residue test of his hands. Defendant appeared agitated and asked several times to go to the washroom before the test was performed, which request was refused. Eventually, the test was performed with negative results. Expert testimony indicated, however, that residue will not be present if the shooter had worn a glove or had placed his hand in his pocket.
On the morning of the shooting, defendant had driven his girlfriend, Pat B., to work in his Buick. The investigating officers found the car parked in a lot near the courthouse, towed it to the police station and searched it pursuant to a warrant. They discovered a spiral notebook containing the telephone number of the Koll pharmacy, a portable police "scanner" used to monitor police radio calls, and a spent .38 caliber bullet casing.
The officers, while en route to the pharmacy, also found a discarded bubble shield and cloth liner from a motorcycle helmet. A fingerprint expert lifted latent prints from the bubble shield and spiral notebook; the prints matched defendant's. One officer testified that when he had previously arrested defendant on an unrelated theft, he was wearing blue Levi pants and jacket, and a blue motorcycle helmet with a bubble shield resembling the one found by the officers.
The distance from the courthouse to the parking lot where the Buick was parked was only a few hundred yards, requiring a three- to six-minute walk. The Koll pharmacy was less than a mile from the courthouse.
In his defense, defendant testified that he had spent the noon recess talking to his attorney, having lunch in the cafeteria, and checking on his car in the parking lot. He denied hearing Prosecutor Haney discuss Koll's murder (a denial confirmed by Attorney Lara), and he explained his fingerprints on the bubble shield by observing that as he entered the courtroom, one of the officers pushed the shield in his direction and asked if it was familiar. Defendant pushed the shield away, touching it with his fingers. (The officer denied any such occurrence.)
According to defendant, his own helmet and shield were stolen from him earlier that year. Defendant claimed he last saw the spiral notebook at his *221 house; he had not written the pharmacy number in the book, and likewise had no knowledge of the police scanner found in the car.
As part of the defense case, James Henry, defendant's cellmate in 1981, testified that defendant had admitted the following facts to him: (1) On the day of the shooting, defendant left the courthouse at the noon recess and walked to a supermarket to make a phone call; (2) a friend met him and brought him a police scanner; (3) defendant went to the Koll pharmacy wearing blue jeans, jacket and motorcycle helmet, and killed a man at that location; (4) he returned to the market where his car was parked and changed his clothes; and (5) thereafter he returned to the courthouse around 1 p.m. (The record is unclear why defendant chose to elicit Henry's damaging testimony.)
Defendant then resumed the stand and denied that he had conversed with any cellmate regarding his case. According to defendant, cellmate Henry had borrowed a copy of defendant's motion to dismiss (§ 995) in order to learn the factual details of defendant's case. Another inmate, Herman Blueford, confirmed that Henry was facing 60 to 70 years in prison and had asked him for help in borrowing documents regarding defendant's case.
Witness Henry ultimately was recalled by defendant and recanted his former testimony regarding defendant's admissions to him.
The jury found defendant guilty as charged. A penalty phase trial resulted in a death verdict, but the trial judge granted defendant's motion for a second penalty trial based on the fact that the trial court had given an improper commutation instruction. (See People v. Ramos (1982) 30 Cal. 3d 553 [180 Cal. Rptr. 266, 639 P.2d 908], judgment vacated and cause remanded sub nom. California v. Ramos (1983) 463 U.S. 992 [77 L. Ed. 2d 1171, 103 S. Ct. 3446], sub. opn. People v. Ramos (1984) 37 Cal. 3d 136 [207 Cal. Rptr. 800, 689 P.2d 430].) The second penalty trial likewise resulted in a death verdict, and the trial court denied motions for new trial and modification of the judgment. The present appeal is automatic. (§ 1239.)
II. GUILT PHASE CONTENTIONS
A. Misuse of Peremptory Challenges
As previously indicated, defendant contends that the prosecutor misused his peremptory challenges to exclude several Black persons from the jury. After outlining the applicable law, we discuss in some detail the factual basis for defendant's contention.
*222 (1) In People v. Wheeler, supra, 22 Cal. 3d 258, we ruled that peremptory challenges may not be used to exclude from a jury, solely because of a presumed "group bias," all or most members of an identifiable group of citizens distinguished on racial, religious, ethnic, or similar grounds. (See also Batson v. Kentucky (1986) 476 U.S. 79 [90 L. Ed. 2d 69, 106 S. Ct. 1712]; People v. Turner (1986) 42 Cal. 3d 711, 715-716 [230 Cal. Rptr. 656, 726 P.2d 102], and cases cited.)
Under Wheeler, if a party believes his opponent is improperly using peremptory challenges for a discriminatory purpose, he must raise a timely challenge "and make a prima facie case of such discrimination to the satisfaction of the court. First, ... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias." (22 Cal.3d at p. 280, fn. omitted; accord, Batson v. Kentucky, supra, 476 U.S. at pp. 93-100 [90 L.Ed.2d at pp. 85-90, 106 S.Ct. at pp. 1721-1724].)
(2) In subsequent cases, we have stressed the importance of an express ruling by the trial court as to whether a prima facie case has been shown, thereby requiring some response or explanation by the party exercising the peremptory challenges. (See People v. Turner, supra, 42 Cal.3d at pp. 719, fn. 3 [maj. opn. by Mosk, J.], 729 [conc. opn. by Panelli, J.].) Once a prima facie case has been shown, and an explanation tendered, the trial court must make a "sincere and reasoned attempt to evaluate the ... explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the [counsel asserting the peremptory challenges] has examined members of the venire and has exercised challenges for cause or peremptorily, for `we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.'" (People v. Hall (1983) 35 Cal. 3d 161, 167-168 [197 Cal. Rptr. 71, 672 P.2d 854], quoting Wheeler, supra, 22 Cal.3d at p. 282; see People v. Turner, supra, 42 Cal.3d at p. 728.)
Thus, in Hall, we reversed a judgment on Wheeler grounds where the trial court "apparently considered itself bound to accept all of the prosecutor's explanations at face value, expressing the view that group bias is shown only when a prosecutor declares an intent to exclude all members of an ethnic group from the jury. Such abdication is inconsistent with the court's obligations under Wheeler. ..." (35 Cal.3d at p. 169.)
*223 Defendant is a Black man accused of murdering a Caucasian victim. As will appear, in the present case the trial judge expressed repeated concern about the prosecutor's apparent use of peremptory challenges to exclude Black persons from the jury. Indeed, our review of the voir dire examination indicates that several Black venirepersons were excused after giving seemingly routine, acceptable responses to the prosecutor's questions. (The Attorney General concedes that, as to three of the six prospective jurors in question, the record reveals no "obvious" or "apparent" reason for excusing them.) Yet, despite defendant's repeated objections, the judge inexplicably failed to demand any explanations from the prosecutor for his apparent pattern of improper peremptory challenges.
The Wheeler issue was first raised by defendant after the prosecutor peremptorily challenged Mr. Daniels, one of the three challenged prospective jurors whose responses to questioning gave no apparent cause for challenge or concern. Defense counsel interrupted the proceedings to "make a record on what I believe to be a developing pattern. As far as my computations are concerned, three of the four peremptories that were exerted by the People were against what appear to be black people to me."
Although it was agreed that the prosecutor had excused two Black persons (Daniels and McDade), discussion ensued as to whether a third excused individual, Bradbury, was Black. The court, unable to recall Bradbury's race, ruled that "So far as the court is concerned, there have been two. There's no other way I can establish, of course, that there is a pattern." The court suggested that counsel henceforth make sure the record reflected whether challenged prospective jurors are "ethnically black," and the voir dire continued.
Thereafter, when prospective juror Cox was excused, the court noted for the record that she was Black. Despite defense counsel's request that the prosecutor be required to "express some kind of reason" for excusing the Black venirepersons, the court replied, "I don't believe at this point ... that any pattern has been established." We observe that Miss Cox's responses, like those of Mr. Daniels, seemed quite acceptable from the standpoint of the prosecutor. The People have suggested no legitimate reason for excusing her.
When another Black venireperson, Mrs. Porche, was being examined, the prosecutor asked her various questions regarding her ability to convict a defendant based on circumstantial evidence. As with prior jurors, the prosecutor used an example involving a boy and a missing pie. The trial court thereupon convened a conference in chambers and warned the prosecutor that his hypothetical example and questions based thereon were confusing *224 and misleading. Significantly, the judge expressed his suspicion that the prosecutor was using the responses to these questions as a pretext for excluding some prospective jurors.
Thus, the trial judge observed "I'm getting concerned now about the ethnic make up of the jury and how those that are on are getting kicked.... I hope this line of questioning ... is not aiding you in getting rid of those persons." (Italics added.) The prosecutor denied any "bias or selective excuse of jurors," and observed that while he had thus far passed a jury containing two Blacks, defense counsel had peremptorily excused thirteen White venirepersons. In the prosecutor's words, "I think it works both ways." The court responded, "It's obvious that the majority of jurors who are here are not black people. I'm not saying that those blacks that were excused that you're abusing your peremptory rights. I've ruled that way on the motion of the defense.... [¶] Now let's proceed."
Shortly thereafter, the prosecutor peremptorily excused Mrs. Porche. Defense counsel again argued that "a pattern" of excluding Blacks had emerged, and that "case law demands that some reason be stated" for her exclusion. The trial court replied, "Well, counsel need[s] no reason to excuse a juror." The court opined that the prosecutor probably had excused Mrs. Porche because of her responses to the circumstantial evidence questions, and observed that two Blacks remained on the jury.
Next, the prosecutor excused Miss West, a Black woman whose standard responses to the voir dire examination disclosed no particular reason for her exclusion. Defense counsel once again objected, stating that "It appears that it's a systematic exclusion of black jurors.... I ask the court to make that finding and I'm also requesting, pursuant to case law, that he provide the court with a reason why Miss West would not be eligible to serve...." The court denied the motion "without prejudice," adding that "I'm going to read the case," presumably referring to our Wheeler case, supra, 22 Cal. 3d 258. (Voir dire occurred in 1981, several years after Wheeler was filed.)
Immediately thereafter, and before adjourning to perform any such research, the court addressed the prosecutor, stating that it had become "obvious to me that you are Apparently every time a black person gets in there there are two left, that's true. And I don't know what the case holds, but I don't think that the test is necessarily that you have one or two on the jury.... That's why I'm reserving any ruling."
The prosecutor replied that "as I understand the case, it works both ways. The defendant has systematically excluded all white persons. There *225 has not been one minority excluded by the defense." The prosecutor continued to deny that any of his exclusions were based on race, stating "I have my reasons. If ordered by the court, I will produce those reasons."
(3) Despite the court's indication that the matter was "reserved," the record fails to indicate any further ruling on defendant's motion until the prosecution peremptorily excused yet another Black, Mrs. Carr. Defense counsel renewed his previous objection and the court ruled simply, "The motion is denied," without giving any further explanation. The net result was that the prosecution peremptorily challenged six Black venirepersons. The jury as finally constituted contained two Black persons.
Initially, we observe that the prosecutor was in error in assuming that defense counsel's supposed wrongful exclusion of Caucasians in some manner justified his own exclusion of Black persons. As the People now concede, the propriety of the prosecutor's peremptory challenges must be determined without regard to the validity of defendant's own challenges. (See People v. Wheeler, supra, 22 Cal. 3d 258, 283, fn. 30; People v. Fuller (1982) 136 Cal. App. 3d 403, 418 [186 Cal. Rptr. 283].)
Nor does the fact that the prosecutor "passed" or accepted a jury containing two Black persons end our inquiry, for to so hold would provide an easy means of justifying a pattern of unlawful discrimination which stops only slightly short of total exclusion. (See People v. Motton (1985) 39 Cal. 3d 596, 607-608 [217 Cal. Rptr. 416, 704 P.2d 176].) Although the passing of certain jurors may be an indication of the prosecutor's good faith in exercising his peremptories, and may be an appropriate factor for the trial judge to consider in ruling on a Wheeler objection, it is not a conclusive factor.
As we stated in Motton, supra, 39 Cal. 3d 596, quoting with approval an earlier Court of Appeal opinion, "The Attorney General argues that the prosecution's acceptance of the jury on three occasions, when there were one or two Blacks on the panel, rebuts defendant's prima facie showing.... `If the presence on the jury of members of the cognizable group in question is evidence of intent not to discriminate, then any attorney can avoid the appearance of systematic exclusion by simply passing the jury while a member of the cognizable group that he wants to exclude is still on the panel. This ignores the fact that other members of the group may have been excluded for improper, racially motivated reasons.'" (Id. at pp. 607-608.)
In this regard, we disapprove language in People v. Davis (1987) 189 Cal. App. 3d 1177, 1190-1191 [234 Cal. Rptr. 859], suggesting that the presence of two or three Blacks in the jury box following voir dire precludes the *226 trial court from finding a prima facie case of exclusion. Davis is apparently based on the premise that if the jury panel contains at least a minimum number of members of the cognizable group to provide defendant a representative cross-section of the community, he cannot complain of the prosecutor's pattern of unlawful discrimination in the use of his peremptory challenges. Nothing in our cases, or in Batson v. Kentucky, supra, 476 U.S. 79, supports such an analysis.
(4) Our review of the record, summarized above, convinces us that, at least by the time prospective juror West was excused, defense counsel had adequately demonstrated a prima facie case of group bias sufficient to require the prosecutor to explain the reasons underlying his peremptory challenges. Indeed, the trial judge on two occasions seemed to recognize that such a showing had been made, but inexplicably declined to require the prosecutor to explain his reasons. Perhaps the trial judge's candid disclosure that "I don't know what the case [Wheeler] holds," remained true for the duration of the voir dire examination. In any event, it strongly appears that the trial judge, as in People v. Hall, supra, 35 Cal. 3d 161, simply accepted at face value the prosecutor's denials of group bias, without making any "sincere and reasoned attempt" to evaluate the prosecutor's motives. Under Hall, "[s]uch abdication is inconsistent with the court's obligations under Wheeler...." (35 Cal.3d at p. 169.)
The People's primary response on appeal is that because the prosecutor used 16 peremptory challenges but excluded "only" 6 Blacks, the present case is distinguishable from prior cases involving a larger percentage of exclusion on the ground of race. We find the distinction untenable, especially in a case in which even the trial judge expressed serious suspicions that the prosecutor was using some of his peremptory challenges to exclude Blacks. Under these circumstances, the trial court was obligated to conduct further inquiry on the record.
Wheeler error has been deemed reversible per se in light of the fundamental right involved. (People v. Wheeler, supra, 22 Cal. 3d 258, 283.) The People suggest, however, that we merely order a "limited remand" to permit the prosecutor to explain his reasons for excluding the prospective jurors in question. We observe that, although our court has rejected such a procedure in prior cases (see People v. Hall, supra, 35 Cal. 3d 161, 170-171 [trial held more than three years before reversal of judgment]; People v. Allen (1979) 23 Cal. 3d 286, 295, fn. 4 [152 Cal. Rptr. 454, 590 P.2d 30] [trial held nearly three years before reversal of judgment]), the United States Supreme Court in the subsequently decided case of Batson v. Kentucky, supra, 476 U.S. at page 100 [90 L.Ed.2d at p. 90, 106 S.Ct. at p. 1725], *227 employed such a remand. (See also United States v. Tindle (4th Cir.1986) 808 F.2d 319 [remand after more than three years].)
In Batson, the case had been tried only two years prior to reversal of the judgment. In the present case, voir dire examination commenced in November 1981, approximately six years ago. As in Hall, we believe it would be "unrealistic to believe that the prosecutor could now recall in greater detail his reasons for the exercise of the peremptory challenges in issue, or that the trial judge could assess those reasons, as required, which would demand that he recall the circumstances of the case, and the manner in which the prosecutor examined the venire and exercised his other challenges." (35 Cal.3d at p. 171.) Although it is unnecessary to discuss defendant's remaining contentions, we briefly explore one further issue to assist the trial court on retrial.
B. Nonassertive Conduct Evidence
(5) Prosecutor Haney was permitted to testify, over defendant's hearsay objection, that in defendant's presence he told Attorney Lara about Koll's death, and that defendant did not seem surprised, making no physical or verbal response and showing no emotional reaction to the news. According to Haney, in contrast Lara appeared "shocked and dumbfounded."
The trial court, impliedly finding that defendant indeed heard this conversation, admitted the foregoing evidence as amounting to an "adoptive admission" by defendant that he had shot Koll. Defendant properly observes that the evidence was not admissible on this basis, for there was no "admission" or accusation made for defendant to adopt or accept. (See People v. Preston (1973) 9 Cal. 3d 308, 313-314 [107 Cal. Rptr. 300, 508 P.2d 300] [defendant's silence in face of accusation of crime admissible as implied or adoptive admission of guilt].)
But the evidence was properly admitted on another basis: Defendant's passive response to the prosecutor's statement was probative of defendant's prior knowledge of the Koll killing. Certainly, some sort of affirmative response could have been expected under these circumstances. Such nonassertive responses or reactions do not fall within the proscriptions of the hearsay rule. (See Evid. Code, §§ 1200 [hearsay rule applies to "statements"], 225 ["statement" does not include nonverbal conduct unintended as substitute for verbal expression]; see also People v. Clark (1970) 6 Cal. App. 3d 658, 668 [86 Cal. Rptr. 106] [admissibility of wife's emotional *228 reaction to question asked of her husband during police interrogation].) Any objection based on the ambiguous nature of defendant's response would be addressed to the weight of the evidence, and not its admissibility.
The judgment is reversed.
Mosk, J., Broussard, J., Panelli, J., Arguelles, J., and Kaufman, J., concurred.
EAGLESON, J.
I concur fully in the majority's reversal of the judgment under People v. Wheeler (1978) 22 Cal. 3d 258, 283 [148 Cal. Rptr. 890, 583 P.2d 748]. The prosecutor used six out of sixteen peremptory challenges to exclude Black venirepersons. The trial judge repeatedly expressed his suspicions and concern that the prosecutor was improperly utilizing his peremptory challenges to exclude Black persons. The judge further candidly disclosed that he was himself unfamiliar with the procedural requirements of Wheeler. Defense counsel having timely objected and adequately demonstrated a prima facie case of group bias sufficient to require the prosecutor to explain the reasons underlying his peremptory challenges, the court was obligated to conduct a further inquiry on the record in accordance with the procedures mandated in Wheeler, supra, 22 Cal.3d at page 280. (Accord, Batson v. Kentucky (1986) 476 U.S. 79, 93-100 [90 L. Ed. 2d 69, 85-90, 106 S. Ct. 1712, 1721-1724].)
I write separately to note my concern over the majority's ambiguously worded observation that "the prosecutor was in error in assuming that defense counsel's supposed wrongful exclusion of Caucasians in some manner justified his own exclusion of Black persons." (Ante, p. 224, italics added.) In my view the majority's opinion might be mistakenly read as impliedly condoning such actions on the part of defense counsel.
The road paved by Wheeler is a two-way street. We explained therein that: "Although in the present appeal the Attorney General ... does not claim the right to object to the same misuse of peremptory challenges on the part of defense counsel, we observe for the guidance of the bench and bar that he has that right under the constitutional theory we adopt herein: the People no less than individual defendants are entitled to a trial by an impartial jury drawn from a representative cross-section of the community. ... [T]o hold to the contrary would frustrate other essential functions served by the requirement of cross-sectionalism." (People v. Wheeler, supra, 22 Cal.3d at p. 282, fn. 29, italics added; see also Commonwealth v. Soares (1979) 377 *229 Mass. 461 [387 N.E.2d 499, 517, fn. 35] [adopting the above-quoted reasoning of Wheeler].)
In Bakke v. Regents of University of California (1976) 18 Cal. 3d 34 [132 Cal. Rptr. 680, 553 P.2d 1152] (affd. in part, revd. in part, University of California Regents v. Bakke (1978) 438 U.S. 265 [57 L. Ed. 2d 750, 98 S. Ct. 2733]), we flatly rejected "the proposition that deprivation based upon race is subject to a less demanding standard of review under the Fourteenth Amendment if the race discriminated against is the majority rather than a minority." (Bakke v. Regents of University of California, supra, 18 Cal. 3d 34, at p. 50.)[1] In my view this fundamental principle applies with equal force to Wheeler-Batson representative cross-section analysis under the Sixth Amendment (Wheeler, supra, 22 Cal. 3d 258; Batson, supra, 476 U.S. 79) and our state constitutional counterpart. (Cal. Const., art. I, § 16.)
In response to the trial court's stated concerns during voir dire regarding the evolving "`ethnic make up of the jury,'" the prosecutor denied any bias in his exercise of peremptory challenges, "and observed that while he had thus far passed a jury containing two Blacks, defense counsel had peremptorily excused thirteen White venirepersons. In the prosecutor's words, `I think it works both ways.'" (Ante, p. 224.)
Assuming there was a legitimate basis to support the prosecutor's perception that defense counsel was himself exercising peremptory challenges against prospective Caucasian jurors solely on the basis of ethnic or group bias, the majority correctly observe that the prosecutor was in error in assuming defense counsel's improper conduct somehow justified his own exclusion of Black persons. (Ante, p. 225.) The propriety of the prosecutor's peremptory challenges must be determined independently of the validity of defense counsel's challenges; as we observed in Wheeler, "A party does not sustain his burden of justification by attempting to cast a different burden on his opponent." (People v. Wheeler, supra, 22 Cal.3d at 283, fn. 30.)
When either party believes his opponent is transgressing the fundamental constitutional right to an impartial jury guaranteed to a defendant and the People under article I, section 16, of the California Constitution (Wheeler, *230 supra, 22 Cal.3d at 277, 282, fn. 29), the sole proper remedy is to alert the trial judge by timely objection, in order that the inquiries mandated by Wheeler might be initiated.
With this one reservation, I concur in the judgment.
Kaufman, J., concurred.
Respondent's petition for a rehearing was denied January 21, 1988.
NOTES
[1] "The concepts of `majority' and `minority' necessarily reflect temporary arrangements and political judgments.... [T]he white `majority' itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals." (University of California Regents v. Bakke, supra, 438 U.S. 265, 295 [57 L. Ed. 2d 750, 774] [opn. by Powell, J.].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384999/ | 505 F.3d 266 (2007)
Albion FRANCIS, Appellant
v.
Norman Y. MINETA; Transportation Security Administration; U.S. Department of Transportation; United States of America.
No. 06-1293.
United States Court of Appeals, Third Circuit.
Argued December 6, 2006.
Filed October 10, 2007.
*267 Vincent A. Colianni, Esq. (Argued), Colianni & Colianni, Christiansted, VI, for Appellant.
Peter D. Keisler, Esq., Assistant Attorney General, Anthony J. Jenkins, Esq., United States Attorney, Marleigh D. Dover, Esq., Matthew M. Collette, Esq. (Argued), Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., for Appellees.
Before: McKEE, BARRY and STAPLETON, Circuit Judges.
OPINION
McKEE, Circuit Judge.
Albion Francis, a former federal employee, appeals the District Court's dismissal, pursuant to Fed.R.Civ.P. 12(b)(1), of the employment discrimination claim he attempted to bring under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4. The District Court held that it lacked subject matter jurisdiction over Francis's claim of religious discrimination because any such claim must be brought under Title VII of the Civil Rights Act of 1964. The District Court also held that the action must be dismissed for lack of subject matter jurisdiction because Francis failed to exhaust his administrative remedies under Title VII. See 42 U.S.C. § 20003-16(c).
We disagree with the District Court's finding that it did not have subject matter jurisdiction. It had federal question subject matter jurisdiction under 28 U.S.C. § 1331. However, because we "may affirm a result reached by a District Court on different reasons, as long as the record supports the judgment," Brumfield v. Sanders, 232 F.3d 376, 379 n. 2 (3d Cir.2000) (citation omitted), we will affirm as a dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.[1]
*268 As we explained in Robinson v. Dalton, 107 F.3d 1018, 1021-22 (3d Cir. 1997):
Although the district court in this case described its preliminary evaluation as "jurisdictional," this court has previously determined that questions of whether a plaintiff has timely exhausted the administrative remedies in Title VII actions "are in the nature of statutes of limitation. They do not affect the district court's subject matter jurisdiction." Moreover, in Title VII cases courts are permitted in certain limited circumstances to equitably toll filing requirements, even if there has been a complete failure to file, which necessarily precludes characterizing such requirements as "jurisdictional."
It follows that the . . . motion to dismiss should have been treated under Rule 12(b)(6).
(citations omitted).
I. FACTUAL BACKGROUND
In 2001, Congress enacted the Aviation and Transportation Security Act, Pub.L. No. 107-71, 115 Stat. 597 (2001), creating a federal workforce to screen passengers and cargo at the nation's commercial airports. Am. Fed'n of Gov't Employees v. Loy, 367 F.3d 932, 934 (D.C.Cir.2004). Pursuant to the authority contained in that Act, the Transportation Security Administration ("TSA") assumed responsibility for security screening in the nation's commercial airports.[2]
In October 2002, TSA hired Albion Francis as a security screener at the Henry E. Rohlsen Airport in St. Croix, U.S. Virgin Islands. Francis is an African-American male who wears his hair in dreadlocks, which he declares to be "an important expression of [his] sincerely held religious beliefs."
All new TSA employees are required to undergo forty hours of classroom training and sixty hours of on-the-job training. On October 20, 2002, TSA's new transportation screeners in the Virgin Islands, including Francis, began their training at the Rohlsen Airport. Prior to administering the oath of employment to the screeners, Deputy Federal Security Director Lawrence Londer told the new screeners that they were part of a uniformed service and were therefore subject to the mandatory grooming policy that TSA had established for its uniformed employees. Londer stated that if this policy presented a problem to anyone, he/she should not take the oath of employment. He then administered the oath of employment to those present, including Francis.
At an orientation session approximately one week later, TSA screening manager Steven Betz noticed that three screeners, including Francis, had hairstyles that did not conform to the agency's grooming policy, and he informed them that they had to conform to that policy.
Francis alleges that he informed Betz that he would not cut his dreadlocks, and told him that the refusal to cut his dreadlocks was based on his religious beliefs. Francis further alleges that Betz then ordered him to sign a separation agreement, terminating his employment. Thereafter, Francis filed the instant suit in the District Court.
II. DISTRICT COURT PROCEEDINGS
Francis asserts a cause of action for religious discrimination under the Religious *269 Freedom Restoration Act ("RFRA"),[3] 42 U.S.C. §§ 2000bb-2000bb-4. He named as defendants: Norman Y. Mineta, the then Secretary of Transportation; the Department of Transportation; the TSA; and the United States. The one-count complaint alleges that TSA fired him because he refused to comply with TSA's grooming policy. It also alleges that the grooming policy, as applied to him, violates RFRA because it substantially burdens his sincerely held religious beliefs without furthering any compelling governmental interest.[4]
The Government moved to dismiss based on lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The Government argued that Title VII of the Civil Rights Act of 1964 is the exclusive remedy for asserting claims of federal employment discrimination. The Government also argued that the suit should be dismissed because Francis had not exhausted his administrative remedies.
In granting the Government's motion to dismiss, the District Court held that the comprehensive and exclusive remedial scheme of Title VII precludes Francis's attempt to obtain redress under RFRA. The District Court also agreed that Francis was required to administratively exhaust his claim as provided in Title VII. This appeal followed.
III. DISCUSSION
As noted above, Francis claims that his dreadlocks have religious significance and that TSA's grooming policy substantially burdens his free exercise of religion because it forces him to remove the dread-locks despite their religious significance. Francis argues that the policy can not be applied to him under RFRA unless the Government can demonstrate that it furthers a compelling governmental interest. He relies upon the following provisions of RFRA:
§ 2000bb-1. Free exercise of religion protected
(a) In general
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000bb-1(a)-(b).
Francis also claims that the plain text of RFRA "clearly gives [him] and other federal employees a right to sue under the statute." He points to two subsections to support his claim: (1) § 2000bb(b)(2) (stating that one of the purposes of RFRA is "to provide a claim or defense to persons whose religious exercise is substantially burdened by government."); and (2) § 2000bb-1(c) ("A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding *270 and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.").
We can best respond to Francis's reliance on RFRA by reiterating the background of that statute. In Adams v. Comm'r of Internal Revenue, we explained: "[i]n enacting RFRA, Congress specifically announced its intent to `restore' the `compelling interest' test set forth in Sherbert v. Verner and Wisconsin v. Yoder . . . and `to guarantee its application in all cases where free exercise of religion is substantially burdened[.]'" 170 F.3d 173, 176 (3d Cir.1999) (quoting 42 U.S.C. § 2000bb(b)(1)).
Under the compelling interest test, the Supreme Court had traditionally held that laws that substantially burden the free exercise of religion must be supported by a compelling interest to survive scrutiny under the First Amendment. However, in 1990, the Supreme Court decided Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). There, the Supreme Court held that the Free Exercise Clause did not require Oregon to exempt the sacramental ingestion of peyote by members of the Native American Church from Oregon's criminal drug laws. Id. at 877-82, 110 S. Ct. 1595. The Court concluded that such generally applicable laws may be applied to religious exercise even in the absence of a compelling governmental interest. Id. at 884-89, 110 S. Ct. 1595. Congress responded by enacting RFRA.
Enacted in 1993, RFRA applies to "all Federal law" and the implementation of that law, "whether statutory or otherwise," adopted both before and after the passage of RFRA. 42 U.S.C. § 2000bb-3(a). Despite the apparent limitless scope of RFRA, Congress was careful to circumscribe its reach. Accordingly, in a section captioned "Other Areas of Law are Unaffected," the Senate Report on RFRA states: "[a]lthough the purpose of this act is only to overturn the Supreme Court's decision in Smith, concerns have been raised that the act could have unintended consequences and unsettle other areas of law." S.Rep. No. 103-111, at 12 (1993), as reprinted in 1993 U.S.C.C.A.N. 1879, 1902. The Report then discusses a number of areas that are not affected by RFRA, including Title VII. It explains: "[n]othing in this act shall be construed as affecting religious accommodation under title VII of the Civil Rights Act of 1964." Id. at 13, as reprinted in 1993 U.S.C.C.A.N. at 1903. The House Report on RFRA contains nearly identical language. See H.R.Rep. No. 103-88, at 9 (1993).
It is not surprising that nothing in RFRA alters the exclusive nature of Title VII with regard to employees' claims of religion-based employment discrimination. Nothing in pre-Smith case law permitted an employee alleging employment discrimination based on religion to bypass Title VII's exclusive and comprehensive scheme. Accordingly, since RFRA was only enacted to overturn Smith and restore pre-Smith case law, the Senate Report merely clarifies that Congress did not intend RFRA to subsume other statutory schemes.
Francis claims the District Court erred in considering this legislative history and disregarding the plain language of RFRA. However, as we shall discuss, the plain text of RFRA does not necessarily advance our inquiry because, according to Francis, RFRA subsumes the prohibition on employment discrimination that is the hallmark of Title VII. Thus, to the extent that there is any ambiguity about RFRA's impact on Title VII, legislative history becomes a useful and appropriate tool for our inquiry into congressional intent. See In *271 re Mehta, 310 F.3d 308 (3d Cir.2002). Even a cursory examination of the text of Title VII reveals that RFRA's legislative history can guide that inquiry.
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion[.]" 42 U.S.C. § 2000e-2(a)(1). Section 2000e(j) of Title 42 defines "religion" to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." In enacting this provision, Congress clearly intended to make it unlawful "for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S. Ct. 2264, 53 L. Ed. 2d 113 (1977).
In 1972, Congress extended Title VII's protection to federal employees. 42 U.S.C. § 2000e-16 provides that "[a]ll personnel actions affecting employees or applicants for employment" in military departments, executive agencies, and several specified governmental entities "shall be made free from any discrimination based on race, color, religion, sex or national origin." Thereafter, the Supreme Court held that Title VII is the "exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." Brown v. GSA, 425 U.S. 820, 829, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976).[5] Title VII thus sweeps within its reach all claims of employment discrimination whether they are based on religion or another enumerated form of discrimination that may impact a constitutionally protected right. As we explained in Owens v. United States, "[i]nterpretation of Title VII has shown that Title VII . . . `precludes actions against federal officials for alleged constitutional violations as well as actions under other federal legislation.'" 822 F.2d 408, 410 (3d Cir.1987) (quoting Kizas v. Webster, 707 F.2d 524, 542 (D.C.Cir.1983)).
Francis's complaint alleges, inter alia, that in firing him for not cutting his dreadlocks, the TSA violated his right to freely exercise his religion. He claims that he was terminated because his religious practice (wearing dreadlocks) was inconsistent with TSA's grooming policy. He is suing because that policy failed to accommodate his religiously-based conduct. But that is an attempt to use RFRA to force the TSA to accommodate wearing dreadlocks because they have religious significance. The legislative history that we have discussed demonstrates that Congress did not intend RFRA to create a vehicle for allowing religious accommodation claims in the context of federal employment to do an end run around the legislative scheme of Title VII.[6] The Supreme Court framed the issue before it in Brown, as follows: "[i]s . . . the Civil Rights Act of 1964, . . . [as amended,] the exclusive individual remedy available to a *272 federal employee complaining of job-related racial discrimination?" 425 U.S. at 824-25, 96 S. Ct. 1961. It is equally clear that Title VII provides the exclusive remedy for job-related claims of federal religious discrimination, despite Francis's attempt to rely upon the provisions of RFRA.
IV.
One matter remains. Because the District Court found that Title VII precludes Francis's RFRA claim, it also held that Francis was required to exhaust administrative remedies under Title VII. See 42 U.S.C. § 20003-16(c); Brown, 425 U.S. at 832-33, 96 S. Ct. 1961. Since Francis did not exhaust his remedies, the District Court dismissed his claim. Francis claims that was error and insists that his "RFRA claim" is not subject to the exhaustion requirements of Title VII. However, as we have explained, his claim is not a RFRA claim; rather, it is a Title VII claim and Title VII requires exhaustion.
V.
Accordingly, the order of the District Court dismissing Francis's complaint will be affirmed.[7]
STAPLETON, Circuit Judge, concurring.
In my view, resolution of the issue before us requires only a straightforward application of Supreme Court precedent. Francis's argument is foreclosed by the Supreme Court's ruling in Brown v. General Services Administration, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). By its terms, 42 U.S.C. § 2000bb-1(c) would seem to provide Mr. Francis with a cause of action. That statute, however, is in tension with § 717 of Title VII, 42 U.S.C. § 2000e-16, which imposes several procedural requirements on a federal employee raising claims of employment discrimination that must be met before the employee can sue in federal district court. In Brown, 425 U.S. at 829, 96 S. Ct. 1961, the Supreme Court held that Title VII provides "the exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination," and, accordingly, Brown (the plaintiff in that case) could not enforce his right under 42 U.S.C. § 1981 to be free from racial employment discrimination without resort to that exclusive administrative and judicial scheme.
The Court gave two reasons for its holding in Brown. First, given the detail and comprehensiveness of the remedial scheme in § 717 of Title VII, the Court held that § 717 should supersede more general statutes under the canon of statutory interpretation that resolves tension between specific statutes and general statutes in favor of specific statutes. Id. at 834-35, 96 S. Ct. 1961. ("The balance, completeness, and structural integrity of § 717 are inconsistent with the petitioner's contention that § 717(c) was designed merely to supplement other putative judicial relief."). Second, the Court explained that as a practical matter the entire Title VII remedial scheme for federal employees would be undermined if a plaintiff could circumvent its procedural requirements by "the simple expedient of putting a different label on the pleadings." Id. at 833, 96 S. Ct. 1961. Twice this term, the Supreme Court has cited Brown for both of the general principles explained therein. See Hinck v. United States, ___ U.S. ___, 127 S. Ct. 2011, 2015, 167 L. Ed. 2d 888 (2007); EC Term of Years Trust v. United States, ___ U.S. ___, 127 S. Ct. 1763, 1767, 167 L. Ed. 2d 729 (2007).
*273 Both principles applied in Brown are equally applicable here, and they compel us to hold that Francis can enforce his religious discrimination claim only through resort to the administrative and judicial scheme created by Title VII. First, RFRA's remedial statute is general, while Title VII's is comprehensive and specific. Although it does not appear that any court of appeals has yet addressed the effect of Title VII on RFRA, our court and others have applied Brown in other similar contexts, holding that Title VII requires compliance with its remedial scheme whenever a government employee seeks to enforce a right created by another statute that is secured by Title VII as well. See, e.g., Ford v. West, 222 F.3d 767, 772-73 (10th Cir.2000) ("Plaintiff's [42 U.S.C.] § 1985(3) Fifth Amendment equal protection claim fails, however, because the Supreme Court has clearly held that Title VII provides the exclusive judicial remedy for discrimination claims in federal employment"); Rivera-Rosario v. U.S. Dep't of Agric., 151 F.3d 34, 38 (1st Cir.1998) (rejecting plaintiff's claim under the Back Pay Act because "The Supreme Court has indicated that where the gravamen of the claim is Title VII discrimination, the only remedy available is under Title VII."); Owens v. United States, 822 F.2d 408, 410 (3d Cir. 1987) (Interpretation of Title VII has shown that Title VII provides federal employees a remedy that "precludes actions against federal officials for alleged constitutional violations as well as actions under other federal legislation."); Gissen v. Tackman, 537 F.2d 784, 786 (3d Cir.1976) (en banc) (applying Brown to foreclose a plaintiff's claims under 42 U.S.C. § 1985).[8] Second, as was the case in Brown, if we allow Francis's claim to go forward, it would undermine the Title VII administrative and judicial scheme for federal employees claiming religious discrimination. Federal employees like Francis, who allege religious discrimination, would have no need to exhaust their administrative remedies under Title VII if they could go directly to federal court with identical claims framed as RFRA claims. Brown, 425 U.S. at 833, 96 S. Ct. 1961 ("Under the petitioners theory, by perverse operation of a type of Gresham's law, § 717, with its rigorous administrative exhaustion requirements and time limitations, would be driven out of currency were immediate access to the courts under other, less demanding statutes permissible.").
The language in RFRA providing that it applies to "all Federal law" and the implementation of that law, "whether statutory or otherwise," adopted before or after the passage of RFRA, 42 U.S.C. § 2000bb-3(a), is not inconsistent with this conclusion. While "all Federal law" must include Title VII, to say that RFRA "applies" to Title VII does not mean that RFRA must be interpreted to create an exception to the procedural requirements of Title VII, such that it would effectively supplant § 717 of Title VII whenever a federal employee alleges religious discrimination and could otherwise proceed under Title VII. Precisely how RFRA may "apply" to Title VII is not now before us, and it is enough to hold that it does not absolve Francis from complying with the requirements of Title VII's "exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination." Brown, 425 U.S. at 829, 96 S. Ct. 1961.
*274 Following Brown, I would hold, as the majority does, that Francis's claim was properly dismissed under Fed.R.Civ.P. 12(b)(6).
NOTES
[1] "In considering a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court accepts as true all allegations in the Plaintiff's Complaint and all reasonable inferences that can be drawn therefrom after construing them in the light most favorable to the non-movant." Bright v. Westmoreland County, 380 F.3d 729, 735 (3d Cir.2004) (citation omitted). "Dismissal is not proper unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id. (citation and internal quotations omitted).
[2] Pursuant to the Department of Homeland Security Reorganization Plan (Nov. 25, 2002), as required by Section 1502 of the Department of Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (2002), TSA was transferred from the Department of Transportation to the Department of Homeland Security, effective March 1, 2003.
[3] The RFRA applies only to the federal government. In City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997), the Supreme Court held that the Act was unconstitutional, as applied to the states, under section 5 of the Fourteenth Amendment.
[4] Francis sought compensatory damages, reinstatement and injunctive relief against the enforcement of the grooming policy, as well as attorneys' fees and costs.
[5] Because Title VII's protections were extended to federal employees, federal employees complaining of employment discrimination became subject to Title VII's administrative exhaustion requirements. Brown, 425 U.S. at 833, 96 S. Ct. 1961.
[6] The Government concedes that the conduct alleged by Francis clearly falls within the purview of Title VII.
[7] Judge Stapleton concurs, but writes separately to discuss this claim of employment discrimination based on religion. We do not disagree with his discussion.
[8] As the Supreme Court noted in Brown, the canon of statutory interpretation that favors specific statutes over general statutes when the two are in tension applies regardless of the order of enactment of the statutes. Brown, 425 U.S. at 834-35, 96 S. Ct. 1961 (citing cases). In Owens, we applied Brown to hold that Title VII foreclosed remedies otherwise available under § 1983, which was enacted after Title VII. It is therefore of no consequence that RFRA was enacted in 1993, while § 717 of Title VII was enacted in 1972. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267175/ | 999 F. Supp. 1451 (1998)
James HAYWOOD and Cynthia Haywood, Plaintiffs,
v.
Kelly NYE, et al., Defendants.
Civil No. 2:95-CV-216C.
United States District Court, D. Utah, Central Division.
March 24, 1998.
*1452 *1453 John E. Hansen, Scalley & Reading, David L. Blackner, Law Offices of David L. Blackner, Salt Lake City, UT, for Plaintiffs.
Steven W. Allred, Salt Lake City Attorneys Office, Todd J. Godfrey, Mazuran & Hayes PC, Martha Stonebrook, Utah Attorney General's Office Litigation Unit, Patricia J. Marlowe, Salt Lake County Attorneys Office, Salt Lake City, UT, for Defendants.
ORDER
CAMPBELL, District Judge.
This lawsuit arises out of the arrests of plaintiffs, James Haywood and Cynthia Haywood, in 1993. It is undisputed that the arrests of the plaintiffs were based on false information given to the individual defendants by David Tindall, a confidential informant. Plaintiffs claim that the arrests violated their constitutional rights and were motivated by racial prejudice. The plaintiffs also claim that the violations of their rights flow directly from the failure of the municipal defendants to formulate adequate policies concerning the use of confidential informants and to provide adequate supervision to officers in the field.
The individual defendants deny a racial motivation and maintain that no constitutional violations occurred. The individual defendants also claim immunity, both absolute and qualified. The municipal defendants claim that the plaintiffs have no evidence that the municipal policies were inadequate or caused the harm of which plaintiffs complain. All defendants have moved for summary judgment and the Salt Lake County defendants have moved for sanctions.
A hearing was held on the motions on January 14, 1998. Mr. David Blackner and Mr. John Hansen appeared on behalf of the plaintiffs, Mr. Steven Allred appeared on behalf of defendant Nye and defendant Salt Lake City, Ms. Sirena Wissler appeared on behalf of defendant Sterner and defendant Salt Lake County, and Mr. Frank Mylar appeared on behalf of defendants Benson and Lucey.
For the reasons set forth at the hearing, the court denies the motion for sanctions. Concerning the motions for summary judgment, the court now enters the following order after due consideration of the arguments of counsel, the memoranda of the parties, and applicable legal authorities.
Standards and Mechanics of Summary Judgment.
Before the court can pass on a defendant's motion for summary judgment, the defendant must satisfy its burden of production. A defendant can meet this burden in one of two ways: by putting evidence into the record which affirmatively disproves an element of the plaintiff's case or by directing the court's attention to the fact that the plaintiff lacks evidence on an element of its claim. If the defendant opts to challenge the plaintiff's case in the latter fashion, it is clear, however, that conclusory assertions are insufficient to carry the burden of production. See Celotex Corp. v. Catrett, 477 U.S. 317, 328, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (White, J., concurring) ("the movant must discharge the burden the Rules place upon him: It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case"); Windon Third Oil and Gas v. FDIC, 805 F.2d 342, 345 n. 7 (10th Cir.1986) ("[C]onclusory assertions to aver the absence of evidence remain insufficient to meet this burden. Otherwise, as Justice Brennan cautioned, summary judgment `[would] be converted into a tool for harassment'").
*1454 Once the movant has met the burden of production, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Brown v. Royal MacCabees Insurance Co., 137 F.3d 1236, 1239-40 (10th Cir.1998); Fed. R.Civ.P. 56(c).
Background
The court now turns its attention to the facts of this case in order to resolve the motions of the individual defendants. In its recitation of the events leading to this lawsuit, the court views all factual disputes (not only between the plaintiffs and defendants, but among the defendants themselves) in a light most favorable to the plaintiffs as the nonmoving parties. Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir. 1995).
I. The Parties.
The Metropolitan Drug Enforcement Task Team ("Metro") was, prior to its dissolution, an interagency criminal task force that drew its personnel from various law enforcement organizations in the Salt Lake metropolitan area. Salt Lake City and Salt Lake County, both defendants in the present action, contributed officers from their respective police and sheriff departments to further Metro's operation. Defendant Kelly Nye was a Salt Lake City police officer operating through Metro. Defendant Gary Sterner was a Salt Lake County deputy sheriff also assigned to Metro. Defendants Leo Lucey and Ronald Benson were investigators with the Utah Department of Corrections ("UDC") who initiated the investigation of the plaintiffs. Although not formally assigned to Metro, Benson and Lucey worked with the agency in the investigation of the Haywoods.
James Haywood was, at the time of his arrest, employed by UDC as a correctional officer and recreational supervisor at the Utah State Prison. His wife, Cynthia Haywood, worked as a telecommunications analyst at the University of Utah. Both James and Cynthia Haywood are African-American.
II. Events Leading Up to Metro's Investigation of the Haywoods.
A. Recruitment of Tindall by Benson.
In 1992, James Haywood filed a lawsuit against UDC, alleging racially discriminatory employment practices. Plaintiffs suggest that it was the institution of this lawsuit that gave rise to all the events described hereinafter.
In December 1992, defendant Benson arranged for the release of an inmate, David Tindall (also known as "Frosty the Snowman" or "Frosty" because of his cocaine habit), from the Utah State Prison so that he could serve as Benson's confidential informant.[1] Benson does not dispute that he arranged for Tindall to receive an apartment and living expenses in exchange for Tindall's services after Tindall's release from prison in February 1993. On February 26, 1993, Benson told Tindall that he wanted Tindall to help with a "sting operation" against the Haywoods. Benson requested that Tindall create phony audio tape recordings to incriminate the Haywoods. Benson also directed Tindall to find someone to impersonate Cynthia Haywood in a recorded drug transaction.
B. Tindall's Poor Performance as a Confidential Informant in Other Operations.
At around this same period of time, Benson, Lucey, Sterner, and Nye were using Tindall as a confidential informant in other Metro operations. Almost immediately, Tindall's behavior caused Nye to be "concerned" *1455 and raised "red flags" about Tindall's reliability. (Nye Dep. at 64.) The first drug sale arranged by Tindall as part of his cooperation with Metro involved an individual named Wendell Justice. The second sale was to a woman named Brenda Jackson. Problems arose during both of these transactions.
Nye testified that the transaction with Wendell Justice never came to a successful conclusion. Nye described the problems with Tindall: "Frosty wasn't being as compliant as he should be. That was really the first [investigation] that we were working with. He kept going over with Wendell where I couldn't hear what was going on." (Id. at 62, 70.)
The Brenda Jackson transaction raised more serious concerns about Tindall's reliability. The transaction between Jackson and Tindall took place on February 24, 1993. Tindall, under the direction of Nye, called Jackson and arranged to meet her in a Smith's parking lot to buy cocaine. Nye, Sterner, and Lucey were in the parking lot, in their vehicles, watching the drug sale. None of the officers knew Jackson, but relied on Tindall to identify her. Nye testified that when Jackson stopped and Tindall got in her vehicle, Nye was approximately twenty or thirty feet from Jackson's vehicle and "could see her pretty good." (Id. at 44.) According to Nye, Jackson then parked her vehicle behind Nye's and Nye watched the transaction through her rearview mirror. Nye testified that she was able to see Jackson's face. Nye particularly noticed a distinctive, "ugly" hat Jackson was wearing. (Id. at 44.) Nye testified that Lucey was closer to Jackson than she was and that Sterner "wasn't that far away." (Id. at 45).
When Tindall returned to Nye's vehicle after the drug sale, he gave Nye the two rocks of cocaine he had purchased from Jackson. Nye noticed that the rock cocaine was packaged in small packages, each package only large enough to hold one rock of cocaine. Nye had never seen cocaine packaged that way and found it "unusual." (Id. at 64.) Nye also saw that one of the rocks was smaller than the other and it appeared to her that a piece of cocaine had been broken off the smaller rock. Nye suspected that Tindall had taken the cocaine for his personal use. She reported her suspicions to Benson, who then had Tindall tested for drug use. The results of the test showed that Tindall had, indeed, been using cocaine.[2]
III. The Investigation of the Haywoods.
On the same day that Lucey, Sterner, and Nye observed the Tindall-Jackson buy, Lucey received another telephone call from Tindall. Tindall claimed that James Haywood had agreed to smuggle drugs into the prison and that "Cynthia Haywood" would be stopping by Tindall's apartment to pick up James Haywood's $75 fee. Lucey drove to Tindall's residence, gave Tindall the money, and waited in the parking lot until he saw "Cynthia Haywood" emerge from Tindall's residence. Aside from Tindall's representations, Lucey did not independently confirm that Tindall had spoken with James Haywood or that the woman he observed leaving Tindall's residence was Cynthia Haywood.
On February 26, Tindall again called Lucey and told him that "Cynthia Haywood" was demanding another $80 for James Haywood to smuggle drugs into the prison. Lucey delivered the money to Tindall, and, while at the apartment complex, saw a woman leaving the apartment. Tindall told Lucey that the woman was Cynthia Haywood. (Lucey Dep. at 59-60.)
Nye and Sterner also came to the parking lot in front of Tindall's residence to watch the transaction. As Nye watched, she saw that the woman who was supposed to be Cynthia Haywood was wearing the same distinctive, "ugly" hat that Brenda Jackson had worn two days earlier when Jackson had sold cocaine to Tindall. Nye wondered whether, in fact, the woman was Brenda Jackson, and not Cynthia Haywood, as Tindall claimed. (Nye Dep. at 91.) Concerned, Nye told Tindall, in the presence of Lucey, that the woman looked just like Brenda Jackson and that she was wearing the same kind of hat. She asked Tindall whether he was certain that *1456 the woman was Haywood. Tindall assured her that it was, and Lucey told Nye that he had seen the woman and that it was Cynthia Haywood. (Id.) According to Nye, despite Lucey's assurances, she was not completely certain that the woman was Haywood. (Id. at 96.) None of the members of the Metro team corroborated Tindall's identification of "Cynthia Haywood."
Later that same day, Tindall arranged by telephone to purchase $150 worth of cocaine from the woman that he claimed was "Cynthia Haywood." Tindall was given $200 from Metro funds to complete the transaction. The videotape of the incident is of such poor quality that it was impossible for the officers to make a positive identification of the woman claiming to be "Cynthia Haywood." The tape does show, however, that Tindall never received any change from the woman in his apartment. Officer Nye testified that she believed Tindall used the excess Metro funds "to buy his own little stash." (Id. at 89.) Importantly, when Tindall turned his purchase over to Metro, Nye saw that the cocaine Tindall claimed had been sold to him by Cynthia Haywood was in the same type of unusual packaging as the cocaine Tindall had purchased from Jackson two days earlier. Nye testified that, "It just kind of looked of fishy to me." (Id. at 64.)
IV. The Application for the Arrest Warrants.
On March 5, 1993, Nye and Sterner "screened" the Haywood cases with Deputy County Attorney Ruth J. McCloskey. The record now before the court suggests that Nye and Sterner may have informed McCloskey that they were using a confidential informant, but there is no evidence in the record that they made McCloskey aware of the numerous "red flags" raised by Tindall's performance. (Nye Aff. at 4; Sterner Aff. at 5.[3]) Nor is there any evidence in the record that Nye or Sterner informed McCloskey of the fact that the entire investigation was based upon the uncorroborated statement provided by Tindall.
The probable cause statements prepared by the County Attorney's Office following the screening session were read and signed by Nye as affiant. The probable cause statement in support of the warrant application for James Haywood reads as follows:
THIS INFORMATION IS BASED ON EVIDENCE OBTAINED FROM THE FOLLOWING WITNESSES:
Det. Kelly Nye, Ron Benson, Leo Lucy, and David Tindell [sic].
Affiant, a detective with Metro-Narcotics Task Force, bases his information on report no. 93-21093 and conversations with police officers and other witness [sic] which indicate that at above time and places:
1. Defendant had conversations with a witness in which he agreed to transport cocaine and marijuana into the Utah State Prison.
2. Defendant agreed to and collected fees for the transaction and said that he paid others to assist him.[4]
(Exhibit A to Plaintiff's Opp. Mem.) Tindall is the "witness" whose uncorroborated statements provide the sole source of evidence that Haywood agreed to transport narcotics and that he received a fee for those alleged services. (Nye Dep. at 135.) Nothing is disclosed about Tindall's veracity, or lack of it, or about the basis of Tindall's knowledge of these activities.
*1457 The probable cause in support of the application for the Cynthia Haywood arrest warrant reads as follows:
THIS INFORMATION IS BASED ON EVIDENCE OBTAINED FROM THE FOLLOWING WITNESSES:
Det. Kelly Nye, Leo Lucy [sic], Ron Benson, David Tindell [sic], Ted Bazarnik and State Criminalist.
On February 26, 1993, at approximately 0910 hours at 3900 South 1300 West, in Salt Lake County, affiant purchased from the defendant, a substance which has been field tested by the State Crime Lab and found to be Cocaine, a Schedule II Controlled Substance.
(Exhibit A to Plaintiff's Opp. Mem.) This probable cause statement contains an obvious misstatement of material fact: Tindall, and not the "affiant," Nye, was the one who purchased drugs from "Cynthia Haywood." Like the probable cause statement for the James Haywood arrest warrant, nothing is included in this statement about Tindall's reliability or the basis of his knowledge. Moreover, in the case of Cynthia Haywood, there is no mention in the probable cause statement of the team's inability to make a positive identification of Cynthia Haywood:
Q You were not satisfied with just what you were seeing in the D.M.V. photo and on the video; correct?
A That's correct. Nobody was.
Q Even though the arrest warrants had already been obtained at that point?
A That's true. The arrest warrant had already been obtained at that point.
(Lucey Dep. at 70.) (emphasis added).
Based upon the probable cause statements submitted, Judge Reese issued warrants for plaintiffs' arrest.
V. The Arrest of Plaintiffs.
On the evening of March 8, 1993, Nye and Lucey arrested Cynthia Haywood at her home. The officers took Cynthia Haywood to the offices of UDC and questioned her. Haywood adamantly denied selling cocaine to Tindall and, when shown photographs made from the video, insisted that she was not the woman in the photographs. Nye stated that at that point, it appeared to her that Haywood was being truthful. (Nye Dep. at 148-49.) Nye stated that Sterner was present during this interview of Haywood and that Nye "probably" spoke to Benson and Lucey. (Id.) Notwithstanding these doubts about the correctness of the identity of Haywood as the person involved in the drug transaction, she was taken to jail.
James Haywood was also arrested, taken to UDC headquarters and subsequently booked into jail.
Immediately after Cynthia Haywood was taken to jail, Nye, Sterner and Benson went to Jackson's house. Nye admitted that the reason for going to Jackson's house was to "confirm" that Haywood was the woman involved in the drug transaction. (Id. at 149-50.) During the interview, Jackson stated that she was the woman in the photographs shown selling cocaine to Tindall. Jackson admitted that she had posed as Cynthia Haywood and that she had done so at the request of Tindall. (Id. at 152.) Later it was discovered that Tindall's claims that James Haywood had agreed to smuggle drugs inside the prison were also false. The charges against the Haywoods were subsequently dropped.
Analysis
VI. Plaintiffs' Claims.
The claims now pending before the court are as follows: both plaintiffs allege that Sterner, Benson, and Lucey violated their Fourth Amendment rights by arresting them without probable cause, and James Haywood asserts this claim against Nye as well (First Claim); both plaintiffs claim that Benson and Lucey violated their Fourteenth Amendment right to equal protection of the laws (Second Claim); both plaintiffs claim that Benson and Lucey maliciously prosecuted them (Third Claim); both plaintiffs have alleged that Sterner, Benson, and Lucey's actions were in furtherance of a conspiracy, motivated by racial animus, in violation of § 1985, and James Haywood asserts this claim against Nye as well (Fourth Claim); both plaintiffs claim that Salt Lake County failed to adequately supervise their officers and provide clear chains of command for their officers who were assigned to Metro, and James Haywood asserts this claim against Salt Lake City as well (Fifth Claim); and both plaintiffs *1458 claim that Salt Lake County failed to adequately train their officers in the use of criminal confidential informants, with James Haywood asserting this claim against Salt Lake City as well (Fifth Claim).[5]
VII. Absolute Immunity.
Nye first claims that she is entitled to absolute immunity for her actions in obtaining the arrest warrant against James Haywood. She asserts that in seeking the arrest warrant, she was, in effect, initiating a prosecution and therefore had absolute immunity for those actions. Nye's position cannot stand, particularly in view of the recent decision by the Supreme Court in Kalina v. Fletcher, ___ U.S. ____, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997). In Kalina, the Court denied a prosecuting attorney absolute immunity for her role in executing, under penalty of perjury, a "Certification for Determination of Probable Cause." The Court found that when the prosecutor signed the certification, she was acting as a witness, not an advocate, and that she was therefore not entitled to the absolute immunity given prosecutors performing "the traditional functions of an advocate." Id., 118 S.Ct. at 510. Nye's claim of absolute immunity is denied.
VIII. Qualified Immunity.
When a defendant raises the defense of qualified immunity, the court must examine a plaintiff's claims to determine whether the plaintiff has met his burden of establishing the inference that the defendant violated a constitutional right. If the court determines that the plaintiff has alleged a constitutional violation, the plaintiff must then prove that the right was clearly established at the time of the alleged violation. If the plaintiff succeeds on this issue as well, the qualified immunity defense generally will fail. The defendant may be entitled to qualified immunity at that point only if he can establish that "no material issues of fact remain as to whether the defendant's actions were objectively reasonable in light of the law and information the defendant possessed at the time of his actions." Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir.1991).
A. James Haywood's Fourth Amendment Claim Against Nye.
1. Did Nye Violate James Haywood's Fourth Amendment Rights?
The first question presented is whether James Haywood has presented sufficient facts which, if found to be true at trial, would establish that Nye violated clearly established Fourth Amendment rights. "It is a violation of the Fourth Amendment for an arrest warrant affiant to `knowingly, or with reckless disregard for the truth,' include false statements in the affidavit, Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), or to knowingly or recklessly omit from the affidavit information which, if included, would have vitiated probable cause, Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir.1990)." Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir.1996).
Here, the evidence is undisputed that the affidavit signed by Nye in support of the arrest warrant for James Haywood omitted substantial amounts of information. Nye swore in the affidavit that "Defendant agreed to and collected fees for the transaction and said that he paid others to assist him." Missing from this statement is the crucial fact that Tindall's uncorroborated statement was the sole source of this information. The affidavit also recites: "Defendant had conversations with a witness in which he agreed to transport cocaine and marijuana into the Utah State Prison." Although it is disclosed that the information was obtained from a witness, nothing is revealed about the witness, Tindall.
Having found that the affidavit omitted information, the next step in the analysis requires that the court examine the affidavit to determine whether inclusion of that information would have vitiated probable cause. *1459 Wolford, 78 F.3d at 489. Because Tindall was the sole source of the information in the affidavit, and there was no independent corroboration of the information provided by him, probable cause will exist only if the issuing judge could have found that Tindall was a reliable witness with an adequate foundation for his claims. See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) ("The task of the issuing magistrate is simply to make a practical, common-sense decision whether [probable cause exists in light of] all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information.") (internal citation omitted). See also United States v. Wilhelm, 80 F.3d 116, 119-120 (4th Cir.1996) (finding no probable cause established by affidavit where informant is not named and no information is given about the informant's reliability other than conclusory assertions of truthfulness) (collecting cases).
The question, then, is whether, if all the information known to Nye about Tindall had been disclosed to the issuing magistrate, Tindall's reliability would have been sufficiently established that probable cause could have been premised solely on his uncorroborated information. Although the defendants have made conclusory allegations that Tindall had shown himself to be reliable and trustworthy before the warrants for the arrest of the Haywoods were sought, the evidence before the court shows the contrary. Nye admitted that Tindall's performance raised "red flags" early on. When Nye signed the affidavit, she knew that Tindall had not been "compliant" in the Wendell Justice transaction, that he was keeping excess Metro funds that were given to him for use in drug transactions, that he was continuing to use drugs (a violation of his parole), and, in fact, had probably taken and used cocaine from the Brenda Jackson drug transaction. Nye also had serious doubts about the reliability of Tindall's identification of "Cynthia Haywood." In light of this information, the court concludes that Tindall was so unreliable that probable cause for the arrest of James Haywood could not rest solely upon his uncorroborated statements.
The next question is whether Nye signed the affidavit either knowing of the omitted statements or with reckless disregard for the truth. It is not disputed that Nye knew that Tindall was the sole source of the information in the affidavit nor is it disputed that Nye knew of the problems with Tindall. Yet the affidavit Nye signed gave no indication of these problems. This is sufficient to meet the burden of establishing that Nye acted knowingly or recklessly. See Salmon v. Schwarz, 948 F.2d 1131, 1140 (10th Cir.1991) ("Reckless disregard for the truth can be inferred where the circumstances provide obvious reasons for doubting the truthfulness of the allegations.") (internal citations omitted). The court therefore concludes that Nye violated James Haywood's rights by recklessly or intentionally submitting a probable cause statement to Judge Reese that contained numerous material omissions.
2. Was the Law Clearly Established in 1993 That False Statements and Material Omissions in an Arrest Affidavit Violated the Fourth Amendment?
Constitutional law in this circuit is considered to be clearly established if "`there [is] a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts ... have found the law to be as the plaintiff maintains.'" Nash v. Fields, 134 F.3d 383, 1998 WL 33868 (10th Cir.1998) (quoting Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992)). The Tenth Circuit held prior to 1993 that false statements and material omissions in an arrest affidavit violate the Fourth Amendment. See Salmon v. Schwarz, 948 F.2d 1131, 1139 (10th Cir. 1991). Therefore, Nye may not have qualified immunity for her violation of clearly established law unless she can show extraordinary circumstances which would nevertheless make her actions objectively reasonable. V-1 Oil Co. v. State of Wyoming, 902 F.2d 1482, 1488 (10th Cir.), cert. denied, 498 U.S. 920, 111 S. Ct. 295, 112 L. Ed. 2d 249 (1990).
3. Has Nye Shown the Existence of Extraordinary Circumstances?
Defendant Nye suggests that her participation in the screening process and her *1460 reliance on the affidavits prepared by the County Attorney's office makes her actions objectively reasonable. It is true that reliance on the advice of counsel may rise to the level of extraordinary circumstances. Id. Whether advice of counsel can shield Nye from liability for violations of clearly established law in this case depends upon consideration of four factors: "(1) how unequivocal and specifically tailored to the particular facts giving rise to the controversy the advice was, (2) whether complete information had been provided to the advising attorney(s), (3) the prominence and competence of the attorney(s), and (4) how soon after the advice was received the disputed action was taken." Id. at 1489 (internal citations omitted).
Considering these factors, the court finds that Nye has not met her burden of showing extraordinary circumstances. First, there is nothing in the record which shows that Nye made complete disclosure to McCloskey, including the problems presented by Tindall. Second, it is quite clear that Nye did not ask for, and McCloskey did not give, "advice." That is, Nye did not ask whether it was permissible to omit material information about a confidential informant from the probable cause statement. McCloskey did not advise Nye that such actions would withstand judicial scrutiny. There is simply no way to construe the clerical errors of the county attorney's office in preparing the probable cause statement, if indeed the omissions arose from such errors (as the defendants claim), as "unequivocal" and "specifically tailored" advice to Nye that she could ignore the constitutional decisions of the Tenth Circuit and the United States Supreme Court. Nothing that McCloskey said to Nye relieved Nye of her obligation to review the truthfulness of the probable cause statement before attesting to it. Therefore, with the evidence now before it, the court must conclude that there were no extraordinary circumstances sufficient to relieve Nye of liability. Accordingly, Nye's motion for summary judgment based on qualified immunity is denied.
B. Plaintiffs' Fourth Amendment Claims Against Defendant Benson.
As the court explained earlier, the sworn complaint of David Tindall alleges that defendant Benson engaged in a deliberate conspiracy to frame the Haywoods for distributing narcotics. The complaint includes allegations that Benson ordered Tindall to manufacture evidence against both James and Cynthia Haywood, and then allowed this evidence to be used to obtain arrest warrants. If these facts are found to be true, Benson will have no immunity for his actions. Because the court finds that the verified complaint is sufficient to defeat summary judgment on the Fourth Amendment claims, none of the other evidence against Benson need be considered.
C. Plaintiffs' Fourth Amendment Claims Against Defendant Lucey.
Defendant Lucey maintains that he is entitled to qualified immunity under the "extraordinary circumstances" prong of the qualified immunity analysis because he did not apply for the arrest warrants for either of the Haywoods and relied on a "facially valid warrant" to effect their arrest. This analysis is far too simple and ignores certain essential facts.
As discussed above, the information known to the officers at the time of the issuance of the warrant for James Haywood did not support a finding of probable cause for his arrest. The lack of probable cause for the arrest of Cynthia Haywood is even more striking. Although Lucey disputes many of the statements that Nye made in her deposition, Nye testified that she told the other officers, including Lucey, about the difficulties of identifying Cynthia Haywood and the problems with Tindall. Nye testified that when she expressed her doubts to Sterner and Lucey about the identity of the woman who had sold drugs to Tindall, Lucey assured her that the woman was, in fact, Cynthia Haywood. Nye testified that she had told Lucey of her suspicions concerning Tindall's drug use. Most important, Lucey admitted in his deposition testimony that even after the arrest warrant for Cynthia Haywood had been obtained, "nobody" believed that a proper identification of Cynthia Haywood had been made through comparison of a driver's license photograph and pictures made from the video of the drug transaction. (Lucey Dep. at 69-70.)
*1461 It appears to the court that there remains a genuine factual issue as to whether, despite the authorization of a magistrate, a reasonably well-trained officer could have believed that probable cause for the arrest of either James or Cynthia Haywood existed. See Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir.1991). In Salmon, the Tenth Circuit affirmed the denial of summary judgment to an officer who applied for an arrest warrant but directed the entry of summary judgment for the defendants who had simply executed the warrant. In Salmon, unlike the case now before this court, there was no evidence that the defendants who served the warrant had any knowledge that would have vitiated probable cause or their good faith reliance on the arrest warrant. Id. at 1141. Here, plaintiffs have presented sufficient evidence to raise a triable issue: whether Lucey knew at the time the warrants were executed that Tindall was unreliable and that Tindall's statements were uncorroborated. Lucey therefore has not met his burden of showing that his actions were objectively reasonable as a matter of law in light of the knowledge he possessed at the time of the arrests. Lucey's motion for summary judgment based on qualified immunity is denied as to both plaintiffs' Fourth Amendment claims.
D. Plaintiffs' Fourth Amendment Claims Against Defendant Sterner.
The same analysis that applied to Lucey's claim of qualified immunity bars a grant of qualified immunity to Sterner. Again, it is evident that Sterner was aware of difficulties with Tindall and the lack of independent corroboration of any of the information provided by Tindall. The extent of his knowledge about the problems with the investigation remains uncertain. These factual disputes preclude this court from ruling as a matter of law that Sterner possessed so little awareness of the problems presented by the Haywood investigation that his reliance on the arrest warrant was objectively reasonable. Accordingly, summary judgment is denied Sterner on his claim for qualified immunity.
IX. Plaintiffs' § 1983 Malicious Prosecution Claim Against Benson and Lucey.
Plaintiffs have asserted that defendants Benson and Lucey are liable under § 1983 based on a claim of malicious prosecution. The defendants have moved for summary judgment on this claim on the ground that it fails to state a cause of action. However, the Tenth Circuit has, in Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir.1996), held that a claim for malicious prosecution can be a basis for a § 1983 liability. The court stated that to succeed on such a claim, a plaintiff must establish a violation of the Fourth Amendment as well as the common-law elements of malicious prosecution.
The elements of malicious prosecution are: (1) defendants initiated or procured the prosecution against an innocent plaintiff; (2) defendants did not have probable cause to initiate the prosecution; (3) defendants initiated the prosecution primarily for a purpose other than that of bringing an offender to justice; and (4) the prosecution terminated in favor of the plaintiff. Hodges v. Gibson Products Co., 811 P.2d 151, 156 (Utah 1991). There appears to be no dispute that the first and fourth elements are met. The court has concluded that the defendants did not have probable cause to initiate the prosecution; therefore the second element is fulfilled. With regard to the last remaining element, improper purpose, the defendants have made no showing, either affirmatively or by pointing to a failure of plaintiff's evidence. Accordingly, Benson and Lucey's motion for summary judgment on this claim is denied.
X. Plaintiffs' § 1985 Racial Conspiracy Claims.
In order to establish the existence of a conspiracy under § 1985(3), the plaintiffs must show "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action ...." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971).
Plaintiffs have no direct evidence of racial animus on the part of the defendants. Plaintiffs' counsel stated at the hearing: "There is not direct evidence of racial animus .... With respect to evidence of racial animus, I *1462 submit that ... circumstantial evidence is enough." (Tape Recording of 9/14/98 Hearing.) In order to sustain their claim for racial conspiracy, the plaintiffs therefore ask the court to draw the inference that the defendants were retaliating against Mr. Haywood for filing his racial discrimination claim. For the reasons stated below, however, the court declines the plaintiffs' invitation.
Even on a motion for summary judgment, where the court is obliged to draw all reasonable inferences on behalf of the nonmoving party, it would be purest speculation on this record to assume that the defendants intended to punish Mr. Haywood for filing his racial discrimination lawsuit. As Judge Kelly recently stated:
Although we must draw all factual inferences in favor of the nonmovant, those inferences must be reasonable. [The testimony of plaintiff's expert], grounded in speculation, may raise an inference [in plaintiff's favor], but it is not sufficient to withstand summary judgment. Rather, this inference, if it can be so called, constitutes at best, a "mere scintilla" of evidence, on which a judgment in favor of the nonmovant cannot be upheld.
Allen v. Muskogee, Oklahoma, 119 F.3d 837, 846 (10th Cir.1997) (Kelly, J., dissenting in part).
In this case, Nye and Lucey testified that at the time the Haywoods were arrested they did not know of James Haywood's lawsuit. (Nye Dep. at 166-67; Lucey Dep. at 70.) Nye also testified that during the investigation of the Haywoods, she never heard anyone speak in a derogatory manner about African-Americans. (Nye Dep. at 166-67.) There is no other evidence in the record touching on racial animus on the part of the defendants. In short, there is no evidence in the record to show that the defendants were even aware of Mr. Haywood's lawsuit, much less motivated to falsely arrest him because of it. The defendants' motion for summary judgment is granted with regard to this claim.[6]
XI. Plaintiffs' § 1983 Equal protection Claims Against Benson and Lucey.
The court dismisses plaintiffs' equal protection claims for the same reason that it dismissed the racial conspiracy claims: there is no evidence in the record from which the court could draw a reasonable, nonspeculative inference that the defendants were motivated by racial considerations. Additionally, the court notes that plaintiffs failed to offer any argument in opposition to Benson and Lucey's motion for summary judgment on this claim.
XII. The Municipal Defendants' Failure to Satisfy the Burden of Production.
Because the municipal defendants' motions for summary judgment must be denied for failure to meet the burden of production, the court begins its discussion with a more detailed exploration of the mechanics of summary judgment.
A. Defendants May Prevail By Affirmatively Disproving an Element of the Plaintiffs' Case.
The United States Supreme Court explained the two methods by which a party moving for summary judgment may discharge its burden of production in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In the first instance, the burden may be discharged by placing evidence into the record which affirmatively disproves an element of the nonmoving party's case. Id. at 331 (Brennan, J., dissenting). For example, where, as here, the plaintiffs have alleged an inadequate municipal policy leading to a constitutional violation, the defendants could satisfy their burden simply by putting their policies into the record. Then the court, after reviewing the record, may be in a position to find the policies adequate as a matter of law, or to rule that the policies could not have caused the harm of which the plaintiffs complain.
*1463 B. Defendants May Also Prevail By Showing the Court That They Have Examined the Evidence in the Plaintiffs' Possession and That the Plaintiffs Lack Sufficient Evidence on Some Element of Their Case.
The defendants need not affirmatively disprove the plaintiffs' case, however; "we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323 (emphasis in original). A defendant may move for summary judgment simply on the ground that the plaintiff lacks evidence "sufficient to establish the existence of an element essential to that party's case." Id. at 322.
The defendant in Celotex, for instance, propounded interrogatories which asked the plaintiff to identify all of her evidence on a key element of the case. Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 34-35 (D.C.Cir.1987) (on remand). The Supreme Court held that the defendant had properly moved for summary judgment when the plaintiff failed to respond, by "identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file ...' which it believe[d] demonstrate[d] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed. R.Civ.P. 56(c)).
In his concurring opinion (which provided the majority's fifth vote), Justice White further elaborated the principle that the defendant must point the court to specific portions of the record where the plaintiff has admitted that he has no evidence or intends to rely on evidence which is insufficient as a matter of law:
A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so under the discovery Rules.... [H]e need not ... depose his witnesses or obtain their affidavits to defeat a motion for summary judgment asserting only that he has failed to produce any support for his case. It is the defendant's task to negate, if he can, the claimed basis for the suit.
Celotex, 477 U.S. at 328 (White, J., concurring). Under Justice White's analysis, where the defendant has posed no discovery requests, silence in the record could reveal weaknesses in the plaintiff's case, or it could simply reveal that the defendant has not asked for information which the plaintiff, in fact, possesses.
Under the guidance provided by the Supreme Court, it is clear that the defendants in this case must make some effort to determine the nature of the evidence in the plaintiffs' possession before moving for summary judgment on the ground that the plaintiffs have no evidence. For example, the defendants could propound interrogatories requesting that the plaintiffs identify all evidence in their possession which shows that the municipal policies are inadequate or that the municipal policies caused the plaintiffs' injuries. Once the plaintiffs respond to such interrogatories (or do not respond at all), the defendants are in a position to discharge their burden of production by "`showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case" or that what evidence exists is legally insufficient. Id. at 325.
C. The Municipal Defendants in This Case Have Failed Either to Negate An Element of the Plaintiffs' Claim or to Establish that the Plaintiffs Have No Evidence.
The reason for imposing such a burden of production becomes readily apparent on the record now before the court. The municipal defendants did not attempt to put their own policies into the record or to otherwise negate an element of the plaintiffs' claims. Instead, they opted to attack the sufficiency of the plaintiffs' evidence. Having chosen this permissible line of attack, however, the municipal defendants did not, as far as the record shows, propound a single interrogatory or request for admission. They did not depose any of the plaintiff's witnesses who might have been in possession of significant, probative evidence. In short, they made no effort to discover the evidentiary basis for the plaintiffs' case. Now both municipal defendants have moved for summary judgment solely on the ground that the plaintiffs have no evidence:
*1464 Clearly, Salt Lake County supervised its employees .... Plaintiffs have no evidence that this procedure was not followed .... There is no evidence of any such failure [to train in the use of confidential informants] ....
(County's Mem. in Supp. of Summ. J. at 23.)
In the instant case, Mr. Haywood cannot meet the requisite evidentiary burden in order to maintain this action against Salt Lake City Corporation .... Dismissal of Mr. Haywood's case is mandated where the plaintiff [does not have] sufficient facts in his possession to adequately support the claims contained therein. In the instant case there exists no evidence that Salt Lake City ... failed to train or supervise its police officers ....
(City's Mem. in Supp. of Summ. J. at 16, 18.)
By moving for summary judgment in this fashion, the defendants ask the impossible. They wish for the court to rule on the sufficiency of the plaintiffs' evidence even though there is no place in the record where such information appears. Even if the depositions of the individual defendants, conducted by the plaintiffs, have not provided the plaintiffs with sufficient evidence to go forward (a matter on which the court expresses no opinion at this time), the court certainly cannot rule as a matter of law that the plaintiffs lack other probative evidence which would allow them to prevail at trial.
The law is clear that defendants may not assert the absence of evidence in the plaintiffs' case without having made some effort to inquire what evidence the plaintiffs have in their possession:
[C]onclusory assertions to aver the absence of evidence remain insufficient to meet this burden. Otherwise, as Justice Brennan cautioned, summary judgment `[would] be converted into a tool for harassment.'
Windon Third Oil and Gas v. FDIC, 805 F.2d 342, 345 n. 7 (10th Cir.1986) (quoting Celotex, 477 U.S. at 332 (Brennan, J., dissenting)).[7] Yet the defendants in this case have made only a "conclusory assertion" that the plaintiffs have no evidence. The municipal defendants' motions are therefore denied. Celotex, 477 U.S. at 332 (Brennan, J., dissenting) ("If the moving party has not fully discharged this initial burden of production, its motion for summary judgment must be denied ....").
Order
For the reasons stated above, the defendants' motions for summary judgment on the § 1985 racial conspiracy claim and the § 1983 equal protection claim are GRANTED. The defendants' motions for summary judgment on the Fourth Amendment claims, the malicious prosecution claims, and the municipal liability claims are DENIED.
NOTES
[1] Many of the facts regarding Tindall's service as a confidential informant come from a verified complaint filed by Tindall in his 1993 civil rights action against Benson. Because Tindall's complaint meets the requirements for an affidavit set forth in Fed.R.Civ.P. 56(e), the court must treat the matter contained therein as it would matter found in any other affidavit. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991). The court cannot weigh the credibility of Tindall's complaint at this phase of the proceedings and must deny summary judgment to the individual defendants to the extent that Tindall's version of events, credible or not, materially conflicts with the defendants' accounts.
[2] Although the exact date or dates when Tindall used cocaine remains uncertain on the record now before the court, it is undisputed that the defendants were aware of Tindall's drug use at the time they applied for the Haywood arrest warrants on March 5.
[3] Sterner also makes the conclusory statements in his affidavit, without giving details, that the probable cause statement (Sterner does not specify which probable cause statement) does not accurately reflect the information given to McCloskey by Nye. Sterner also alleges that Nye did not attempt to make false or misleading statements. (Sterner Aff. at 6-7.) These statements are of little or no evidentiary value or assistance. It should also be noted that in his deposition, Sterner testified that he remembered nothing about the questions McCloskey asked or what Nye or he may have told her. (Sterner Dep. at 51.) In a letter dated January 23, 1998, counsel for the Salt Lake county defendants referred the court to a portion of an interview with McCloskey. As was stated in the hearing, this evidence is not properly before the court and will not be considered.
[4] The referenced report in the probable cause statement for James Haywood, No. 93-21093, was the report of the drug sale between Tindall and the woman he claimed was Cynthia Haywood, but was, in fact, Brenda Jackson. (Nye Dep. at 132.) James Haywood is not mentioned once in report No. 93-21093.
[5] Cynthia Haywood settled all claims against Nye and Salt Lake City. Both plaintiffs voluntarily dismissed their claims against Sterner alleging violations of § 1983 based on the denial of equal protection of the laws and malicious prosecution, and James Haywood also voluntarily dismissed these same claims against Nye. The plaintiffs also dismissed their claims against Salt Lake City and Salt Lake County alleging that the municipalities had failed to train their officers to recognize the existence of probable cause.
[6] The resolution of this claim differs from the municipal liability claims, discussed in Section XII, infra, because the court itself inquired what evidence the plaintiffs possessed on this issue. Having heard the plaintiffs' response, the court is now in an adequate position to evaluate the legal sufficiency of the plaintiffs' case.
[7] See also Celotex, 477 U.S. at 328 (White, J., concurring) ("It is not enough to move for summary judgment ... with a conclusory assertion that the plaintiff has no evidence to prove his case."); id. at 332 (Brennan, J., dissenting) ("Plainly, a conclusory assertion that the nonmoving party has no evidence is insufficient."); Ashe v. Corley, 992 F.2d 540, 543 (5th Cir.1993) ("`[S]imply filing a summary judgment motion does not immediately compel the party opposing the motion to come forward with evidence demonstrating material issues of fact as to every element of its case.' It is not enough for the moving party to merely make a conclusory statement that the other party has no evidence to prove his case."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385057/ | 209 S.W.3d 126 (2006)
Ex parte John Joseph REYES, Applicant.
No. AP-75280.
Court of Criminal Appeals of Texas.
December 13, 2006.
D. Craig Hughes, Houston, for appellant.
M. Elizabeth Foley, Assistant Criminal District Attorney, Galveston, Matthew Paul, State's Attorney, Austin, for State.
OPINION
HOLCOMB, J., delivered the opinion for a unanimous Court.
This is a post-conviction habeas corpus proceeding, initiated under Article 11.07,[1] in which John Joseph Reyes seeks relief from a number of alleged violations in his attempts to procure post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. For the reasons stated below, we dismiss Reyes' application for habeas corpus relief.
In 1993, a Galveston County jury convicted Reyes of sexual assault of a child under Texas Penal Code § 22.011, assessing his punishment at confinement for 16 years and a $10,000 fine. His conviction was affirmed on direct appeal. In August 2001, Reyes moved for post-conviction DNA testing pursuant to Chapter 64[2] and also requested a court-appointed independent expert to assist him in reviewing the test results. The convicting court granted his motion for the DNA testing, but denied his request for an independent expert. In July 2002, the court entered findings that the results of the DNA tests were not favorable to Reyes.
On appeal, Reyes challenged the convicting court's denial of his request for an independent expert, but the court of appeals dismissed his appeal on the ground that it constituted a "collateral attack" for which no appeal was authorized, because Reyes' request for an independent expert was "not a finding within the scope of articles 64.03 or 64.04." Reyes v. State, No. 01-02-00849-CR, slip op. at 3-4, 2003 WL 23096000, *2 (Tex.App.-Houston [1st Dist.] Dec. 31, 2003) (citing Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App.2003)).
In January 2005, Reyes filed a post-conviction application for a writ of habeas corpus seeking relief on the following grounds: (1) that the trial court erred in failing to appoint an independent expert to assist the defense; (2) that the court of appeals erred in holding that it lacked jurisdiction to hear Reyes' appeal on this point; (3) that the court of appeals erred in holding that Reyes' request for an independent expert was a finding not within the scope of articles 64.03, 64.04, or 64.05, and thus one for which no appeal was authorized; (4) that Reyes was denied due process when his original state writ application and supplemental state writ application(s) were improperly dismissed for abuse of the writ; (5) that the prosecution acted improperly when it knowingly withheld exculpatory evidence during the post-conviction DNA testing process; (6) that Reyes received ineffective assistance of counsel both in his Chapter 64 proceedings as well as in the guilt/innocence and punishment stages of his trial; (7) that the State failed to establish the scientific reliability *127 of DNA testing and test results through a Daubert/Kelly[3] "Gatekeeping" hearing prior to the trial court's finding that those results were not favorable to Reyes; and (8) that the DNA test results were legally and factually insufficient to support the trial court's findings that they were unfavorable to Reyes.
In October 2005, we ordered Reyes' application filed and set for submission to determine "whether challenges to Chapter 64 proceedings[4] are cognizable in Art. 11.07 habeas proceedings." Shortly thereafter, however, this Court issued two decisions expressly holding that "the post-conviction writ of habeas corpus is not available for . . . claims of ineffective assistance of counsel in [Chapter 64 DNA] proceedings." Ex parte Baker, 185 S.W.3d 894, 898 (Tex.Crim.App.2006); Ex parte Suhre, 185 S.W.3d 898, 899 (Tex. Crim.App.2006). Although Reyes had made several claims in addition to that of ineffectiveness of counsel, he recognizes that the thrust of those two decisions is that challenges to Chapter 64 proceedings are not cognizable in Art. 11.07 habeas proceedings. Therefore, he concedes that "this Court has already addressed [the] issue" before us in his case. Applicant's Brief at 2.
Because the basis of our decisions in Baker and Suhre was that proceedings under Chapter 64 do not themselves challenge an inmate's conviction or sentence, we dismiss Reyes' application for habeas corpus relief.
NOTES
[1] All references and citations to articles are to those in the Texas Code of Criminal Procedure.
[2] See art. 64.01-.05 (Vernon Supp.2004).
[3] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).
[4] See Art. 64.01, et seq. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1389042/ | 209 S.W.3d 584 (2006)
DENVER AREA MEAT CUTTERS AND EMPLOYERS PENSION PLAN, et al.
v.
James L. CLAYTON, et al.
Court of Appeals of Tennessee, Eastern Section, at Knoxville.
April 6, 2006 Session.
May 9, 2006.
Permission to Appeal Denied October 30, 2006.
*585 James J. Hayes, Annandale, Virginia, appellant, appearing pro se.
John T. Winemiller and John A. Lucas, Knoxville, Tennessee, and Edward J. Fuhr, Richmond, Virginia, for the appellees Clayton Homes, Inc., and James L. Clayton, Kevin T. Clayton, C. Warren Neel, B. Joe Clayton, Steven G. Davis, Dan W. Evins, Wilma H. Jordan, and Thomas N. McAdams.
Kevin K. Green, San Diego, California, and Douglas S. Johnston, Jr., and James G. Stranch, III, Nashville, Tennessee, for the appellee Denver Area Meat Cutters and Employers Pension Plan.
Permission to Appeal Denied by Supreme Court October 30, 2006.
*586 OPINION
SHARON G. LEE, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., and D. MICHAEL SWINEY, JJ., joined.
In this appeal, Mr. Hayes, a shareholder of Clayton Homes, Inc., argues that the trial court erred in approving the settlement of a shareholder class action complaint filed by Denver Area Meat Cutters and Employers Pension Plan, et al., also a shareholder of Clayton Homes, Inc., against members of Clayton's board of directors on behalf of Clayton's shareholders. The complaint charged the directors with breach of fiduciary duties in connection with the acquisition of Clayton by Berkshire Hathaway, Inc. and in connection with an associated merger of Clayton and a Berkshire subsidiary. Mr. Hayes contends that the trial court erred in approving the settlement because the trial court did not consider the potential recovery of damages had the case proceeded to trial, because the settlement resulted in a great disparity between the per share recovery of Clayton shareholders and the award of attorney's fees to Denver's counsel, and because the complaint filed by Denver did not include proxy fraud claims or assert Delaware's entire fairness doctrine. We affirm the judgment of the trial court and remand.
I. Background
In April of 2003, Clayton Homes, Inc. ("Clayton"), a publicly-owned Delaware corporation headquartered in Maryville, Tennessee, disclosed that it had agreed to merge with B Merger Sub, Inc., a subsidiary of Berkshire Hathaway, Inc. ("Berkshire"), another publicly-owned Delaware corporation. Clayton would be the surviving corporation of the merger under the name of Clayton Homes, Inc.
On or around June 16, 2003, Clayton advised each of its shareholders of the merger by a mailing which included a proxy statement and copy of the merger agreement. Also included in this correspondence was notice that a special stockholders' meeting would be held on July 16, 2003, for the purpose of voting on the merger. The merger agreement provided that, upon completion of the merger, Clayton stockholders would be allowed $12.50 per share for Clayton common stock owned. Inter alia, the letter stated that Clayton's board of directors recommended approval of the merger and had determined that the terms of the merger were fair to Clayton's stockholders.
The stockholder meeting to vote on the merger was convened on July 16, 2003; however, prior to a formal vote being taken, the meeting was adjourned to July 30, 2003. When the meeting reconvened on July 30, 2003, shareholders voted to approve the merger pursuant to the terms of the merger agreement by an affirmative vote of a majority of all outstanding shares of Clayton common stock.
On July 25, 2003, and by amendment of July 30, 2003, Denver Area Meat Cutters and Employers Pension Plan ("Denver") filed a complaint in the Circuit Court for Blount County alleging both class action claims and shareholder derivative claims on behalf of Clayton against Clayton Homes, Inc. and the pre-merger members of Clayton's board of directors. Among other things, Denver's lawsuit charged that the merger terms were unfair and that, in approving such terms, the directors had breached their fiduciary duties. The complaint requested class certification, damages for breach of fiduciary duty, and an injunction against consummation of the merger.
On August 4, 2003, Denver moved for a temporary restraining order to enjoin approval *587 of the merger pending review of the July 30, 2003, vote to approve the merger. This motion was denied, and on August 7, 2003, the merger was consummated by the filing of a certificate of merger with the Delaware Secretary of State. On that same date, shortly after the certificate of merger was filed, Denver filed an application for extraordinary appeal pursuant to Tenn. R.App. P. 10, and requested that this Court grant its motion of August 4, 2003, and enjoin approval of the merger.
We granted Denver's application for extraordinary appeal, and on August 7, 2003, Denver, referencing the allegation of fraud in its complaint, argued that the merger had not occurred under an applicable Delaware statute which provided that endorsement upon the certificate of merger by the Secretary of State of the time and date of filing would be conclusive of the time and date of filing "in the absence of actual fraud." After considering the parties' arguments, we remanded for, among other things, a development of the record as to the meaning of this statutory language and as to whether Denver had standing to maintain its derivative action in light of the status of the merger. In addition, we instructed the trial court, should it find that Denver retained standing, to reconsider Denver's motion for a temporary restraining order. We further instructed the trial court to reconsider Denver's motion for a temporary restraining order as applicable to Denver's class action claim, even should the court determine that Denver was without standing to pursue its derivative action.
Upon remand, the trial court concluded that Denver had made a prima facie showing of fraud and, consequently, Denver's shareholder derivative suit and class action suit should proceed and a motion by the defendants to stay these suits should be denied. The trial court further restrained the defendants "from any action to change the status quo of the subject merger" pending further court orders. In response, the defendants filed an application for extraordinary appeal.
We granted the defendants' application for extraordinary appeal, and addressed the following issues: 1) whether the merger had occurred and, if so, whether it deprived Denver of standing to pursue a stockholders' derivative action; 2) whether Denver was entitled to a temporary injunction to prevent, in the terminology of the trial court, "any action to change the status quo of the subject merger"; and 3) whether Denver's class action claims should be stayed in deference to other class action claims regarding the merger that were then pending in Delaware.
As set forth in Denver Area Meat Cutters and Employers Pension Plan v. Clayton, 120 S.W.3d 841 (Tenn.Ct.App.2003), we concluded that the merger was effective at 7:29 a.m. on August 7, 2003, and that, at that time, Denver lost standing to further pursue its later filed stockholders' derivative suit. We also found that the trial court's status quo injunction constituted, in effect, a temporary injunction. We found no legal authority to support Denver's argument that its allegations of fiduciary fraud were legally sufficient to invalidate the merger. We also noted the test for issuance of a preliminary injunction, as set forth in S. Cent. Tenn. R.R. Authority v. Harakas, 44 S.W.3d 912, 919 (Tenn.Ct. App.2000), which includes as one factor "the probability that plaintiff will succeed on the merits," and we stated that "the facts before us do not show that there is a probability that the plaintiff will be successful at trial in its efforts to undo the merger." Denver Area Meat Cutters, 120 S.W.3d at 859. Based upon our findings, we vacated the trial court's action to change the status quo of the merger. We *588 further vacated the trial court's denial of the defendants' motion to stay Denver's stockholders' derivative claims; however, we affirmed the trial court's denial of such motion as to Denver's class action claims and directed that suit as to these latter claims "progress in an orderly manner consistent with the nature of this class action." The case was then remanded for proceedings consistent with our opinion.
Following remand, the defendants filed a motion to dismiss, and Denver filed a motion to amend its complaint. Thereafter, on March 18, 2005, the trial court preliminarily approved settlement of the case. Pursuant to the terms of this settlement, the defendants agreed that, in exchange for release of claims by the settlement class,[1] it would pay the settlement class five million dollars and additional monies contingent upon the sale of Clayton Homes, Inc. by Berkshire Hathaway before December 31, 2005.[2] In addition to approving the settlement, the trial court certified the settlement class, approved the manner and form of the notice of the settlement, and directed that the notice be mailed to all members of the settlement class by first class mail and published in Investor's Business Daily. Finally, the court set a hearing for May 16, 2005, "to determine whether the proposed settlement of the Litigation on the terms and conditions provided for in the Stipulation [of settlement] is fair, reasonable and adequate to the Settlement Class and should be approved by the Court. . . ."
The declaration of an employee of the firm retained as claims administrator in the case confirms that 94,713 notices of the settlement were mailed to potential class members. Six notice recipients, including appellant James J. Hayes, objected to the settlement.
At the scheduled hearing on final approval of the settlement, the trial court heard arguments of attorneys for Denver and attorneys for the defendants, as well as the arguments of Mr. Hayes and two other individuals who had objected to the settlement. The trial court also considered the written objections of the three absent objectors. Thereafter, on June 7, 2005, the trial court entered final judgment approving the stipulation of settlement. Inter alia, the judgment provides as follows:
This Court has considered the nature of the claims, the possible defenses to the claims, the legal and factual obstacles that would be faced by the Plaintiff at trial, and the delay, expense and complexity of the litigation. See Cox v. Shell Oil Co., Civ. A. No. 18844, 1995 WL 775363, at *10 (Tenn.Ch. Nov.17, 1995). Plaintiff asserted that Defendants breached their fiduciary duties to the Settlement Class in connection with the Acquisition of Clayton Homes by Berkshire Hathaway. Defendants vehemently deny any wrongdoing. Plaintiff faced substantial legal and factual obstacles to going forward, including the opinion issued by the Court of Appeals of Tennessee, at Knoxville, on September 3, 2003. The Appellate Court held: "We find no legal authority to support the plaintiff's position that its allegations of breach of fiduciary duty/fraud in this case are legally sufficient to invalidate a merger that has occurred and will shortly be fully consummated." Denver Area *589 Meat Cutters and Employers Pension Plan v. Clayton, 120 S.W.3d 841, 856 (Tenn.Ct.App.2003). Further, the Appellate Court found that "there is not a scintilla of evidence in this record demonstrating that a single vote was incorrectly counted or that any share of stock was voted in favor of the merger because of any alleged fraudulent act of the defendants." Id. at 859. Moreover, continuation of this complex case, in light of the vigorous litigation by both sides, would require significant expenses and unduly delay any ultimate recovery for the Settlement Class.
Based upon the foregoing, together with a review of the entire record in this case, and pursuant to Rule 23 of the Tennessee Rules of Civil Procedure, this Court hereby grants Plaintiff's Motion and expressly approves the settlement set forth in the Stipulation. The Court finds that said settlement is, in all respects, fair, reasonable and adequate to, and is in the best interests of, the Plaintiff, the Settlement Class and each of the Settlement Class Members. See Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir.1983); Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615 (9th Cir.1982). The Court further finds that the settlement set forth in said Stipulation is fair in view of the risks of continued litigation under the circumstances of this case, especially in light of the risk of success on the merits following the Appellate Court's ruling filed on September 3, 2003. This Court further finds the settlement set forth in the Stipulation is the result of arm's-length negotiations between experienced counsel representing the interests of the Plaintiff, the Settlement Class Members and the Defendants. The Court further finds that the settlement provides substantial value to the Settlement Class. See Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 395-96[, 90 S.Ct. 616, 24 L.Ed.2d 593] (1970). Accordingly, the Court finds it proper that the aforesaid settlement embodied in the Stipulation be approved in all respects and it is the Order of the Court that the Stipulation shall be consummated in accordance with the terms, conditions, and provisions therein contained. The Settling Parties are hereby directed to perform the terms of the Stipulation.
The Court further finds that upon consideration of all objections concerning the fairness, reasonableness or adequacy of the settlement, said objections are without merit and are overruled.
The final judgment further provides as follows for the release of claims against "Released Persons" which are defined in the settlement as "each and all of the Defendants and their Related Parties":
Upon the Effective Date, the Plaintiff and each of the Settlement Class Members shall be deemed to have, and by operation of the Judgment shall have, fully, finally, and forever released, relinquished and discharged all Released Claims against the Released Persons, whether or not such Settlement Class member executes and delivers a Proof of Claim and Release from.
The settlement defines "Released Claims" as "any and all claims, causes of action, demands, rights or liabilities, including both known and unknown claims. . . ."
II. Issues
Mr. Hayes appeals this judgment and presents for our review three issues which we restate as follows:
1) Did the trial court err in approving the merger without considering the potential recovery of damages had the case proceeded to trial?
2) Should the trial court have denied approval of the settlement because of the *590 disparity between attorney's fees allowed under the settlement and the per share recovery provided to Clayton stockholders?
3) Did the trial court err in approving the settlement where the underlying complaint omitted proxy fraud claims and failed to assert Delaware's entire fairness doctrine?
III. Standard of Review
The parties do not dispute that this Court properly reviews a trial court's approval of a settlement under the abuse of discretion standard. See Cummings v. Patterson, 54 Tenn.App. 75, 388 S.W.2d 157, 167 (1964). In Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001), the Tennessee Supreme Court stated as follows regarding the abuse of discretion standard:
Under the abuse of discretion standard, a trial court's ruling "will be upheld so long as reasonable minds can disagree as to the propriety of the decision made." State v. Scott, 33 S.W.3d 746, 752 (Tenn.2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.2000). A trial court abuses its discretion only when it "applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining." State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999). The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998).
An abuse of discretion occurs when the lower court's decision is without a basis in law or fact and is, therefore, arbitrary, illogical or unconscionable. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn.2000).
In reviewing this case, we also bear in mind, as we recently reiterated, that "`settlement agreements . . . are favored by the courts and represent the achievement of an amicable result to pending litigation.'" Petersen v. Genesis Learning Centers, No. M2004-01503-COA-R3-CV, 2005 WL 3416303 (Tenn.Ct.App.M.S., Dec. 13, 2005) (citing In re Estate of Jones, 154 S.W.3d 582, 584 (Tenn.Ct.App.2004)).
IV. Potential Recovery
The first issue we address is whether the trial court erred in approving the settlement without considering the potential recovery in damages had the case proceeded to trial.
Mr. Hayes argues that "[b]efore a class member or a court can assess the fairness of a particular settlement[,] there must be an estimate of the potential recovery if the case did not settle but proceeded to trial." He asserts that "[c]ourts have no choice but to reject settlements where there is no basis for an evaluation [for fairness]." Mr. Hayes contends that "[j]ust as it is impossible mathematically to solve a single equation with two unknowns[,] it is analytically impossible to assess the fairness of the settlement without good knowledge of the `potential recovery' from a successful trial." Mr. Hayes cites federal case law in support of this argument. He also references the Private Securities Litigation Reform Act ("PSLRA"), codified at 15 U.S.C. § 78u-4, which he asserts "requires a disclosure of settlement terms to class members that includes a statement on the potential outcome of [the] case." Mr. Hayes maintains that "[i]n a Federal securities case, the Clayton Settlement Notice would violate the PSLRA."
Although our decisions are controlled by the United States Supreme Court when that Court has held that a particular course of conduct violates the *591 federal constitution, our decisions are not controlled by the opinions of the other courts of the federal system. Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn.1977). Mr. Hayes does not assert that the federal constitution was violated in this case and cites no United States Supreme Court cases in that regard and, while we may, in our discretion, follow the opinions of other federal courts, we are not bound to do so. Furthermore, Mr. Hayes' reference to the PSLRA is inapposite. It is irrelevant whether the Clayton settlement notice would have violated the PSLRA if this had been a federal securities case, in light of the fact that this is not a federal securities case. Mr. Hayes presents no Tennessee authority in support of his argument that the trial court was without discretion to approve a settlement absent evidence of potential recovery at litigation.
Even under federal case law, it is acknowledged that a great disparity between the settlement amount and the amount of potential recovery in a class action suit will not determine the fairness of a proposed settlement.
The dollar amount of the settlement by itself is not decisive in the fairness determination. The fact that the settlement amount may equal but a fraction of potential recovery does not render the settlement inadequate. Dollar amounts are judged not in comparison with the possible recovery in the best of all possible worlds, but rather in light of the strengths and weaknesses of plaintiffs' case.
In re Agent Orange Product Liability Litigation, 597 F.Supp. 740, 762 (E.D.N.Y. 1984). The court in that case further noted that "[t]he most important consideration [in determining whether a settlement is fair] is the strength of plaintiffs' case on the merits weighed against the amount offered in settlement." Id. See also Cohn v. Nelson, 375 F.Supp.2d 844, 853 (E.D.Mo.2005) and In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 932 (8th Cir.2005).
We are not persuaded that an estimate of potential recovery in the event of successful litigation was required as a prerequisite to an approval of settlement under the circumstances in this case, especially in light of the following admission by Denver's attorney at the fairness hearing:
[D]espite what I think were fairly valiant efforts on the part of the plaintiffs' lawyers, the Court of Appeals finally, in their ruling, disagreed with our view of the evidence and basically substantially eliminated the merits of our case, in our view, had we tried to go forward to trial. Under those circumstances, we were able to obtain not zero for the class, but $5 million for the shareholders and the potential that if the Clayton stock or a substantial portion of the assets are sold before the end of this year, the shareholders will also get some benefit from that.
We do not agree that there would have been any advantage in requiring Denver to produce a statement of potential recovery in the event of successful litigation when Denver stated, in essence, that the merits of its case had been eliminated, that litigation would not be successful, and that nothing would be recovered if the case proceeded to litigation. Given this admission, we cannot imagine how an estimate of potential recovery in the event of successful litigation would have affected the trial court's decision in any way whatsoever, and requiring such would have only resulted in unnecessary cost and further delay in this already protracted case.
V. Disparity Between Attorney's Fees and Per Share Recovery
The next issue we address is whether the trial court abused its discretion *592 in approving the settlement despite the disparity between the attorney's fee allowed Denver's counsel and the amount of per share recovery to Clayton shareholders under the settlement.
Mr. Hayes asserts that the settlement results in a net amount to shareholders of $0.067 per share after payment of attorney's fees in the amount of $1.67 million dollars. He states that this Court must determine "whether a settlement that provides both: 1) a low per share payment and 2) guarantees high attorney fees is per se an abusive settlement that should be routinely rejected."
Section 5.2(a) of the settlement states that the settlement fund shall be applied in part "to pay Plaintiff's Counsel's attorney's fees and expenses with interest thereon (the "Fee and Expense Award"), if and to the extent allowed by the Court." (Emphasis added). At Section 6 the settlement further provides in pertinent part as follows:
6.1 Plaintiff's Counsel may submit an application (the "Fee and Expense Application") for distributions to them from the Settlement Fund for: (a) an award of attorneys' fees; plus (b) reimbursement of expenses incurred in prosecuting the Litigation, plus interest on such attorneys' fees and expenses at the same rate and for the same periods as earned by the Settlement Fund (until paid).
6.2 The attorneys' fees and expenses, as awarded by the Court pursuant to the application by Plaintiff's Counsel described in 6.1 above, shall be paid to Plaintiff's Settlement Counsel from the Settlement Fund, as ordered, immediately after the Court executes an order awarding such fees and expenses. Plaintiff's Settlement Counsel shall thereafter allocate the attorneys' fees in a manner which reflects the contributions of Plaintiff's Counsel to the prosecution and settlement of the Litigation.
. . .
6.4 The allowance or disallowance by the Court of any award of attorneys' fees and/or expenses is not part of this settlement, and will be considered by the Court following approval of this Stipulation and separately from the Court's consideration of the fairness, reasonableness and adequacy of the settlement. Any order or proceeding relating to the application by Plaintiff's Counsel for an award of attorneys' fees and expenses, or any appeal from any order relating thereto or reversal or modification thereof, shall not operate to terminate or cancel this Stipulation, or affect or delay the finality of the Judgment approving this Stipulation and the settlement of the Litigation set forth herein.
We further note that the trial court's final judgment approving the settlement states that "any order entered regarding the attorneys' fee and expense application shall in no way disturb or affect this judgment and shall be considered separate from this Judgment."
Attorney's fees were awarded in the amount of one-third of the settlement fund by separate order entered June 8, 2005, which states, inter alia, as follows:
The Court concludes that the percentage of the benefit is the proper method for awarding attorneys' fees in this case. See Blum v. Stenson, 465 U.S. 886, 900 n. 16[, 104 S.Ct. 1541, 79 L.Ed.2d 891] (1984). Having reviewed and considered the relevant legal authority, including the factors normally considered in awarding fees in common fund cases, and Plaintiff's Counsel's fee application, the Court concludes that one-third is a reasonable percentage. The Court finds that Plaintiff's Counsel competently and *593 vigorously represented the Settlement Class, carried the financial burden of litigating the case with the substantial risk of no fee payment, expended considerable time and labor in prosecuting the complex issues raised in this case, and obtained a fair recovery despite the procedural posture of the case. The Court also notes that a one-third fee is consistent with the market rate in other complex contingent cases.
Given the segregation of the award of attorney's fees from the settlement, as evidenced by the referenced language, we cannot agree with Mr. Hayes' statement that the settlement guarantees "high" attorney's fees. In any event, we find Mr. Hayes' assertions that the per share payments were "low" and the allowed attorney's fees in this case were "high" to be subjective and conclusory, and not supported by reference to evidence in the record. Unquestionably, there is a great disparity between the per share recovery under the settlement and the amount awarded in attorney's fees; however, this fact does not of itself indicate that the settlement was "abusive" and should not have been approved, and Mr. Hayes cites no law holding to the contrary. We believe the appropriate point of inquiry is not the degree of disparity between these amounts, but rather whether each particular amount was unreasonable under the circumstances. Our examination of the record before us does not reveal that either of these amounts was unreasonable under the circumstances of this case, and we do not find that the trial court abused its discretion in approving either the settlement or the award of attorney's fees.
VI. Proxy Fraud Claims and Entire Fairness Doctrine
The final issue raised in this appeal is whether the trial court erred in approving the settlement of Denver's complaint even though the complaint failed to raise proxy fraud claims against Clayton's directors and failed to assert Delaware's fairness doctrine.
Mr. Hayes references the settlement's release of the defendants "from known and unknown violations of any state or federal statutes, rules or regulations that could have been asserted in any other forum based on or related in any way to the Acquisition." Mr. Hayes first contends as follows that the trial court erred in approving the settlement because it released proxy claims against the defendants that Denver should have included in its complaint:
In the complaint, the Plaintiff alleged that Clayton's directors conspired "to enter into the Merger Agreement with Berkshire Hathaway at an inadequate price and to enter into the stockholder agreement, . . . in an attempt to obtain control of the votes required to gain approval of the Proposed Acquisition." If the directors had their doubts about the adequacy of the $12.50 per share price in March 2003, then their statements of opinion on the fairness of that price in the proxy soliciting shareholder votes for the July 15 shareholder vote would have been false and misleading. In addition, the increasing stock prices of manufactured housing stocks would have only increased these doubts, thus making the proxy statements even more misleading and making the proxy claim superior to Plaintiff's breach of fiduciary duty claims. Plaintiff's omission of proxy fraud claims appear[s] designed to avoid federal jurisdiction and the early class certification requirements of the PSLRA. In any event, the trial court breached its duty to the class by approving a settlement that released claims *594 that were inadequately represented by the Plaintiff.
(Citations to record omitted).
Our review of the record shows that, in the proceedings below, Mr. Hayes never argued that Denver improperly failed to include claims for proxy fraud in its complaint or that the trial court should not have approved the settlement for that reason. As we stated in Hobson v. First State Bank, 801 S.W.2d 807, 812 (Tenn.Ct. App.1990), "[a]n issue not raised nor considered in the trial court but raised for the first time on appeal will not be considered by this Court." Accordingly, we find this issue to be waived.
Mr. Hayes next maintains that the trial court failed to adhere to the so called "entire fairness doctrine" and presents the following argument in that regard:
The complaint also cites director actions that under Delaware law deprived shareholders of a fair merger process. In making these allegations, however, the Plaintiff ignored a more powerful invocation of Delaware's entire fairness doctrine that is not dependant [sic] on director action. In Delaware, mergers with a dominant shareholder standing on both sides of the transaction invoke the entire fairness doctrine that provides a court determined fair price. Kahn v. Lynch Communication Systems Inc., 638 A.2d 1110 (Del.1994). The appellant raised this issue in his written objection and at the fairness hearing. The trial court did not comment on the issue at the hearing or in its Memorandum and just with the prior issues breached its duty and discretion in approving the Settlement.
(Footnote and citations to record omitted).
As Mr. Hayes notes, the entire fairness doctrine he seeks to invoke pertains to mergers where there is a dominant shareholder on both sides of the transaction. However, Mr. Hayes fails to assert that Berkshire Hathaway was a dominant shareholder standing on both sides of the merger. He does not reference, nor do we find, any evidence that would support that conclusion. Accordingly, we do not agree that Delaware's entire fairness doctrine is applicable in this case.
Finally, in his reply brief, Mr. Hayes also argues that the trial court abused its discretion because, he alleges, it approved the settlement without evaluating claims set forth in Denver's second amended complaint. It does not appear that Mr. Hayes raised this argument in his original brief.
A reply brief allows the appellant to "reply to the brief of the appellee." Tenn. R.App. P. 27. "A reply brief is limited in scope to a rebuttal of the argument advanced in the appellee's brief. An appellant cannot abandon an argument advanced in his brief and advance a new argument to support an issue in the reply brief. Such a practice would be fundamentally unfair as the appellee may not respond to a reply brief." Caruthers v. State, 814 S.W.2d 64, 69 (Tenn.Crim.App. 1991). See also Hobbs v. State, No. 03CO1-9303-CR-0071, 1993 WL 539494 n. 1 (Tenn.Crim.App. Dec.22, 1993); Gentry v. Gentry, No. E2000-02714-COA-R3-CV, 2001 WL 839714 n. 1 (Tenn.Ct.App. July 25, 2001) and Castle v. State, 2005 WL 2372762, E2005-00874-COA-R3-CV at *4 (Tenn.Ct.App.E.S. Sept. 27, 2005). Mr. Hayes' argument that the trial court improperly failed to review claims advanced in Denver's second amended complaint is advanced for the first time in his reply brief and, therefore, will not be considered.
VII. Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed, and this *595 cause is remanded for whatever further action may be necessary as consistent with our opinion herein. Costs of appeal are assessed to the appellant, James J. Hayes.
NOTES
[1] The settlement defines "settlement class" as "all persons who held shares of Clayton Homes common stock on April 2, 2003 (date of announcement of Acquisition) and continued to hold those same shares until August 7, 2003 (date of close of Acquisition)." (Emphasis in original).
[2] Such sale did not transpire. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1389046/ | 209 S.W.3d 320 (2006)
In the Interest of H.M.J.H.
No. 05-05-01380-CV.
Court of Appeals of Texas, Dallas.
December 13, 2006.
Janice Ward, San Jose, appellant.
Lori L. Ordiway, Asst. Dist. Atty., for Dallas County, Chief of the Appellate Division, Dallas, for Appellee.
Before Justices FITZGERALD, RICHTER, and FRANCIS.
OPINION
Opinion by Justice FITZGERALD.
The Texas Department of Protective and Regulatory Services sued to terminate *321 the parental rights of both parents of a baby girl, H.M.J.H. Each of the parents executed voluntary relinquishments of parental rights. Appellant Janice Sims Ward, grandmother of H.M.J.H., intervened in the action below seeking to be named a managing or possessory conservator of the child. Following trial, the court entered its Decree of Termination, which states that Ward "failed to appear after notice was given and was found in default." The Decree named the Director of the Dallas County Child Protective Services Unit of the Texas Department of Protective and Regulatory Services as permanent managing conservator of H.M.J.H. Ward filed a motion for new trial, attempting to set aside the default judgment. It appears the motion was overruled by operation of law. Ward appeals.
Despite a directive from this Court, Ward has not brought forward a reporter's record from the trial or from the hearing on her motion for new trial. The absence of such a record severely limits our ability to review Ward's issues on appeal.[1] We understand Ward to have raised four issues, and we address them in turn.
First, Ward complains that the court erred in terminating the parental rights of H.M.J.H.'s father. Ward presents no argument or authorities on this issue. We cannot identify any legal interest Ward has in the father's rights such that she can complain of their termination on appeal. "[A]n appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others." Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex.2000). In the absence of some justiciable interest in father's rights, Ward cannot raise this issue on appeal. We overrule her first issue.
Second, Ward complains that the trial court erred in granting a default judgment against her. In her motion for new trial, Ward attempted to meet the test set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), which states that:
A default judgment should be set aside and a new trial ordered in any case in which [1] the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; [2] provided the motion for a new trial sets up a meritorious defense and [3] is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.
Id. at 126. Ward verified her motion, but no evidence is attached, and we have no record of evidence that may have been admitted at the hearing on Ward's motion. The motion contains Ward's sworn statements that she "has a meritorious defense to the cause of action" and that she "has new evidence to present which will greatly affect the outcome of this case." But the evidence is not described, and no such evidence is in the record before us. Ward does make the following statement on the second element, the setting up of a meritorious defense:
Petitioner's cause of action is based on child neglect. To this cause of action [Ward] can and does set up the meritorious defense of factual insufficiency for the Court to default [Ward] without just cause. The Court was and is aware that [Ward] is a lay person, that her counsel had quit representation of her one week before trial, and with this in mind took *322 advantage of her inability to represent herself and lack of knowledge of the court system to default her.
Ward offers no testimony concerning the merits of her case, i.e., why naming her a managing or possessory conservator of H.M.J.H. would be in the child's best interest. As to her argument that the default was unjust because of her pro se status, the fact that Ward proceeded in the trial court pro se does not alter her burden in this regard. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas 2005, no pet.) ("A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure."). The trial court did not abuse its discretion in overruling Ward's motion for new trial. See Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex.1987) ("A motion for new trial is addressed to the trial court's discretion and the court's ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion."). We overrule Ward's second issue.
In her third and fourth issues, respectively, Ward asserts that the trial court erroneously denied her access to and possession of H.M.J.H. Ward relies on sections 153.432 and 153.433 of the family code. See TEX. FAM.CODE ANN. §§ 153.432, 153.433 (Vernon Supp.2006). Section 153.432 of the family code does give grandparents standing to petition the court for access to or possession of a child. Section 153.433 identifies the conditions under which such possession or access will be granted. However, the record before us contains no evidence establishing these conditions have been met. Moreover, section 153.433's analysis is subject to the trial court's determination of the best interest of the child. See In re W.M., 172 S.W.3d 718, 728 (Tex.App.-Fort Worth 2005, no pet.). The Decree concluded that granting the Director managing conservatorship of H.M.J.H. was in her best interest. The record before us contains no evidence to the contrary.
In the absence of necessary evidence, we cannot say the trial court abused its discretion in denying Ward's requests for access to and possession of H.M.J.H. See id. (trial court's decision concerning grandparent access is reviewed for abuse of discretion). We overrule Ward's fourth and fifth issues as well.
We have decided each of Ward's issues against her. We affirm the trial court's Decree of Termination.
NOTES
[1] The Department's brief includes a section entitled "Motion to Dismiss" that is largely based on the absence of the record The motion was not brought to the attention of the clerk, and no filing fee was paid. We cannot address the motion in this posture. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1389069/ | 209 S.W.3d 870 (2006)
Michael KOENIG and Deborah Koenig, Appellants,
v.
FIRST AMERICAN TITLE INSURANCE COMPANY OF TEXAS, Appellee.
No. 14-05-00209-CV.
Court of Appeals of Texas, Houston (14th Dist.).
December 14, 2006.
*872 Teri A. Walter, Houston, for appellants.
Kelly Ann Conklin, Tim McDaniel, Houston, for appellee.
Panel consists of Justices ANDERSON, EDELMAN, and FROST.
OPINION
JOHN S. ANDERSON, Justice.
This case involves the effect of a "rights of parties in possession" exception to coverage in a title insurance policy. Appellants, Michael and Deborah Koenig (the "Koenigs"), appeal the trial court's granting of summary judgment in favor of appellee, First American Title Insurance Company of Texas ("First American Title"). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Koenigs filed suit against First American Title to recover benefits under a title insurance policy issued by First American Title to the Koenigs on April 1, 1999. On November 4, 2003, Scott and Lisa Arnold (the "Arnolds") filed suit against the Koenigs claiming title by adverse possession to a 40 inch by 45 foot strip of property situated between the Koenigs' garage and the official property line (the "disputed property"). The Arnolds based their claim on a fence built by the Arnolds' predecessors in title, which the Arnolds claimed fully enclosed the disputed property. After First American Title denied coverage to defend the Arnolds' claim, the Koenigs hired an attorney at their own expense and successfully defended the claim.
The Koenigs initiated this lawsuit against First American Title on May 27, 2004, alleging breach of contract, breach of warranty, breach of the duty of good faith and fair dealing, violation of the Texas Deceptive Trade Practices Act, and violation of Article 21.21 of the Texas Insurance Code. First American Title filed a general denial and also alleged an exception to coverage according to the "rights of parties in possession" exception. First American Title then filed a motion for summary judgment, also based on the "rights of parties in possession" exception, which was granted. This appeal followed.
DISCUSSION
In their sole issue on appeal, the Koenigs' assert the trial court erred in granting *873 First American Title's motion for summary judgment.
I. Standard of Review
Whether an insurer owes its insured a duty to defend is a question of law, which an appellate court reviews de novo. Huffhines v. State Farm Lloyds, 167 S.W.3d 493, 496 (Tex.App.-Houston [14th Dist.] 2005 no pet.). An insurer's duty to defend is determined by the "eight corners rule," which requires the court to look solely at the allegations in the pleadings of the underlying lawsuit in light of the policy provisions, regardless of the truth of the allegations. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 308 (Tex.2006); Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495, 499 (Tex. App.-Houston [14th Dist.] 1995, no pet.). An insurer is required to defend only those cases within the policy coverage. Fidelity & Guar. Ins. Underwriters, Inc. v. McManus, 633 S.W.2d 787, 788 (Tex.1982). Under the "eight corners rule," the insurer has no duty to look beyond the policy and the pleadings in determining whether to defend the suit. Nat. Union Fire Ins. Co. of Pittsburgh v. Merchant's Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997) (per curiam); State Farm Lloyds v. Kessler, 932 S.W.2d 732, 736-37 (Tex.App.-Fort Worth 1996, writ denied). The pleadings must be liberally construed in the insured's favor, but the interpretation must be fair and reasonable. GuideOne, 197 S.W.3d at 308; Kessler, 932 S.W.2d at 736.
When reviewing the pleadings, the facts alleged by the underlying plaintiff must be accepted as true for the purposes of determining coverage. Nat. Union Fire Ins., 939 S.W.2d at 141. "The duty to defend is not affected by facts ascertained before suit, developed in the process of litigation, or by the ultimate outcome of the suit." Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 829 (Tex.1997); see also GuideOne, 197 S.W.3d at 308-10 (refusing to recognize an exception to the "eight corners rule" to consider evidence relating both to coverage and liability). If the plaintiff's petition in the underlying lawsuit only alleges facts for which coverage would be excluded by the policy, then the insurer has no obligation to defend the lawsuit. McManus, 633 S.W.2d at 788. The actual outcome of the underlying litigation should not be considered. See Kessler, 932 S.W.2d at 736.
When applying the title insurance policy exception for "rights of parties in possession,"[1] the purchaser of the title insurance policy and property must have notice of the possession of property by a third party. See Smith v. McCarthy, 195 S.W.3d 301, 308 (Tex.App.-Fort Worth 2006, pet. denied). Possession must be open and visible, notorious, exclusive and not merely constructive. Shaver v. National Title & Abstract Co., 361 S.W.2d 867, 869 (Tex. 1962), overruled on other grounds by S. Title Guar. Co., Inc. v. Prendergast, 494 S.W.2d 154 (Tex.1973); Smith, 195 S.W.3d at 308.
II. Public Policy Underlying the Duty to Defend
The Koenigs argue First American Title denied their claim only because the claim *874 is based on adverse possession, and because an adverse possession claim requires facts to be pleaded that the claim is actual, open and hostile, all adverse possession claims fall within the "rights of parties in possession" title policy exception. First American Title disagrees and contends it denied the claim because it considered the facts alleged by the Arnolds in their petition.
The "rights of parties in possession" exception is a standard exception from coverage and relates to claims such as adverse possession. See Zimmerman v. Chicago Title Ins. Co., 28 S.W.3d 584, 586 (Tex.App.-Austin 1999, no pet.). Coverage, however, is not determined by the cause of action but by the facts giving rise to the alleged actionable conduct. Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 676 (Tex.App.-Houston [14th Dist.] 1993), writ denied, 864 S.W.2d 491 (1993). The insurer is entitled to rely on the plaintiff's allegations in determining whether the facts are within policy coverage. McManus, 633 S.W.2d at 788. An allegation of adverse possession alone is not sufficient for a claim to fall within the policy exception for "rights of parties in possession;" the petition must contain factual allegations that establish notice of possession by a third party. See Shaver, 361 S.W.2d at 869. The rationale for the policy exception for "rights of parties in possession," at least in part, is that possession of land by a third party should put the insured on notice of an adverse interest. Zimmerman, 28 S.W.3d at 586. An insurer's duty to defend an adverse possession claim is not based on the legal theory behind the cause of action; rather it is based on the facts pleaded by the underlying plaintiff giving rise to the actionable conduct.
III. Did First American Title Owe the Koenigs a Duty to Defend Based on the Factual Allegations in the Pleadings from the Underlying Suit?
The Arnolds' original petition contains the following factual allegations:
The strip of property in question lies between the garage on the Koenigs' property and the Arnolds' yard;
The Arnolds' predecessors fenced off the disputed property in the early 1950's, using the wall of the Koenigs' garage as a fence, and the property has been continually fenced since that time;
The Arnolds' predecessors in title completely fenced the backyard and excluded the Koenigs' predecessors in title from the subject property since the early 1950's;
The property in question has been landscaped by the Arnolds and their predecessors, and the property contains the largest trees on that property;
During most of the period of the Arnolds' ownership, large dogs have protected the property;
The Koenigs wanted to build a garage apartment and would require one foot width of the 40 inch strip of property;
The Arnolds' allowed the Koenigs to construct a fence approximately one foot from the Koenigs' garage, leaving 28 inches of the 40-inch width on the Arnolds' side of the fence; and
The newly built fence is eight feet in height and the parties equally shared in the cost of the newly built fence.
The Koenigs argue the facts alleged by the Arnolds in their petition do not show the Koenigs could have had notice of any claim by the Arnolds to the disputed property. They contend the fence identified in *875 the Arnolds' petition did not enclose the area being claimed, but they point to no allegations in the petition to support this argument. They also contend their garage wall, allegedly used by the Arnolds and the Arnolds' predecessors to enclose the property, was insufficient means to put the Koenigs on notice. They argue a garage wall is usually built to enclose a garage, not to act as a fence or demarcation of a boundary. The Koenigs also claim the Arnolds admitted that no one built a fence surrounding the property claimed, but they do not indicate where in the Arnolds' petition this allegation can be found. The Arnolds' petition contains no such assertions.
The "rights of parties in possession" exception applies if the nature of the possession alleged is such that it charges the purchaser with notice of a third party's possession. Shaver, 361 S.W.2d at 869. An insured is on notice if the possession is open, visible, unequivocal, exclusive, hostile, and actual rather than constructive. Zimmerman, 28 S.W.3d at 586. A fence separated the two residential properties,[2] the Arnolds landscaped the property by planting trees on the disputed property, and the Arnolds' large dogs utilized the property. In addition, the Arnolds and the Koenigs discussed building an actual fence away from the Koenigs' garage, and according to the Arnolds' petition, the Arnolds allowed the Koenigs to install a fence one foot further onto their alleged property. When taking these facts as true, as we must, the Arnolds' possession of the disputed strip of property was open and visible, notorious, exclusive, and not merely constructive. See Nat. Union Fire Ins., 939 S.W.2d at 141. The Koenigs had notice of a potential dispute with the Arnolds because the Arnolds were in actual possession of the disputed strip of property.
CONCLUSION
We overrule the Koenigs' sole issue on appeal and affirm the judgment of the trial court.
NOTES
[1] Schedule B of the Title Insurance Policy reads:
We do not cover loss, costs, attorney's fees and expenses resulting from:
. . .
6. The following matters and all terms of the documents creating or offering evidence of the matters (We must insert matters or delete this exception):
. . .
b. Rights of Parties in Possession.
[2] In one argument in support of their issue on appeal, the Koenigs claim that the Arnolds' fence is a "casual fence" as opposed to a "designedly enclosed" fence; therefore, the fence is not sufficient to provide notice of an adverse claim to their property. See Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex.1990); McAllister v. Samuels, 857 S.W.2d 768, 777 (Tex.App.-Houston [14th Dist.] 1993, no pet.). A fence is a "casual fence" if the fence existed before the claimant took possession of the land, and the claimant fails to demonstrate the purpose for which the fence was erected. Id. Assuming arguendo that the "casual fence" analysis applies, the Arnolds' petition alleges that the Arnolds' predecessors in title "completely fenced the backyard" and "excluded [the Koenigs'] predecessors in title from the subject property since the early 1950's." For the purposes of our coverage analysis, we accept the allegations in the Arnolds' pleadings as true. See GuideOne, 197 S.W.3d at 308. Therefore, by alleging that the purpose of the fence was to exclude the Koenigs' predecessors in title, the Arnolds defeated the casual fence argument asserted by the Koenigs. See McAllister, 857 S.W.2d at 777. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385301/ | 26 Cal.App.2d 213 (1938)
THE PEOPLE, Respondent,
v.
JOHN L. BURLEY, Appellant.
Crim. No. 3087.
California Court of Appeals. Second Appellate District, Division One.
May 2, 1938.
John E. Glover and Richard H. Cantillon for Appellant.
U.S. Webb, Attorney-General, and Walter L. Bowers, Deputy Attorney-General, for Respondent.
Doran, J.
Defendant, who was charged in an information with the crime of burglary, was adjudged guilty of *214 burglary of the second degree by the court. The appeal herein is from the judgment and sentence and from an order denying a motion for a new trial.
Defendant was accused of entering the store and building of one William Field. The evidence reveals that the store building was a comparatively small structure wherein the owner engaged in the business of selling popcorn, candy, cigarettes and the like. The aforesaid structure was mounted on small wheels approximately 4 to 8 inches in diameter and was located on a lot adjoining a theater in Huntington Park. It measured 8 feet by 10 feet, was a little over 7 feet in height, and was made of welded steel plates, consisting of floor, four walls and roof. It was entirely enclosed, and contained a door and two windows. The stand or store had been located continuously at the same place for approximately five months, and a monthly rental was paid for the space.
[1] Appellant's sole contention on appeal is, "that the said popcorn stand does not constitute a building or structure", and therefore does not come within the terms of section 459 of the Penal Code, which defines burglary as follows:
"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, mine or any underground portion thereof with intent to commit grand or petit larceny or any felony is guilty of burglary."
It is urged that the trial court apparently relied upon the authority of People v. Coffee, 52 Cal.App. 118 [198 P. 213], which authority, appellant argues, furnishes no support for respondent's contention that the building in question meets the requirements of section 459 above quoted. In that connection appellant contends that a building or structure, to come within the meaning of the definition of burglary, unless it is a railroad car, must be permanently affixed to the realty.
The Coffee case, supra, as well as the authorities cited therein, would appear to refute appellant's argument. Moreover, a house, in the sense of the statute in question herein, is held to be "any structure which has walls on all sides and is covered by a roof" (People v. Buyle, 22 Cal.App.2d 143 [70 PaCal.2d 955]; People v. Franco, 79 Cal.App. 682 [250 P. 698]; People v. Jackson, 131 Cal.App. 605 [21 PaCal.2d 968]), and a building could well be described in the same manner. *215
In the state of Montana, under a statute substantially the same as the California statute, the defendant's conviction of burglary was upheld where it was charged and established that defendant had unlawfully entered a "sheep wagon". As the court therein observed, "Here we have a ... structure, erected for the purpose of habitation and the housing of the goods and chattels of the sheep-herder, inclosed within four walls and roofed over and meets all the requirements of the definitions given of a 'building'." The court further observed, "To hold that the verdict and judgment should be set aside because the house entered was set on wheels would be extremely technical, and on this phase of the case we quote with approval the following from State v. Bishop, 51 Vt. 287 [31 Am. Rep. 690], 'Names change often with the habits and customs of the people; it is not so important to determine the name, as the thing, wherein burglary by the statute, may be committed. That subtle astuteness that would discover a difference where none exists, and would find a way of escape ... through narrow crevices of the law, serves no useful purpose. When one is charged with crime in plain language, and convicted by honest men upon legal evidence, it is better that he work out the penalty to the relief of the public and the safety of the State.'" (State v. Ebel, 92 Mont. 413 [15 PaCal.2d 233].)
Obviously, the statutory offense of burglary in California is much more comprehensive than the offense at common law, and there are no words in the statute to indicate a legislative intent to limit such offense to the unlawful entry of structures that are a part of the realty. It should be noted that "tent, vessel and railroad car" are included in the definition, in which connection a "tent" can scarcely be regarded as being permanently affixed to the realty. It would appear from the foregoing, therefore, that the judgment of the trial court which, in effect, recognizes the structure in question as being a store and building within the meaning of the definition of burglary, is supported by the evidence.
For the foregoing reasons the judgment and order appealed from are affirmed. [2] As no appeal lies from the sentence, the attempted appeal therefrom is dismissed.
York, P. J., and White, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385308/ | 215 Ga. App. 803 (1994)
HORTON et al.
v.
EATON.
A94A0978.
Court of Appeals of Georgia.
Decided December 5, 1994.
Reconsideration Denied December 20, 1994.
*809 Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Charles R. Carson, for appellants.
Alston & Bird, Judson Graves, Holly B. Barnett, for appellee.
McMURRAY, Presiding Judge.
Loyd E. and Betty C. Horton brought a medical malpractice action against Dr. S. Boyd Eaton, Jr., a radiologist, essentially alleging that Eaton's negligent failure to diagnose a neck fracture in Loyd Horton's X-ray films resulted in inappropriate and injurious treatment by other physicians. The Hortons appeal from the judgment entered on a jury verdict in Eaton's favor.
The original injury resulted from a 20-foot fall that occurred when Loyd Horton ("Horton") lost his balance while attempting to cut down a tree in his yard. Horton landed on his shoulders and the back of his head, causing tingling in his hands. Horton was first examined by the family's osteopathic physician (hereinafter "osteopath"). Horton reported he could feel grinding in his head when he turned it. Since the osteopath did not have a technician available at that time, he sent Horton to the emergency room at West Paces Ferry Hospital to obtain X-rays. There Horton was examined by a medical doctor who ordered X-rays of Horton's spine and left knee. The examining physician told Horton that he had torn muscles and ligaments, and also that he had arthritis in his neck. Horton was given a prescription for a muscle relaxer and for pain, and was instructed to return to the osteopath for follow-up.
Sometime after Horton was discharged, Dr. Eaton received the X-ray films of Horton's cervical spine along with a radiology request form. He issued a report stating that he did not see any fractures. Dr. Eaton had no contact with Horton nor with any other physician before issuing his report.
Two days later Horton returned to the osteopath's office for a follow-up visit as instructed. At that time Horton still experienced a *804 grinding sensation as his head moved, but other symptoms had not yet manifested themselves. Within a week to ten days, however, the right side of Horton's face became numb, and there was a lump in his throat that made it very difficult to swallow. At the same time he began experiencing a "constant" ache on the right side of his head. He also began having trouble achieving a full erection.
Horton returned to the osteopath soon after the onset of these symptoms. Having been told of Horton's symptoms, the osteopath "manipulated" Horton's neck by turning his head up and down and side to side, causing Horton to roll his body to prevent more extensive manipulation. No further X-rays were taken at that time. During a subsequent visit, however, the osteopath did have follow-up X-rays done using his own technician. Concluding that Horton had a vertebra out of place, the osteopath referred him to Dr. Tarek Nessouli, an orthopedic surgeon. Upon viewing these latest X-rays, Dr. Nessouli instructed Horton not to move, informing him that his neck was broken. Specifically, the fracture was located in the area where the first cervical vertebra, which holds the skull, fuses to the body of the second cervical vertebra, forming an area referred to as the "odontoid process." Horton eventually underwent neurosurgery. Horton complained at trial of continuing numbness, headaches, a "lump" in his throat, total impotence, depression, and a general weakness in his right side.
The Hortons initially brought suit against Dr. Eaton, later adding the osteopath and the doctor who originally examined Horton at the hospital.[1] The added parties eventually settled with the Hortons and were dropped from the case, leaving Dr. Eaton as the sole defendant. Dr. Eaton testified at trial that the original X-ray films presented, and his interpretation reflected, a "false negative," and that X-rays taken after manipulations by the osteopath showed an obvious fracture. Dr. Eaton further testified that in his opinion the odontoid fracture would have held its position and there would have been fewer medical problems but for the neck manipulations applied by the osteopath. Dr. Eaton maintained that his original interpretation of Mr. Horton's X-rays was within the applicable standard of care under the circumstances. His own expert corroborated this conclusion, but affirmed on cross-examination that Dr. Eaton would have been held to a higher standard of care (i.e., required to perform additional testing) had the X-ray requisition form directed to Dr. Eaton from the emergency room (but lost from the hospital's medical records) advised that the patient was experiencing neck pain. Held:
*805 1. The Hortons contend that Dr. Eaton was erroneously allowed to testify as to the appropriate standard of care for an osteopathic physician, a matter on which Dr. Eaton openly conceded he was not qualified to testify. This enumeration is without merit.
Even assuming that the matter was properly preserved for appellate review, we do not interpret Dr. Eaton's testimony in the manner urged by the Hortons. Dr. Eaton testified that "everybody knows we ought not to mess around the neck where there's been an injury," and that it would not be sufficient for someone in the osteopath's position to rely on a radiologist's original findings alone before manipulating Horton's neck given that "there's a false negative rate [for fractures] from 20 to 40%" with respect to initial X-ray films. Dr. Eaton was certainly authorized to testify in absolute terms regarding the extent to which his own findings should (and should not) be relied upon by other health care professionals in charting a course of treatment. We note that while Dr. Eaton did not hesitate to suggest that all medical doctors should be aware of the shortcomings inherent in a radiologist's initial findings, he expressly refrained from testifying that osteopathic physicians should likewise be aware of such limitations. Taken as a whole and viewed in its proper context, we find nothing improper in the challenged testimony.
2. In their second enumeration, the Hortons challenge the propriety of allowing Dr. Eaton to testify as to the likely contents of an emergency room requisition for an examination and diagnosis of Mr. Horton's X-rays. The record indicates that such requisition orders may include a general description of the type of X-rays needed, the nature of injury giving rise to the need for X-ray evaluation, the incident which purportedly caused a patient's injuries and symptoms displayed or reported by the patient upon presentation in the emergency room. In this vein, Dr. Eaton's own expert affirmed on cross-examination that if the requisition form had contained information regarding pain in the patient's neck, the requisite standard of care would have required more studies than Dr. Eaton performed. It thus becomes apparent that the remarks on Mr. Horton's emergency room X-ray requisition order are key to framing the standard of care upon which to measure Dr. Eaton's diagnosis of Mr. Horton's X-rays.
The emergency room requisition form was not available to the Hortons because it mysteriously disappeared from the medical records of Dr. Eaton's place of employment. While this omission left a gap in the Hortons' case against Dr. Eaton, it was not fatal to their cause. OCGA § 24-4-22; J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 256 (3) (427 SE2d 499). On the other hand, Dr. Eaton's failure to produce the emergency room requisition form and testimony that he does not recall the remarks on the requisition order (regarding circumstances of the need for X-ray examination and evaluation) *806 left Dr. Eaton with no evidence to support his defense that he exercised the requisite standard of care in diagnosing Mr. Horton. However, the trial court permitted Dr. Eaton to dodge this omission by allowing him to speculate as to the likely contents of the X-ray requisition form, i.e., the form probably stated no more than the patient "fell out of a tree." The foundation for admission of this testimony was Dr. Eaton's alleged familiarity with the general habits and customs of unnamed emergency room personnel. It is our view that this foundation provides no credibility to the testimony upon which it is based.
"A witness may testify as to his fixed and uniform habit in such cases but not as to the habit and customs of another. See Leonard v. Mixon, 96 Ga. 239 (23 SE 80). Compare Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 599 (3a) (87 SE 804); Gulf Refining Co. v. Smith, 164 Ga. 811, 812 (7) (139 SE 716); Burch v. Americus Grocery Co., 125 Ga. 153 (3) (53 SE 1008); Russell v. Pitts, 105 Ga. App. 147, 149 (123 SE2d 708); Interstate Life & Acc. Ins. Co. v. Whitlock, 112 Ga. App. 212, 219 (144 SE2d 532)." Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 782 (7), 783 (278 SE2d 653). In the case sub judice, Dr. Eaton's testimony regarding the likely contents of the requisition order for evaluation of Mr. Horton's X-rays was nothing more than speculation, based on his perception of the general habits and customs of others. By allowing such guess-work testimony, the trial court permitted Dr. Eaton to benefit from his omission of record and memory by blocking the Hortons' efforts to get at the true contents of the X-ray requisition form while giving him the benefit of an unimpeachable version of the contents of the X-ray requisition order, i.e., a version which happens to favor Dr. Eaton's claim that he employed the requisite standard of care in diagnosing Mr. Horton's X-rays. Consequently, since there is no question that the remarks on the emergency room X-ray requisition form are key to framing the standard of care upon which to measure Dr. Eaton's diagnosis of Mr. Horton's X-rays, admission of Dr. Eaton's testimony regarding the likely contents of this document was error.
3. In their third enumeration, the Hortons contend the trial court erred in allowing Dr. Eaton's expert to answer a hypothetical question which assumed an essential fact not in evidence.
"[A]n expert witness is not permitted to give his opinion, in answer to a hypothetical question, based on facts not placed in evidence by other witnesses. See Code § 38-1710[, now OCGA § 24-9-67]; Ellis v. Southern R. Co., 89 Ga. App. 407 (1) (79 SE2d 541); Norman v. Allen, 118 Ga. App. 394 (2) (163 SE2d 859)." Braswell v. Owen of Ga., 128 Ga. App. 528, 529 (1) (197 SE2d 463). In the case sub judice, the trial court allowed Dr. Eaton's expert to answer a hypothetical question (regarding the standard of care exercised by Dr. Eaton) based on *807 the assumption that the X-ray requisition form provided to Dr. Eaton at the time he evaluated Mr. Horton's X-rays advised only that the patient "fell from tree." Admissible evidence of this assumed fact was never admitted into evidence at trial. Consequently, the trial court improperly allowed the response to the above hypothetical question. The case sub judice must be sent back for a new trial. Both sides must then deal with the lack of evidence regarding the framework upon which to measure the Hortons' claim that Dr. Eaton failed to exercise the requisite standard of care in evaluating Mr. Horton's X-rays and diagnosing the patient's broken neck.
4. Next, the Hortons contend the trial court erred in giving a charge on hindsight. The hindsight charge "becomes appropriate in a medical malpractice case where the evidence raises an issue as to whether the negligence claim is based on later acquired knowledge or information not known or reasonably available to the defendant physician at the time the medical care was rendered. [Cit.]" Barnes v. Wall, 201 Ga. App. 228, 232 (4) (411 SE2d 270). The evidence presented in this case raises such an issue, and the trial court therefore did not err in giving a charge on hindsight.
McCoy v. Alvista Care Home, 194 Ga. App. 599 (391 SE2d 419), is distinguishable in that the uncontested facts in McCoy showed that plaintiff's case was based on facts known to the defendant at the time of the incident in question. In the case sub judice, what Dr. Eaton knew or should have known at the time he examined Horton's X-rays was hotly disputed. The evidence authorized a finding that Dr. Eaton became aware of Horton's precise complaints only after he evaluated Horton's X-rays. We therefore find no error. See Haynes v. Hoffman, 164 Ga. App. 236, 238 (3) (296 SE2d 216).
5. Since the trial court deleted the only language to which the Hortons objected in Dr. Eaton's requested charge with respect to a patient's duty to mitigate damages by following the advice of his physician, the Hortons' remaining enumeration presents nothing for review. OCGA § 5-5-24.
Judgment reversed. Pope, C. J., Birdsong, P. J., Beasley, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Smith and Andrews, JJ., dissent. SMITH, Judge, dissenting.
I must dissent. In Division 2, the majority states that "the remarks on Mr. Horton's emergency room X-ray requisition order are key to framing the standard of care upon which to measure Dr. Eaton's diagnosis of Mr. Horton's X-rays." This is correct, but insufficient to state with accuracy the issue before us. I observe that it was absolutely crucial to the Hortons' case that they be allowed to suggest without contradiction that the nonexistent requisition form would *808 have indicated in detail Mr. Horton's symptoms. This unsupported position was contradicted, however, and all of the evidence indicates that the scenario put forth by the Hortons is unlikely.
The majority cites OCGA § 24-4-22, which provides: "If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted." (Emphasis supplied.) Even if it is assumed that Dr. Eaton should not have testified as to what he typically sees on requisition forms because it might implicate the habit or custom of others, such error was manifestly harmless and merely cumulative of other evidence presented. The Hortons' own expert testified that "fell from tree," or a similar statement, "is as much information as [radiologists] frequently get."
The evidence is uncontradicted that Dr. Eaton never examined Mr. Horton; that with respect to the information he receives on a patient, he essentially was at the mercy of the treating physician (who was not called as a witness); and that typically radiologists do not get the information they should be given. Moreover, Dr. Eaton testified that he has made efforts to improve the quality of information typically found on x-ray requisition forms, but to no avail. Finally, I note that there is no evidence that Dr. Eaton is responsible for the "mysterious disappearance" of the x-ray requisition form. Mr. Horton was not in any sense Dr. Eaton's patient, and it is just as plausible to speculate that Horton's treating physician had reason to remove the form from Horton's medical file.
The majority twists the case before us by suggesting that Dr. Eaton had no evidence to support his "defense" that he exercised the proper standard of care. On the contrary, the Hortons could present no evidence indicating that Dr. Eaton failed to exercise that standard, and there is no evidence to support an inference against Dr. Eaton under OCGA § 24-4-22.
I also must dissent as to Division 3, because, as the majority neglects to disclose, testimony was also given as to the proper standard of care assuming that the requisition form gave detailed information. Since the defense expert testified as to a range of hypothetical facts that would be both favorable and unfavorable in evaluating Dr. Eaton's conduct, I see no danger that the jury assumed facts not in evidence in reaching its verdict.
No harmful error has in any way tainted the verdict reached in this case. I would affirm.
I am authorized to state that Judge Andrews joins in this dissent.
NOTES
[1] The names of the latter two physicians have been intentionally omitted since neither testified at trial, and therefore neither was heard with respect to the actions that have been imputed to them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385309/ | 26 Cal.App.2d 197 (1938)
THE PEOPLE, Respondent,
v.
LOUISE WRIGHT, Appellant.
Crim. No. 1601.
California Court of Appeals. Third Appellate District.
April 29, 1938.
Lawrence Edwards and Charles H. Epperson for Appellant.
U.S. Webb, Attorney-General, and Gordon S. Hughes, Deputy Attorney-General, for Respondent.
Thompson, J.
A rehearing was granted in this case for the purpose of modifying the statement of facts contained in the original opinion, of which the appellant complains. After again reviewing the record we are convinced the original opinion correctly declares the law applicable to the facts *201 of this case. With certain modifications the original opinion is therefore adopted as follows:
The defendant was convicted under the first count of an information charging her with pandering, contrary to the provisions of the statutes. (Stats. 1911, p. 9; 1 Deering's Gen. Laws of 1931, p. 819, Act 1906.) The information alleges that the defendant did "wilfully, unlawfully and feloniously procure for a female person, to-wit: one Esther Stephens Blanas, a place as an inmate of a house of prostitution".
The appellant contends that the verdict and judgment of commitment are not supported by the evidence, that the court erred in receiving and rejecting testimony, and in giving to the jury and refusing certain instructions. It is also inferred the first count of the information upon which the defendant was convicted fails to state facts sufficient to constitute a public offense.
[1] The information states a good cause of action for the crime of pandering. (People v. Cimar, 127 Cal.App. 9 [15 PaCal.2d 166, 16 PaCal.2d 139].) It alleges that the defendant procured Esther Blanas to become an inmate of a house of prostitution. Under the statute above referred to, pandering may be accomplished in several different ways. It is said in the Cimar case, supra, that "if the conduct of the defendant assisted, induced, persuaded or encouraged the female to become an inmate of the house of ill-fame for the purpose of practicing prostitution, the crime of pandering is sufficiently established". The first count of the information is couched in the language of the statute and states a good cause of action.
[2] The judgment and verdict are adequately supported by the evidence. We have carefully read the entire transcript of evidence, and find that every necessary element constituting the crime of pandering as alleged in the information is sufficiently supported by competent evidence. [3] A statement of the defendant, which was taken by the court reporter under the direction of the district attorney, was properly received in evidence. The court reporter testified that it was voluntarily given without promise of reward or threat of punishment. Proof of the voluntary nature of the statement was not a necessary prerequisite to its admission in evidence, since it does not constitute a confession of the defendant, but rather consists of a mere series of declarations *202 regarding the circumstances of the transaction. (8 Cal.Jur. 98, secs. 194, 195.) The defendant admitted that she operated a house of prostitution at number 130 West Lafayette Street in Stockton, to which Esther Blanas was taken as an inmate; that the defendant accompanied Gus Blanas to Sacramento in his automobile June 28th, to procure a girl for her house of prostitution; that she was then introduced to Esther, who was called "Sunny" and at the request of Gus she consented to that girl becoming an inmate of her house of ill-fame. Two weeks later Gus Blanas took Esther to Reno where she said they were married. The defendant's statement with relation to her participation in procuring Esther to become an inmate of her house, reads in part:
"Q. What sort of business do you conduct at that address? A. Prostitution. Q. Are you, yourself, actually engaged in that business? A. Well, I have been; I haven't lately. ... Q. During the past month what part did you play in the management at that place of business? A. I was there by myself. Q. You were working yourself? A. Yes. Q. Did you employ any other girls to work for you in the last month? A. In June, you mean? Q. Yes. A. Well, yes, for about a week and a half, something like that, the latter part of June. ... Q. Why did you go to Sacramento with Gus Blanas? A. I went over there to see if I could find somebody to come over to the house to work. ... Q. Did you have any conversation with either the girl [Esther] or Gus Blanas with respect to the prospect of her working for you at a future date? A. I did with Gus. ... He asked me if it would be all right if he brought a girl to the house to work. I said I guess it would be if she was of age. ... Q. You received money earned by this girl 'Sunny' in acts of prostitution at that place of yours at 130 West Lafayette Street each night as such money was turned over to you by your step-mother, Mabel? A. Yes."
Regarding the defendant's knowledge that Esther became an inmate of her house of ill-fame with her consent, it appears that Gus Blanas in company with Irene, another prospective inmate of the house, and Mabel Massmedsu, went with Esther to the house where the defendant roomed to obtain her approval of placing Esther in the house of prostitution. The defendant stated in that regard:
"Q. For what purpose did they come there? A. To bring the girls there. I guess to tell me that they were going to *203 work. ... Q. They wanted you to see if she looked like a proper girl to be there? A. Yes. ... Q. Gus's arrangements were made between himself and you, not with Mabel, isn't that correct, isn't that the reason they all came to your house? A. In one way, yes, but in another way, no. He had talked to Mabel first about it and Mabel asked me about it."
The defendant testified she had given Mabel Massmedsu, her stepmother, full authority to manage and operate her house of prostitution. When Esther was first brought from Sacramento to Stockton to become an inmate of the house, she was taken to Mabel for approval. Esther testified in that regard:
"Q. You had no conversation with her? A. No, but later I,--later my husband told me that that introduction was to see if I would do."
Then, Esther was taken with the group to the defendant for her personal approval, as the above-quoted evidence clearly indicates. Esther testified that they met the defendant, who was called "Teena"; that she did not personally talk with her, but that the defendant did say to her associate, Irene, that it would be all right for them to become inmates of the house. Esther testified in that regard: "She [the defendant] answered Irene--Irene's question if it would be all right for us to work, and she said it was all right."
Regarding the instructions which were given to Esther the following question was propounded to the defendant: "Who taught this girl 'Sunny', Mrs. Gus Blanas, the ways of the craft?" To this inquiry, the defendant replied: "I guess she [Mabel] did. One night I happened to be up there and she had been told before."
The record contains conflicting testimony, but the foregoing evidence, with the reasonable inferences which may be drawn therefrom, warranted the jury in finding the defendant guilty of procuring the girl, Esther, to become an inmate of her house of ill-fame for prostitution purposes.
It is true that the defendant talked with Gus Blanas and with her stepmother, Mabel Massmedsu, who was actively managing the business, regarding the admission of the girl to her house. It may be true that the plan of persuading Esther to become an inmate of the house originated with Gus Blanas, and that it was approved by Mabel, but it was the defendant's business. She actively participated in procuring *204 the girl to become an inmate of her house of ill-fame. She took from her one-half of all the money she earned from practicing prostitution. There is no doubt the defendant procured Esther to become an inmate of her house of ill-fame for the purpose of profiting from her practice of prostitution therein. Certainly the defendant "encouraged" the girl to become an inmate of her house and to practice prostitution there.
[4] There is no merit in the appellant's inference that the evidence merely shows that Esther was induced to become an inmate of the house "to work" therein as a domestic servant, only. It is true that the defendant went to Sacramento to meet the girl to determine whether she would be suitable "to work" in the house of prostitution. The evidence is undisputed that she practiced prostitution therein. There is no evidence that she ever performed any other kind of work in that house. Reading the statement of the defendant which was received in evidence, one is impressed with the fact that the only purpose on the part of the defendant in inducing the girl to enter the house was to profit from her practice of prostitution at that place. At least that is a reasonable inference to be drawn from the evidence. It was the sole province of the jury to determine from all of the evidence adduced at the trial whether Esther was procured by the defendant to become an inmate of her house of ill-fame for the purpose of practicing prostitution or merely to work there as a domestic servant. Indeed, in spite of the fact that Mabel, the manager of the house, testified she did not know that Esther practiced prostitution in the house, and that the defendant very carefully insisted that she went with Gus to Sacramento to get a girl "to work for her", the appellant's counsel on petition for rehearing conceded that Esther was taken into the house to practice prostitution. They do, however, insist that the defendant did not assist in procuring her for that purpose. These were questions for the determination of the jury. With their conclusion in that regard we may not interfere since it is supported by substantial evidence.
The court correctly instructed the jury that the gist of the crime prohibited by the statute in question was to prevent pandering, and that the term "inmate", as it is used in the statute, means that the female must become an inmate in the house for the purpose of engaging in prostitution. It *205 follows that the verdict of guilty, which was returned by the jury, necessarily implies that it determined that the defendant procured the girl to become an inmate of her house for the purpose of inducing her to practice prostitution therein, and not to work there as a mere domestic servant.
[5] It is contended the statement of the defendant, which was received in evidence, should be discredited because it was taken by the district attorney without first informing her that it might be used against her at the trial, and before she had an opportunity to talk with her attorneys. It is true that at the trial she contradicted many incriminating admissions which were contained in the statement. The record shows that the statement was made in the presence of District Attorney Clowdsley and Detective Sergeant Parker. The court reporter, who took the statement in shorthand, and transcribed it into typewriting, testified that it was taken with "no promises or threats; it was a free and voluntary statement". There is no evidence to the contrary. When it was offered in evidence, the objection thereto was limited to its application to counts two and four of the information, both of which were subsequently dismissed. Mr. Edwards, attorney for the defendant, said in that regard: "Object to it as to Counts Two and Four. ... It is incompetent, irrelevant and immaterial, not a proper foundation laid against those counts." The objection was specifically limited to the application of the statement to counts two and four, which were dismissed. The statement was voluntary and competent. The objection was properly overruled.
It was the sole province of the jury to determine whether the admissions of the defendant in her statement were true, or whether the contradictory evidence which she gave at the trial conformed to the facts with respect to controverted issues. Her statement supports the conclusion that she personally participated in procuring Esther to become an inmate of her house of ill-fame for prostitution purposes.
[6] It was not prejudicial error to have permitted the prosecutrix to testify over the objection of the defendant that she was seventeen years of age. It is immaterial what the age of a female is in order to constitute the crime of procuring her to become an inmate of a house of prostitution. Under the statute it is unlawful to procure a female to become an inmate of such a house, regardless of her age. The evidence *206 shows that the defendant said it would be all right to take her into the house "if she was of age". It also shows that Mabel informed the defendant that Esther told her she was twenty-two years of age. The evidence of her age is harmless. The ruling in that regard is not reversible error.
[7] It was not error for the court to strike certain evidence from the record and to instruct the jury to disregard an answer given by the prosecuting witness in reply to a leading and suggestive question propounded on cross-examination by the defense, as follows:
"As a matter of fact ... you were doing just what Gus told you [do you] ...? A. Yes."
This question and answer might properly have been left in the record as tending to show whether the defendant procured or encouraged her to become an inmate of the house. But the evidence was cumulative, and, under the statute, even if she did enter the house in accordance with her husband's desire, the evidence conclusively shows that the defendant at least encourage and abetted her action in that respect. Regardless of the influence of her husband, the defendant was still guilty as a principal in the transaction. The ruling was harmless. It was not reversible error.
For the same reason it was not reversible error for the court to have subsequent sustained an objection to a similar question propounded to the same witness by the attorney for the defendant.
[8] It was not error for the court to overrule an objection of the defendant to an impeaching question propounded to an adverse witness, Mabel Massmedsu, who was called by the prosecution. The witness was clearly adverse and unreliable. In overruling the objection the court said, "Apparently he [the district attorney] is surprised at her testimony." It is a principle too well established to require citations, that a party who is taken by surprise in the testimony of a witness produced by him may be permitted to impeach the witness by proof of inconsistent statements which were made by him at another time and place. (Sec. 2049, Code Civ. Proc.)
[9] There is no merit in the appellant's contention that the foundation for her impeachment was not first laid. The very character of her testimony clearly shows that she was adverse to the prosecution. In spite of the fact that the defendant asserted that Mabel was the manager in control of her house, Mabel testified that she acted as a mere chambermaid, *207 and that she did not know Esther practiced prostitution there. The court had a right to assume the district attorney would not have called her as a witness if he had expected her to so testify. The trial judge clearly saw from her conduct on the stand and from her manner of testifying that she was an adverse witness and that the prosecution had been taken by surprise in her testimony. Moreover, the objection to that impeaching evidence failed to assign the lack of proof of a foundation therefor. All that was said by Mr. Edwards was: "I will object on the ground that obviously it is an attempt to impeach his own witness."
The rule is well established that when a party is surprised by unfavorable testimony given by a witness whom he has produced, such witness may be interrogated regarding previous inconsistent statements which he has made. (Sec. 2049, Code Civ. Proc.; People v. Crawford, 24 Cal.App. 396, 404 [141 P. 824]; 74 A.L.R. 1042, note). [10] The general objection that impeaching evidence is incompetent, irrelevant and immaterial, or that it is a mere attempt to impeach his own witness, is insufficient upon which to raise, for the first time on appeal, the failure to properly lay the foundation for the introduction of that evidence. (People v. Watts, 198 Cal. 776, 791 [247 P. 884]; People v. Cotton, 117 Cal.App. 469 [4 PaCal.2d 247]; 8 Cal.Jur. 504, sec. 518; 2 Cal.Jur. 273, sec. 86; 3 Am. Jur., p. 94, secs. 346, 347.)
The ruling admitting evidence of contradictory statements previously made by an adverse witness was neither erroneous nor can it be raised for the first time on appeal. That objection was waived by failure to specify the particular ground relied upon.
[11] It was not error to instruct the jury that the offense of pandering may be accomplished even though the accused person may procure the female to become an inmate of a house of prostitution by means of negotiations therefor through a third person. (People v. Torres, 193 Cal. 730 [227 P. 177].) This instruction was properly given. One may persuade, encourage or procure another to perform a criminal act even though the negotiations therefor are conducted through an agent or representative. While the evidence shows that the defendant personally went to Sacramento to see Esther and consented to her becoming an inmate in her house of ill-fame it also shows that defendant talked about the subject with Gus Blanas and with her manager of the *208 business, Mabel Massmedsu. It may reasonably be said her negotiations to admit the girl to her house were partly conducted through those individuals, but that fact rendered the defendant nonetheless guilty as a principal in the crime.
[12] The jury was instructed that "pandering consists of unlawfully procuring a female to engage in gratifying the lust of other individuals". The jury was then told it must acquit the defendant unless it appeared that she procured Esther Blanas to become an inmate of her house of ill-fame with the intention of encouraging and enticing her to practice prostitution therein. Assuming that the statute is violated only by procuring a female to become an inmate of a house of ill-fame to practice prostitution therein, which we believe is the spirit of the law, the challenged instruction was properly given to the jury. If that is not the correct construction of the statute, then the instruction was more favorable to the defendant than she was entitled to have given, and she may therefore not complain of that fact. The jury was plainly told that the defendant could not be convicted unless it appeared that she had procured the girl to become an inmate of her house of ill-fame with the intention of inducing or encouraging her to practice prostitution therein. There is no doubt that the girl did practice prostitution in that house; and that the defendant appropriated one-half of the money the girl earned in that manner. There is therefore evidence that she procured her for that purpose.
[13] It did not constitute error for the court to refuse to give two instructions offered by the defense regarding the subject of aiding and abetting the commission of a crime. That subject was adequately covered by another instruction which was given to the jury.
[14] Nor was it prejudicial error to refuse to give the other instructions offered by the defense, which refusal is complained of. They contain no essential element of the crime which is not covered by other instructions which were given in the court's charge. The court very fully and fairly instructed the jury on every necessary element of the crime with which the defendant was charged. Moreover, from a careful reading of the entire record it is apparent that the verdict and judgment which were rendered in this case do not constitute a miscarriage of justice. On the merits of the case, without doubt, the defendant was properly convicted. *209
[15] The defendant was not prejudiced by the filing of a second amended information on the morning of the first day of trial, after the jury was impaneled, which merely changed the language of the second and fourth counts thereof, with respect to separate charges of conspiracy to commit the offense of pandering. By leave of court the second amended information was filed after the jury had been impaneled and before any evidence was adduced. It does not appear the defendant objected to filing that amended pleading. The amended information did not change the language of the first count, which is the only charge of which she was convicted. At the close of the prosecution's evidence, upon motion of the defendant, the second and fourth counts of the information, which were the only ones changed in any manner by the challenged amendment, were dismissed. In its charge to the jury, the court specifically directed it as follows:
"You are instructed that the court has dismissed counts 2 and 4 of the information on file against the defendant charging conspiracy to commit the crime of pandering, and you are, therefore, to disregard and give no consideration to said counts 2 and 4 charging conspiracy to commit the crime of pandering."
The jury acquitted the defendant of count 3 of the information. She was convicted of count 1, only. That count was not changed by the amendment in question. The defendant was therefore not prejudiced by the amendment.
[16] At any stage of the proceedings in a criminal case the court may authorize an amendment of an information to be filed to supply any defect or insufficiency thereof, which does not result in charging an offense which is not disclosed by the evidence adduced at the preliminary examination, and when the substantial rights of the defendant are not thereby prejudiced. (Sec. 1008, Pen. Code; 14 Cal.Jur. 91, secs. 68, 69; People v. Milligan, 77 Cal.App. 745 [247 P. 580].) In the case last cited an amendment of the information was filed by leave of court, over the objection of the defendant, after the evidence was completely closed. We are unable to perceive how the defendant could possibly be prejudiced by the amendment which was filed, under the circumstances of this case.
[17] It is contended that it constitutes prejudicial error for the court to have permitted the case to go to the jury *210 after the two counts of the indictment with respect to the charges of conspiracy had been dismissed, without striking from the record all the evidence regarding conspiracy. That procedure was not erroneous or prejudicial. There was no motion on the part of the defendant to strike out any such evidence. The court was directed to no such alleged prejudicial evidence. We are not now pointed to any evidence in the record which appears to be incompetent or prejudicial. All of the challenged evidence to which our attention is now directed appears to be competent as tending to show the intent and purpose of the defendant to have procured Esther Blanas to become an inmate of her house of ill-fame for the purpose of unlawfully practicing prostitution therein. If there are circumstances which do not tend to prove those essential facts they are trivial and harmless. Moreover, the court by clear inference instructed the jury, as we have previously, stated, that it should not consider such evidence of conspiracy, and, on the contrary that it should disregard entirely the charges of conspiracy.
For the reasons heretofore assigned it was not error for the court to refuse to give to the jury the instruction regarding the alleged absence of evidence with respect to conspiracy.
The judgment is affirmed.
Plummer, J., and Pullen, P. J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385311/ | 31 Cal.App.2d Supp. 763 (1938)
F. E. YOUNG CO., INC. (a Corporation), Appellant,
v.
L. G. FERNSTROM, Respondent.
California Court of Appeals.
June 7, 1938.
Liggett & Liggett for Appellant.
Ben F. Tyler for Respondent.
Haines, P. J.
On November 24, 1933, plaintiff and appellant filed an action against defendant and respondent, in which a money judgment was sought. A writ of attachment against property of the defendant issued. A return of service of the summons was made by the constable of the township, purporting to show such service made on November 25, 1933. No appearance being made, judgment in the plaintiff's favor by default was entered on December 15, 1933, for $273.31. Apparently the attempted attachment was unfruitful, for executions, from time to time issued, were returned unsatisfied. On February 28, 1938, defendant and respondent gave notice of a motion to vacate the judgment on the ground that he had not, in fact, been served with summons and was in Arizona on the date of its purported service upon him. This motion was on March 9, 1938, made in the municipal court, as the successor of the justice court, and, after examining witnesses, the municipal court entered an order reciting that the constable had made an erroneous return, due to a mistake in identity, thinking that he had served the defendant when he had not, in consequence of which the court proceeded to quash the service and set aside the judgment; and on application to it to set aside the order as beyond its power of granting relief, it refused to do so. Thereupon the present appeal from the orders quashing the service and vacating the judgment was taken.
Prior to 1933 the power of justice courts to relieve from judgments taken against a party, on the general ground of inadvertence, surprise or excusable neglect was regulated by section 859, Code of Civil Procedure, which required the application for such relief to be made within ten days after notice of the entry of judgment. It was held that the cognate provisions of section 473, Code of Civil Procedure, were inapplicable [31 Cal.App.2d Supp. 765] to justice courts. (Arbogast v. Superior Court, 32 Cal.App. 372, 378 [162 P. 909].) In 1919, section 900a, Code of Civil Procedure, was enacted providing with respect to justices of the peace that:
"Said justice shall have power to set aside any void judgment upon motion of either party to the action after notice to the adverse party, and thereupon the action shall be treated as if no judgment had been entered."
Our attention has not been called to any decision adjudicating within what limit of time such action might in justice courts be taken under that section.
In 1933 both sections 859, Code of Civil Procedure, and 900a, Code of Civil Procedure, were repealed and by amendment to section 34, Code of Civil Procedure, the same procedural provisions applicable to superior courts were in general made applicable to all trial courts. In the same year section 473, Code of Civil Procedure, was so amended as expressly to provide that:
"The court ... may on motion of either party after notice to the other party, set aside any void judgment or order."
This amendment made explicit a power which superior courts had always had independently of section 473 or of any other statutory provisions. (Richert v. Benson Lumber Co., 139 Cal. 671, 674 [34 PaCal.2d 840], and many cases cited.) The only reason that we can think of, therefore, for writing it expressly into section 473, is the probability that the legislature, which must be presumed to have known that the power to set aside void judgments was inherent in courts of record, had some fear lest if it were not, after the repeal of sections 859 and 900a, Code of Civil Procedure, placed in some statute, courts not of record might be held not to possess it at all.
[1] As applied to superior courts, however, it was unquestionably the law prior to 1933, that attacks by motion upon judgments void for want of jurisdiction but not appearing to be void on their faces, must be made within a reasonable time, and the courts were held to be limited in deciding which was a reasonable time, not under section 473, Code of Civil Procedure, but by analogy to it, to a maximum of one year after the entry of the judgment except in the single case of actual fraud on the part of the process server in making a false return. (See discussion in Richert v. Benson Lumber Co., supra.) That having been the settled rule [31 Cal.App.2d Supp. 766] with respect to superior court proceedings had prior to the amendment to section 473 in 1933, we see no reason to believe that the legislature intended to deal with the question of the time within which motions to set aside such judgments might be made by the amendment. The new language inserted in the section contains nothing purporting to govern the matter. In these circumstances we think the former rule that a reasonable time only should be allowed ought to be held still to prevail, and that, by analogy, to the limit fixed by section 473a in cases generally where personal service has not been made (as e. g., in case of service by publication), that the motion must still be made within the year next following the entry of judgment (except in the case of bad faith on the part of the process server or person responsible for the actual making of the return of service).
[2] This view does not preclude the seasonable commencement of a suit in equity to set aside a judgment appearing on its face to be good but in fact void, in which case a different limitation of time would apply. (Richert v. Benson Lumber Co., supra.)
The orders appealed from are reversed.
Griffin, J., and Turrentine, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385356/ | 265 Ga. 53 (1995)
ALLEN
v.
ALLEN.
S94A1839.
Supreme Court of Georgia.
Decided January 30, 1995.
Reconsideration Denied February 21, 1995.
Swift, Currie, McGhee & Hiers, Jane C. Barwick, Mark M. Middleton, for appellant.
*55 Wood, Odom & Edge, Gus L. Wood III, for appellee.
FLETCHER, Justice.
We granted this application for discretionary appeal to decide whether the trial court was authorized to provide that Mr. Allen's alimony obligations shall not terminate upon Mrs. Allen's remarriage or cohabitation in a meretricious relationship. We hold that the trial court did not exceed its authority and we affirm.
1. Following a bench trial, the court entered a Final Divorce Decree awarding Mrs. Allen permanent alimony. The decree further provided that the "alimony payments shall not terminate upon the remarriage of the Plaintiff or upon her cohabitation in a meretricious relationship as presently contemplated under OCGA § 19-6-19 (b)." Mr. Allen contends that the trial court exceeded its authority because only a court order that incorporates a settlement agreement may provide that alimony shall not cease upon remarriage. We disagree.
OCGA § 19-6-5 (b) provides,
All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom the obligations are owed unless otherwise provided.
To accept Mr. Allen's argument would require that this Court rewrite the statute to read "unless otherwise provided in a settlement agreement." The plain language of the statute does not permit the grafting of such a requirement. See Sizemore v. State, 262 Ga. 214, 216 (416 SE2d 500) (1992) (if plain language of statute is susceptible to only one meaning, court must follow that meaning unless it produces absurd result).
The history of this provision supports this interpretation. In 1981 the legislature modified OCGA § 19-6-5 (b). Prior to its amendment in 1981, § 19-6-5 (b) provided,
All obligations for permanent alimony to a party, whether created by contract, verdict, judgment, or decree, the time for performance of which has not arrived, shall cease upon remarriage of the party to whom such obligations are owed unless otherwise provided.
*54 The pre-amendment version contemplated that an alimony obligation created by decree could "otherwise provide" that the obligation would not terminate upon remarriage. The amended statute, by substituting the broader phrase "however created" for the narrower "whether created by contract, verdict, judgment, or decree" must also be construed to include an obligation created by judgment or decree. Thus, the trial court was authorized to provide in its Final Divorce Decree that Mr. Allen's alimony obligations would not cease upon Mrs. Allen's remarriage.
2. OCGA § 19-6-19 (b) provides, in part, that
voluntary cohabitation . . . with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse.
This section does not require termination or reduction of the alimony obligation. See Berman v. Berman, 253 Ga. 298, 299 (319 SE2d 846) (1984) (under OCGA § 19-6-19 (b) court may, but is not required to, modify alimony if cohabitation is established); Hurley v. Hurley, 249 Ga. 220, 221 (290 SE2d 70) (1982) ("live-in lover" law does not mandate termination of alimony).
We interpret that part of the decree providing that "alimony payments shall not terminate upon [plaintiff's] cohabitation in a meretricious relationship" to mean that such cohabitation does not create a self-executing termination of the alimony obligation. Such interpretation is consistent with the law that holds that the parties are bound by the decree's provisions until they are modified in a separate proceeding as provided by law. See OCGA § 19-6-19; Lindwall v. Lindwall, 242 Ga. 13, 14 (247 SE2d 752) (1978). Because nothing in the divorce decree prevents Mr. Allen from seeking future modification of his alimony obligations, the trial court did not abuse its discretion.[1]
Judgment affirmed. All the Justices concur.
NOTES
[1] We recognize that alimony may be reduced or terminated in a modification action brought under this section. See Temples v. Temples, 262 Ga. 779, 780, n. 2 (425 SE2d 851) (1993); Sims v. Sims, 245 Ga. 680, 682 (266 SE2d 493) (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385631/ | 636 P.2d 1348 (1981)
Hermenegildo AGUSTIN, et al., Plaintiffs-Appellants,
v.
DAN OSTROW CONSTRUCTION CO., INC., et al., Defendants-Appellees.
No. 7041.
Supreme Court of Hawaii.
December 2, 1981.
*1349 Daral G. Conklin, Honolulu, (Joseph Schneider and George T. Aoki, Honolulu, with him on the briefs, Conklin & Schneider, a Law Corporation, Honolulu, of counsel), for plaintiffs-appellants.
Jerrold Y. Chun, Honolulu (Richard C. Sutton, Jr., Honolulu, with him on the brief, Hamilton, Gibson, Nickelsen, Rush & Moore, Honolulu, of counsel), for defendant-appellee Dan Ostrow Construction Co., Inc.
Before RICHARDSON, C.J., and OGATA, MENOR, LUM and NAKAMURA, JJ.
LUM, Justice.
In this appeal, the issue is whether plaintiffs-appellants' suit is barred by the statute of limitations under § 657-8,[1] Hawaii Revised Statutes. The circuit court dismissed plaintiffs-appellants' complaint, ruling that § 657-8 barred their claims. We disagree and reverse for reasons set forth herein.
Plaintiffs-appellants are homeowners (Homeowners). In 1977, they filed a complaint in the circuit court against Dan Ostrow Construction Co., Inc. (Contractor) and *1350 other unidentified defendants for damages based on both contract and tort claims. Their complaint alleges that in 1968, their homes were built by Contractor as part of a construction project; that the construction contract required Contractor to use corrosion-resistant nails; and that nine years later in 1977, shingles from the roofs of Homeowners' houses began falling off, which led to the discovery that non-corrosion-resistant nails were used in constructing the roofs.
I.
HRS § 657-8 (1976 & Supp. 1980) prohibits any suit from being brought to recover damages for personal or property injury "arising out of any condition of an improvement to real property," unless it is instituted not more than "two years after the cause of action has accrued, but in any case not more than six years after the completion of the improvement... ."
This immunity provision means that regardless of when a cause of action accrues, an "outside" limitation of six years would bar any complaint from being filed more than six years after completion of the improvement. See Stand.Comm.Rep.No. 707-74, 7th Hawaii Leg., 2d Gen.Sess., reprinted in 1974 House Journal 822.[2]
It would therefore appear that Homeowners' suit is barred by the outside limitation period of six years. The homes in question were completed in 1968 and suit was not filed until 1977, approximately nine years later. However, our attention is focused upon Section 2, Act 133, Session Laws of Hawaii 1972, which we hold governs the disposition of this appeal.
II.
Act 133, Session Laws of Hawaii 1972, amended HRS § 657-8 to lower the period after which suit would be barred from ten years to six years from the performance or furnishing of services.[3] Accompanying this amendment was a "savings clause" in Section 2 of Act 133, which provided that "[t]his Act does not affect rights and duties that matured, penalties that were incurred, and proceedings begun, before its effective date." (Emphasis supplied.)[4] By this provision, the legislature manifested its intent to give the amended § 657-8 prospective effect only, without disturbing rights, duties, penalties and proceedings in effect before May 20, 1972. Consequently, Homeowners' suit would not have been barred by the six-year limitation if they had rights that had matured prior to May 20, 1972. Instead, their action would be governed by the 1967 version of HRS § 657-8, and be allowed to proceed as having been brought within ten years of the furnishing and performance of services in question.
*1351 Contractor, however, argues that Homeowners' claim accrued more than six years after construction of their homes was completed and that the 1974 version of the statute operates to bar their claim. In oral argument, Contractor contended that the words "matured" and "accrued" appearing in § 657-8 have the same meaning. By this interpolation, Contractor is able to conclude that Homeowners had no matured rights because their injuries had not been discovered on or before May 29, 1974, and therefore that the bar of § 657-8 as amended in 1974 applies to their claim.
We disagree. At the outset, we note that the crucial savings clause in this case is that which appeared in 1972, as opposed to that which was added with the 1974 amendment, as Homeowners' improvements were built and completed after the enactment of the original statute in 1967 but prior to the 1972 amendment.[5] More importantly, however, we do not read the words "matured" and "accrued" to have the same meaning and legal effect. To reach our conclusion, we are aided by several presumptions. Words or phrases used in two or more sections of a statute are presumed to be used in the same sense throughout, Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970), but by the same token, different words in a statute are presumed to have different meanings. Additionally, the legislature is presumed to know the law when enacting statutes, and we must presume that the legislature knew of the definition we assigned to the word "accrued" in Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967), at the time it amended § 657-8 in 1972.
In Yoshizaki, we defined the word "accrued" as it appears in Hawaii's statutes of limitation to mean that the statute does not begin to run until the plaintiff knew or should have known of defendant's negligence. Id. at 154, 433 P.2d at 223; see Waugh v. University of Hawaii, 63 Haw. 117, 621 P.2d 957 (1980); Basque v. Yuk Lin Liau, 50 Haw. 397, 441 P.2d 636 (1968). Thus, the rule of discovery controls the question of when the running of the limitation period is triggered.
If the legislature intended to ascribe to the 1972 savings clause the results of Yoshizaki, we must presume that it would have used "accrued" in place of "matured" therein.[6] Not having done so, we conclude that a different meaning was intended. Being bound by the plain meaning of statutory language, see State v. Sylva, 61 Haw. 385, 388, 605 P.2d 496, 498 (1980); University of Hawaii v. Leahi Foundation, 56 Haw. 404, 407, 537 P.2d 1190, 1193 (1975), we conclude that § 657-8 would not bar Homeowners' complaint if Homeowners had acquired any rights against Contractor prior to the effective date of the 1972 amendments, regardless of whether they had discovered or should have discovered the construction defect complained of at that time.
We hold that when Contractor committed the act complained of, his action was not free from legal consequences. On the contrary, Homeowners acquired a cause of action against Contractor for damages, except that, for reasons that are obvious, the cause of action by necessity remained dormant or inchoate. Nevertheless, from the date of Contractor's misfeasance in 1968, Homeowners had a right to sue Contractor. It is this matured right that was not disturbed by subsequent amendments to § 657-8.
We conclude it was error for the trial court to dismiss Homeowners' claim.
We need not reach the constitutional issue raised by Homeowners.
*1352 Reversed and remanded for action consistent herewith.
NAKAMURA, Justice, concurring.
I concur in the result reached by the majority.
NOTES
[1] § 657-8 Limitation of action for damages based on construction to improve real property. No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of any condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against the owner of the real property or any other person having an interest therein or in the improvement or against any registered or duly licensed person performing or furnishing professional or licensed services in the design, planning, supervision, or observation of construction or construction of the improvement to real property more than two years after the cause of action has accrued, but in any event not more than six years after the completion of the improvement except that this provision shall not apply to surveyors for their own errors in boundary surveys. This section shall not apply to actions for damages resulting from the negligent conduct of the owner of the real property or any other person having an interest therein or in the improvement in the repair or maintenance of the improvement. (Emphasis added.)
Act 133, 1972 Haw. Sess. Laws, additionally provided that:
This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings begun, before its effective date. (Emphasis added.)
[2] The apparent intent of the drafters of the original provision, enacted in 1967, was to set a cut-off point at which certain classes of individuals connected with the construction of improvements would be shielded from liability for injuries arising therefrom. "Future liability, without a statute of limitation when all physical improvements to real estate by their nature are subject to deterioration and normal wear and tear, imposes an undue and unfair burden." Stand.Comm.Rep. No. 790, 4th Hawaii Leg., 1st Gen.Sess., reprinted in 1967 House Journal 781.
[3] The original version of HRS § 657-8 provided that suit had to be brought no more than two years after the cause of action had accrued, but not more than ten years after the performance or furnishing of services. See Act 194, 1967 Haw. Sess. Laws 203.
[4] A similar savings clause appeared in Act 73, Session Laws of Hawaii 1974, which further amended HRS § 657-8 to bring it into conformity with our decision in Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568 (1973). In Fujioka, we held § 657-8 unconstitutional as violative of the Equal Protection Clause in including only certain classes of persons within its immunity provisions, e.g., architects and contractors, to the exclusion of others with no rational basis for such distinction. The legislature consequently expanded the statute's coverage to include owners of real property and others having an interest therein, and also attempted to clarify another portion of the statute.
We observe, therefore, that the savings clause tacked onto the 1974 amended version of § 657-8 is not relevant here as the 1974 amendment did not affect Homeowners' ability to sue Contractor.
[5] See supra note 4. This is so even though the version of § 657-8 that ultimately governs this suit is that which was in effect in 1977 when Homeowners filed their complaint, because, as will be discussed infra, the events which are relevant to determining whether Homeowners' suit is barred occurred in 1968 when the homes were being constructed.
[6] We take note that the word "accrued" appears no less than fourteen times in Hawaii's statutes of limitation, HRS Ch. 657. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385634/ | 289 S.C. 28 (1986)
344 S.E.2d 603
Thomas G. BECKHAM, Respondent
v.
The SUN NEWS and The Sun Publishing Company, Appellants.
22542
Supreme Court of South Carolina.
Heard March 24, 1986.
Decided May 5, 1986.
*29 John B. McCutcheon, of McCutcheon, McCutcheon & Baxter, Conway, William L. Pope and Patricia B. Kinard, Robinson, McFadden, Moore, Pope, Williams, Taylor & Brailsford, Columbia, for appellants.
John M. Leiter, Ronald K. Lawn, of Lawn & Leiter, Myrtle Beach, Carroll D. Padgett, Jr., Loris, Kenneth A. Richstad and Ronald M. Childress, of Childress & Richstad, Columbia, for respondent.
Heard March 24, 1986.
Decided May 5, 1986.
NESS, Chief Justice:
The Sun News appeals a jury verdict against it in a libel action brought by respondent Beckham. We reverse.
Beckham was an undercover police officer with the Horry County Police Department. He and his supervisor Mike Foreman participated in a stake-out at a location where marijuana was believed to be stored. In order to obtain a search warrant, both men executed affidavits detailing facts which Beckham later said were false. At a subsequent preliminary hearing, Foreman gave false testimony, but Beckham refused to testify. Beckham immediately advised his superiors of Foreman's false testimony and of the apparent falsehoods in the affidavits. Both men were fired from the *30 police department. The solicitor and police chief held a news conference and issued a press release stating Foreman had given false testimony at the preliminary hearing. The news release stated Beckham was an "active participant" in the furnishing of false information.
The Sun News published an article which stated that Beckham and Foreman had testified falsely at the preliminary hearing. Beckham brought this action for libel, and a jury awarded him $1 million actual damages and $2.5 million punitive damages. Upon motion of the Sun News, the trial judge reduced the punitive damage award to $1 million. This appeal followed.
The Sun News asserts the trial judge erred in charging the jury that truth is a defense as to which the defendant in a libel action has the burden of proof. It argues that in cases involving public officials and public figures, the plaintiff must prove falsity as an element of his case, and there is no burden on the defendant to prove truth.
We have held that a defamatory statement is presumed to be false. Pierce v. Inter-Ocean Casualty Company, 148 S.C. 8, 145 S.E. 541 (1926). Indeed, we have found reversible error where the jury was instructed the plaintiff had the burden of proving falsity. Herring v. Lawrence Warehouse Company, 222 S.C. 226, 72 S.E. (2d) 453 (1952). Truth has been an affirmative defense as to which the defendant has the burden of pleading and proof. Ross v. Columbia Newspapers, Inc., 266 S.C. 75, 221 S.E. (2d) 770 (1976).
However, in libel actions brought by public officials and public figures the traditional burdens of proof are necessarily altered by the constitutional protections afforded the press. When a libel action is brought by a public official or public figure, the constitutional guarantees of freedom of speech and press require the plaintiff to establish the defamatory falsehood was made with actual malice, i.e., with knowledge of falsity or reckless disregard of whether it was false or not. Scott v. McCain, 272 S.C. 198, 250 S.E. (2d) 118 (1978). We have not before been called upon to determine whether this heightened burden of proof in cases involving public officials and public figures requires an affirmative showing by the plaintiff that the defamatory statement was false. We hold that it does.
*31 The United States Supreme Court has held that a defamed public official or public figure must prove the falsity of the allegedly libelous publication. Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L.Ed. (2d) 328 (1975).[1] This requirement follows necessarily from the actual malice standard. Before knowing falsity or reckless disregard for truth can be established, the plaintiff must establish the statement was, in fact, false. Bee Publications, Inc. v. Cheektowaga Times, Inc., 107 A.D. (2d) 382, 485 N.Y.S. (2d) 885 (4th Dept. 1985). See also, News Publishing Company v. DeBerry, 171 Ga. App. 787, 321 S.E. (2d) 112 (1984). Since the public official or public figure plaintiff has the burden of proving falsity, it is error to instruct the jury that the defendant has the burden of establishing truth. Colson v. Stieg, 89 Ill. (2d) 205, 60 Ill. Dec. 449, 433 N.E. (2d) 246 (1982). See also, Nash v. Keene Publishing Corp., 498 A. (2d) 348 (N.H. 1985).
In the present case, the trial judge properly charged the jury that the plaintiff had the burden of proving falsity. However, he also charged the jury that truth was a defense as to which the defendant had the burden of proof. We agree with the Sun News that this improper charge was necessarily confusing to the jury. The judgment is reversed and the case is remanded for a new trial.
Reversed and remanded.
GREGORY, HARWELL, CHANDLER and FINNEY, JJ., concur.
NOTES
[1] Pending filing of our opinion in this case, the United States Supreme Court issued its opinion in Philadelphia Newspapers, Inc. v. Hepps, ___ U.S. ___, 106 S. Ct. 1558, 89 L.Ed. (2d) 783 (1986), a libel case involving a private plaintiff. While distinguishable, its reasoning is also applicable to libel actions brought by public officials or public figures. It is therefore cited as additional authority for our decision in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/877391/ | 636 P.2d 846 (1981)
John BRYMERSKI and Alice Brymerski, Plaintiffs and Appellants,
v.
CITY OF GREAT FALLS, a municipal corp. of the State of Montana, Thomas C. Mather, Shirley R. Pappin, Personal Representative of the Estate of Robert F. Pappin, Defendants and Respondents.
No. 81-108.
Supreme Court of Montana.
Submitted on Briefs September 3, 1981.
Decided November 25, 1981.
*847 Dzivi, Conklin & Nybo, Great Falls, for plaintiffs and appellants.
Smith, Baillie & Walsh, Swanberg, Koby, Swanberg & Matteucci, Alexander & Baucus, David Gliko, Great Falls, for defendants and respondents.
HASWELL, Chief Justice.
This is an appeal by plaintiffs from an order of the Eighth Judicial District Court granting defendants' motion to dismiss the plaintiffs' action for failure to prosecute. We reverse.
Between the summer of 1975 and the summer of 1976, defendants Robert and Shirley Pappin and Thomas Mather (hereinafter referred to as Pappin/Mather) were responsible for the construction of streets, the installation of curbs and gutters, and the excavation of soil near the location of the plaintiffs' residence in the West Hill Addition to the City of Great Falls, Montana.
During June and July of 1976, heavy rainfalls washed mud and fill dirt from a "fill" area created by Pappin/Mather into the plaintiffs' yard and basement causing damage to the plaintiffs' property. The plaintiffs filed a complaint against the defendants on July 14, 1976, seeking damages for negligence and for breach of a written agreement between Pappin/Mather and the City of Great Falls.
On August 3, 1976, defendants Pappin/Mather filed a motion to dismiss, and a hearing was scheduled for September 15, 1976, to hear oral arguments on the motion. There is nothing in the record to indicate that the District Court ruled on this motion.
On October 8, 1976, Pappin/Mather filed an answer, and on October 12 they filed written interrogatories.
On November 15, the City of Great Falls filed consolidated motions to dismiss, to make more definite and certain and to strike. Oral arguments on these motions were set for December 15, but it does not appear that these motions were ruled on by the District Court. Nothing further was filed in regard to this action until May 16, 1980.
In January, 1979, John McCarvel, the plaintiffs' attorney, became a judge and shortly thereafter he advised the plaintiffs to find a new attorney.
In February of that year, the plaintiffs contacted William Conklin and asked him to represent them. Mr. Conklin informed the plaintiffs on March 6 that he would take their case, and he did some preliminary research during March and April. He was unable to find time to further proceed with the case, however, until May, 1980; and during the interim period one of the defendants, Robert Pappin, died.
*848 On May 16, 1980, plaintiffs filed a document to substitute counsel and a motion to substitute Shirley R. Pappin, personal representative of the estate of Robert F. Pappin, for Robert Pappin as a party defendant. The District Court granted the motion on May 29, 1980.
Then in June plaintiffs filed answers to the Pappin/Mather interrogatories of 1976 and served written interrogatories on defendants Pappin/Mather and defendant City of Great Falls.
In September, Pappin/Mather filed their answers to plaintiffs' interrogatories and also filed a motion to dismiss for failure to prosecute. After the motion to dismiss was filed, the plaintiffs deposed several individuals with knowledge of facts pertinent to the case.
On November 10, a hearing was held on the Pappin/Mather motion to dismiss for failure to prosecute. At the hearing the City of Great Falls orally joined in the motion. On January 9, 1981, the District Court issued an order granting the motion to dismiss, and the plaintiffs appeal.
The plaintiffs raise the following issues on appeal:
1. Whether the District Court erred in not considering the statutory time period set forth in Rule 41(e), M.R.Civ.P., when making its decision regarding the motion to dismiss for failure to prosecute.
2. Whether the District Court abused its discretion in granting the motion to dismiss for failure to prosecute as the failure to actively prosecute the case was due to inaction on the part of plaintiffs' attorneys.
3. Whether the District Court erred in granting the motion to dismiss for failure to prosecute as the case was being actively prosecuted for approximately three and one-half months prior to the time the motion to dismiss was filed.
4. Whether the plaintiffs were entitled to rely on the local District Court custom of giving notice before dismissing inactive cases.
5. Whether the District Court erred in granting the motion to dismiss for lack of prosecution as the notice received by the plaintiffs to appoint new counsel was not given in the specific manner prescribed by the local court rule.
6. Whether the District Court erred in refusing to admit certain of plaintiffs' exhibits into evidence at the hearing on the motion to dismiss for failure to prosecute.
We find that only the third issue needs to be addressed in reaching a decision in this case.
The rule of civil procedure which governs the dismissal of an action for failure to prosecute is Rule 41(b), M.R.Civ.P. It provides in part as follows:
"For failure of the plaintiff to prosecute ... a defendant may move for dismissal of an action ..."
In Montana the law is well established that an action may be dismissed for failure of the plaintiff to prosecute if the action is not prosecuted with due diligence, absent a sufficient showing of excuse. Calaway v. Jones (1978), 177 Mont. 516, 582 P.2d 756, and cases cited therein.
It is also well established in Montana law that it is within the sound discretion of the trial court to dismiss an action for failure of the plaintiff to prosecute. Calaway, supra, and cases therein cited. We agree with the Colorado Court of Appeals, however, in that "[the trial court's] discretion is not without bounds ... and it must be borne in mind that courts `exist primarily to afford a forum to settle litigable matters between disputing parties.'" Farber v. Green Shoe Mfg. Co. (1979), 42 Colo. App. 255, 596 P.2d 398, citing Mizar v. Jones (1965), 157 Colo. 535, 403 P.2d 767.
In this case the plaintiffs had been actively prosecuting their case for over three and one-half months prior to the time the defendants Pappin/Mather filed their motion to dismiss for failure to prosecute.
We adopt the rule that a motion to dismiss for failure to prosecute will not be granted if the plaintiff is diligently prosecuting his claim at the time the motion is filed, even if at some earlier time the plaintiff *849 may have failed to act with due diligence.
Support for this position is found in several jurisdictions. See First National Bank of Fairbanks v. Taylor (Alaska 1971), 488 P.2d 1026; Farber, supra; Ayers v. D.F. Quillen & Sons, Inc. (1963), 55 Del. 481, 188 A.2d 510; Spiegelman v. Gold Dust Texaco (1975), 91 Nev. 542, 539 P.2d 1216; Rorie v. Avenue Shipping Co. (Tex.Civ.App. 1967), 414 S.W.2d 948.
If a plaintiff has actively resumed the prosecution of a case, the policy favoring the resolution of a case on its merits is more compelling than the policy underlying Rule 41(b) which is to prevent unreasonable delays.
We hold that the motion to dismiss for failure to prosecute was untimely in this case even though the defendants claim to have been actually prejudiced by the delay in prosecution due to the death of defendant Robert Pappin during the period of time plaintiffs were not actively prosecuting the case.
We note first of all that nearly everyone involved in the development of the Pappin/Mather project is still available to testify, including the city engineer, Pappin/Mather's project engineer, the contractor's job superintendent, as well as Mr. Mather and Mrs. Pappin. Also, various records and files concerning the project are available as evidence. Moreover, Mr. Pappin died several months before the plaintiffs resumed active prosecution of this case, and no objection came from the defendants until some three and one-half months after active prosecution had commenced.
For the foregoing reasons, we reverse the decision of the District Court and remand the case for trial.
HARRISON, MORRISON, SHEA and SHEEHY, JJ., concur. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385555/ | 289 S.C. 49 (1986)
344 S.E.2d 615
Sylvia Gail RABON, Respondent
v.
Leon Carl RABON, Appellant.
0713
Court of Appeals of South Carolina.
Heard April 21, 1986.
Decided May 19, 1986.
*50 Frampton W. Durban, Jr., and Walter Bilbro, Jr., of Walter Bilbro & Association, P.A., Charleston, for appellant.
James Craven, Charleston, for respondent.
*51 Heard April 21, 1986.
Decided May 19, 1986.
GOOLSBY, Judge:
Leon Carl Rabon appeals from the order of the family court granting his wife Sylvia Gail Rabon a divorce on the ground of physical cruelty, rejecting his claim of adultery, dividing the marital property, and awarding attorney fees to the wife. We affirm in part and remand in part.
1. We find no error in the family court's finding that the husband subjected the wife to physical cruelty and in its granting her a divorce on that basis.
Here, the preponderance of the evidence shows the husband committed several acts of actual personal violence upon the wife and engaged in a course of physical mistreatment of his wife as endangered her life, limb, or health and rendered her cohabitation with the husband unsafe. Gibson v. Gibson, 283 S.C. 318, 322 S.E. (2d) 680 (Ct. App. 1984). In addition to grabbing and pushing the wife into a patio screen and a counter, thus bruising her arm and hip, the husband previously had choked his wife, had displayed violent temper, and had threatened to kill his wife. The grabbing and pushing incident led to the police being summoned.
Although the choking episodes appear to have been condoned by the wife, the husband's subsequent cruel conduct revived the former acts and they together with the more recent incident of actual personal violence provide a basis for divorce on the ground of physical cruelty. Womble v. Womble, 214 Ga. 438, 105 S.E. (2d) 324 (1958); 27A C.J.S. Divorce § 62 at 214 (1959); see McLaughlin v. McLaughlin, 244 S.C. 265, 136 S.E. (2d) 537 (1964) ("condonation" is a conditional forgiveness of a previous offense of offending spouse and can be revoked by subsequent conduct).
The husband further argues the wife provoked his acts of physical cruelty. Provocation, it is true, will defeat a claim of physical cruelty, but only if the retaliatory cruelty is not out of all proportion to the provocation. Godwin v. Godwin, 245 S.C. 370, 140 S.E. (2d) 593 (1965); Gibson v. Gibson, supra.
*52 Here, the alleged provocation for the husband's grabbing and pushing of his estranged wife consisted of the husband's seeing another man in the wife's home the night before the incident, the wife's ridiculing the husband on the day of the incident about his lack of education and about his past, and the wife's refusal immediately prior to the incident to talk with the husband about letting him return to the marital home. These acts, however, and we so find, were insufficient to excuse the husband's acts of personal violence which resulted in actual bodily harm to the wife. Cf. Hendricks v. Hendricks, 285 S.C. 591, 330 S.E. (2d) 553 (Ct. App. 1985) (Court of Appeals in appeals from the family court has jurisdiction to find acts in accordance with its own view of the preponderance of the evidence). The husband offered no excuse for choking his wife and threatening to kill her.
2. We find no reversible error in the family court's failure to consider the testimony of a part-time investigator employed by the husband's attorney.
The investigator testified to certain observations suggesting adultery on the part of the wife. The trial court determined the testimony "should be given little or no consideration."
Much deference is given on appeal to the trial court's decisions regarding the weight of the evidence and the credibility of witnesses. 27A C.J.S. Divorce § 194(7) at 828 (1959). Although we may determine the issues raised by the pleadings in an action for divorce according to our own view of the evidence, we nonetheless are inclined to give proper consideration to the fact that the trial judge saw the witnesses, heard the testimony of the witnesses delivered from the stand, and had the benefit of personal observation and contact with the witnesses. Hodges v. Hodges, 243 S.C. 299, 133 S.E. (2d) 816 (1963). We accord this deference to the trial judge here.
3. We likewise find no error in the family court's failure to find the wife guilty of adultery.
In South Carolina, "proof of adultery as a ground for divorce must be clear and positive and the infidelity must be established by a clear preponderance of the evidence." Odom v. Odom, 248 S.C. 144, 146, 149 S.E. (2d) *53 353, 354 (1966). If proof of guilt is inconclusive after due consideration of all the evidence, a divorce on the ground of adultery should be denied. Lee v. Lee, 237 S.C. 532, 118 S.E. (2d) 171 (1961).
Although we will not undertake here to recount the evidence concerning the wife's alleged adultery, we agree with the husband that the record suggests adultery on her part. Still, we feel the wife's alleged adultery was not "so clearly and conclusively shown, that there is no practical theory under which she could be innocent, when all of the evidence is considered together." Meyer v. Hackler, 219 La. 750. 755-756, 54 So. (2d) 7, 9 (1951).
4. We do not reach the husband's challenge to the fairness of the trial court's distribution of the marital property.
We cannot tell whether the division was fair or not since the trial court made no finding as to the value of the marital home and of the parties' personal property. A determination concerning the value of the marital home and of the personal property could well affect the division of the marital estate. We therefore remand this issue to the trial court for redetermination.
On remand, the trial court shall take the following steps in making an equitable distribution of the marital property, whether real or personal.
(1) Identify the specific real and personal property that may be apportioned between the parties;
(2) Determine the fair market value of the property;
(3) Determine whether both parties have made a material contribution to the acquisition of property and identify the proportionate contribution of each party; and
(4) Decide on the mechanics of the manner in which the property will be distributed.
Smith v. Smith, 280 S.C. 257, 312 S.E. (2d) 560 (Ct. App. 1984). In determining this issue, the trial court shall make specific findings of fact. Atkinson v. Atkinson, 279 S.C. 454, 309 S.E. (2d) 14 (Ct. App. 1983). It shall also consider the factors outlined in Shaluly v. Shaluly, 284 S.C. 71, 325 S.E. (2d) 66 (1985).
*54 5. We agree with the husband's complaint concerning the attorney fee award.
The husband's complaint centers around the trial court's failure to comply with Family Court Rule 27(C) and this court's directives in Atkinson v. Atkinson, supra.
The trial court, in awarding the wife a $750 attorney fee, merely recited the relevant factors instead of making specific findings concerning them.
In Tucker v. Tucker, 282 S.C. 261, 317 S.E. (2d) 764 (Ct. App. 1984), the family court awarded an identical amount to the wife as an attorney fee; however, because the trial court failed to set forth the facts it relied upon in determining the amount, we remanded the issue for specific findings of fact. We elect to follow the same procedure in this case, particularly since the record is insufficient to permit adequate review by this court of the issue.
Affirmed in part and remanded in part.
GARDNER and CURETON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385608/ | 256 Ga. 57 (1986)
344 S.E.2d 215
CRAWFORD
v.
THE STATE.
43172.
Supreme Court of Georgia.
Decided June 10, 1986.
August F. Siemon III, for appellant.
Johnnie L. Caldwell, District Attorney, J. David Fowler, Paschal A. English, Jr., Assistant District Attorneys, for appellee.
WELTNER, Justice.
Eddie Albert Crawford was convicted of the murder of his 29-month-old niece, Leslie Michelle English, and sentenced to death. We reversed the conviction on grounds relating to the form of the verdict. Crawford v. State, 254 Ga. 435, 439 (1) (330 SE2d 567) (1985). Before a second trial, Crawford filed a pre-trial motion to enjoin the state from seeking again the death penalty. The trial court denied his motion and Crawford appeals.
1. Crawford contends that principles of double jeopardy, as applied to resentencing, prohibit the state from seeking the death penalty on retrial. He relies on Bullington v. Missouri, 451 U.S. 430 (101 SC 1852, 68 LE2d 270) (1981), for the proposition that a reversal of a conviction in which the death penalty has been imposed is equivalent to an acquittal. Here, the jury found "kidnapping" as the sole aggravating circumstance at Crawford's trial. Kidnapping alone is not a statutory aggravating circumstance. OCGA §§ 16-5-40 (b); 17-10-30 (b) (2). Crawford, supra, 254 Ga. at 440 (5). Crawford maintains that the jury thus "acquitted" him of the aggravating circumstances of kidnapping with bodily injury and of any other possible aggravating circumstance.
In Poland v. Arizona, ___ U. S. ___ (___ SC ___, ___ LE2d ___) (54 USLW 4445, May 5, 1986), the United States Supreme Court held that a reversal of a conviction in which the death penalty was imposed does not preclude imposing the death penalty upon a retrial unless the sentencer or reviewing court has found that the evidence is insufficient to support the death penalty. The jury here was charged relative to the alleged aggravating circumstances of rape, kidnapping, and kidnapping with bodily injury. The jury imposed the sentence of death, specifying "kidnapping" as the aggravating circumstance.
2. There has been no finding that the evidence is insufficient to *58 support the death penalty. Indeed, the evidence in the case in amply sufficient to warrant capital punishment. Accordingly, the state is not prohibited from seeking anew the death penalty. Upon retrial, the state may introduce evidence of kidnapping with bodily injury, and of any other aggravating circumstances, including any which were not presented to the first jury. Zant v. Redd, 249 Ga. 211, 214 (290 SE2d 36) (1982); Spraggins v. State, 255 Ga. 195, 204 (7) (336 SE2d 227) (1985); see also Gregory, J., special concurrence, id. at 205.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385633/ | 514 F.3d 278 (2008)
LING YANG, Petitioner,
v.
Michael B. MUKASEY,[1] Respondent.
Docket No. 06-3872-ag.
United States Court of Appeals, Second Circuit.
Argued: January 9, 2008.
Decided: January 31, 2008.
*279 Yan Wang, New York, NY, for Petitioner.
Kohsei Ugumori, Attorney (Peter D. Keisler, Assistant Attorney General, Civil Division, Michelle E. Gorden Latour, Assistant Director, on the brief), Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for Respondent.
Before: STRAUB, SOTOMAYOR, and WESLEY, Circuit Judges.
PER CURIAM:
Ling Yang, a native and citizen of China, seeks review of a July 21, 2006 order of the Board of Immigration Appeals ("BIA") affirming the February 25, 2005 decision of Immigration Judge ("IJ") Alan L. Vomacka denying Yang's applications for adjustment of status based on marriage to a United States citizen under Immigration and Nationality Act ("INA") § 245, 8 U.S.C. § 1255, and a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h), and ordering her removed. In re Ling Yang, No. A75 944 341, 2006 WL 4577218 (B.I.A. July 21, 2006), an No. A75 944 341 (Immig. Ct. N.Y. City Feb. 25, 2005).
Yang was admitted to the United States on May 23, 1996 on a nonimmigrant visa. On February 19, 2002, Yang was served with a notice to appear for immigration proceedings charging her with removability under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United States for a time longer than permitted. Yang conceded at her removal hearing that she was removable as charged. Moreover, the IJ found that Yang was inadmissible under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having committed a crime involving moral turpitude and INA § 212(a)(2)(D)(ii), 8 U.S.C. § 1182(a)(2)(D)(ii), for having committed a crime involving prostitution. Yang applied for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h), and adjustment of status under INA § 245, 8 U.S.C. § 1255.
The IJ denied Yang's application for adjustment of status based both on his determination that Yang was statutorily ineligible for such relief and his determination that Yang did not merit a favorable exercise of discretion. This Court lacks jurisdiction to review such a discretionary denial. See Guyadin v. Gonzales, 449 F.3d 465, 468-69 (2d Cir.2006). We have previously stated that we retain jurisdiction over denials of adjustment of status applications even when the denial is based in part on a matter of discretion when the discretionary determination is based on the same grounds as the eligibility determination. See Harjinder Singh v. Gonzales, 468 F.3d 135, 138 (2d Cir.2006). However, this is not such a case. Here, the IJ gave several independent reasons *280 for denying Yang's application of adjustment of status as a matter of discretion, including criminal conduct for which she was not convicted, and the BIA affirmed this conclusion as a "proper[ ], and thorough[], balanc[ing] [of] the favorable and unfavorable factors of record." Because the IJ made a determination to deny the adjustment of status application for independent, discretionary reasons, and the BIA expressly affirmed this exercise of discretion, we lack jurisdiction over this determination.[2]
For the foregoing reasons, the petition for review as to the denial of adjustment of status is DISMISSED. The remainder of Yang's petition for review is DENIED as moot.
NOTES
[1] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael 13. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as respondent in this case.
[2] Because we conclude that we lack jurisdiction to review the denial of Yang's adjustment of status determination, and because Yang conceded removability as a visa overstay and has not applied for any other type of" relief from removal, Yang's removal order must stand. Accordingly, we do not reach the question of whether Yang is inadmissible for having been convicted of a crime of moral turpitude. We also do not reach the question of whetherif she was convicted of such a crimeshe is eligible for a § 212(h) waiver, although we note that, in any event, because the IJ denied the § 212(h) waiver in part "as a matter of discretion," we lack jurisdiction to review that denial for the same reasons we lack jurisdiction over the denial of the § 245 application. See Camara v, Dep't. of Homeland Sec., 497 F.3d 121, 124 (2d Cir.2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/238278/ | 228 F.2d 878
Maria PRITCHARD, Plaintiff-Appellee,v.Edith NELSON, Doris E. Beckett, Executrix, Defendant-Appellant.
No. 111, Docket 23730.
United States Court of Appeals Second Circuit.
Argued Nov. 18, 1955.Decided Dec. 13, 1955.
J. Malcolm Williams, Poultney, Vt., Lawrence & O'Brien, Rutland, Vt. (Harold I. O'Brien, Rutland, Vt., of counsel), for plaintiff-appellee.
Ryan, Smith & Carbine, Rutland, Vt. (John D. Carbine and James T. Haugh, Rutland, Vt., of counsel), for defendant-appellant.
Before HAND, FRANK and MEDINA, Circuit Judges.
MEDINA, Circuit Judge.
1
In this diversity case, governed by the law of Vermont, plaintiff, a pedestrian, was struck by an automobile driven by defendant's testatrix, Edith Nelson, as plaintiff was crossing the street in Fair Haven, Vermont. Defendant appeals from a judgment entered on a verdict in plaintiff's favor.
2
The issue is a narrow one. Was the evidence sufficient to support a finding that plaintiff was not guilty of contributory negligence? If not, defendant's motion for a directed verdict should have been granted.
3
A Vermont statute, V.S. (Revision of 1947) § 1736, provides that in actions, except on book account, where one of the original parties to the contract or cause of action in issue and on trial is dead the other party shall not be admitted to testify in his own favor except to meet or explain the testimony of living witnesses produced against him. Plaintiff, while badly injured, survived, but Mrs. Nelson died before the trial. Accordingly, plaintiff was not competent to testify, and no witnesses were called on defendant's behalf, nor was there any cross-examination of plaintiff's witnesses, all of whom had appeared on the scene after the accident.
4
Prospect Street, in Fair Haven, runs east and west; it is a two-lane, marked highway, having a macadam surface and lighted, at the scene of the accident, by two street lights and a gas station on the south side of the street and lights on the inside and outside of a market on the north side. Shortly after six o'clock in the evening of November 5, 1953, plaintiff was crossing from the south side to visit a neighbor across the street. There was testimony that only the parking lights on Mrs. Nelson's car were lit, although under the circumstances Vermont law required the lighting of headlights visible at least one hundred and fifty feet ahead. There was also testimony that Mrs. Nelson said she did not see plaintiff until too late to avoid the collision and that she did not sound her horn or set her brakes so they squealed. It was undisputed that Mrs. Nelson was driving in a westerly direction, and the jury might well have found from the evidence that plaintiff's body was discovered lying entirely south of the center line of the highway with her head toward the center line and her feet toward the south, facing west, and that at the time of the accident she had been wearing the eyeglasses and the white shawl which were found about ten feet east of where she lay.
5
While plaintiff had the burden of proof on the issue of contributory negligence, Hill v. Stringer, 116 Vt. 296, 75 A.2d 657, direct or affirmative evidence was not required. Huestis v. Lapham's Estate, 113 Vt. 191, 32 A.2d 115; Bombard v. Newton, 94 Vt. 354, 111 A. 510, 11 A.L.R. 1402; Cummings v. Town of Cambridge, 93 Vt. 349, 107 A. 114. If, from the circumstantial evidence above described opposing inferences as to plaintiff's freedom from contributory negligence were reasonably possible, the issue was for the jury. Healy v. Moore, 108 Vt. 324, 187 A. 679.
6
Defendant contends, however, that there is no room for opposing inferences in this case because plaintiff did not prove that she looked for traffic in the farther lane before crossing. As 'close to controlling' authority for her position, she cites McKirryher v. Yager, 112 Vt. 336, 24 A.2d 331, 332. We disagree. For that case is distinguishable in a crucial respect-- the point of impact. There all the probative evidence tended to prove 'that she (plaintiff) had passed the middle of the street and that the defendant was driving in his own traffic lane at the time of the accident * * *' But in the case at bar the jury could have inferred from the position in which plaintiff's body was found lying on the highway that she had not crossed the center line at the time of the accident and that defendant was driving in the wrong lane. The jury could also have found from the direction in which plaintiff was facing and from the other attendant circumstances that she had been watching for cars approaching from the west; and that she was in effect hit from behind. Since cars rightfully in the near lane would be coming from the west, the jury could have found that she was exercising proper care for her own safety. Duchaine v. Ray, 110 Vt. 313, 6 A.2d 28; Aiken v. Metcalf, 90 Vt. 196, 97 A. 669. If so, plaintiff was entitled to assume that a driver headed west would not wrongfully enter the left-hand lane, and that, having entered, would not compound the wrong by silently and without warning running her down, particularly as the white shawl she was wearing must have made her figure clearly visible in the well-lighted area. Colburn v. Frost, 111 Vt. 17, 9 A.2d 104; Duchaine v. Ray, supra; Dervin v. Frenier, 91 Vt. 398, 100 A. 760.
7
The decisive factor is that the collision occurred in the east-bound lane. Under these circumstances, according to the Vermont cases, plaintiff was under no obligation to prove that she was taking precautions to guard against cars coming in the west-bound lane from her right. McKirryher v. Yager, supra; Howley v. Kantor, 105 Vt. 128, 163 A. 628; Healy v. Moore, supra; Hill v. Stringer, supra.
8
Affirmed.
9
HAND, Circuit Judge (dissenting).
10
If there had been even the proverbial scintilla of evidence that the plaintiff had looked to her right before she left the south curb, I should agree that the jury might have found that she exercised care, and enough care, for her own safety; for, as I read it, the courts of Vermont have said that a pedestrian does not have to keep up a repeated watch while crossing a street. Aiken v. Metcalf, 90 Vt. 196, 97 A. 669; Healy v. Moore, 108 Vt. 324, 187 A. 679; Duchaine v. Ray, 110 Vt. 313, 6 A.2d 28. But I cannot find a single thread on which to hang the inference that she ever looked to the right at any time either preparatory to crossing or while crossing. I submit that the fact that she may have been struck south of the center line of the street is wholly irrelevant to whether she had looked to the right at any time, however important it may be in fixing the defendant's fault. To support the verdict we must either invoke a presumption that people do not cross two-way streets without looking both ways; of that the jury would have been justified in holding that a person passing across the street from south to north exercises enough care, if he does not look to his right before he gets within two or three feet of the center line. I do not understand that the plaintiff asserts that there is any such presumption in Vermont; and, if the jury in fact did hold that one need not look to the right before one actually crosses the center line, in my judgment they were patently wrong.
11
I hope it may not be amiss to add that a resort to such momentary lapses of care as we are all prone to everyday, as a means of dealing with what the English call 'running down cases' is to my mind at best exceedingly questionable. However, I did not make the law, or that added bit of procedure which kept the plaintiff off the stand in the case at bar; and I deem it my duty to apply the rules of Vermont as I find them, regardless of what my preferences might be, if I were free to rebuild the law nearer to my heart's desire. In this record I can find not a whisper to support the conclusion one way or the other as to whether the plaintiff took any care at all to watch for west-bound vehicles; and, if that were so, I do not understand that my brothers, any more than I, would think that the judgment should be affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2267179/ | 471 Pa. 389 (1977)
370 A.2d 358
COMMONWEALTH of Pennsylvania
v.
Robert Wesley COACH, Appellant (two cases).
Supreme Court of Pennsylvania.
Submitted October 21, 1975.
Decided February 28, 1977.
Reargument Denied May 10, 1977.
*390 Richard A. McDaniel, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Barry H. Oxenburg, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
*391 OPINION OF THE COURT
O'BRIEN, Justice.
This appeal arises from the conviction of appellant, Robert Wesley Coach, for the robbery and murder of John Schmidt on September 12, 1972, in Philadelphia. Appellant was tried by a judge and jury, and on April 19, 1973, was found guilty of murder in the second degree and aggravated robbery. Post-verdict motions were denied, and on June 12, 1974, appellant was sentenced to not less than ten nor more than twenty years at a state correctional institution on the murder conviction and was given a five to ten year consecutive sentence for the aggravated robbery conviction. Appellant appealed the murder conviction to this court and the aggravated robbery conviction to the Superior Court, which certified the latter case to this court.
The facts surrounding this appeal are as follows. At approximately 4:50 p.m. on September 12, 1972, the decedent, John Schmidt, a mechanic for Breuninger's Dairy in Philadelphia, was shot while road testing one of the dairy's trucks. Two Philadelphia police officers on stakeout observed three males standing near Schmidt's truck. Three shots were fired, the decedent stumbled from the truck into the alley, and the three males fled from the scene. The police pursued the three individuals, who split into two groups. One of the officers pursued appellant and after several warnings to stop, shot the appellant in the leg.
The official police chronology reveals the following: Appellant was arrested and taken to Temple University Hospital, arriving at approximately 5:10 p.m. While at Temple, appellant gave two statements, the second of which was inculpatory. The inculpatory statement concluded at 8:35 p.m., at which time appellant was transferred to Philadelphia General Hospital. Appellant was *392 subsequently transferred to the Police Administration Building, arriving at approximately 1:40 a.m. He was warned and interviewed from 2:00 to 2:18 a.m. He was then fed and allowed to remain alone until 5:35 a.m., at which time appellant gave a formal typewritten statement, which statement concluded and was signed at 6:50 a.m. He was again allowed to remain alone until 10:00 a.m., at which time another "interview" was conducted until 10:15 a.m. A final "interview" was conducted at 10:30 a.m., until 10:40 a.m. At 12:10 p.m., appellant was arraigned. Thus, he was arraigned approximately nineteen hours after his arrest and sixteen hours after his initial inculpatory statement.
Appellant argues that the court below erred in refusing his requested point for charge that unnecessary delay between arrest and arraignment is a factor to be considered by the jury in determining the voluntariness of the confession. We agree.
In the instant case, appellant's counsel requested that the court charge the jury that unnecessary delay between arrest and preliminary arraignment is one of the factors to be considered in determining the voluntariness of the confession. The court below denied the requested charge stating that unnecessary delay is a question of law and out of the jury's province. We do not agree.
This court, in Com. ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426, 432 (1968), in discussing the necessity of prompt arraignment, stated:
"Finally, we attach some weight to the fact that Butler was not taken before a magistrate until a week after he was first taken into custody. Under the rule announced in McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), a confession is automatically invalidated where a prisoner is not promptly taken before a committing magistrate. The delay of approximately twelve hours between the arrest and confession would of itself be violative of the dictates of *393 promptness. Although we do not attach the conclusiveness to the failure to take the prisoner before a magistrate that the federal courts do, it is a factor to be considered. It appears that the failure to take a defendant promptly before a magistrate is a violation of Pennsylvania law in any case. In Commonwealth v. O'Brien, 181 Pa.Super. 382, 392, 124 A.2d 666, 672 (1956), although the Court did not feel that a substantial right had been violated, it said: `The right of an accused to a preliminary hearing, with certain exceptions, has become a part of the law of this Commonwealth * * *.'
* * * * * * * *
"The Act of 1869 was interpreted by this court in Commonwealth v. Johnson, 365 Pa. 303, 74 A.2d 144 (1950), reversed on other grounds 340 U.S. 881, 71 S. Ct. 191, 95 S. Ct. 640 (1950), where we stated: `[T]he effect of the mere denial of a prompt preliminary examination is a matter of state, not of federal, law and to refuse it does not constitute a violation of the fourteenth amendment although it is one of the facts to be considered on an allegation that a confession used at the trial was coerced.'
(Emphasis added)" (Earlier emphasis added.)
In Commonwealth v. Koch, 446 Pa. 469, 474-75, 288 A.2d 791, 794 (1972), in reaffirming the relevancy of "unnecessary delay" as a factor to be considered in judging the voluntariness of the confession, this court stated:
". . . Rule 118 [now 130] of the Pennsylvania Rules of Criminal Procedure requires that a defendant `shall be taken without unnecessary delay before the proper issuing authority' where `the defendant shall be given an immediate preliminary arraignment.' The presence of `unnecessary delay' in securing a preliminary arraignment is a factor to be considered in *394 assessing the voluntariness of a confession. Commonwealth v. Moore, 444 Pa. 24, 30, 279 A.2d 146, 149 (1971); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 153, 239 A.2d 426, 432-433 (1968); see Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943)."
The Commonwealth seeks to support the failure to charge on "unnecessary delay" by questioning the validity of Commonwealth v. Koch after this Court's decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The question of "unnecessary delay" is a question of law when used to advance an argument under Pa.R.Crim.P. 130 [formerly 118] and Commonwealth v. Futch, and the line of cases which followed. A criminal defendant cannot relitigate at trial a suppression court's adverse determination on the Futch issue. However, Pennsylvania allows a criminal defendant to attack the voluntariness of his confession both at a suppression hearing and at trial. The issue of voluntariness is properly before a suppression court and also is a proper trial issue for the factfinder. The factfinder at trial cannot consider the confession as evidence if he factually determines that it was involuntarily given by the defendant.
In Commonwealth v. Simms, 455 Pa. 599, 602-3, 317 A.2d 265 (1974), a post-Futch decision, this court clearly indicated the continued vitality of unnecessary delay as a factor to be considered by the fact-finder in determining the voluntariness of the confession:
" . . . Circumstances which must be considered include the accused's physical and mental condition, the delay between arrest and arraignment, the attitude of the police, and other `diverse pressures.' Culombe [v. Connecticut, 367 U.S. 568, at 602], 81 S.Ct. [1860] *395 at 1879 [, 6 L. Ed. 2d 1037]; [Commonwealth v.] Eiland, 450 Pa. [566,] at 573-574, 301 A.2d [651,] at 654. * * *
* * * * * * * *
"Although this case does not turn on an application of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), the unnecessary delay prior to arraignment is nevertheless relevant in determining the voluntariness of Simms' confession. Commonwealth v. Eiland, 450 Pa. 566, 572, 301 A.2d 651, 653 (1973); Commonwealth v. Koch, 446 Pa. 469, 474-475, 288 A.2d 791, 793-794 (1972). Even prior to Futch an unnecessary delay in arraignment could be considered in assessing the totality of the circumstances influencing an accused's decision to confess. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 154-155, 239 A.2d 426, 432-433 (1968)."
Moreover, delay between the confession and the arraignment must also be considered. Post-confession delay prior to arraignment is relevant and may be expository of pre-confession police tactics.
In Commonwealth ex rel. Butler, supra, this court articulated the relevancy of post-confession delay:
". . . We cannot accept the contention that since the confession was made on the day of arrest, the succeeding six days are irrelevant to a consideration of the question of voluntariness of the confession. Haley v. State of Ohio, 332 U.S. [596, 68 S. Ct. 302, 92 L. Ed. 224 (1948)], at 600, 68 S. Ct. at 304, dealt with the question of post-confession improper police tactics: `It is said that these events are not germane to the present problem because they happened after the confession was made. But they show such a callous attitude of the police towards the safeguards which respect for ordinary standards of human relationships compels that we take with a grain of salt their present apologia that the five-hour grilling of this boy was *396 conducted in a fair and dispassionate manner. When the police are so unmindful of these basic standards of conduct in their public dealings, their secret treatment of a 15-year old boy behind closed doors in the dead of night becomes darkly suspicious.' Here, too, the post-confession activity of the police colors the proceedings leading up to that confession." (Emphasis supplied.)
The pertinent excerpt of the court's charge on voluntariness is:
"In determining whether a defendant's oral or written statements were voluntary, you must consider any evidence which you may find had a bearing upon his making the statement to the police. In this respect you will consider that the Commonwealth has the burden of proving that the statement was voluntarily given.
"If you find, upon examination of the evidence concerning the statement and how it was given, that the statement was given as a result of coercion, then you must reject it in your consideration of the case.
"Coercion encompasses more than physical maltreatment. It can be mental as well as physical.
"The question is whether the defendant's will was overcome at the time he confessed, or, to put it another way, after taking into consideration all the circumstances attendant upon the giving of the confession, was it the product of a rational intellect and free will.
"If you are satisfied from the evidence that defendant voluntarily and without coercion gave a statement to the police after being fully apprised of his rights, you may then consider the statement as an admission or confession by the defendant."
Having determined that "unnecessary delay" between arrest and arraignment is a relevant factor in the voluntariness of a confession, and also having reviewed the above charge, we are of the opinion that the court below *397 committed reversible error in failing to instruct the jury concerning this factor.
Appellant raises other allegations of error which we need not discuss because of our resolution of the above issue.
Judgments of sentence reversed and case remanded for a new trial.
POMEROY, J., filed a concurring opinion.
NIX, J., filed a dissenting opinion in which EAGEN, J., joined.
POMEROY, Justice, concurring.
I join the opinion of the Court insofar as it holds that appellant is entitled to a new trial because the trial court's instructions to the jury concerning the voluntariness of appellant's confession were inadequate. To the extent, however, that the Court holds that appellant was entitled to a specific instruction that "unnecessary delay" between arrest and arraignment is a factor to be considered in determining whether the confession was voluntary, I disagree.
Prior to trial, appellant moved to suppress his confession on the grounds that it was involuntary and that it had been obtained as a result of unnecessary delay between arrest and preliminary arraignment. See, Pa.R. Crim.Pro. 130; Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). The suppression court denied the motion. The issue of the voluntariness of the confession was again raised at trial, as permitted by Rule 323(j) of our Rules of Criminal Procedure. See, Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975). Prior to the jury being instructed by the court, appellant's counsel submitted a series of points for charge concerning unnecessary delay between arrest and preliminary *398 arraignment.[1] The trial court denied these requested instructions on the ground that "unnecessary delay" is a question of law and therefore not within the jury's province to decide. On the theory that "unnecessary delay" between arrest and preliminary arraignment is a relevant factor in assessing the voluntariness of a confession, this Court now holds that the trial court committed reversible error in ruling as it did. While I agree that the trial court erred, I cannot subscribe to the majority's analysis in reaching that conclusion.
Implicit in the majority opinion is the conclusion that "unnecessary delay", except when considered in the context of a pretrial Futch claim, is a question of fact for the jury. While I agree with the Court that "[t]he question of `unnecessary delay' is a question of law when used to advance an argument under Pa.R.Crim.P. 130 [formerly 118] and Commonwealth v. Futch, and the line of cases *399 which followed," Opinion of the Court, ante at p. 361, I am at a loss to understand why the question of "unnecessary delay" is transformed into a question of fact for the jury simply because a defendant chooses to avail himself of the right to challenge the validity of the confession at trial. In my view "unnecessary delay" is a question of law only, regardless of the nature of the claim a defendant is making.
The phrase "unnecessary delay", at least for purposes of the law in this Commonwealth, derives from Rule 130 [formerly Rule 118] of our Rules of Criminal Procedure. The rule and the cases interpreting it, e.g., Commonwealth v. Futch, supra, represent an exercise of this Court's supervisory powers designed to ensure that an accused is taken promptly before a magistrate for preliminary arraignment. Under Rule 323 a defendant wishing to suppress evidence allegedly obtained in violation of Rule 130 is free to challenge the admissibility of such evidence prior to trial. If the challenged evidence is found to be admissible at the suppression hearing the defendant is foreclosed from challenging its admissibility at trial; he may, nevertheless, contest the validity of such evidence despite its admission. Commonwealth v. Green, supra. Thus, while the issue of the voluntariness of a confession may be relitigated at trial under Rule 323(j), the question of the necessity of the delay, which relates only to the admissibility of a confession, may not be rechallenged at trial.
None of the cases relied upon by the majority for the proposition that appellant was entitled to be instructed on "unnecessary delay" supports that conclusion. All of the cases cited[2] were cases in which this Court, on appeal, was asked to determine whether a particular confession was voluntary or not as a matter of law; in none *400 of the cases were we addressing the question presented in the case at bar. To be sure, the cases cited by the majority, see note 2, supra, include language that "unnecessary delay" is a factor to be considered in assessing the totality of the circumstances bearing upon an individual's decision to confess.[3] Given the context in which the language was employed, i.e., whether a confession was involuntary as a matter of law, it cannot be assumed that these decisions meant that "unnecessary delay" is a factual question upon which a jury should be instructed and allowed to decide in determining voluntariness.
Not only is the instruction not legally required, but in my view it would be unwise to instruct the jury as appellant here requested and the majority now requires. First, it is clear that if the jury is to be instructed on "unnecessary delay", it will also have to be instructed as to what does not constitute "unnecessary delay". See, e. g., Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417, 418 (1972), adhering approvingly to the guidelines laid down in Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574, 579 (1968) (Burger, J., concurring). To give these added instructions seems to me to invite confusion, and to draw undue attention to one factor in the totality equation and away from the central issue of voluntariness. Second, instructing the jury that they may consider "unnecessary delay" as a factor in the totality of the circumstances implies that if the jury decides that the delay was not unnecessary, it should not consider the delay at all in assessing the voluntariness of the statement. But this would be unfair to the defendant, who is entitled to have the jury consider the length of time he was in police custody as a factor in voluntariness regardless of whether the delay prior to preliminary arraignment was necessary or not. See, e.g., Commonwealth v. *401 Simms, 455 Pa. 599, 602-3, 317 A.2d 268 (1974) and cases cited therein.
Although I believe the trial court was correct in rejecting appellant's requested points for charge, I am neverthless of the view that the court's charge was inadequate. There is no question that a defendant who raises the issue of the voluntariness of his confession at trial is entitled to have the jury instructed on the various factors to be considered in the totality of circumstances bearing upon the voluntariness of the confession. One such factor is the length of time the defendant was in police custody prior to the giving of the challenged statement.[4] See Commonwealth v. Simms, supra.[5] In my view, appellant's requested points for charge, while erroneous and properly denied as submitted, were sufficient to alert the trial court that he should mention the length of time the defendant was kept in police custody for interrogation as being one of the various factors involved in the totality of circumstances surrounding appellant's confession. See Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969). For this reason, I join in the majority's grant of a new trial.
NIX, Justice, dissenting.
The appellant argued before this Court that the lower court erred in its refusal to grant a series of points for charge to the effect that unnecessary delay between arrest and arraignment is a factor to be considered by the jury in determining the voluntariness of the confession. The court below had refused the requested points of charge reasoning that unnecessary delay is a question of *402 law and not a concern of the jury. The majority today holds that the trial court was in error and reversed the judgments of sentence. I disagree and therefore dissent.
An analysis of the requested points for charge which are at the center of this controversy satisfies me that the points were designed to raise the evidentiary question of a violation of Pa.R.Crim.Pro. 130 and were not designed to further the inquiry as to the issue of the voluntariness of the statement.[1] Requested point of charge # 14 was a statement of Rule 130. Its inclusion in the charge would have required the jury to pass upon an alleged violation of this rule. This clearly was not within the province of the jury and is also not necessarily relevant to the issue of the voluntariness of the statement. Commonwealth v. Myers, 472 Pa. ___, 371 A.2d 1279 (1977) (Dissenting opinion of this writer joined by Eagen, J.).
*403 Requested points of charge # 15 and # 16, although phrased in terms of voluntariness, nevertheless focus upon the legal concept of "unreasonable delay". This concept has no meaning where the issue is coercion, but rather relates to a legal determination which is incident to a consideration of a Futch[2] violation.
The length of time is only significant where the question of voluntariness is at issue, and it is asserted that the period of time acted upon the accused as a coercive factor tending to overcome his will. Thus, time is normally only relevant when it precedes the confession. While we have considered post-confession delay in some instances, as stated in my dissent in Myers, I believe that this evidence is only appropriate where it is reflective of the circumstances operating at the time the confession was elicited. Such was not the case here.
Since these points for charge were designed to introduce an issue not properly before the jury, I agree with the trial court's action in refusing the charges. Additionally, since the evidence of post-confession delay would not have advanced the inquiry as to the voluntariness of the appellant's statement, I do not agree that there was an obligation for the court to permit this fact to be called to the attention of the jury.
I would affirm the judgments of sentence.
EAGEN, J., joins in this dissenting opinion.
NOTES
[1] The requested instructions were as follows:
"14. There is a rule of law that you have to apply in this situation in accordance with the instructions of the Court, which provides, that upon arrest, the defendant is to be taken before a magistrate. The law states as follows:
"When a defendant has been arrested without a warrant, he shall be taken without unnecessary delay before the proper issuing authority where a Complaint shall be filed against him.
"15. In considering the evidence as to any claim of unlawful delay or unreasonable delay, any illegal delay is but one circumstance to be considered along with any other evidence bearing upon the question of the voluntary character of the admission.
"16. As to any claim of delay in arraignment that is in issue under the evidence, it is for the jury to determine as a question of fact as to whether there was any unnecessary delay. If the jury finds that delay in arraignment of the defendant was unnecessary then and in that event, it constitutes a circumstance that can be considered along with any other evidence bearing upon the question of the voluntary character of the admissions.
"17. If you find from the evidence that there was a noncompliance with the prompt arraignment section and that there was an unlawful or unnecessary delay, you have a right to consider that in determining the question as to whether any admissions statements were voluntary or involuntary. Of course, you take that into consideration with all the other evidence in the case."
[2] Commonwealth v. Simms, 455 Pa. 599, 317 A.2d 265 (1974); Commonwealth v. Koch, 446 Pa. 469, 288 A.2d 791 (1972); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
[3] Obviously this Court is free to look at the facts presented at trial and determine as a matter of law that the facts constitute "unnecessary delay" within the meaning of Rule 130.
[4] The circumstances, including length of time in custody, surrounding a suspect's detention in police custody after confession and prior to arraignment may also be relevant on the question of voluntariness of the confession. See Commonwealth v. Myers, 472 Pa. ___, 371 A.2d 1279 (1977).
[5] Others include age, intelligence, duration of questioning, physical and mental condition of accused, etc.
[1] The requested instructions were as follows:
"14. There is a rule of law that you have to apply in this situation in accordance with the instructions of the Court, which provides, that upon arrest, the defendant is to be taken before a magistrate. The law states as follows:
"When a defendant has been arrested without a warrant, he shall be taken without unnecessary delay before the proper issuing authority where a Complaint shall be filed against him.
"15. In considering the evidence as to any claim of unlawful delay or unreasonable delay, any illegal delay is but one circumstance to be considered along with any other evidence bearing upon the question of the voluntary character of the admission.
"16. As to any claim of delay in arraignment that is in issue under the evidence, it is for the jury to determine as a question of fact as to whether there was any unnecessary delay. If the jury finds that delay in arraignment of the defendant was unnecessary then and in that event, it constitutes a circumstance that can be considered along with any other evidence bearing upon the question of the voluntary character of the admissions.
"17. If you find from the evidence that there was a noncompliance with the prompt arraignment section and that there was an unlawful or unnecessary delay, you have a right to consider that in determining the question as to whether any admissions statements were voluntary or involuntary. Of course, you take that into consideration with all the other evidence in the case."
[2] 447 Pa. 389, 290 A.2d 417 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267183/ | 174 Cal. App. 4th 637 (2009)
___ Cal.Rptr.3d ___
In re BRANDEN O., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
BRANDEN O., Defendant and Appellant.
No. A123065.
Court of Appeals of California, First District, Division Four.
May 29, 2009.
*639 Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SEPULVEDA, J.
The minor appeals from a dispositional order that followed a contested jurisdictional hearing where the juvenile court found that the minor committed assault with a stun gun, a misdemeanor. (Pen. Code, § 244.5.[1]) The minor argues on appeal that insufficient evidence supports the jurisdictional finding, because the person he shocked was not immobilized, as set forth in the statute. He also argues that the juvenile court abused its discretion in admitting expert testimony about the stun gun used by the minor. We find no error and affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of August 17, 2008, two teenaged boys (Hunter B. and John M.)[2] were playing on the computer at John M.'s Walnut Creek home, when they looked out the window and saw the minor and another boy they did not know reaching into cars parked in neighbors' driveways.[3] Believing that the boys were trying to steal the cars or something inside them, Hunter B. went outside to confront them. When Hunter B. got close to the *640 minor, the minor "tased" him with a stun gun.[4] Hunter B. testified that he felt a shock. He took "one step back from the shock," paused for a few seconds, then ran and tackled the minor to the ground and hit him. The minor then "tased" Hunter B. again. When Hunter B. was shocked the second time, he released the minor and then "kind of sat on the ground for a few seconds and recuperated from being tased one more time." Hunter B. wrestled the minor to the ground and punched him. The minor's companion (Joseph C.) then tackled Hunter B., who released the minor and Joseph C. and let them go. Hunter B. walked slowly toward John M., and they called the police. A line could be seen on Hunter B.'s upper chest where he was shocked.
Two Walnut Creek police officers detained the minor a short time later and found a stun gun in plain view in the bushes about three feet away from him. One of the officers, Officer Joseph Donleavy, displayed the gun in court, and turned it on. The gun emitted blue light and made a buzzing sound that was "very loud and frightening," according to the juvenile court. Donleavy testified that, based on his training and experience with tasers issued by the police department that have similar capabilities, it was his opinion that the stun gun was capable of temporarily immobilizing someone by inflicting an electrical charge. He acknowledged on cross-examination that he did not know the specific electrical capacity of the device, and he had never actually seen that type of weapon used on a human being in the field.
A petition was filed alleging that the minor came within the provisions of Welfare and Institutions Code section 602, in that he committed misdemeanor assault with a stun gun in violation of Penal Code section 244.5, subdivision (b). Following a contested jurisdictional hearing, the juvenile court sustained the petition. The court stated, "I saw the stun gun demonstrated here in court. It was very loud. It is a terrifying noise, actually. I saw the blue lightswhich looked electrical to this courtunless blue can come out of the air for no reason at allemanating from this gun." The court said it had seen the wound Hunter B. suffered and heard his testimony that he felt a shock at his chest and heard the "buzz of a taser." The court observed, "He [Hunter B.] did say that he did not get up as fast, right after the taser, as he thought he could have when he felt the shock. He was slower taking after the young man here in this court. [¶] I don't know what else one has to prove that this was a stun gun and that this was used in a very aggressive way."
The court adjudged the minor a ward of the court with no termination date, and placed the minor on probation subject to various terms and conditions. This timely appeal followed.
*641 II.
DISCUSSION
A. Substantial Evidence Supports Finding That Minor Used a Stun Gun.
The minor first argues that there was insufficient evidence that he used a device that met the statutory definition of a stun gun. (§ 244.5, subd. (a).) In reviewing the trial court's determination, this court "`must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]'" (In re Manuel G. (1997) 16 Cal. 4th 805, 822 [66 Cal. Rptr. 2d 701, 941 P.2d 880], original italics.)
(1) At the time the crime was committed, section 244.5 provided that it was unlawful to assault another with a stun gun or taser. (§ 244.5, subd. (b).) A "stun gun" was defined as "any item, except a taser, used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge."[5] (Former § 244.5, subd. (a), italics added.)
The minor argues that the prosecution failed to prove that he violated section 244.5, because Hunter B. was never immobilized by the device used on him. The statute does not define the word "immobilizing," and no published case interprets it. The parties agree that we may rely on dictionary definitions to determine whether the device the minor used was a stun gun, as defined by the statute. (People v. Forrest (1967) 67 Cal. 2d 478, 480-481 [62 Cal. Rptr. 766, 432 P.2d 374] [dictionary definitions of dirks, daggers].) "Immobilize" is defined as "to make immobile," as "to prevent freedom of movement or effective use of," or "to reduce or eliminate motion of (the body or a part) by mechanical means . . . ." (Merriam-Webster's Collegiate Dict. (11th ed. 2004) p. 621, col. 1 (Merriam-Webster's).) "Immobile," in turn, is defined as "incapable of being moved," or "not moving." (Ibid.)
Hunter B. testified that he "was slower" reacting after he was shocked the first time, which enabled the minor and his companion to get "a lead" on him. John M. testified that Hunter B. released the minor after he was "tased" the second time, and he "kind of sat on the ground for a few seconds and *642 recuperated from being tased one more time." This was sufficient to show that Hunter B. was temporarily immobilized (§ 244.5, subd. (a)), because the minor "prevent[ed his] freedom of movement or effective use [there]of" and "reduce[d] . . . motion of (the body or a part) by mechanical means" (Merriam-Webster's, supra, at p. 621, col. 1).
The minor focuses on cases with extreme examples of victims being "immobilized" in arguing that Hunter B. was not sufficiently affected here. (People v. Navarette (2003) 30 Cal. 4th 458, 495 [133 Cal. Rptr. 2d 89, 66 P.3d 1182] [defendant immobilized victim before murdering her by tying her hands and feet together, demonstrating murder was intentional]; People v. Blake (2004) 117 Cal. App. 4th 543, 559 [11 Cal. Rptr. 3d 678] [defendant used chemical spray to "immobilize and temporarily disable" victims, resulting in great bodily injury because of respiratory distress for 10 minutes, burning sensations, and temporary blindness].) He fails to consider that the statute focuses on whether a stun gun can temporarily immobilize a victim. "Temporarily" is defined as "during a limited time" (Merriam-Webster's, supra, at p. 1286, col. 2), a period that can last "less than a minute" (People v. Score (1941) 48 Cal. App. 2d 495, 497 [120 P.2d 62] [temporary possession of another's vehicle can occur in short period of time]). Although it is true that Hunter B. apparently was not affected by the stun gun for more than a few seconds, when he was slowed down and apparently forced to release his hold on the minor, this was sufficient to show that he was temporarily immobilized.[6]
(2) Even assuming that Hunter B. was not temporarily immobilized, substantial evidence still supports the juvenile court's jurisdictional finding, because section 244.5 does not require that a victim actually be temporarily immobilized. The statute defines a "stun gun" as being "capable of temporarily immobilizing a person by the infliction of an electrical charge." (§ 244.5, subd. (a), italics added.) There is no requirement that a victim actually be immobilized, which is reflected in a standard jury instruction for the offense. (CALCRIM No. 876 ["No one needs to actually have been injured by the defendant's act."].) The question is not whether immobilization was actually caused (although that is probative of the stun gun's capabilities), but whether the device at issue was capable of producing that result. (People v. Armstrong (1992) 8 Cal. App. 4th 1060, 1063, 1065-1066 [10 Cal. Rptr. 2d 839] [§ 245, *643 subd. (a)(1) prohibits assault with force likely to produce great bodily injury; no requirement that such injury actually occur].) (3) Here, there is no dispute that the minor assaulted Hunter B. with a device that emitted an electrical charge, and Officer Donleavy testified that the device was capable of temporarily immobilizing a person. This was sufficient evidence to show that the minor assaulted Hunter B. with a stun gun, as defined by section 244.5, subdivision (a).
The minor argues that Donleavy's testimony about the capability of the stun gun the minor used was speculative, and that Donleavy did not know the electrical capacity of the device.[7] Although it is true that the officer did not know the precise specifications of the stun gun the minor used, he provided sufficient foundation for his opinion about its capability. He testified, "The stun capacity of this is exactly the same as the taser's stunning capacity. The Department issued taser works in two modes: there's a mode where you fire two darts, which spread, create a connectionor, with the cartridge removed there's two prongs permanently fixed where you can do a stun driving which is exactly what this does. [¶] . . . [¶] I've seen it done to officers and I've also done it to suspects in the field." We agree with the juvenile court that it was not necessary that Donleavy use "the exact same gun" that the minor used in order to testify about its capabilities, where he was sufficiently familiar with the way stun guns are used based on his training and experience. There was sufficient evidence that the stun gun at issue was capable of temporarily immobilizing a person, and substantial evidence supports the juvenile court's finding that the minor violated section 244.5.
B. No Abuse of Discretion to Admit Donleavy's Testimony.
The prosecutor never asked that Donleavy be qualified as an expert. The minor argues on appeal that the juvenile court abused its discretion in admitting Donleavy's "expert" testimony, because he was not qualified to give such testimony. We disagree.
(4) Evidence Code section 720, subdivision (a) provides that a person may testify as an expert if he has sufficient special knowledge, skill, *644 experience, training, or education to qualify him as an expert on the subject to which he will be testifying. An expert may testify on a "subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact," and is based on matter that is known to the witness and is of a type that reasonably may be relied on. (Evid. Code, § 801.) "`"The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement."'" (People v. Watson (2008) 43 Cal. 4th 652, 692 [76 Cal. Rptr. 3d 208, 182 P.3d 543].) A lower court's ruling on the admissibility of expert testimony is reviewed for abuse of discretion. (Ibid.)
The minor argues that the juvenile court did not require the prosecutor to sufficiently identify the fields of expertise about which Donleavy was going to testify, and the court likewise did not require the prosecution to demonstrate the officer's qualifications to testify as an expert (Evid. Code, § 720, subd. (a)). This is likely because the prosecutor never offered Donleavy as an expert. As respondent notes, had the minor objected below on the grounds advanced on appeal, both parties could have conducted voir dire and requested that the court make an appropriate ruling as to the officer's qualifications.
Even assuming arguendo that this issue was not waived by failure to object, as respondent argues, the argument lacks merit. As set forth above (pt. II.A.), Donleavy provided sufficient foundation for his testimony: he testified that he was not formally trained with stun guns, but that officers are issued tasers with the capacity to temporarily immobilize someone from the electrical charge. He also testified that he had encountered similar stun guns in the field when he took them from suspects, that his taser made a similar sound as the device that the minor used, and that the stun capacity of the device used by the minor was "exactly the same" as his taser. Although he testified that he did not know the actual electrical capacity of the stun gun used by the minor, he did not "concede[] that he did not know whether th[e] particular device had the capacity to incapacitate someone based on its electrical output," as the minor claims. Further, given the foundation that was laid, Officer Donleavy's testimony was clearly regarding an area beyond common experience and was of assistance to the trier of fact, as required by Evidence Code section 801.
Donleavy also testified that he had seen injuries from tasers used in "the stun gun method," and that Hunter B.'s injury from the stun gun (as depicted in a photograph taken after he was shocked) was consistent with the use of a taser that would be used by police officers. We disagree with the minor's argument that this was improper "expert medical testimony," because no medical expertise was necessary to support it. Moreover, Donleavy did not testify (as the minor claims on appeal) that Hunter B.'s injury "could medically demonstrate that the device that appellant used produced an *645 electrical current capable of temporarily immobilizing a person," or that "an injury like the one depicted in the photograph could result only from a device which was capable of temporarily immobilizing a person." Any reasonable inferences from the officer's testimony were left to the juvenile court to draw. The court did not abuse its discretion in admitting Donleavy's testimony.
III.
DISPOSITION
The dispositional order is affirmed.
Ruvolo, P. J., and Reardon, J., concurred.
NOTES
[1] The statute was amended effective January 1, 2009 (Stats. 2008, ch. 556, § 1), after the date of the minor's offense. (See post, fn. 5.) The changes to the statute do not affect the issues we address in this opinion. All statutory references are to the Penal Code unless otherwise indicated.
[2] For the reasons set forth in In re Edward S. (2009) 173 Cal. App. 4th 387, 392, footnote 1 [92 Cal. Rptr. 3d 725], we decline to follow the "`informal recommendation of the Reporter of Decisions'" to identify minors in delinquency proceedings by only their initials to protect their privacy, and instead use the parties' first names and last initials. (Cal. Rules of Court, rule 8.400(b)(2); see also Cal. Style Manual (4th ed. 2000) §§ 5:9, 5:10, p. 180 ["Individuals entitled to protective nondisclosure are described by first name and last initial...."].)
[3] The other boy was later identified as Joseph C. According to the minor, no petition was filed against Joseph C.
[4] Although witnesses testified that Hunter B. was "tased," the device at issue was a stun gun, not a taser.
[5] The section now similarly defines "stun gun" as "any item, except a less lethal weapon, as defined in Section 12601, used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge." (§ 244.5, subd. (a); Stats. 2008, ch. 556, § 1.) The word "taser" no longer appears in the statute.
[6] The minor argues in his reply brief that the "common sense understanding" of being shot with a stun gun is based on television images of people being tased: "those people fall to the ground and writhe uncontrollably for some period of time." We note that section 244.5 is a wobbler, with a maximum possible sentence of three years in prison. (§ 244.5, subd. (b).) The petition here alleged only a misdemeanor violation. Had the minor's use of a stun gun here immobilized Hunter B. to the point where he was writhing uncontrollably for an extended period of time, perhaps a felony would have been alleged. In any event, we decline the minor's invitation to rely upon television renditions in interpreting the scope of the statute.
[7] When asked on cross-examination whether Donleavy was "speculating that [the device] would be similar because it's based on the same science as the one you use as a trained police officer with the weapons that are given to you as standard issue?" Donleavy replied, "Yes." The following exchange also took place during cross-examination: "Q. So do you have any experience with this particular weapon? [¶] A. No. [¶] Q. And you didn't try this particular type of weapon on yourself? [¶] A. No. [¶] Q. Or on another person? [¶] A. No. [¶] Q. So you actually have no actual experience with regard to this particular weapon on whether it puts out a sufficient electric charge to immobilize a human being? [¶] A. Not with that particular weapon." Contrary to the minor's assertion, Donleavy did not "reverse[ ] his original opinion while on the stand," because he consistently testified that although he had not used the particular weapon at issue, it was his opinion it was capable of temporarily immobilizing a person. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267184/ | 999 F. Supp. 783 (1998)
Teresa Ann WILSON, # 168081, Petitioner,
v.
Michael MOORE, Commissioner of SCDC; and Charles Molony Condon, Attorney General of the State of South Carolina, Respondents.
No. CIV.A. 2:97-1040-20AJ.
United States District Court, D. South Carolina, Charleston Division.
March 27, 1998.
*784 David I. Bruck, Columbia, SC, for Petitioner.
Donald J. Zelenka and Robert F. Daley, Jr., Office of the Attorney General, Columbia, SC, for Respondents.
ORDER
HERLONG, District Judge.
This matter is before the court with the Report and Recommendation of the United States Magistrate Judge, made in accordance with 28 U.S.C. § 636(b) and Local Rule 19.02 DSC.[1] Teresa Ann Wilson ("Wilson"), a state *785 prisoner, seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Wilson filed her petition on April 21, 1997. The Respondents filed a motion for summary judgment on June 18, 1997. Wilson responded with a memorandum opposing the motion on August 8, 1997. In his Report and Recommendation, the Honorable Robert S. Carr recommends that the court grant the motion. For the reasons stated below, this court accepts the Magistrate Judge's recommendation and grants the Respondents' motion.
I. STATEMENT OF THE FACTS
A. Procedural and Factual Background
The Grand Jury of South Carolina indicted Wilson; her husband, Ronnie Wilson; and several members of the Wilson family on numerous drug-related charges. Wilson and her husband retained Douglas S. Strickler ("Strickler") as their attorney. On May 1, 1990, following a week-long trial, a jury found Wilson and her husband guilty of two counts of conspiring to traffick cocaine and marijuana and one count of the actual trafficking of cocaine. The state court sentenced Wilson and her husband to twenty-five (25) years in prison.
Wilson appealed her conviction and sentence by raising ten separate faults with her criminal trial.[2] On July 19, 1993, the Supreme Court of South Carolina affirmed the two conspiracy convictions. See State v. Wilson, 315 S.C. 289, 433 S.E.2d 864 (1993). However, the state court vacated the trafficking conviction because the state grand jury did not have subject matter jurisdiction over that charge. Id. Wilson asked the Supreme Court of South Carolina to rehear the matter. On August 17, 1993, the court denied her request.
On October 15, 1993, Wilson filed an application for post-conviction relief ("PCR"), alleging several grounds. Wilson argued that she was unlawfully sentenced, that her counsel was ineffective, and that her counsel operated out of a conflict of interest by representing both her and her husband. On July 20, 1994, Wilson's new counsel amended her PCR application to assert that her right to counsel was violated by Strickler's joint representation of Wilson and her husband at trial. Furthermore, Wilson's amendment stated that she did not knowingly waive her right to separate counsel. The South Carolina PCR court allowed the amendment.
A South Carolina Court of Common Pleas heard Wilson's request for PCR on July 20, 1994, with testimony from both Wilson and Strickler. Wilson testified "concerning the abuse and domination that characterized her marriage before and during trial." (Pet.'s for State Writ of Habeas Corpus at 12.) Furthermore, Wilson stated that it was this abuse that led her to agree to Strickler's joint representation of her and her husband. On March 31, 1995, the Honorable L. Casey Manning dismissed Wilson's PCR application.[3] Wilson notified the PCR court of her *786 intent to appeal its ruling on May 4, 1995. Wilson filed a petition for a writ of certiorari to the Supreme Court of South Carolina based on two issues: (1) the denial of Wilson's right to counsel due to Strickler's joint representation of Wilson and her husband; and (2) the ineffectiveness of her waiver of Strickler's conflict of interest. The Supreme Court of South Carolina denied Wilson's petition on February 22, 1996.
As noted above, Wilson filed the instant petition on April 21, 1997. Attached to her petition were several affidavits and a psychiatric report that had not been submitted to the South Carolina courts.[4] On October 2, 1997, after reviewing the Respondents' motion for summary judgment, Magistrate Judge Carr ordered the parties to brief the court on the issue of whether the federal courts could review the newly filed affidavits and psychiatric report. Prior to a ruling by Magistrate Judge Carr, in November of 1997, Wilson filed a petition for a Writ of Habeas Corpus in the original jurisdiction of the Supreme Court of South Carolina seeking its consideration of the new documents.[5] The Supreme Court of South Carolina denied this petition on December 22, 1997. Magistrate Judge Carr issued his Report and Recommendation without considering the new evidence, and recommended the denial of Wilson's petition.
B. Grounds for Habeas Corpus Relief
Wilson's federal habeas petition argues for her release based on two related grounds:
Petitioner was denied her Sixth and Fourteenth Amendment right to the effective assistance of counsel because she was represented at trial by the same attorney who also represented her co-defendant husband, and because she did not validly waive her right to conflict-free representation.
(Pet. for Writ of Habeas Corpus at 6.) Wilson attempts to supplement the facts presented in the underlying state actions with several affidavits and a medical report on her psychiatric and emotional condition. The thrust of Wilson's argument is that she was intimidated into using her husband's trial counsel because of a history of spousal abuse. Though Wilson presented these issues to the state PCR court, she supported them only with her own testimony. The sworn affidavits and psychiatric report attest to Wilson's history and condition as a battered wife.
II. DISCUSSION OF THE LAW
Wilson filed her petition for federal habeas corpus relief in this court on April 21, 1997. As such, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 govern the court's resolution of her case.[6] Therefore, the court will first present *787 the posture of this case under the AEDPA. The court will then decide the merits of the Respondents' motion.
A. 28 U.S.C. § 2254
Generally, federal courts must deny habeas relief to a state prisoner whose claim was decided on the merits in the state courts. 28 U.S.C. § 2254(d) (1997). Unlike federal habeas corpus analysis under the pre-AEDPA law, "[t]he focus of federal court review is now the state court decision that previously addressed the claims rather than the petitioner's freestanding claims themselves." McLee v. Angelone, 967 F. Supp. 152, 156 (E.D.Va.1997). State prisoners may obtain federal habeas relief if they show the state's decision was: (1) against "clearly established Federal law;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). As stated above, the South Carolina PCR court heard the two related claims that Wilson brings in the instant action: (1) denial of effective assistance of counsel at trial due to her sharing an attorney with her husband; and (2) an involuntary waiver of her right to conflict-free legal representation. The PCR court dismissed Wilson's claims. The Supreme Court of South Carolina denied her request to review the PCR court's decision. Therefore, Wilson must convince this court that the South Carolina courts failed to properly apply the tenets of federal law or that the state courts' decisions were unreasonable.
Wilson's petition challenges both points under section 2254(d). First, Wilson contends that the decision of the PCR court, and the recommendation of the Magistrate Judge, fail to recognize a clear violation of her federal right to effective assistance of counsel. (Pet.'s Resp. to Mot. for Summ. J. at 1-5; Pet.'s Objs. to the Rep. & Rec. at 6-14.) Furthermore, Wilson charges that the state PCR court and the Magistrate Judge's recommendation are not reasonable under the facts presented to the state courts. (Pet.'s Reply to Resps.' Supp. Mem. of Law at 5-6; Pet.'s Objs. to the Rep. & Rec. at 1-5.) Before the court can consider the merits of Wilson's petition, it must first determine what evidence in support of her claim is properly before this court.
B. Wilson's New Evidence
1. Consideration of new evidence by South Carolina's courts
The court cannot review Wilson's new affidavits and psychiatric evidence. Congress has decided that a federal habeas corpus court must judge the reasonableness of the state court decision "in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2) (emphasis added). The first issue before the court is whether or not the South Carolina courts effectively considered the new affidavits and psychiatric report in denying Wilson's pleas for post-conviction relief. This evidence was never before any South Carolina court until Wilson's petition for a writ of habeas corpus before the Supreme Court of South Carolina last November. Therefore, this court must now determine if the Supreme Court of South Carolina considered the merits of Wilson's claim in light of the new evidence, or whether the court refused to view the new evidence and disposed of her writ through a state procedural bar.
The Supreme Court of South Carolina's denial of Wilson's petition for a writ of habeas corpus was based on a state procedural bar. This court may not review a state court's decision "if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). In some instances, "there is a presumption in habeas that a state court's dismissal of a petition for collateral relief does not rest on an independent and adequate state ground and that the state court has rejected the petitioner's federal claims on the merits." Nickerson v. Lee, 971 F.2d 1125, 1127 (4th Cir.1992) (referring to presumption created in Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989)). However, federal courts must follow the Harris presumption "`only ... in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision.'" *788 Nickerson, 971 F.2d at 1127 (quoting Coleman, 501 U.S. at 739). Thus, the court must decide if good reason exists to question the Supreme Court of South Carolina's summary denial of Wilson's claim.
Fourth Circuit habeas corpus jurisprudence looks to certain factors when determining whether cursory state court rulings are based on state procedural grounds. See Smith v. Dixon, 14 F.3d 956, 963 (4th Cir.), cert. denied, 513 U.S. 841, 115 S. Ct. 129, 130 L. Ed. 2d 72 (1994), reh'g denied, 513 U.S. 1105, 115 S. Ct. 785, 130 L. Ed. 2d 678 (1995).[7] The decision in question by the South Carolina Supreme Court reads: "Petition for Habeas Corpus is denied." (Mag. Judge's Rep. & Rec. at 7 n. 1.)[8] If a state court issues an ambiguous, summary ruling, federal courts must examine the nature of the state court's disposition by considering: (1) the absence of a separate, federal reason for the state court's adjudication of the case; (2) whether the state court "dismisses" or "denies" the action; and (3) the circumstances surrounding the entry of the order. Smith, 14 F.3d at 963 (citing Coleman, 501 U.S. at 739-40; Ylst v. Nunnemaker, 501 U.S. 797, 802-03, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991)). In the instant case, these factors weigh in favor a procedural disposal of Wilson's state habeas corpus writ.
a. Absence of federal law
The absence of a discussion in the South Carolina Supreme Court's decision demonstrates its reliance on state procedural grounds. This court can view this silence as evidence of a decision on the merits only if there is "good reason to question whether there is an independent and adequate state ground for the decision." Coleman, 501 U.S. at 739. In Coleman, the Court relied heavily on the two facts in determining a state court procedurally dismissed a prisoner's appeal: *789 (1) that a procedural remedy existed under the state law to dispose of the post-conviction appeal and (2) that the state relied exclusively on this procedural bar in its arguments to the state court. Id. at 740; see Ylst, 501 at 802-03 (1991). These components line up against Wilson.
South Carolina's post-conviction procedural rules provided a way to quash Wilson's state habeas petition. An examination of these rules reveal the likelihood that the state's highest court disposed of Wilson's petition under a procedural precept. Though she attempted to invoke the high court's original jurisdiction, Wilson acknowledges that the PCR procedural rules governed her petition for a state writ of habeas corpus. (Pet.'s Objs. to the Rep. & Rec. at 5 n. 2) ("[T]raditional procedural default rules applicable to post-conviction relief claims are likewise applicable in habeas corpus proceedings."); see also S.C.Code Ann. § 17-27-30 (1985) (PCR rules should apply to habeas corpus writs in the original jurisdiction of the Supreme Court of South Carolina). South Carolina's rules governing PCR hearings state: "All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental or amended application." S.C.Code Ann. § 17-27-90 (1985). Any issue which could have been raised in the initial state PCR action cannot be raised in a second PCR action. Arnold v. State, 309 S.C. 157, 420 S.E.2d 834, 842-43 (1992). A PCR applicant cannot circumvent this rule and file a successive application "on the ground that his first complete PCR application was insufficient due to ineffective PCR counsel." Aice v. State, 305 S.C. 448, 409 S.E.2d 392, 393 (1991). The history of Wilson's case shows that she did not comply with these procedural guidelines.
As detailed above, Wilson argued to the PCR court that the trial attorney's joint representation of her and her husband rendered her counsel ineffective. Wilson testified on her own behalf at the PCR hearing to support these claims. In her state habeas petition, Wilson argued that her PCR counsel did not "present any corroboration of [Wilson's] testimony, even though such corroboration was readily available ...." (State Pet. for Writ of Habeas Corp. at 13.) She now allegedly has this corroboration in her new affidavits and medical report. Wilson's attempt to present this evidence to the Supreme Court of South Carolina is effectually a second PCR application, based on the same claim for ineffective assistance of counsel. She argued that the state court should consider the evidence because her PCR attorney did not do his job the first time. However, as outlined above, South Carolina procedural rules prevent successive PCR applications, even if the PCR counsel was ineffective. See Arnold, 420 S.E.2d at 843; Aice, 409 S.E.2d at 393. Furthermore, the state did not address Wilson's substantive claims in arguing for the Supreme Court of South Carolina to refuse her state habeas petition. (Suppl. Mem. of Law in Supp. of Mot. for Summ. J. at 1.) The state urged the high court to dismiss Wilson's claim without reaching the merits of the case. (Id.) Therefore, it is likely that the state court's denial of Wilson's state habeas petition did not reach the merits of her claim. Instead, the South Carolina Supreme Court recognized this procedural bar and summarily disposed of her claim.
b. "Denial" v. "Dismissal"
The "denial" by the Supreme Court of South Carolina, rather than a "dismissal," does not evidence its consideration of the merits of Wilson's claim. Wilson argues that a "denial" by a court indicates that the court considered the merits of the claim and refused to grant relief. (Pet.'s Objs. to the Mag. Judge's Rep. & Rec. at 2.) On the other hand, a "dismissal" by a court demonstrates the court relied on some procedural default without analyzing the substance of the claim. (Id. at 4.) Though the Coleman court did consider this terminology as evidence, see Ylst, 501 U.S. at 802 (noting "dismissal" of case in Coleman was a "clue" for court to use), no bright line rule exists. In Smith, the Fourth Circuit wrestled with a summary "denial" by a Virginia state court. Under the Coleman analysis, the Smith court held that the other factors surrounding the state order showed that the state court based its decision on a state procedural bar, despite the "denial" language. Smith, 14 F.3d at 963. Wilson's claim is very similar. Though the South Carolina Supreme Court "denied" *790 Wilson's habeas petition, the factors surrounding the disposal of her case overwhelmingly point to a state procedural bar.
c. Surrounding circumstances
The unusual posture and timing of Wilson's petition evidence that the South Carolina Supreme Court refused to consider the merits of her claim. "Surrounding circumstances [may] indicate[] that the basis [for a summary state court ruling] was procedural default." Ylst, 501 U.S. at 802. Wilson had already exhausted the standard state post-conviction procedures prior to filing her federal habeas corpus petition. The same claims presented in her federal petition had already been argued before a state PCR court. The PCR court refused to grant Wilson relief from her conviction and the South Carolina Supreme Court refused to review the PCR decision. Wilson, for the first time, submitted the new evidence supporting her claims with her federal petition. Only after the United States Magistrate Judge ordered her and the Respondents to brief the federal court on the admissibility of the new evidence did Wilson request the Supreme Court of South Carolina to take the extreme measure of exercising its original jurisdiction to grant her a state writ of habeas corpus.
Wilson filed her state petition in the South Carolina Supreme Court's original jurisdiction in early November, 1997. South Carolina court rules require a party seeking to invoke the high court's original jurisdiction to file a petition and a complaint stating their requested relief. S.C.A.C.R. 229(b). Once notified of the petition, a respondent has twenty (20) days to respond. Id. at 229(c). Accordingly, the South Carolina Supreme Court could not properly consider the matter before the state's response near the end of November. The Supreme Court denied Wilson's petition on December 29, 1997. It is highly unlikely that, in this short span of time, the state's highest court considered the substantive issues and voluminous records, including the new evidence, involved in Wilson's claims. When considering its ability to grant habeas writs through its original jurisdiction, the South Carolina Supreme Court often details its reasoning. See, e.g. Key v. Currie, 305 S.C. 115, 406 S.E.2d 356 (1991) (denying writ petition because no "extraordinary reason" existed); Butler v. State, 302 S.C. 466, 397 S.E.2d 87 (1990) (granting writ petition where facts involved were "shocking to the universal sense of justice"). The one-sentence denial of Wilson's petition shows the state did not consider the merits of her claim in light of the new evidence.[9]
The above analysis instructs the court that Wilson failed to properly present her new evidence to the South Carolina courts. However, evidence not presented to state courts may come before a federal habeas court if certain conditions are met.
2. Federal Evidentiary Hearing
Under AEDPA, federal courts presiding over habeas petitions from state prisoners must normally presume that all factual findings in the prior state proceedings are correct. 28 U.S.C. § 2254(e)(1); Ward, 989 F.Supp. at 759-60. When considering habeas petitions:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
*791 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Id. at § 2254(e)(2). It is clear that section "2254(e)(2) is designed to restrict the development of facts in federal habeas proceedings that were not known to or considered by a state court." Cardwell v. Netherland, 971 F. Supp. 997, 1011 (E.D.Va.1997). In restricting such facts, the statute "must only apply to a subset of applicants seeking to introduce new evidence in federal court." Id. One seeking to admit new evidence "`fails' when he does not take or seek the opportunity to develop evidence in a state court proceeding." Id. By contrast, "an applicant does not `fail' where he seeks, but is denied, the opportunity to develop facts in state court." Id. Thus, Wilson's attempt to introduce the new evidence hinges on whether she properly attempted to introduce the same in her state court proceedings.
The court cannot consider Wilson's new evidence because she did not seek to submit it to the South Carolina courts at the appropriate time. Wilson's claim before this court does not rely on a retroactive application of new constitutional law. See 28 U.S.C. § 2254(e)(2)(A)(i). Also, the new evidence is not the type that "could not have been previously discovered through the exercise of due diligence." Id. at § 2254(e)(2)(A)(ii). As painstakingly depicted above, Wilson had an opportunity to present all of her evidence when she first argued her claims before the state PCR court. Her efforts to circumvent the strict state and federal procedural rules governing habeas corpus cases have failed. Therefore, this court cannot consider Wilson's new evidence.
C. Respondent's Summary Judgment Motion
1. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A disputed fact is "material" if it might affect the outcome of the lawsuit under governing law. Id. A court must view the facts and inferences to be drawn in the light most favorable to the nonmoving party. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990).
2. Sixth Amendment Right to Counsel
Nothing in her state court proceedings violated Wilson's constitutional right to counsel.[10] The Sixth Amendment to the United States Constitution "guarantees criminal defendants the right to effective assistance of counsel, including the right to representation free from conflicts of interest." Gilbert v. Moore, 134 F.3d 642, 652 (4th Cir.1998)) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A counsel is ineffective if: (1) his performance was deficient, or fell below an objective standard of reasonableness; and (2) that this deficient performance prejudiced his client's case so that the criminal defendant was deprived of a fair trial. Strickland, 466 U.S. at 687-688. Furthermore, Wilson's right to effective assistance of counsel, including the right to conflict-free representation, is subject to waiver. Gilbert, 134 F.3d at 652-53. Wilson's claim is judged under these standards.
a. Strickland Test
Wilson's allegation that her counsel was ineffective fails under the analysis outlined in the Strickland opinion. Wilson claims her counsel was ineffective due to a conflict of interest that arose from his joint *792 representation of her and her husband. Joint representation is not a per se violation of the constitutional right to effective counsel. Id. at 652. However, a federal habeas corpus petitioner can prevail in an effective assistance of counsel claim by "demonstrating the existence of an actual conflict of interest." Id. (citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)). The petitioner must do this by showing: (1) her interests parted with her attorney's due to a material fact, a legal issue, or a course of action; and (2) "that the conflict adversely affected [her] attorney's performance." Gilbert, 134 F.3d at 652. Under the Strickland analysis, if the petitioner proves these two elements, "prejudice is presumed and [she is] entitled to habeas relief." Id. Wilson fails under this test to show her attorney suffered from an actual conflict of interest.
Wilson's attorney, Strickler, always maintained Wilson's interests in his representation at her trial. Wilson and her husband retained one attorney due to the obvious strategic benefits. Strickler testified that the Wilsons "were hanging together on this as did everyone else involved in the case." (Mag. Judge's Rep. & Rec. at 14-15.) Wilson now argues that Strickler's joint representation arrangement hindered his ability to negotiate a proper plea agreement and that Stickler failed to notify the state of Wilson's "true status" as an abused spouse. (Pet. for Habeas Corpus at 7-9.)
Wilson testified to the PCR court that her attorney negotiated a plea agreement with the state's prosecutors on her behalf. (Mag. Judge's Rep. & Rec. at 19.) However, according to Strickler's testimony, Wilson rejected all offers to plead guilty that involved her serving any time in prison. (Id. at 20.) Based on the state's record of her case, this was an unreasonable position for Wilson to take. (Id. at 16-18) (documenting Wilson's "significant involvement in the [drug] conspiracy.") Therefore, Wilson's failure to secure a proper plea bargain was caused by her own unreasonable demands, not an alleged conflict of interest by her attorney. Accordingly, Strickler always conducted Wilson's defense with her interests foremost in mind.[11]
Strickler also did not fail to account for Wilson's marital status. Wilson admits that Strickler, at most, knew that "there was some degree of disharmony in the [Wilsons'] marriage." (Pet.'s Objs. to the Mag. Judge's Rep. & Rec. at 11-12.) Strickler testified about the Wilsons' marital problems at the PCR hearing. (Id. at 12.) Wilson argues that Strickler's failure to act upon this knowledge demonstrates his inability to provide her with effective counsel. Wilson is wrong. In similar cases, federal appellate courts have found no conflict of interest existed between the defendant and her attorney.
In United States v. Acty, 77 F.3d 1054 (8th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 189, 136 L. Ed. 2d 127 (1996), the defendant argued that an attorney's joint representation of her and her husband, "along with the couple's marital difficulties, gave rise to competing interests between the two defendants." Id. at 1057. Based on these allegations, the court found no conflict existed and that the defendant had competent counsel. The Eighth Circuit reasoned:
The [husband and wife] were unified in their defense throughout the early pretrial stages.... While it is evident the couple was experiencing marital difficulties at that time, nothing in the record indicates that the marital problems were related to disagreements over either party's [defense] or over trial strategy.
Id. Similarly, Strickler's representation of Wilson was not compromised by the revelation *793 of any marital problems. This was the conclusion of the PCR court and the Magistrate Judge. This court will not disturb that decision.
b. Waiver
Even if Wilson had some articulable claim for ineffective counsel based on her joint representation arrangement, she waived this right before the South Carolina courts. "To establish in habeas corpus a deprivation of [her] constitutional right to effective assistance of counsel, Petitioner[ ] must show that [she] did not intentionally, knowingly, and voluntarily relinquish this right." Gilbert, 134 F.3d at 653. After a thorough review of her rights as a criminal defendant by the trial court, Wilson expressed a desire to waive any conflict prior to trial. (Mag. Judge's Rep. & Rec. at 23.) She followed this assent to joint representation by signing a waiver of conflict form. (Id.) As noted by the Magistrate Judge, the PCR court found "that the petitioner was advised both by counsel and the court of the hazards of joint representation and `executed a waiver of any conflict of interest.'" (Id. at 22) (quoting the PCR court.) Such factual findings by a state tribunal are presumed correct by this court. 28 U.S.C. § 2254(e)(1) (1997). Wilson has failed to rebut these findings by "clear and convincing evidence." Id. Therefore, the court finds that Wilson did waive her right to conflict-free counsel.
III. CONCLUSION
Wilson's claim for ineffective assistance of counsel fails as a matter of law. The record before the court cannot support her allegations. Wilson was afforded myriad opportunities to articulate her claim in the South Carolina courts. She may not now retry her case in the federal system. In summary, the court finds guidance from an opinion of the United States Court of Appeals for the Fifth Circuit in a strikingly similar case. In denying a right to counsel claim, the Fifth Circuit wrote:
[The defendant] was fully apprised of the dangers inherent in joint representation; she consented to the representation after the conflict was explained to her by both the court and her counsel; and [her attorney] expressed his reasonable belief that his dual representation would not affect his ability to represent [the defendant's] interests. As neither the defense of duress nor the defense of battered spouse was raised at trialand, based on the record [at trial], it is far from certain whether facts exist that would even plausibly support the raising of either defense we cannot say that [the attorney] was unreasonable in believing that his dual representation would not affect his ability to represent [the defendant]....
The record before us indicates that there are precious few facts on which a defense counsel could credibly construct an argument that [the defendant] became involved in this [drug] operation and continued her involvement for a protracted period because she was under duress or was a battered spouse .... As such, we cannot say either that the joint representation in this case created an actual conflict or that, if it did, the conflict was sufficient to impugn the judicial system or render [the defendant's] trial inherently unfair, thereby making her right to conflict-free counsel unwaivable. To the contrary, it was waivable; she did waive it; and she did so knowingly, intelligently, and voluntarily.
United States v. Rico, 51 F.3d 495, 511-12 (5th Cir.1995). This court echoes this sentiment in the instant case.
Therefore, the court adopts the Magistrate Judge's Report and Recommendation and incorporates it herein. Accordingly, it is
ORDERED that Respondents' motion for summary judgment is granted.
IT IS SO ORDERED.
NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified that he has the right to appeal this order within thirty days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.
NOTES
[1] The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).
[2] Wilson's grounds for appeal are summarized as follows: (1) the grand jury did not have jurisdiction to impose one count of her indictment; (2) prosecution of two counts of her indictment violated the "savings clause" of the South Carolina Criminal Code; (3) one count of the indictment was unconstitutionally charged because it did not occur during the time frame of the indictment; (4) two counts of the indictment failed to allege a criminal offense; (5) the indictment unconstitutionally aggregated drug amounts to constitute a "trafficking" charge; (6) two counts of the indictment were prosecuted ex post facto; (7) two counts of her indictment unconstitutionally charged her with the same offense twice; (8) prosecution of one count of the indictment constituted double jeopardy as she had already been convicted of the charges in the count; (9) the sentencing court improperly considered a prior conviction for penalty enhancement when those convictions were part of the charged indictment; (10) the trial court unconstitutionally allowed testimony regarding her possession of firearms.
[3] Judge Manning's decision, in pertinent part, reads:
The Applicant also claims she received ineffective assistance of counsel because her counsel was affected by a conflict of interest because he also represented the Applicant's husband, a co-defendant.
Until a defendant shows that his counsel actively represented conflicting interest, he has not established the constitutional predicate for a claim of ineffective assistance of counsel arising from multiple representation. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333, 347 (1980); see also, Burger v. Kemp, 483 U.S. 776, 783, 107 S. Ct. 3114, 3120, 97 L. Ed. 2d 638, 650 (1987). The mere possibility of a conflict of interest is insufficient to impugn a criminal conviction. Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719, 64 L.Ed.2d at 348.
This Court finds that counsel informed the Applicant of the hazards of representing co-defendant's and received assurance from both the Applicant and her husband that they had no reservations concerning counsel's dual representation. Additionally this Court finds that a status conference was held on February 21, 1990, before the Honorable John Hamilton Smith in which the conflict of interest issue was addressed. This Court finds that the Applicant, at that time, executed a waiver of any conflict of interest claim. This Court finds no deficiency on the part of counsel with respect to this allegation.
(Pet.'s for State Writ of Habeas Corpus at 14.)
[4] Wilson obtained affidavits from several friends and family members, including: Deborah Gentry, Rhonda Hammond, Janice Britt, Elizabeth W. Campbell, Sally McGuire. Dr. Lois J. Vernon performed the mental evaluation filed with Wilson's petition. See (Pet. for Habeas Corpus at Exhs. A-G.) The court will collectively refer to these affidavits and medical report as Wilson's "new evidence."
[5] The Supreme Court of South Carolina retains a constitutional grant of original jurisdiction to entertain habeas corpus petitions, outside of the statutory PCR proceedings, "when there is an extraordinary reason such as a question of significant public interest or an emergency." Key v. Currie, 305 S.C. 115, 406 S.E.2d 356, 356 (1991); see also Simpson v. State, 329 S.C. 43, 495 S.E.2d 429 (1998) (forthcoming published opinion).
[6] The AEDPA amended 28 U.S.C. § 2254 and altered the disposition of federal habeas corpus cases in several areas. Petitions filed after the April 24, 1996, enactment of the AEDPA fall under the new law. See Lindh v. Murphy, ___ U.S. ___, ___, 117 S. Ct. 2059, 2067, 138 L. Ed. 2d 481 (1997).
[7] The court recognizes that other courts, primarily the Eastern District of North Carolina, question the authority of the Fourth Circuit's opinion in Smith. See Brooks v. North Carolina Dep't of Correction, 984 F. Supp. 940, 949 (E.D.N.C.1997). Though not noted in the text of Judge Wilkins' opinion, an en banc session of the Fourth Circuit decided Smith and split evenly on the procedural default issue. Smith, 14 F.3d at 982 n. 16. Thus, the ruling does not carry full authoritative weight. See Ashe v. Styles, 39 F.3d 80, 86 n. 4 (4th Cir.1994). However, many courts rely on Smith's guidance in this intricate area of habeas corpus law. See, e.g., Green v. French, 978 F. Supp. 242, 250 (E.D.N.C.1997); Ward v. French, 989 F. Supp. 752, 759-60 (E.D.N.C.1997) (forthcoming published opinion). Indeed, the Smith opinion highlights the relevant Fourth Circuit case law in this area, especially in light of the United States Supreme Court opinion in Coleman v. Thompson. See infra n. 8 (discussion of Coleman and its impact on the instant case). The court relies on Smith to shed light on controlling Fourth Circuit precedent in this area of the law.
[8] Wilson argues that the South Carolina Supreme Court's "denial" of her habeas petition indicates that it considered her new evidence and rendered a decision on the merits, enabling this court to consider the same evidence. (Pet.'s Objs. to the Mag. Judge's Rep. & Rec. at 2.) She asserts that United States Supreme Court precedent requires federal courts to presume that summary denials by state supreme courts were adjudicated on the merits. (Id. at 4-5) (citing Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989).) Wilson's argument follows that a state court wishing to dispose of a claim by procedural default, without reaching the merits, will instead "dismiss" the case. (Id. at 4.) Indeed, the Respondents urged the South Carolina Supreme Court to "dismiss" Wilson's petition, rather than "deny" it. (Pet.'s Reply to Resps.' Supp. Mem. of Law at 2.) However, both sides fail to mention that the Harris presumption was significantly altered by the Court in Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).
The Fourth Circuit has established guidelines for determining when the Harris presumption applies, in light of the Coleman decision. In quoting Coleman, the Fourth Circuit instructs us that: "`Per se rules should not be applied ... in situations where the generalization is incorrect as an empirical matter; the justification for a conclusive presumption disappears when application of the presumption will not reach the correct result most of the time.'" Smith, 14 F.3d at 963 (quoting Coleman, 501 U.S. at 737). Instead, when a state court issues an ambiguous order in a matter involving federal rights, federal courts may conclude the state rested on a state procedural bar after weighing several factors: (1) whether the state order mentions federal law in the summary order; (2) whether the state court "dismisses" or "denies" the action; and (3) whether the circumstances surrounding the entry of the order indicate the state court relied on a state procedural bar. Id. This court looks to these guidelines to determine if the Supreme Court of South Carolina reviewed the merits of Wilson's habeas petition or summarily disposed of her claim by a state procedural bar.
[9] A federal habeas petitioner may overcome a state's procedural default "by demonstrating cause for failing to adhere to a state procedural requirement and prejudice resulting from that failure, or by establishing actual innocence." Brooks, 984 F.Supp. at 948 (citing Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). Wilson has not argued that she has a justifiable cause for not following South Carolina's procedural rules and that she was prejudiced by that failure. Furthermore, she does not claim to be actually innocent of the drug charges at the heart of this case. Therefore, this court finds that Wilson may not overcome the Supreme Court of South Carolina's procedural disposal of her state writ of habeas corpus.
[10] The court fully endorses the Magistrate Judge's exposition of the federal case law on a criminal defendant's right to counsel. See (Mag. Judge's Rep. & Rec. at 10-27.) The Magistrate Judge correctly applied this law to the facts of Wilson's case. The court will only briefly review the major rules of law in its opinion.
[11] Furthermore, even if Wilson could show that Strickler did depart from her interests, she cannot show that his performance was "adversely affected." Gilbert, 134 F.3d 642, 652-53. The United States Court of Appeals for the Fourth Circuit has repeatedly affirmed that an attorney's joint representation of family members does not create a conflict of interest and does not affect the attorney's ability to properly represent his clients. See, e.g., United States v. Ramsey, 661 F.2d 1013, 1019-20 (4th Cir.1981), cert. denied sub. nom, Ramsey v. United States, 455 U.S. 1005, 102 S. Ct. 1642, 71 L. Ed. 2d 874 (1982); United States v. Gilliam, 835 F. Supp. 288, 290-291 (W.D.Va.1993), aff'd, 34 F.3d 1067 (1994). The facts before the court do not warrant departing from this precedent and the conclusion of the Magistrate Judge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267193/ | 174 Cal. App. 4th 369 (2009)
___ Cal.Rptr.3d ___
ESTUARDO ARDON, Plaintiff and Appellant,
v.
CITY OF LOS ANGELES, Defendant and Respondent.
No B201035.
Court of Appeals of California, Second District, Division Three.
May 28, 2009.
As modified June 16, 2009.
*372 Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert; Cuneo Gilbert & Laduca, Jon Tostrud; Chimicles & Tikellis and Timothy N. Mathews for Plaintiff and Appellant.
Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert; Cuneo Gilbert & Laduca, Jon Tostrud; Chimicles & Tikellis and Timothy N. Mathews for Willy Granados and John W. McWilliams as Amici Curiae on behalf of Plaintiff and Appellant.
Patricia Sturdevant; Wilentz, Goldman & Spitzer, Kevin P. Roddy; and Timothy Bittle for NASCAT, Howard Jarvis Taxpayers Association, Consumer Federation of California and Utility Reform Network as Amici Curiae on behalf of Plaintiff and Appellant.
Huskinson, Brown, Heidenreich & Carlin and Paul E. Heidenreich as Amicus Curiae on behalf of Plaintiff and Appellant.
Edward M. Teyssier; and Joseph D. Henchman for the Tax Foundation as Amicus Curiae on behalf of Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Noreen S. Vincent, Assistant City Attorney, Brian I. Cheng, Deputy City Attorney; Orrick Herrington & Sutcliffe, William Molinski, Valerie M. Goo, Frank D. Rorie; Colantuono & Levin, Michael G. Colantuono, Sandra J. Levin and Amy C. Sparrow for Defendant and Respondent.
*373 Dennis J. Herrera, City Attorney (San Francisco), Julie Van Nostern, Chief Tax Attorney, and Peter J. Keith, Deputy City Attorney, for The League of California Cities, The California State Association of Counties, and The California Special Districts Association as Amici Curiae on behalf of Defendant and Respondent.
Raymond G. Fortner, Jr., County Counsel, and Albert Ramseyer, Principal Deputy County Counsel, for the County of Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.
OPINION
KITCHING, J.
Plaintiff and appellant Estuardo Ardon (Ardon) appeals an order striking his class action allegations in an action against the City of Los Angeles (City). Ardon contends the City's telephone users tax (TUT) is an illegal tax. He seeks "on behalf of himself and all others similarly situated" a refund of the TUT. We affirm.
The City and Ardon agree that a prerequisite to pursuing a tax refund action is that the plaintiff must first file a government claim with the City. The primary issue in this appeal is whether Ardon was entitled to present a single claim to the City on behalf of himself and the entire class, or whether each member of the purported class is required to file an individual claim with the City prior to filing suit.
Ardon contends he properly filed a government claim with the City on his own behalf and on behalf of the class he purports to represent. The City contends Ardon is limited to filing an individual claim on his own behalf. We hold that Ardon cannot present a claim on behalf of the entire purported class.
In Woosley v. State of California (1992) 3 Cal. 4th 758, 792 [13 Cal. Rptr. 2d 30, 838 P.2d 758] (Woosley), our Supreme Court held that article XIII, section 32 of the California Constitution (article XIII, section 32) prohibits the courts from expanding the methods for seeking tax refunds expressly provided by the Legislature. The policy underlying article XIII, section 32 is that strict legislative control over the manner in which tax refunds may be sought is necessary so that governmental entities may engage in fiscal planning.
Here, the applicable claims statute is Government Code section 910 (section 910), which does not expressly allow a class action claim. Under Woosley and the policy underlying article XIII, section 32, Ardon cannot assert a class claim under section 910 for a tax refund.
*374 FACTUAL AND PROCEDURAL BACKGROUND
1. Ardon's government claim.
On October 19, 2006, Ardon presented a claim to the City, "on behalf [of] himself and all similarly situated taxpayers in the City of Los Angeles," requesting cessation of the collection of the TUT and the return of monies collected under the tax during the prior two years. Ardon claims that the Los Angeles Municipal Code exempts from the TUT all amounts paid for telephone services to the extent those amounts are exempt from the federal excise tax (FET). Because the FET was allegedly improperly collected, Ardon contends, so too was the TUT.
On December 7, 2006, the city attorney responded to Ardon's claim: "To the extent that the October 19 letter presents a tax refund claim against the City by Mr. Estuardo Ardon, notice is hereby given that the claim is rejected by the City. To the extent that the letter attempts to present a tax refund claim on behalf of a class, that purported claim is denied as well, in part on the basis that there is no legal standing to file a claim on behalf of a class." On December 27, 2006, Ardon filed suit against the City.
2. Ardon's operative pleading.
On March 29, 2007, Ardon, on behalf of himself and all others similarly situated, filed a corrected first amended class action complaint for declaratory, injunctive, monetary and other relief.[1] The complaint set forth counts for declaratory and injunctive relief preventing further improper collection of the TUT (count one),[2] declaratory relief regarding the alleged unconstitutional amendment of the TUT (count two), money had and received (count three), unjust enrichment (count four), violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution (count five), and a claim for writ of mandamus (count six). By way of relief, the complaint sought, inter alia, certification of the matter as a class action (Code *375 Civ. Proc., § 382), an accounting by the City of the TUT funds collected, and prompt return of those monies to the members of the class.
3. The City's demurrer and motion to strike.
The City demurred to the entire complaint, asserting, inter alia, there is no authorization for a class action, the California Constitution prohibits courts from enjoining the collection of a tax; and a tax refund is an adequate remedy at law so that an injunction is not available.
The City concurrently filed a motion to strike all class action allegations from the complaint on the ground Ardon was not permitted to file a government claim with the City on behalf of a purported class. The City contended that pursuant to Woosley a class claim for a tax refund is not permitted unless the Legislature has expressly authorized one. Before Ardon could bring a class action lawsuit, the City argued, each member of the purported class was required to have filed a government claim with the City.
The trial court granted the City's motion to strike the class allegations. It also partially overruled and partially sustained the demurrer without leave to amend, and stayed certain causes of action. Ardon filed a timely notice of appeal from the order on the City's motion to strike and demurrer.[3]
CONTENTIONS
Ardon makes two main arguments on appeal. He first argues that he was required to file a claim in the manner set forth in the Government Claims Act, not in the manner set forth in the Los Angeles Municipal Code. Ardon's second argument is that the trial court erred in interpreting Woosley to prohibit a class action in this case. We agree with Ardon's first contention but do not agree with his second.[4]
*376 DISCUSSION
1. Ardon was required to file a claim in the manner set forth in the Government Claims Act prior to pursuing an action for a tax refund against the City.
(1) Under the Government Claims Act, "no suit for `money or damages' may be brought against a public entity until a written claim has been presented to the public entity and the claim either has been acted upon or is deemed to have been rejected. (Gov. Code, §§ 905, 945.4.)"[5] (Hart v. County of Alameda (1999) 76 Cal. App. 4th 766, 778 [90 Cal. Rptr. 2d 386].) In general, claims for money or damages against a local public entity must be presented in the manner set forth in the Government Claims Act, unless the claim falls within specified exceptions. (See Gov. Code, § 905.) However, if the claim falls into one of the specified exceptions, and the claim is not "governed by any other statutes or regulations expressly relating thereto, [it] shall be governed by the procedure prescribed in any charter, ordinance or regulation adopted by the local public entity." (Gov. Code, § 935, subd. (a).)
The City contends that Ardon must file a claim under Los Angeles Municipal Code section 21.07 (section 21.07) and former section 21.1.12 (section 21.1.12).[6] Ardon, conversely, contends that sections 21.07 and 21.1.12 are preempted by the Government Claims Act. (Compare Batt v. City and County of San Francisco (2007) 155 Cal. App. 4th 65, 78-79 [65 Cal. Rptr. 3d 716] (Batt) with County of Los Angeles v. Superior Court (2008) 159 Cal. App. 4th 353, 360-361 [71 Cal. Rptr. 3d 485] (Oronoz).) We need not decide the preemption issue because we hold, for the reasons stated below, that sections 21.07 and 21.1.12 do not apply to the claims asserted by Ardon. Accordingly, Ardon was required to present a claim to the City in the manner set forth in the Government Claims Act.
(2) We interpret sections 21.07 and 21.1.12 de novo (see Bohbot v. Santa Monica Rent Control Bd. (2005) 133 Cal. App. 4th 456, 462 [34 Cal. Rptr. 3d 827] (Bohbot)) by the same rules applicable to statutes. (See Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal. App. 4th 281, 290 [82 Cal. Rptr. 2d 569]; Bohbot, at p. 462.) Our fundamental task is to ascertain the city council's intent. (See Smith v. Superior Court (2006) 39 Cal. 4th 77, 83 [45 Cal. Rptr. 3d 394, 137 P.3d 218] (Smith).) The meaning of a provision of a municipal code "`may not be determined from a single word or sentence; the words must be construed in context. . . .'" (People v. Shabazz (2006) 38 Cal. 4th 55, 67 [40 Cal. Rptr. 3d 750, *377 130 P.3d 519].) Where reasonably possible, we also avoid any construction that renders "particular provisions superfluous or unnecessary" (Dix v. Superior Court (1991) 53 Cal. 3d 442, 459 [279 Cal. Rptr. 834, 807 P.2d 1063]) or that would lead to absurd consequences (see Smith, at p. 83).
A. Section 21.07.
Section 21.07 is irrelevant to this case. It governs claims for refund of overpayment of taxes "imposed by Article 1 and 1.5 of Chapter 2 of [the Los Angeles Municipal Code.]" (L.A. Mun. Code, § 21.07.) article 1 pertains to business taxes, and article 1.5, which is suspended, pertains to use taxes. The TUT appears in article 1.1. (L.A. Mun. Code, ch. 2, art. 1.1, § 21.1.3.) Therefore, the claim procedure contained in section 21.07, by its terms, is inapplicable.
B. Section 21.1.12.
Former section 21.1.12 was entitled "Senior Citizen Exemption Refunds." Subdivision (a) of section 21.1.12 provides an exemption from the TUT for any individual 62 years of age or older or any disabled individual who lives in a household with less than a specified combined income.[7] Former subdivision (c) of section 21.1.12, in turn, provided: "[F]or individuals 62 years of age or older, and . . . for disabled individuals, any individual entitled to be exempt from the taxes imposed by this article [TUT] who used telephone, electric or gas services and paid more than $3.00 in such taxes may . . . apply for a refund thereof on forms provided by the Director of Finance." Section 21.1.12, former subdivision (c) further provided: "Except as otherwise provided in this section, refunds of overpaid taxes shall be made in the same manner as is provided in Section 21.07 of this chapter for refunds of overpayments in Business Taxes."
(3) Under the plain language of section 21.1.12, individuals who qualify for the low-income seniors and disabled persons exemption set forth in subdivision (a) may seek a refund of the TUT under former subdivision (c) (now subd. (d)) thereof. Ardon's claim does not implicate section 21.1.12 for two reasons. First, Ardon has not alleged that he, or any member of the class *378 he purports to represent, is 62 years of age or older or is disabled. Second, Ardon's claim of TUT illegality is not within the ambit of the section 21.1.12 refund procedure. Because section 21.1.12 is not implicated, we need not reach the issue of whether section 21.1.12 is preempted by the Government Claims Act.
2. Ardon cannot present a Government Claims Act claim for a tax refund on behalf of a class.
We now turn to the issue of whether Ardon can make a claim on behalf of the class he purports to represent. This presents a question of law, which we review de novo. (Oronoz, supra, 159 Cal.App.4th at p. 359.)
(4) Section 910 provides that a claim is filed by a "claimant."[8] Although no provision in section 910 expressly allows a claimant to assert a claim on behalf of a class, Ardon contends that under City of San Jose v. Superior Court (1974) 12 Cal. 3d 447, 457 [115 Cal. Rptr. 797, 525 P.2d 701] (City of San Jose or San Jose), he may file a section 910 claim on behalf of the class he purports to represent. We reject this contention. As we will explain, article XIII, section 32, as interpreted by Woosley prohibits us from expanding the scope of section 910 to allow class claims for tax refunds.
As we will further explain, whether a claimant can file a section 910 claim on behalf of a class depends on whether the claimant is required to comply strictly with the requirements of the statute or whether the claimant can merely substantially comply. If strict compliance is required, the claimant cannot pursue a class claim. On the other hand, if the claimant's substantial compliance can satisfy the statute, he or she can pursue such a claim. We shall conclude that where, as here, the claimant seeks a refund of taxes, strict compliance is required. (See Batt, supra, 155 Cal.App.4th at p. 73 [strict compliance with ordinance in action for refund of local taxes]; IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal. App. 4th 1291, 1299 [32 Cal. Rptr. 3d 656] [strict compliance with statute in action for refund of property taxes]; Neecke v. City of Mill Valley (1995) 39 Cal. App. 4th 946, 961 [46 Cal. Rptr. 2d 266] (Neecke) ["a taxpayer must show strict, rather than substantial, compliance with the administrative procedures established by the Legislature"].)
*379 A. Under City of San Jose, a section 910 class claim may be filed in an inverse condemnation or nuisance action.
In earlier cases, the courts held that strict compliance with claims statutes was essential to maintain an action against a governmental entity. (See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 274, pp. 356-357 (Witkin).) This rule sometimes led to harsh results. (Witkin, § 275, pp. 357-358.) Thus over time the courts allowed substantial compliance with claims statutes. (Witkin, § 275, pp. 358-360.)
(5) In City of San Jose, supra, 12 Cal.3d at pages 456-457, the Supreme Court described the circumstances under which a claim could substantially comply with a claims statute: "[T]o gauge the sufficiency of a particular claim, two tests shall be applied: Is there some compliance with all the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance?" A claim substantially complies with a claims statute if there is sufficient information "to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit." (Id. at p. 456.)
In City of San Jose, the plaintiff sought damages against a city under nuisance and inverse condemnation theories of recovery. The issue was whether the plaintiff could file a section 910 claim on behalf of a class. Applying the substantial compliance test, the court concluded that the term "`claimant,' as used in section 910, must be equated with the class itself. . .," and thus rejected "the suggested necessity for filing an individual claim for each member of the purported class." (City of San Jose, supra, 12 Cal.3d at p. 457.) The court further reasoned: "To require such detailed information in advance of the complaint would severely restrict the maintenance of appropriate class actionscontrary to recognized policy favoring them. (Code Civ. Proc., § 382 . . . .)" (City of San Jose, at p. 457, italics added.) The court thus held that "claims statutes," including section 910, "do not prohibit class actions against governmental entities for inverse condemnation and nuisance." (City of San Jose, at p. 457, italics added.)
B. Woosley rejected the extension of the City of San Jose case to tax refund claims.
Several Court of Appeal decisions "extended" the holding of City of San Jose to permit the filing of class claims seeking tax refunds. (Woosley, supra, 3 Cal.4th at p. 788, citing Schoderbek v. Carlson (1980) 113 Cal. App. 3d 1029 [170 Cal. Rptr. 400] (Schoderbek), Lattin v. Franchise Tax Board (1977) 75 Cal. App. 3d 377 [142 Cal. Rptr. 130] (Lattin), and Santa Barbara Optical Co. v. State Bd. of Equalization (1975) 47 Cal. App. 3d 244 [120 Cal. Rptr. 609] *380 (Santa Barbara Optical).) In Santa Barbara Optical, the court held that the plaintiffs could file a claim with the State Board of Equalization for a refund of sales taxes on behalf of a class. (Santa Barbara Optical, at pp. 247-248.) In Lattin, the court held that the plaintiffs could file a claim with the Franchise Tax Board for a refund of state income taxes on behalf of a class. (Lattin, at p. 381.) Both Santa Barbara Optical and Lattin relied on City of San Jose. (Santa Barbara Optical at pp. 247-249; Lattin, at pp. 380-381.)[9]
In Schoderbek, the plaintiffs brought a class action for a refund of local property taxes and other relief against county officials and others. Revenue and Taxation Code section 5142 provided that a suit for a property tax refund could not be brought unless a claim for a refund had been filed. The plaintiffs argued that they should be excused from filing any refund claim because they represented approximately 138,000 homeowners and it would be an undue burden to require so many homeowners "to go through the expense of pursuing their administrative remedies." (Schoderbek, supra, 113 Cal.App.3d at p. 1033.) The court, however, cited City of San Jose and stated: "Plaintiffs' argument overlooks the simple fact that they could have filed a claim for the refund with the county on behalf of themselves and on behalf of the members of the class they represent." (Schoderbek, at p. 1033.)
Ardon argues that we should apply City of San Jose to his claim against the City for a refund of the TUT he and members of his purported class paid. In Woosley, however, our Supreme Court rejected the extension of City of San Jose to tax refund claims. The court stated: "Contrary to the line of Court of Appeal decisions cited above [i.e., Schoderbek, Lattin, and Santa Barbara Optical], we conclude, for the reasons that follow, that the holding in City of San Jose . . . should not be extended to include claims for tax refunds." (Woosley, supra, 3 Cal.4th at p. 789.)
C. The underlying policy of article XIII, section 32.
(6) In the following paragraph, the Woosley court explained why it would not extend the holding of City of San Jose to tax refund claims: "The California Constitution expressly provides that actions for tax refunds must be brought in the manner prescribed by the Legislature. Article XIII, section 32, of the California Constitution provides in this regard: `After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, *381 with interest, in such manner as may be provided by the Legislature.' (Italics added.) This constitutional limitation rests on the premise that strict legislative control over the manner in which tax refunds may be sought is necessary so that governmental entities may engage in fiscal planning based on expected tax revenues." (Woosley, supra, 3 Cal.4th at p. 789, citing State Bd. of Equalization v. Superior Court (1985) 39 Cal. 3d 633, 638 [217 Cal. Rptr. 238, 703 P.2d 1131].)
Woosley follows a line of Supreme Court cases that broadly construed article XIII, section 32 in light of the paramount policy underlying that provision. (See State Bd. of Equalization v. Superior Court, supra, 39 Cal.3d at p. 639; Pacific Gas & Electric Co. v. State Bd. of Equalization (1980) 27 Cal. 3d 277, 283 [165 Cal. Rptr. 122, 611 P.2d 463] (Pacific Gas & Electric); Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal. 2d 720, 731-732 [192 P.2d 916].) These cases emphasized that article XIII, section 32 serves the important purpose of prohibiting an unplanned disruption of revenue collection, "`so that essential public services dependent on the funds are not unnecessarily interrupted.'" (State Bd. of Equalization v. Superior Court, at p. 638, quoting Pacific Gas & Electric, at p. 283; see also Modern Barber Col. v. Cal. Emp. Stab. Com., at pp. 731-732.)
This policy is especially important where, as here, a plaintiff seeks to assert a class action on behalf of very large numbers of people, and the governmental entity faces an unexpected and huge liability. It is vital that the Legislature retain control over the manner in which claims may be asserted, so that governmental entities have sufficient notice of claims to allow for predictable and reliable fiscal planning.
D. Under Woosley, Ardon can only file an individual claim, not a claim on behalf of a class.
In Woosley, the plaintiff sought to assert a claim for a refund of vehicle license fees and use taxes on behalf of a class. In light of article XIII, section 32 and its underlying policy, the court stated: "[W]e hold that the class claim filed in the present case was not authorized by the statutes governing claims for refunds of vehicle license fees and use taxes. Accordingly, that claim is valid only as to Woosley in his individual capacity, and the class in the present class action properly may include only persons who timely filed valid claims for refunds." (Woosley, supra, 3 Cal.4th at p. 788.)
In reaching its decision, the court required the plaintiff to strictly comply with the applicable claims statute. (See Woosley, supra, 3 Cal.4th at pp. 789-790.) Vehicle Code section 42231 provided that a claim for a refund of vehicle license fees could be filed by "the person who has paid the *382 erroneous or excessive fee or penalty, or his agent on his behalf." The court held: "Within the context of this statute, the term `person' does not include a class, and a class representative who files a claim on behalf of all others similarly situated, without the knowledge or consent of such other persons, is not the agent of the members of the class. [Citations.] Accordingly, a class claim for refunds of vehicle license fees, such as the one here at issue, is not authorized by statute." (Woosley, at p. 790, fn. omitted.)
(7) The court concluded: "In sum, article XIII, section 32, of the California Constitution precludes this court from expanding the methods for seeking tax refunds expressly provided by the Legislature." (Woosley, supra, 3 Cal.4th at p. 792.) It also overruled Schoderbek, Lattin, and Santa Barbara Optical to the extent they expressed views to the contrary. (Woosley, at p. 792.)
(8) Under Woosley, Ardon cannot file a section 910 claim for tax refunds on behalf of a class. The language of section 910 is similar to the language of Vehicle Code section 42231: a claim must be filed by "the claimant or by a person acting on his or her behalf." (§ 910.) When strictly, rather than substantially construed, the syntax and diction of section 910 indicate that it applies to individual claims, not to claims on behalf of a class. For example, section 910 provides that the claim must state the "name and post office address of the claimant." (§ 910, subd. (a).) This language implies that the claim is being asserted by an individual, not a class. Likewise, section 910 provides that a claim must state the "date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted." (§ 910, subd. (c).) This language does not contemplate different occurrences or transactions related to various members of a class asserting a collective claim. Indeed, no mention is made of a claim filed on behalf of a class.
By contrast, when the Legislature wanted to authorize class claims for refunds of particular state taxes, it used very different language. In two statutes, the Legislature has expressly allowed class claims, albeit with stringent restrictions.[10] Revenue and Taxation Code section 6904, subdivision (b) and section 19322 both provide for "[a] claim filed for or on behalf of a class of taxpayers . . . ."
(9) The absence of express language in section 910 regarding claims on behalf of a class indicates that the Legislature did not intend to allow such claims for tax refunds. "Where statutes involving similar issues contain *383 language demonstrating the Legislature knows how to express its intent, `"the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes."'" (County of San Diego v. San Diego NORML (2008) 165 Cal. App. 4th 798, 825 [81 Cal. Rptr. 3d 461].)
(10) Under Woosley, a section 910 claim for a tax refund cannot be pursued in a manner not expressly provided by the Legislature. Ardon therefore cannot present a section 910 claim on behalf of the class he purports to represent.
E. Oronoz was incorrectly decided.
In Oronoz, this court held that under City of San Jose, a section 910 claim for a refund of local taxes could be asserted on behalf of a class. (Oronoz, supra, 159 Cal.App.4th at p. 367.) We overrule that aspect of Oronoz in this case.
We stated in Oronoz: "Woosley did not disapprove San Jose or suggest that its holding with respect to claims under Government Code section 910 should be limited, but refused to extend the holding in San Jose to tax refund claims governed by other statutes." (Oronoz, supra, 159 Cal.App.4th at p. 365, italics added.) That is incorrect. Woosley did not limit the holding of City of San Jose to tax refund claims "governed by other statutes." Rather, Woosley stated that the holding of City of San Jose should not be extended to include "claims for tax refunds," period. (Woosley, supra, 3 Cal.4th at p. 789.)
Further, the holding of Woosley, by its plain terms, applies to section 910 claims for tax refunds filed on behalf of a class. Woosley stated that "City of San Jose held that a class claim could be filed pursuant to Government Code section 910 . . . ." (Woosley, supra, 3 Cal.4th at p. 788.) Woosley concluded that this holding regarding section 910 claims "should not be extended to include claims for tax refunds." (Woosley, at p. 789.) Thus a section 910 claim for a tax refund on behalf of a class is precisely the type of claim that is prohibited by the plain language of Woosley.
Moreover, as noted above, for purposes of determining whether a claimant can assert a claim on behalf of a class, there is no material difference between the language of section 910 and the statutes interpreted by Woosley. (Compare § 910 ["A claim shall be presented by the claimant or by a person acting on his or her behalf . . . ."] with Veh. Code, § 42231 ["the person who has paid the erroneous or excessive fee or penalty, or his agent on his behalf, may apply for and receive a refund . . ."].) Thus, contrary to Oronoz, the Woosley decision did not decline to extend the holding of City of San Jose based on *384 any purported difference between section 910 and the claims statutes at issue in Woosley. Woosley instead turned on the nature of the claims asserteda claim for a tax refund must be treated differently than a claim for inverse condemnation and nuisance. (See Woosley, supra, 3 Cal.4th at pp. 788-792.) This is because article XIII, section 32 and its underlying policy require different treatment.
In City of San Jose, the court did not consider article XIII, section 32 or its underlying policy. Rather, the court relied upon the policy in favor of class actions, as expressed by statute (i.e., Code Civ. Proc., § 382). (City of San Jose, supra, 12 Cal.3d at p. 457.) But as Woosley recognized, claims for tax refunds are different. The constitutionally mandated strict legislative control over how to obtain tax refunds outweighs the statutory policy in favor of class actions. (See Woosley, supra, 3 Cal.4th at p. 789.) Accordingly, Ardon's section 910 claim for tax refunds must receive a different treatment from the section 910 claim for damages asserted by the plaintiff in City of San Jose.
Ardon argues that Woosley does not control in this case because its holding relied on article XIII, section 32, a provision which Ardon contends applies to state, not local taxes. In Oronoz, we agreed with this argument. (See Oronoz, supra, 159 Cal.App.4th at p. 363, fn. 6, citing Eisley v. Mohan (1948) 31 Cal. 2d 637, 641 [192 P.2d 5] and Pacific Gas & Electric, supra, 27 Cal.3d at p. 281, fn. 6.)
Oronoz, however, interpreted Woosley too narrowly. The reasoning of Woosley applies with equal force to claims for refunds of local taxes. The holding of Woosley was based on the premise that strict legislative control over tax refunds was necessary so that governmental entities could engage in fiscal planning. (Woosely, supra, 3 Cal.4th at p. 789.) Local public entities, like the state, have an overriding interest in fiscal planning based on expected tax revenues.
We therefore join a line of Court of Appeal cases which has applied the policy underlying article XIII, section 32 to local taxes. In Neecke, the court held that under Woosley, the plaintiff was prohibited from pursuing a class claim for a property tax refund. In reaching its decision, the Neecke court stated: "Nothing in the language of Woosley indicates an intent to limit that case's holding to claims statutes addressed to state, as opposed to local, taxes; indeed, that part of the court's opinion dealing with the class claim issue twice uses the term `governmental entities.' (Woosley, supra, 3 Cal.4th at pp. 788, 789.)" (Neecke, supra, 39 Cal.App.4th at p. 962.) We agree with this analysis. The phrase "governmental entities" is broad and plural, and thus does not appear to be limited to the state alone.
*385 The Neecke court also correctly observed: "[T]he Woosley court expressly overruled Schoderbek v. Carlson, supra, 113 Cal. App. 3d 1029, to the extent that it was inconsistent with Woosley. Relying upon City of San Jose v. Superior Court, supra, 12 Cal. 3d 447, Schoderbek held, in the context of whether administrative remedies had been exhausted, that Revenue and Taxation Code sections 5097 and 5140 permit class claims and class actions for refunds of local property taxes. . . . There was simply no reason for the Supreme Court to disapprove of Schoderbek unless the court intended its Woosley holding to apply to local, as well as state, taxes." (Neecke, supra, 39 Cal.App.4th at pp. 962-963.)
In Batt, the court held that under Woosley, the plaintiff could not assert a claim for a refund of a city hotel tax on behalf of a class. The plaintiff argued, as Ardon does here, that Woosley was not controlling and should be "`narrowly applied.'" (Batt, supra, 155 Cal.App.4th at p. 76.) The Batt court, however, rejected this argument, and stated: "It may be true, as plaintiff asserts, that Woosley does not `categorically' forbid class actions in tax refund cases. But it did in effect preclude refund class actions except where the antecedent administrative claim on behalf of the putative class is expressly authorized by statute. (See Woosley, supra, 3 Cal. 4th 758, 788-792, 795.)" (Batt, at p. 77.) The Batt court also stated that although article XIII, section 32 "expressly applies to the state, we have accepted that its guiding principle is equally applicable to smaller units of government." (Batt, at p. 84, citing Flying Dutchman Park, Inc. v. City and County of San Francisco (2001) 93 Cal. App. 4th 1129 [113 Cal. Rptr. 2d 690] (Flying Dutchman).)
In Writers Guild of America, West, Inc. v. City of Los Angeles (2000) 77 Cal. App. 4th 475 [91 Cal. Rptr. 2d 603] (Writers Guild), the plaintiffs sought to enjoin the collection of a city business tax. The court, however, held that the plaintiffs could not obtain an injunction in light of the public policy against injunctions prohibiting the collection of a tax, as expressed by article XIII, section 32 and the cases interpreting that provision. (77 Cal.App.4th at p. 483.)
Similarly, in Flying Dutchman, supra, 93 Cal. App. 4th 1129, the plaintiffs sought an injunction prohibiting the enforcement of a city parking tax. The plaintiff Flying Dutchman urged the court not to follow the Writers Guild decision. However, the court held: "[W]e see no need to reexamine the issues resolved in Writers Guild, particularly its holding that the prepayment requirement for obtaining judicial review applies equally to local taxes as well as state taxes. Because the wisdom of preventing the judiciary from interfering with tax schemes pertains as strongly to local taxes as it does to *386 state taxes, we would be hard pressed to endorse the distinction Flying Dutchman attempts to make based on the identity of the taxing entity." (Id. at p. 1137.)[11]
Likewise, we are hard pressed to distinguish this case from Woosley based on the identity of the taxing entity. The wisdom and language of Woosley pertains as strongly to claims for refunds for local taxes as it does to claims for refunds of state taxes.
DISPOSITION
The order striking the class action allegations is affirmed. The City shall recover costs on appeal.
Klein, P. J., concurred.
KLEIN, P. J., Concurring.
I concur in the majority opinion. I write separately to explain my change of position with respect to whether Government Code section 910 authorizes a class claim for tax refunds. Although I joined in this court's opinion in County of Los Angeles v. Superior Court (2008) 159 Cal. App. 4th 353 [71 Cal. Rptr. 3d 485] (Oronoz), upon further consideration, I believe the majority opinion herein sets forth the better view.
I am mindful the California Supreme Court denied a petition for review in Oronoz. However, the order of denial is not an expression of the Supreme Court on the correctness of the Court of Appeal opinion. (DiGenova v. State Board of Education (1962) 57 Cal. 2d 167, 178 [18 Cal. Rptr. 369, 367 P.2d 865]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 501, 502, 932(5).)
In view of the confusion in this area, it would be helpful for the Supreme Court to grant review in this case in order to resolve the conflict between the Oronoz decision and the majority opinion herein.
Review is further warranted because the question presented, i.e., whether Government Code section 910 authorizes a class claim for tax refunds, is a major statewide issue with serious implications for the public fisc. Currently, this division alone has at least two other appeals involving the same issue.
*387 With these observations, I concur in the court's opinion authored by Justice Kitching.
CROSKEY, J., Dissenting.
I respectfully dissent. We held in County of Los Angeles v. Superior Court (2008) 159 Cal. App. 4th 353, 367 [71 Cal. Rptr. 3d 485] (Oronoz), that a class claim for tax refunds against a local public entity was permissible under Government Code section 910 in the absence of a specific tax refund statute prescribing procedures to claim a refund of the taxes at issue. I continue to adhere to that view.
Government Code section 910 establishes procedural requirements for claims against the state and local public entities generally. Section 910 does not mention tax refunds. Government Code section 905, subdivision (a) states that claims under statutes prescribing procedures for tax refunds are excepted from the claim presentation requirements of section 910. Thus, section 905, subdivision (a) distinguishes claims under statutes prescribing procedures for tax refunds from claims subject to the general claim presentation requirements of section 910.
City of San Jose v. Superior Court (1974) 12 Cal. 3d 447 [115 Cal. Rptr. 797, 525 P.2d 701] (City of San Jose) held that the word "claimant" in Government Code section 910 referred to the class rather than to each individual class member and that a class claim was permissible under section 910 without the need for an individual claim by each class member. (City of San Jose, at p. 457.) City of San Jose involved a claim governed by the general claim presentation requirement of section 910, rather than a claim governed by a statute prescribing procedures specifically for tax refunds.
Woosley v. State of California (1992) 3 Cal. 4th 758 [13 Cal. Rptr. 2d 30, 838 P.2d 758] (Woosley) involved claims against the state for refunds of vehicle license fees and use taxes. Woosley stated that article XIII, section 32 of the California Constitution (section 32)[1] required tax refund claims to be made in the manner prescribed by the Legislature and that "[t]his constitutional limitation rests on the premise that strict legislative control over the manner in which tax refunds may be sought is necessary so that governmental entities may engage in fiscal planning based on expected tax revenues. [Citation.]" (Woosley, at p. 789.) Woosley stated that vehicle license fees and use taxes were excise taxes within the ambit of section 32 and that the Legislature had prescribed procedures for seeking refunds of those taxes. (Woosley, at p. 789.) Construing the applicable tax refund statutes in light of section 32, Woosley *388 concluded that those statutes did not authorize class claims. (Woosley, at pp. 789-792.) Woosley neither construed nor applied Government Code section 910.
Woosley disapproved several Court of Appeal opinions that had "reason[ed] by analogy to the claims statute construed in City of San Jose that the existing tax-refund statutes could and should be interpreted to authorize the filing of class claims. [Citations.]" (Woosley, supra, 3 Cal.4th at p. 788.) Woosley stated, "we conclude, for the reasons that follow, that the holding in City of San Jose v. Superior Court, supra, 12 Cal. 3d 447, should not be extended to include claims for tax refunds." (Id. at p. 789.) The reasons that followed were that the applicable tax refund statutes, construed in light of section 32, did not authorize class claims. (Woosley, at pp. 789-792.) Thus, Woosley did not limit or call into question the holding from City of San Jose as applied to claims under Government Code section 910, but held only that the rule from City of San Jose should not be extended to claims governed by statutes prescribing procedures specifically for tax refunds.
Section 32 is inapplicable here because it applies only to actions against the state. (Pacific Gas & Electric Co. v. State Bd. of Equalization (1980) 27 Cal. 3d 277, 281, fn. 6 [165 Cal. Rptr. 122, 611 P.2d 463] (Pacific Gas & Electric); Oronoz, supra, 159 Cal.App.4th at p. 363, fn. 6.)[2] The majority does not assert otherwise, but instead invokes the policy underlying section 32 and applies that policy, rather than section 32 itself, to this action against a local public entity and involving local taxes. Many statutes and constitutional provisions are motivated by policies that, construed broadly, would support provisions broader than those actually enacted. To apply the policy underlying a provision rather than the provision itself means, essentially, rewriting the provision by substituting the court's own determination as to the desired scope of the law for that of the enacting body. I would decline to follow the Court of Appeal opinions that have done so.
*389 Absent a specific tax refund statute prescribing procedures to seek a refund of the telephone user tax here at issue, I would follow our opinion in Oronoz, supra, 159 Cal. App. 4th 353, by holding that the claim is governed by Government Code section 910 and that a class claim is permissible under the rule from City of San Jose, supra, 12 Cal. 3d 447.
NOTES
[1] Shortly after Ardon filed suit, the City amended Los Angeles Municipal Code section 21.1.3 to delete any reference to the FET. The amending ordinance was passed by the city council on January 9, 2007. It states "the FET was not a basis or authority for the City's imposition of the TUT ..." and that the TUT's reference to the FET "was added in 1967, shortly after the TUT was adopted, for the administrative convenience of telephone service providers, who were able to bill customers based on an existing tax base." (L.A. Ord. No. 178219.)
[2] During the pendency of this appeal, on February 5, 2008, the voters of the City adopted Proposition S, an ordinance which amended article 1.1 of chapter 2 of the Los Angeles Municipal Code to modernize and clarify the TUT by replacing it with a Communications Users Tax. Ardon concedes that the approval of Proposition S moots his claims for declaratory and injunctive relief to prevent further improper collection of the TUT.
[3] This appeal is from an interlocutory order striking Ardon's class allegations. The order was appealable because it was tantamount to a dismissal of the action as to all members of the class other than Ardon. (See Richmond v. Dart Industries, Inc. (1981) 29 Cal. 3d 462, 470 [174 Cal. Rptr. 515, 629 P.2d 23]; Daar v. Yellow Cab Co. (1967) 67 Cal. 2d 695, 699 [63 Cal. Rptr. 724, 433 P.2d 732].)
[4] Ardon also purports to challenge various aspects of the trial court's ruling on the demurrer. At this juncture, however, appellate review is confined to the order insofar as it struck the class action allegations. Appellate review of the other rulings by the trial court will have to await any appeal from the final judgment.
[5] Ardon seeks "money or damages" within the meaning of the Government Claims Act. (See generally City of Los Angeles v. Superior Court (2008) 168 Cal. App. 4th 422, 427-430 [85 Cal. Rptr. 3d 560].)
[6] Section 21.1.12 was amended effective March 15, 2008. (L.A. Ord. No. 179,686.)
[7] Section 21.1.12, former subdivision (a) provided in relevant part: "The tax imposed by this article shall not apply to any individual 62 years of age or older or any disabled individual who uses telephone, electric, or gas services in or upon any premises occupied by such individual, provided the combined adjusted gross income (as used for purposes of the California Personal Income Tax Law) of all members of the household in which such individual resided was less than Ten Thousand Nine Hundred and Fifty Dollars ($10,950) for the calendar year prior to the fiscal year (July 1 through June 30) for which the exemption provided in this Article is applied for."
[8] Section 910 states: "A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: [¶] (a) The name and post office address of the claimant. [¶] (b) The post office address to which the person presenting the claim desires notices to be sent. [¶] (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. [¶] (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. [¶] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. [¶] (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim . . . ."
[9] After Santa Barbara Optical, in 1987, the Legislature amended Revenue and Taxation Code section 6904 to permit class claims for sales and use tax refunds. (Stats. 1987, ch. 38, § 5, p. 101.) Similarly, after Lattin, in 1993, the Legislature enacted Revenue and Taxation Code section 19322, which allows class claims for income tax refunds. (Stats. 1993, ch. 31, § 26, p. 152.) The Legislature, however, strictly limited the means by which such class claims could be filed. (See fn. 10, post.)
[10] To present a claim on behalf of a class for a sales or use tax refund or for an income tax refund, the purported class representative must obtain a written authorization from "each taxpayer sought to be included in the class." (Rev. & Tax. Code, §§ 6904, subd. (b)(1), 19322, subd. (a).)
[11] See also Macy's Dept. Stores, Inc. v. City and County of San Francisco (2006) 143 Cal. App. 4th 1444, 1457, footnote 23 [50 Cal. Rptr. 3d 79] ("As Macy's appears to recognize, its argument that article XIII, section 32 of the California Constitution applies only to statewide taxes was rejected in [Flying Dutchman]."); Rickley v. County of Los Angeles (2004) 114 Cal. App. 4th 1002, 1013 [8 Cal. Rptr. 3d 406] (applying policy of art. XIII, § 32 to claim for declaratory relief regarding collection of county taxes).
[1] Section 32 states: "No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature."
[2] A similar provision appeared in former article XIII, section 15 of the California Constitution until November 1974, when the voters repealed former article XIII and added a new article XIII, including section 32. (Assem. Const. Amend. No. 32, Stats. 1974 (1973-1974 Reg. Sess.) res. ch. 70, pp. 3678, 3690.) Pacific Gas & Electric, supra, 27 Cal.3d at page 280, footnote 3 characterized this constitutional amendment as one of "numerous minor revisions and renumberings" of essentially the same provision. Eisley v. Mohan (1948) 31 Cal. 2d 637, 641 [192 P.2d 5] (Eisley) stated that former article XIII, section 15 "applies only to an action against the state or an officer thereof with respect to his duties in assessing or collecting a state tax for state purposes." Eisley therefore concluded that the provision did not preclude a proceeding against a county assessor challenging the assessment of a county real property tax. (Eisley, at pp. 641-642.) Citing Eisley, Pacific Gas & Electric stated, "Section 32 applies only to actions against the state." (Pacific Gas & Electric, supra, 27 Cal.3d at p. 281, fn. 6.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267194/ | 999 F. Supp. 274 (1998)
Cheryl D. HERZOG, Plaintiff,
v.
McLANE NORTHEAST, INC., and David Tallo, Defendants.
No. 97-CV-907 (FJS).
United States District Court, N.D. New York.
March 31, 1998.
*275 Cheryl D. Herzog, Liverpool, NY, pro se.
Littler Mendelson, P.C., New York, NY, for Defendants; Scott J. Wenner, of counsel.
MEMORANDUM DECISION & ORDER
SCULLIN, District Judge.
Introduction
Plaintiff Cheryl Herzog filed her pro se complaint on June 27, 1997 alleging that she was discriminated by Defendants Tallo and McLane Northeast, Inc. in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12117 ("ADA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2005e-5 ("Title VII"). Presently before the Court are Defendants' motions to dismiss Plaintiff's Title VII claim for failure to exhaust her administrative remedies and to dismiss Defendant Tallo on the basis that individuals cannot be held liable under the ADA.
Background
Plaintiff began working for Defendant McLane Northeast, Inc. on June 14, 1990. On April 30, 1992, Plaintiff alleges that she was diagnosed with work related carpal tunnel syndrome, which caused her to take a leave of absence from work. On November 9, 1992, Plaintiff's physician permitted Plaintiff to return to work, but she alleges that Defendant David Tallo, McLane's Human Resources Director, told her that no work was available and that she should apply for unemployment assistance. Plaintiff alleges that she unsuccessfully continued to seek work with Defendant until she was ultimately informed on June 2, 1993, that she was terminated.
On November 15, 1993, Plaintiff filed a charge of discrimination with the EEOC against Defendant McLane alleging discrimination in violation of the ADA. On April 23, 1997, the EEOC dismissed Plaintiff's case and issued Plaintiff a right to sue letter. Plaintiff filed this action on June 27, 1997.
Discussion
A court should dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] complaint which would entitle [her] to relief." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Thus, for purposes of this motion, the Court will assume arguendo that the facts alleged by the Plaintiff in her complaint are true.
(A) Notice of Title VII Claim
In its moving papers, Defendant McLane argues that Plaintiff's Title VII claim of gender discrimination should be dismissed because she failed to raise or make any reasonable reference to such a claim in her initial charge to the EEOC.[1] In her EEOC charge, Plaintiff failed to allege either gender discrimination or Title VII.
As an initial matter, because Plaintiff proceeds pro se, the Court will liberally construe Plaintiff's pleadings to raise the strongest arguments they suggest. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). Generally, in New York, filing a charge with the EEOC or the New York Division of Human Rights is an essential requirement to maintaining an action in federal court under the ADA or Title VII. See Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1401 (2d Cir.1993). Failing to exhaust these administrative remedies will generally bar any future judicial relief. See id. However, in certain instances, claims which are not mentioned in the original EEOC charge may not be barred if they are "reasonably related" to the initial charge. See id. Thus, because Plaintiff failed to raise her Title VII claim in her EEOC charge, this claim must be dismissed unless her Title VII claim is found to be "reasonably related" to her ADA claim.
The leading Second Circuit case articulating the "reasonably related" doctrine is Butts. In Butts, the Court explained that *276 the reasonably related exception exists in three basic forms: (1) loose pleading; (2) retaliation for filing an EEOC charge; and (3) similar subsequent incidents of discrimination. See 990 F.2d at 1402-403. Under the facts of this case, exception (2) is not applicable because Plaintiff fails to allege any facts which provide any indication that her claims were based upon retaliation by Defendants for her filing an EEOC charge.[2] Likewise, exception (3) is inapplicable because Plaintiff fails to allege conduct by Defendants which occurred subsequent to the filing of her EEOC charge. Rather, Plaintiff's complaint alleges that her Title VII claim arose contemporaneously with her ADA claim and thus the third type of exception is inapplicable as well.
Thus, the critical question is whether Plaintiff's Title VII claim can invoke the "loose pleading" exception. The Second Circuit has articulated this test as to permit claims not raised in the charge if the conduct at issue would fall within the "scope of the EEOC investigation which can be reasonably expected to grow out of the charge of discrimination." Butts, 990 F.2d at 1402 (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir.1978)); see also Peterson v. Insurance Co. of North America, 1995 WL 217492, at *2 (S.D.N.Y. 1995). Even if the Court liberally construes Plaintiff's allegations, the Court cannot find that Plaintiff's Title VII claim is reasonably related to her ADA claim. The purpose of requiring administrative exhaustion is to give the administrative agency the opportunity to investigate, mediate, and to take remedial action to encourage settlement. See Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985). Plaintiff's original charge provided the EEOC with little if any indication that Plaintiff's assertion of discrimination related to gender discrimination. It is insufficient to argue that Plaintiff's gender alone was sufficient notice to provide for such a claim. Therefore, Plaintiff's Title VII claims are dismissed based on her failure to exhaust administrative remedies.
(B) Individual Liability
Defendants also move to dismiss all claims based upon individual liability. Defendant argues that the ADA does not provide for individual liability because it only authorizes "employer" liability.
It is well settled that Title VII does not permit individual liability. See Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995); McNight v. Dormitory Authority of State of New York, 995 F. Supp. 70, 75 (N.D.N.Y.1998). While the Second Circuit has yet to address individual liability as it pertains to the ADA, most courts have held that the ADA also prohibits individual liability. See Romand v. Zimmerman, 881 F. Supp. 806 (N.D.N.Y.1995); Lane v. Maryhaven Center of Hope, 944 F. Supp. 158 (E.D.N.Y.1996); Cerrato v. Durham, 941 F. Supp. 388 (S.D.N.Y.1996); Bodiford v. State of Alabama, 854 F. Supp. 886, 892 (M.D.Ala.1994). Moreover, courts have consistently applied Title VII principles to ADA cases where appropriate. Finley v. Giacobbe, 827 F. Supp. 215, 219 n. 3 (S.D.N.Y. 1993). Thus, Plaintiff's ADA claim against David Tallo is dismissed.[3]
Conclusion
Having considered the parties' submissions, the record, and the applicable law, it is hereby
ORDERED that Defendant's motion to dismiss Plaintiff's Title VII claim of gender discrimination is GRANTED; and it is further
ORDERED that Defendant's motion to dismiss Defendant David Tallo from all claims is GRANTED.
IT IS SO ORDERED.
NOTES
[1] In her Complaint, Plaintiff alleges that she was the victim of gender discrimination in violation of Title VII because carpal tunnel syndrome occurs disproportionately more often in women than in men. (Compl. at 9).
[2] While Plaintiff does allege in her complaint that the Defendants retaliated against her based upon her disability in violation of the ADA, this is clearly not applicable to this Butts exception.
[3] Because the Court dismissed Plaintiff's Title VII claims as not reasonably related to his ADA EEOC charge, there is no reason to reach this issue as it pertains to Defendant Tallo. However, if Plaintiff's Title VII claim did survive, it would also be dismissed against Defendant Tallo based upon the same analysis. See Tomka, 66 F.3d at 1313. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267207/ | 999 F. Supp. 728 (1998)
Grace LAM, Individually, and as Executrix of the Estate of Daniel Y. Lam, deceased, Plaintiff,
v.
AEROFLOT RUSSIAN INTERNATIONAL AIRLINES, Defendant.
No. 94 Civ. 5931(WK).
United States District Court, S.D. New York.
April 14, 1998.
*729 *730 James Kreindler, David Fiol, Kreindler & Kreindler, New York City, for Plaintiff.
Michael J. Holland, Condon & Forsyth, New York City, for Defendant.
OPINION & ORDER
WHITMAN KNAPP, Senior District Judge.
This is an action by Grace Lam, individually, and as executrix of the estate of her deceased husband, Daniel Lam, against Aeroflot Russian International Airlines. She seeks damages in excess of $10 million arising out of the death of her husband resulting from the crash of Aeroflot Flight No. SU593 in Novokuznetsk, Kemerovskaya Province, Russian Federation en route from Moscow to Hong Kong on March 22, 1994. Subject matter jurisdictionor lack of itis governed by a treaty of the United States, the Convention for the Unification of Certain Rules Relating to International Transportation by Air, concluded at Warsaw, Poland, October 12, 1929 ("Warsaw Convention"), as amended by the Hague Protocol of 1955. It is plaintiff's position that courts of the United States have such jurisdiction because the Aeroflot flight on which her husband met his death was a segment of his round-trip business tour beginning and ending in Denver.
The defendant, on the other hand, has moved for summary judgment, contending that since Aeroflot issued tickets only for a journey beginning and ending in Hong Kong, the courts of the United States have no jurisdiction. For reasons that follow, we deny defendant's motion.
BACKGROUND
In March 1994, Daniel Lam was a United States citizen who made his home in Denver, CO with his wife, the plaintiff in this action. In early 1994, he decided to take a business trip to several cities in China and Russia, ultimately returning to Denver. He intended and attempted to book his entire itinerary through his travel agent in Denver, Greenwood Travel. Lam asked Greenwood to book air travel from Denver to Hong Kong, Hong Kong to mainland China, China to Hong Kong, Hong Kong to Russia, Russia to Hong Kong, and finally Hong Kong to Denver.[1] Greenwood proceeded to book him on United Airlines from Denver to Hong Kong (and back), on Dragon Air from Hong Kong to mainland China (and back), and then attempted to book with Aeroflot the Hong Kong to Russia segment of the trip.
Due to what appears to have been a computer or communications problem with Aeroflot's ticketing system, Greenwood, an authorized agent for the issuance of tickets for flights on Aeroflot which regularly issued such tickets, proved unable to secure tickets on Aeroflot for the Hong Kong/Russia segment of the journey. When Greenwood called Aeroflot's United States office to attempt to remedy the problem, it was told that Lam should instead book the ticket through an overseas agent. Following that suggestion, Lam sent an "urgent" fax to Li Wah Shing, a travel agent in Hong Kong, in effect asking him to act as his agent and purchase tickets for the segment from Hong Kong to Russia and back. Agent Li obtained the needed Aeroflot tickets from Global Union Express (Hong Kong) Ltd. ("G.U.E."), the sole sales agent for Aeroflot in Hong Kong. The following is a reproduction of the ticket issued by G.U.E. at agent Li's request:
*731
It will be observed that a box at the top of the ticket indicating "CONJUNCTION TICKETS" was left blank. Affidavits submitted by agent Li demonstrate that he was fully familiar with Lam's travel plans but was never asked about them during his dealings with G.U.E. In addition, agent Li's affidavit of November 15, 1995 contains a statement strongly suggesting that Aeroflot's agents in Hong Kong must have been aware that Lam's stop there was but one segment of a larger journey:
When Mr. Lam checked in for his flight from Hong Kong to Moscow, he was required to present his passport and visa to Aeroflot's check-in agents, Cathay Pacific Airlines. Had they checked his passport and visa as they were supposed to do, they would have been on notice that he was from the United States and not Hong Kong. When Daniel [Lam] entered Hong Kong, the Immigration Department here would have stamped on his arrival/departure "Immigration Card" that he was permitted to stay in Hong Kong for 3 (or 6) months and this card was affixed to his passport available for the inspection of Aeroflot's check-in agent.
Li Aff., ¶ 9.
Plaintiff has submitted evidence indicating that it was Aeroflot's policy to ask purchasers, at the time when Aeroflot tickets were being issued, if the proposed passengers were flying on any other airlines in conjunction with the Aeroflot segment of their journey. G.U.E. never asked agent Li any such question.
DISCUSSION
The parties agree that plaintiff's claims against Aeroflot are governed exclusively by the terms and conditions of the Warsaw Convention. See note following 49 U.S.C. § 1502. The issue before us is whether or not that treaty confers subject matter jurisdiction in this action.
A. Warsaw Convention
Article 28(1) of the Warsaw Convention sets forth four forums in which actions arising out of "international transportation", as defined in the treaty, may be brought:
An action for damages must be brought, at the option of the plaintiff, in the territory of one of the [signatory nations], either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.
In any of these four places, a court has subject matter jurisdiction over a suit against a carrier. In re Alleged Food Poisoning Incident, March 1984 (2d Cir.1985) 770 F.2d 3, 5 n. 2. The parties to this action agree that the "domicile of the carrier" and the "principal place of business of the carrier" are each in Russia, and therefore cannot be the basis for jurisdiction in the United States. The question before us thus revolves around the last two prongs of the treaty: (1) *732 carrier's "place of business through which the contract has been made"; and (2) the "place of destination."
1. "Place of business through which the contract has been made"
Plaintiff's counsel argues that the contract of carriage was formed when Lam sent a fax to agent Li agreeing to purchase the tickets on Aeroflot's terms. In making this assertion, they expect us to draw the conclusion that the contract was entered into within the United States. This argument is flawed in that the agreement to purchase the tickets was effectuated by agent Li with G.U.E., not by Lam with agent Li.
Case law supports the view that the "place of business through which the contract has been made" is the place where the passenger ticket was issued. See Stanford v. Kuwait Airways Corporation, et al. (S.D.N.Y.1986) 648 F. Supp. 657, 661 (contract was made where decedents' airline tickets were purchased and issued); Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971) 452 F.2d 798, 803 (jurisdiction [under this prong] not proper where the ticket was purchased outside the United States and no United States contacts, including but not limited to interline or intraline ticketing arrangements, existed beyond the presence of a ticketing and booking office of the carrier-defendant). Since Li, acting as Lam's agent, purchased the tickets from Aeroflot in Hong Kong, jurisdiction cannot be claimed under this prong.
2. "Place of destination"
The "Place of destination" of a journey, as contemplated by the Warsaw Convention, is determined by reference to the intent of the parties. In re Alleged Food Poisoning, supra, 770 F.2d at 5. If the parties have regarded the transportation as an undivided round-trip journey, the existence of various stops on successive carriers does not alter the fact that the end of the trip is the "place of destination." Id. at 6. Thus the ultimate "destination," and not any "agreed stopping place," controls for purposes of jurisdiction under the rubric of the Convention. Id. In the cited case the injured passenger, who was traveling on a ticket from London to Washington, D.C., claimed the United States as a proper forum for his suit. The court rejected his assertion on a finding that although the London to Washington ticket was the only one issued by the carrier being sued, it was one of several tickets used by the passenger on his round trip journey to and from Riyadh, Saudi Arabia. Id.
The record before us conclusively establishes that Lam, just as the passenger in In re Alleged Food Poisoning, had embarked upon a round trip journey beginning, and supposed to end, in the same city. Though he planned to stop in several countries (i.e., Hong Kong, China, Russian Federation) and travel on various carriers (i.e., United Airlines, Dragon Air, Aeroflot) his point of embarkation was Denver, as was the terminus of his planned journey.
Defendant cites Klos v. Polskie Linie Lotnicze (2d Cir.1997) 133 F.3d 164 and Swaminathan v. Swiss Air Transport Co., Ltd. (5th Cir.1992) 962 F.2d 387 for the proposition that Hong Kong, and not the United States, should be considered the "place of destination" of the trip during which Lam was killed. Neither of these cases has any bearing on the facts before us.
In Klos, the travelers whose deaths were sought to be litigated were Polish nationals who had purchased round-trip tickets from the defendant carrier to New York and back to Poland. Since they were seeking to escape the Communist regime then controlling Poland, they planned to deplane in New York and never return to their homeland. All Polish citizens were then forced by the Communist government to purchase round-trip tickets. As a result, these travelers never told the airline anything about their plans to make the United States their final destination. The Klos court declined to find United States jurisdiction where the unexpressed intention of the travelers ignored the route specified on their round-trip tickets.
The Klos opinion started out by rejecting the district court's ruling that "[t]he intention of the passenger alone, and not the mutual intention of the parties as expressed in the contract, or otherwise, determines the passenger's *733 `ultimate destination.'" In re Air Crash Disaster Near Warsaw (E.D.N.Y. 1991) 760 F. Supp. 30, 32. It made clear that in determining where a passenger intends to make a final destination, one is not to consider his unexpressed wishes, but only the expressed wishes disclosed in his contract with the carrier who issued the ticket. Klos, 133 F.3d at 167-68. The opinion drew a sharp distinction between the expressed intent of the passengers to return to Poland and their covert intent to remain in the United States. In concluding its analysis of the issue, it pointed out that "[t]he contract between LOT and decedents [passengers] was unambiguous, indicating the clear mutual intent of the parties that Warsaw be the place of final destination." (emphasis ours) Id.
On the facts of the case at bar, it is by no means unambiguous that a final destination of Hong Kong was the "clear mutual intent of the parties." Lam's ticket, assuming that it represented a contract between Lam and Aeroflot, was at best an incomplete document which in no way indicated the intent of anyone. Information concerning Lam's intent (notation of which would in no way have effected the validity or meaning of the ticket) was never requested by the defendant. Unlike the travelers in Klos, Lam harbored no covert plan to diverge from the route specified on the total sum of his tickets. Had Aeroflot, in issuing the ticket for its segment, been interested in learning Lam's ultimate destination, it could easily have learned it from agent Li, who was negotiating with it on Lam's behalf.
In Swaminathan, the plaintiff had bought a round-trip ticket from Dakar, Senegal to New York and back to Dakar. He nonetheless asserted that New York had been his ultimate destination and that he had left open the specific flight numbers and dates for his return to Dakar. It appears that Swaminathan intended to remain permanently in New York, but found that purchasing a round-trip ticket would be cheaper than a one-way passage. The court rejected his argument and deemed Dakar to have been his final destination, holding, as would the Second Circuit in Klos, that when a contract is unambiguous, the instrument alone is taken to express the intent of the several parties. 962 F.2d at 389.
To summarize the distinctions between the facts before us and those in Klos and Swaminathan: In the first place, in the case before us there exists no instrument (or combination of instruments) which could by any stretch of the imagination be deemed a contract between the parties expressing the intent or understanding of either of them on whether the trip from Hong Kong to Russia and return should be considered an independent journey or a segment of a larger business trip beginning and ending in Denver.[2] We turn to other indications of the intent or understanding of the respective parties.
With respect to Lam's intent, everyone concerned with the journey was aware of his plan to make a business trip starting in Denver and ending there. He did nothing to conceal his plan from the carrier. With respect to Aeroflot, it actually participated in making the Hong Kong/Russia segment a part of the overall trip. Its authorized Denver agent, being temporarily unable to perform its usual function of issuing Aeroflot tickets for segments of planned round-trip journeys, advised Lam to apply directly to Hong Kong. Furthermore, as we have seen from agent Li's affidavit, Lam carried with him a variety of documents which he was presumably required to present to customs authorities and to airline employees upon boarding an aircraft, all of which clearly indicated that Hong Kong was not the end of his journey. No reasonable finder of fact could fail to conclude that Aeroflot must have learned of Lam's true plans at least before it permitted him to embark on the fatal leg of the journey.
*734 We find Daniel Lam's "place of destination", as contemplated by the Warsaw Convention, to have been Denver, CO. Defendant's motion to dismiss for lack of subject matter jurisdiction is therefore denied.
SO ORDERED.
NOTES
[1] Lam planned to make several intermediate stops within countries (e.g., Moscow, Omsk, San Francisco) which are not set forth in the main text because they are not relevant to the legal analysis.
[2] We note that the clerk who issued the ticket entered the notation "SITI." This, according to the affidavit of Cheung Kwok Leung Alex, means "Sale inside and ticket issued inside the country of commencement of international transport." So far as we know, defendant has never claimed this entry to have any significance. Nor could it so claim. There is no suggestion in the evidence that Lam was aware of this notation or that he would have realized its significance had he noticed it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267229/ | 147 N.J. Super. 24 (1977)
370 A.2d 519
STATE OF NEW JERSEY, IN THE INTEREST OF W.M., JUVENILE-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted January 10, 1977.
Decided February 1, 1977.
*25 Before Judges FRITZ, ARD and PRESSLER.
Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. James R. Kinarney, Assistant Deputy Public Defender, Appellate Section, of counsel and on the brief).
Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Peter N. Gilbreth, Assistant Prosecutor, of counsel).
The opinion of the court was delivered by ARD, J.A.D.
The single question raised in this appeal is whether a juvenile who receives a custodial disposition is entitled to credit for time spent in custody between his arrest and the commitment.
R. 3:21-8 governs adult criminal sentencing and provides that
The defendant shall receive credit on the term of a custodial sentence for any time he has served in custody in jail or in a state hospital between his arrest and the imposition of sentence.
*26 The parties agree that R. 3:21-8 has no counterpart in the rules governing the Juvenile and Domestic Relations Court. However, appellant, joined by respondent, submit that due process and fundamental fairness require that the same credit provided an adult be provided in juvenile proceedings. We agree.
In the landmark case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the basic protections of right to counsel, notification of charges, privilege against self-incrimination, confrontation and cross-examination were recognized as essential rights of juveniles. Thereafter both federal and state decisions have consistently expanded the rights and protections of juveniles. See Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State in the Interest of A.R., 57 N.J. 71 (1970); State in the Interest of Carlo, 48 N.J. 224 (1966); R. 5:9-1 (Comment).
In light of the litany of cases, all of which expand the rights of juveniles to those afforded their adult counterpart, we perceive no reason why the juvenile should not receive credit for time spent in custody. It has not been suggested, nor can we conceive of a reason, why custody credit would be detrimental to the rehabilitative process of the juvenile. Absent a cogent reason to treat the juvenile differently, we deem it a matter of fundamental fairness that the juvenile receive credit for predisposition custody. In State v. Lee, 60 N.J. 53 (1972), the Court held that defendant was entitled to credit for the time he spent in confinement at the Hudson County Jail and the Diagnostic Center, thus clarifying the meaning of the term "custodial sentence." In justifying its broad approach to the term, the court went on to say
* * * [W]e are furthering the legislative goal in fixing the maximum statutory term as the outer limit of the defendant's confinement. It is true that crediting the defendant with the time he was confined prior to his commitment will shorten the time available *27 for his treatment, and hopefully his cure, but that would appear to be simply an accompaniment of the statutory policy which relates to the length of confinement and not to the length or success of treatment. [at 58]
We deem the juvenile confinement to be analogous and the philosophy of the court in Lee to be pertinent to the question of granting a juvenile credit for predisposition custody.
Moreover, we are satisfied that R. 3:21-8 applies to juveniles. Prior to the 1969 revision of the Rules Governing the Courts of the State of New Jersey, R.R. 3:1-1 provided as follows:
These rules govern the practice and procedure in the Superior Court and county courts in all criminal proceedings and, insofar as they are applicable, the practice and procedure on indictable offenses in all other courts except the juvenile and domestic relations courts. [Emphasis supplied]
A fair reading of the rule prior to 1969 would indicate that a Part III rule could not govern the practice and procedure in the Juvenile and Domestic Relations Court. The exception incorporated in the rule is unequivocal. R. 3:1-1, adopted as part of the 1969 revision, contains significantly different language with regard to the Juvenile and Domestic Relations Court. It provides:
The rules in Part III govern the practice and procedure in the Superior Court and county courts in all criminal proceedings and, insofar as they are applicable, the practice and procedure on indictable offenses in all other courts except in juvenile delinquency and criminal proceedings in the juvenile and domestic relations court which are otherwise expressly provided for in Part V. The Tentative Draft Comment concerning this rule states in part:
* * * [T]his rule has been modified to provide for the applicability of Part III rules to such proceedings except as the rules of the juvenile and domestic relations court (proposed Part V) otherwise provide. [Emphasis supplied]
We have already indicated that Part V does not include a provision which would entitle a juvenile to credit for predisposition custody. We further observe that Part V does *28 not contain any other provision which would be repugnant to the incorporation of R. 3:21-8 in juvenile sentencing.
The record is deficient as to the exact amount of credit due the juvenile, and therefore the matter is remanded in order that he may be properly credited. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267237/ | 174 Cal.App.4th 590 (2009)
___ Cal.Rptr.3d ___
FREDDY AGUILERA, Plaintiff and Appellant,
v.
ROBERT P. HEIMAN et al., Defendants and Respondents.
No. B206790.
Court of Appeals of California, Second District, Division Eight.
May 29, 2009.
*593 Zukor and Nelson, Abram Charles Zukor and Marilyn H. Nelson for Plaintiff and Appellant.
Law Offices of Bradford L. Treusch and Bradford L. Treusch for Defendant and Respondent Robert P. Heiman.
Kulik, Gottesman, Mouton & Siegel, Donald S. Gottesman and David A. Bernardoni for Defendant and Respondent 2612 Montana Avenue Owners Association.
OPINION
FLIER, J.
Freddy Aguilera was injured on November 5, 1997. On April 16, 2007, almost 10 years later, Aguilera filed this civil action against respondents Robert P. Heiman, individually and doing business as Pegasus Properties (Heiman), and 2612 Montana Avenue Owners Association (Association). Respondents demurred to an amended complaint on the basis that Aguilera's action for personal injuries was barred by the statute of limitations. Aguilera contended that the statute of limitations was tolled by his timely filing of a claim for workers' compensation benefits against his unlicensed and uninsured employer, Mark Hruby, doing business as Rube's Rain Gutter Service (Hruby), and the Uninsured Employers Benefits Trust Fund (UEF). The trial court sustained the demurrer without leave to amend. Aguilera appeals from the resulting dismissal of his action. We affirm.
We hold the claim is barred by the one-year statute of limitations under Code of Civil Procedure former section 340, subdivision (3) and the equitable tolling doctrine did not apply to extend appellant's time to file an action against respondents. Further, the trial court did not abuse its discretion in sustaining the demurrers without leave to amend.
FACTS AND PROCEDURAL HISTORY[1]
The basic facts for purposes of this appeal are not in dispute. Aguilera was injured on November 5, 1997, when he came into contact with a high voltage electrical wire while installing rain gutters on a condominium in Santa Monica, California.
*594 Well within one year after the incident, on January 26, 1998, Aguilera filed an application to receive workers' compensation benefits, naming his employer Hruby and UEF as defendants. On June 16, 1999, more than one and a half years after Aguilera's injury, and again on June 3, 2002, more than three and a half years after such injury, the workers' compensation judge ordered Heiman joined as a defendant to the workers' compensation proceeding. After that, apparently on August 12, 1999, Aguilera added respondent Association (incorrectly identified as "Montana Villas Homeowners Association") as a party defendant to his workers' compensation proceeding.[2] The workers' compensation matter proceeded to an award finding Hruby to be Aguilera's employer and liable for workers' compensation, including a 90 percent permanent disability rating. The Workers' Compensation Appeals Board granted reconsideration and determined that, because he did not possess a valid contractor's license, Hruby was not Aguilera's employer for workers' compensation purposes and that Heiman was the employer for such purposes as a professional property management business and as agent for the homeowners' association.
Upon Heiman's petition for a writ of review of the board's decision, Division Three of this court held that, in addition to Hruby, respondents Heiman and the Association were also liable under the workers' compensation statutes. (Heiman v. Workers' Comp. Appeals Bd. (2007) 149 Cal.App.4th 724 [57 Cal.Rptr.3d 56].) Division Three held that Heiman had joint and several liability as an employer for workers' compensation purposes because he had hired an unlicensed and uninsured contractor, and the Association was liable as Heiman's principal. (Id. at pp. 738, 743-744.) The court further held, however, that the individual condominium owners were not liable for such benefits. (Id. at pp. 744-745.)
Aguilera then filed the present civil action for negligence against respondents and individual homeowners on April 16, 2007, almost 10 years after his injury.
Respondents demurred on grounds including the statute of limitations. The trial court ultimately sustained the demurrers without leave to amend. The trial court ruled that the applicable personal injury limitations period at the time of Aguilera's injury was one year. (Code Civ. Proc., former § 340, subd. (3).) The court further ruled that the doctrine of equitable tolling under Elkins v. Derby (1974) 12 Cal.3d 410 [115 Cal.Rptr. 641, 525 P.2d 81] did not apply to extend the statute of limitations.
*595 The trial court entered a judgment dismissing the action, and Aguilera timely appealed.
STANDARD OF REVIEW
Aguilera incorrectly asserts that in reviewing the sustaining of demurrers this court examines the trial court's action for an abuse of discretion. Respondents, however, correctly state that this court applies two separate standards of review on appeal from a judgment of dismissal after a demurrer is sustained without leave to amend. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) We first review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory or to determine whether the trial court erroneously sustained the demurrer as a matter of law. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879 [6 Cal.Rptr.2d 151].) Second, we determine whether the trial court abused its discretion by sustaining the demurrer without leave to amend. (Ibid.) Under both standards, appellant has the burden of demonstrating that the trial court erred. (Ibid.) An abuse of discretion is established when "there is a reasonable possibility the plaintiff could cure the defect with an amendment." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [6 Cal.Rptr.3d 457, 79 P.3d 569].)
CONTENTIONS
Aguilera asserts his action is not barred by the statute of limitations because it was equitably tolled while he was pursuing his workers' compensation remedy. He further asserts the principles of equitable estoppel should apply because it was respondents who prolonged the resolution of the workers' compensation case and respondents claim no prejudice due to the delay in filing the civil case.
Respondents contend the complaint as amended reveals on its face that the action is barred by the one-year statute of limitations then in effect for his personal injury claim and equitable tolling does not apply because the action was already time-barred when respondents were joined as parties to the workers' compensation proceeding.[3] Respondents also contend that the amended complaint fails to state any claim that might be subject to the three-year statute of limitations, and there is no reasonable probability *596 that Aguilera could cure the pleading's defect by amendment. Heiman further contends Aguilera's complaint was not properly before the trial court because Aguilera failed to allege the required jurisdictional fact that respondents were uninsured and thus subject to an action at law for damages.
DISCUSSION
1. Aguilera's Claim Is Barred by the One-year Statute of Limitations
(1) When Aguilera was injured on November 5, 1997, Code of Civil Procedure former section 340, subdivision (3) provided a one-year statute of limitations for personal injury actions. On January 1, 2003, new Code of Civil Procedure section 335.1 took effect and extended the statute of limitations for personal injury suits to two years. The new two-year statute of limitations for personal injuries, however, was not retroactive. (Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028-1029 [9 Cal.Rptr.3d 767]; see Mojica v. 4311 Wilshire, LLC (2005) 131 Cal.App.4th 1069, 1073 [31 Cal.Rptr.3d 887].) (2) Statutes generally operate only prospectively, and "[a] new statute that enlarges a statutory limitations period [only] applies to actions that are not already barred by the original limitations period at the time the new statute goes into effect." (Andonagui v. May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 440 [27 Cal.Rptr.3d 145].) To revive an expired claim, a new statute of limitations must be made expressly retroactive by the Legislature, and the Legislature made no such provision in enacting Code of Civil Procedure section 335.1. (Andonagui, at p. 440; see also Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 378-379 [5 Cal.Rptr.3d 116] ["where the application of a new or amended statute of limitations would have the effect of reviving an already time-barred claim, the general rule against retroactive application of the statute is applicable in the absence of a clear indication of legislative intent to the contrary"].) "The reason for this rule is a judicial perception of unfairness in reviving a cause after the prospective defendant has assumed its expiration and has conducted his affairs accordingly." (Gallo v. Superior Court (1988) 200 Cal.App.3d 1375, 1378 [246 Cal.Rptr. 587]; see also Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 465 [24 Cal.Rptr. 851, 374 P.2d 819] ["These rules afford warning to potential defendants that until the statute of limitations has run it may be extended, whereas after it has run, they may rely upon it in conducting their affairs."].)
In Krupnick v. Duke Energy Morro Bay, supra, 115 Cal.App.4th 1026, the plaintiff alleged he sustained injuries on January 26, 2001. He filed his action on January 8, 2003. (Id. at p. 1027.) Under the one-year statute of limitations *597 that applied on the date he was injured, he had only until January 26, 2002, to file his complaint. (Id. at p. 1028.) The court held Code of Civil Procedure section 335.1 did not apply to save the plaintiff's action from the running of the statute of limitations, because his claim was already time-barred when the new two-year statute became effective on January 1, 2003, and the new statute did not operate retroactively to revive his action. (Krupnick, supra, at pp. 1028-1029.)
In the present case, when Aguilera was injured on November 5, 1997, the one-year provision of Code of Civil Procedure former section 340, subdivision (3) was in effect. The one-year period for Aguilera to bring a personal injury action expired on November 5, 1998. Thus, when the new Code of Civil Procedure section 335.1 two-year statute of limitations took effect on January 1, 2003, it did not operate retroactively to revive Aguilera's personal injury action.
2. Equitable Tolling Does Not Apply to Extend the Statute of Limitations
Aguilera contends his action is not barred by the one-year statute of limitations because it was equitably tolled while he was pursuing his workers' compensation remedy. He further asserts the principles of equitable estoppel should apply because it was respondents who prolonged the resolution of the workers' compensation case and respondents claim no prejudice due to the delay in filing the civil case.
A. Equitable Tolling Doctrine
(3) In Elkins v. Derby, supra, 12 Cal.3d 410, our Supreme Court formulated the principle of equitable tolling, applying the doctrine to situations "`[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.'" (Id. at p. 414, quoting Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634 [86 Cal.Rptr. 198].)
In Elkins v. Derby, the plaintiff, who was injured while working, "reasonably and in good faith filed a timely claim for benefits" against his supposed employer but, after several months of adjudication, the Workers' Compensation Appeals Board determined he had not been an "employee" at the time of his injury because he received no compensation for his services. (Elkins v. Derby, supra, 12 Cal.3d at p. 412, italics added.) One month later, the plaintiff filed his personal injury action seeking recovery against the same defendants for the same injury that served as the basis for his workers' compensation claim. (Id. at p. 413.) The court held the statute of limitations was tolled for the *598 period during which the plaintiff had pursued his compensation remedy. The court stated: "[A]n awkward duplication of procedures is not necessary to serve the fundamental purpose of the limitations statute, which is to insure timely notice to an adverse party so that he can assemble a defense when the facts are still fresh. The filing of a compensation claim accomplishes this purpose and the tolling of the statute does not frustrate it." (Id. at p. 412.)
The equitable tolling doctrine rests on the concept that a plaintiff should not be barred by a statute of limitations unless the defendant would be unfairly prejudiced if the plaintiff were allowed to proceed. "[T]he primary purpose of the statute of limitations is normally satisfied when the defendant receives timely notification of the first of two proceedings." (Elkins v. Derby, supra, 12 Cal.3d at p. 417, fn. 3; see also Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 923 [191 Cal.Rptr. 681].) The doctrine has been applied "where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason." (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100 [84 Cal.Rptr.3d 734, 194 P.3d 1026], citing Collier v. City of Pasadena, supra, at p. 923.)
B. Essential Requirements for Equitable Tolling
(4) Equitable tolling requires that three essential elements be satisfied by the party seeking the tolling: "(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim."[4] (Collier v. City of Pasadena, supra, 142 Cal.App.3d at p. 924; see also Addison v. State of California (1978) 21 Cal.3d 313, 319 [146 Cal.Rptr. 224, 578 P.2d 941]; Loehr v. Ventura County *599 Community College Dist. (1983) 147 Cal.App.3d 1071, 1085 [195 Cal.Rptr. 576]; and see Mojica v. 4311 Wilshire, LLC, supra, 131 Cal.App.4th at p. 1073.) The requirement of timely notice basically means the first claim must have been filed within the statutory period; the filing of the first claim also must have alerted the defendant in the second claim of the need to begin investigating the facts that form the basis for the second claim. (Collier v. City of Pasadena, supra, at p. 924.) Normally, this means the defendant in the first claim is the same one being sued in the second. (Ibid.) The second prerequisite in essence translates into a requirement that the facts of the two claims be identical or at least so similar that the defendant's investigation of the first claim will put him in a position to fairly defend the second. (Id. at p. 925.) So long as the defendant is timely placed on notice by the first claim so he can investigate in order to "appropriately defend" the second claim, "it is irrelevant whether those two claims are alternative or parallel, consistent or inconsistent, compatible or incompatible." (Id. at pp. 925, 926.)
C. No Timely Notice to Respondents
(5) In the instant case, Aguilera timely filed for workers' compensation on January 26, 1998, a little over two months after his injury. But it is undisputed that he filed the workers' compensation claim naming as defendant only Hruby as his employer, together with the UEF because Hruby was uninsured.[5] Aguilera admits Heiman was not joined as a defendant to the workers' compensation proceeding until June 16, 1999, and the Association was joined on August 12, 1999. This was seven months and nine months, respectively, after the one-year statute of limitations had already expired.
i. The Valdez Case Does Not Apply
Relying on Valdez v. Himmelfarb (2006) 144 Cal.App.4th 1261 [51 Cal.Rptr.3d 195] (Valdez), Aguilera claims his action was not barred by the statute of limitations because the statute was equitably tolled while he pursued his workers' compensation claim. In Valdez, the plaintiff was injured in July 2001. The plaintiff brought a timely workers' compensation claim against his employer. (Id. at pp. 1266, 1274.) In August 2002, the plaintiff discovered his employer lacked workers' compensation insurance, and thereafter he brought a personal injury action against his employer in May 2003. (Ibid.) Reversing the trial court, Division Seven held that the plaintiff's civil action was timely filed. (Id. at p. 1268-1269.) The court held that Labor Code *600 section 3706 allowed an employee, in addition to his workers' compensation claim, a tort action against an uninsured employer. (Valdez, at p. 1268.) Labor Code section 3706, the court held, creates a statutory cause of action governed by a three-year statute of limitations, and the plaintiff timely filed his section 3706 action within three years of his injury. (Valdez, at pp. 1268-1271.) Alternatively, even if the former one-year statute of limitations for negligence actions applied, the court held the plaintiff's civil action was timely because the statute was tolled until the plaintiff obtained a "final determination" of his workers' compensation claim.[6] (144 Cal.App.4th at pp. 1268, 1270-1271.)
ii. No Timely Notice to "Employers"
The Valdez court's analysis turned, as in Elkins v. Derby, upon the employer's timely notice of the workers' compensation claim. Valdez noted that "[i]n a case such as the one before us, where the employer knows it is uninsured, it has an even greater incentive to initially gather evidence of fault because it can anticipate having to rebut the presumption of negligence in a civil action ...." (Valdez, supra, 144 Cal.App.4th at p. 1273.) Valdez therefore does not provide the support Aguilera seeks.
Here, unlike in Valdez, respondents were not named within the limitations period. The elements of equitable tolling are not present in Aguilera's case. No proceeding of any sort was filed against respondents within the then-applicable one-year statute of limitations.[7] Heiman was first added as a defendant in the workers' compensation proceeding more than one and a half years after the injury, and the workers' compensation judge ordered the Association joined as a defendant in that proceeding two months after that. Collier noted that under ordinary circumstances a workers' compensation claim generally "would not equitably toll a personal injury action against a third party who might also be liable for the injury." (Collier v. City of Pasadena, supra, 142 Cal.App.3d at pp. 924-925.) Accordingly, the trial court did not err in deciding Aguilera's action is barred by the statute of limitations.
*601 iii. Applicability of McGee
We find further support for our holding in our recent opinion in McGee Street Productions v. Workers' Comp. Appeals Bd. (2003) 108 Cal.App.4th 717 [133 Cal.Rptr.2d 813] (McGee), a case that neither party cited to this court or to the trial court. We held in McGee that the Workers' Compensation Appeals Board may not allow joinder of a new party after the expiration of the one-year statute of limitations for the filing of a serious and willful misconduct claim. (Id. at pp. 719, 725-726.) In McGee, the respondent, the wife of a worker who suffered a heart attack on a movie set, timely filed a workers' compensation claim for a specific and cumulative trauma injury on behalf of herself, her husband and their dependent children against the husband's general employer. (Id. at p. 720.) When the heart attack proved fatal, respondent, within one year of her husband's death, timely filed a second petition against the general employer alleging serious and willful misconduct. (Ibid.) More than one year after the date of death, respondent sought to file an amended petition naming the special employer as an additional defendant, and the board issued an order for joinder. Still later, the respondent filed a second amended petition naming a second "responsible party." (Id. at pp. 720-721.) The respondent argued that the amendments adding new parties related back to the original petition. (Id. at p. 721.) On review of a petition for reconsideration, the board agreed. (Id. at p. 722.)
We annulled the board's order. We applied an analogy to civil cases, stating: "[W]e refer to the familiar rule that under the Code of Civil Procedure, a complaint may not be amended to add a new defendant after the statute of limitations has run." (McGee, supra, 108 Cal.App.4th at p. 724; see also Woo v. Superior Court (1999) 75 Cal.App.4th 169, 175-178 [89 Cal.Rptr.2d 20] [amended complaint adding new defendant does not relate back to original complaint].) We recognized that application of the civil statute of limitations law to workers' compensation cases is not a "perfect fit," because no Doe parties are permitted in workers' compensation proceedings. (McGee, supra, at p. 725.) Of greater significance, the respondent was not ignorant of the identity of the employer who exercised control over the details of her husband's work when she filed the serious and willful misconduct petition. The second amended petition further did not allege the respondent discovered any new information or explain why she could not have obtained such information earlier. (Ibid.) We concluded that "[t]he policies of avoiding the presentation of stale claims and of putting parties on notice of potential liability are not furthered by [a] rule ... that naming a general employer in a petition ipse dixit permits the addition of a special employer after the running of the limitations period." (Id. at pp. 725-726.)
*602 (6) Although McGee dealt specifically with a "serious and willful" petition, our Supreme Court has held that, even in an ordinary claim for workers' compensation, "`[t]he general rule is well settled that, when new parties are brought in by amendment, the statute of limitations continues to run in their favor until thus made parties. The suit cannot be considered as having been commenced against them until they are made parties.'" (Ingram v. Department of Industrial Relations (1930) 208 Cal. 633, 642-643 [284 P. 212] [timely filing of workers' compensation claim against husband alone for worker's injury on property did not estop wife, the true owner of property, from interposing bar of limitations when she was guilty of no act or commission or omission prejudicing workers' rights prior to running of statute]; see Fahey v. Industrial Acc. Com. (1938) 29 Cal.App.2d 570 [84 P.2d 1075] [when worker in cumulative trauma case had knowledge of identity of all past employers but filed claim against only one, attempt to join additional employers after running of statute barred]; 2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (Rev. 2d ed. 2009) § 24.03[1], p. 24-13 ["[a]n employee's attempt to amend an application for the purpose of joining additional parties after the expiration of the one-year limitations period may be barred, based on the rule that the statute of limitations continues to run in favor of the new parties until they are actually joined"]; see also Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 489-490 [121 Cal.Rptr. 477, 535 P.2d 341] [Elkins v. Derby did not toll running of statute of limitations when civil plaintiff believed two persons may have been responsible jointly or alternatively for auto collision resulting in his injury but chose to file suit against only one]; but see State Comp. Ins. Fund v. Ind. Acc. Com. (1945) 26 Cal.2d 278, 284-285 [158 P.2d 195] [voluntary payment of compensation by special employer tolled limitation statute against general employer].)[8]
D. No Estoppel by Workers' Compensation Appeal
We disregard Aguilera's contention that respondents' conduct in pursuing, or responding to, the petition for writ of review of the decision of the Workers' Compensation Appeals Board so prolonged that proceeding that their conduct estops them from invoking the statute of limitations. We focus on respondents' conduct prior to the running of the statute of limitations, not afterwards. (See McGee, supra, 108 Cal.App.4th at pp. 726-727.) Neither the *603 amended complaint nor the record shows any conduct or omission on respondents' part that might have induced Aguilera to refrain from filing a claim until after the statute of limitations had run. (Ibid.)
3. Time Bar Under Three-year Statute of Limitations
Aguilera has not suggested he can cure the statute of limitations problem by amending his pleading to allege respondents' noncompliance with Labor Code section 3700, thereby triggering the three-year limitations period applicable to Labor Code section 3706 claims. In the court below, he stated it was "unlikely" that the three-year statute of limitations applies in this case. On appeal, Aguilera makes no claim a three-year limitations period applies but rather relies solely on the argument the one-year limitations period was equitably tolled by his workers' compensation proceeding. We address this issue because it relates to the question whether Aguilera can amend his complaint.
(7) The Association argues that even if such an argument were made, Aguilera's civil action would still be time-barred under a three-year statute of limitations. Assuming, without deciding, that a three-year statute of limitations applies, accrual of a Labor Code section 3706 cause of action is delayed only until discovery of the employer's noncompliance with Labor Code section 3700. Thus, accrual is delayed only until the employee has "the opportunity to obtain" knowledge of the employer's noncompliance "`"`from sources open to [his] investigation.'"'"[9] (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 [27 Cal.Rptr.3d 661, 110 P.3d 914], italics omitted; see id. at p. 807 ["Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period."].)
Using the discovery basis for accrual, Aguilera's Labor Code section 3706 claim accrued no later than June 16, 1999, for Heiman and August 12, 1999, for the Association, as those were the dates they were joined as defendants in the workers' compensation proceeding. The last day to commence an action under Labor Code section 3706 therefore was June 16, 2002, for Heiman and *604 August 12, 2002, for the Association. Had Aguilera checked at that time, he would have known if Heiman or the Association had failed to comply with Labor Code section 3700 and an action at law for damages could be filed in addition to his remedies under workers' compensation. Thus, even under a three-year statute of limitations, Aguilera's complaint filed on April 16, 2007, would have been time-barred.
We have found no reported appellate court decision that has applied the equitable tolling doctrine to suspend the running of the three-year statute of limitations applicable to Labor Code section 3706 causes of action. In Valdez, Division Seven of this court applied the equitable tolling doctrine to the one-year statute of limitations applicable to personal injury claims. (Valdez, supra, 144 Cal.App.4th at p. 1270, fn. 20.) The Valdez court did not have occasion to apply the doctrine to the three-year statute of limitations because Valdez filed his civil action within three years from the date of injury. (Ibid.) Valdez, however, observed that "tolling may end if the employer can show the plaintiff has unreasonably delayed a final determination as to whether the employer is insured." (Id. at p. 1275.) Under the facts of this case, in which Aguilera knew or had the means to know in 2002 that he had a civil action at law against respondents but waited over four and a half years further to bring his action, we decline to extend Valdez's holding to toll the running of the three-year statute of limitations.
4. Amendment of Complaint
When a demurrer is sustained without leave to amend, we must determine whether there is a reasonable possibility the plaintiff can cure the defect by amendment. If so, the trial court has abused its discretion, and we reverse; if not, no abuse of discretion has occurred, and we affirm. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) The plaintiff has the burden of proving an amendment will cure the defect. (Ibid.; see also Schifando v. City of Los Angeles, supra, 31 Cal.4th 1074, 1081.)
Appellant has not indicated or demonstrated that he could allege facts that would cure the defective complaint by amendment. We have independently ascertained that he cannot amend to state a claim under Labor Code section 3706. Accordingly, the trial court properly exercised its discretion in sustaining the demurrers without leave to amend.[10]
*605 DISPOSITION
The judgment of dismissal as to respondents Heiman and the Association is affirmed. Respondents are to recover costs on appeal.
Rubin, Acting P. J., and Bigelow, J., concurred.
NOTES
[1] On review of the sufficiency of a complaint against a general demurrer, we treat the demurrer as admitting all properly pleaded material facts, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) We also consider matters subject to judicial notice. (Ibid.)
[2] The trial court took judicial notice of documents from the workers' compensation case that reflected the dates upon which each respondent was joined as a defendant to the proceeding.
[3] Although not reflected in the record before us, Heiman asserts in his brief that the petition for the joinder of Heiman and Association in the workers' compensation proceeding was filed by codefendant Hruby and not Aguilera. Appellant's reply brief does not dispute this assertion.
[4] In Collier v. City of Pasadena, supra, 142 Cal.App.3d at page 924, footnote 5, Division Seven of this court noted, "It is not altogether clear whether the Supreme Court would insist on all three prerequisites." The court observed in dictum that in two prior cases the statute was suspended until termination of the first litigation when the first litigation, if successful, would reduce damages sought in the second litigation, even though the second action was brought against an entirely different defendant. (Id. at p. 925, fn. 7; see Tu-Vu Drive-In Corp. v. Davies (1967) 66 Cal.2d 435, 437 [58 Cal.Rptr. 105, 426 P.2d 505] [after plaintiff unsuccessfully prosecuted third party claim in first litigation, second action brought against attorney who secured wrongful levy upon plaintiff's movie equipment]; County of Santa Clara v. Hayes Co. (1954) 43 Cal.2d 615, 618 [275 P.2d 456] [statute against publisher for defective publication of county charter tolled while county attempted to secure approval of charter from Legislature].) However, the Supreme Court has recently clarified that the judicially created equitable tolling rule "require[s] a showing of [all] three elements." (McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th at p. 102 & fn. 2.)
[5] Aguilera states the UEF became a party to the workers' compensation proceeding on January 29, 1998, three days after he filed a workers' compensation claim, when it was discovered Hruby was uninsured.
[6] The court defined "final determination," not in terms of a final adjudication of the claimant's permanent disability, which "may not occur for 10 years or more after the claim is filed," but rather as "a threshold determination such as the claimant's lack of eligibility or the employer's lack of insurance which would trigger the claimant's right to seek a tort remedy in a civil action." (Valdez, supra, 144 Cal.App.4th at pp. 1274-1275.)
[7] Putting aside the issue of who stood in the shoes of Aguilera's "employer," if Aguilera suspected the homeowners, the homeowners' association, the property management company or any other unknown third party to be responsible for his injuries, he could and should have filed a civil action, naming such parties as defendants or adding Does to his complaint, within the one-year period. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110 [245 Cal.Rptr. 658, 751 P.2d 923] [statutory clock begins to run when plaintiff suspects or should suspect injury was caused by wrongdoing].)
[8] Our holding is directed to whether equitable tolling applies to a civil action against respondents under the unique circumstances of this case. We do not here decide whether respondents are otherwise subject to pay compensation to Aguilera under the workers' compensation statutes.
[9] The Association points out that the Legislature has provided a quick and easy reference source, the Workers' Compensation Insurance Rating Bureau (Bureau), which is open to investigation by employees wishing to determine if an employer has complied with Labor Code section 3700. (See Lab. Code, § 3715, subd. (c) [nonexistence of record of employer's insurance with Bureau is prima facie evidence that employer has failed to secure payment of workers' compensation].)
[10] In light of our holding, we need not reach the parties' other contentions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267238/ | 471 Pa. 310 (1977)
370 A.2d 317
COMMONWEALTH of Pennsylvania
v.
Lindred Dean CRAIG, Appellant.
Supreme Court of Pennsylvania.
Argued September 23, 1976.
Decided February 28, 1977.
*311 John J. Dean, John R. Cook, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Louis R. Paulick, Thomas M. Lilly, Asst. Dist. Attys., Robert A. Zunich, Pittsburgh, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.
OPINION
JONES, Chief Justice.
On June 20, 1973, Wilbert O. Brooks was fatally stabbed. Appellant, Lindred Dean Craig, and Brooks had fought twice earlier that evening. Twenty minutes after the last fight, they again met on the street. Another scuffle ensued, decedent staggered and fell, and appellant ran from the scene. Appellant was tried and convicted by a jury of murder in the first degree. After denying post-trial motions, the court imposed a sentence of life imprisonment. This direct appeal followed.[1]
*312 Appellant asserts two arguments as grounds for reversal: first, that the trial judge abused his discretion in refusing a motion for a mistrial; and second, that the evidence is insufficient to sustain a conviction of murder in the first degree.
Appellant's first argument is that the trial court abused its discretion in refusing to grant the motion for a mistrial which was based upon the jury's returning a defective verdict and the allegedly prejudicial effect of a spectator outburst upon its subsequent deliberations. The jury foreman announced the verdict in these words: "We, the jurors . . . find the defendant first count of murder guilty." Apparently, at this announcement, there was a spontaneous expression of approval by one or more of the spectators. However, the court was preoccupied with the defects in the announced verdict. When questioned by the court, the foreman indicated that the issue of degree was overlooked in its deliberations. The court informed the jury that its verdict was improper for that reason, reiterated the possible degrees of guilt, and returned the jury for further deliberations.[2]*313 The jury came back with a verdict of guilty of murder in the first degree.
Appellant argues that the expression of approval by the audience which accompanied the initial verdict influenced the jury's further deliberations as to degree and, therefore, a mistrial should have been granted. Initially, it should be noted that the court acted properly when it returned the jury for a determination of degree of guilt. To correct an error of substance in a verdict prior to its recording, the court may send the jury back with additional instructions for further deliberation. Commonwealth v. Dzvonick, 450 Pa. 98, 297 A. 2d 912 (1972); Commonwealth v. Johnson, 369 Pa. 120, 85 A.2d 171 (1952); Commonwealth v. Komatowski, 347 Pa. 445, 32 A.2d 905 (1943); Commonwealth v. Troup, 302 Pa. 246, 153 A. 337 (1931). A motion for mistrial is addressed to the discretion of the court. Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970). In the area of bystander misconduct, we have held that it is primarily within the trial judge's discretion to determine whether the defendant was prejudiced by the misconduct. Commonwealth v. Garrison, 443 Pa. 220, 279 A.2d 750 (1971). Our review satisfies us that the court did not abuse its discretion in denying this motion. The record contains several characterizations of the nature of the audience reaction including one by the court that someone approved of the decision.[3] In the opinion of the *314 court below, it is described as "a spontaneous expression, neither loud nor combined with any overt conduct.. . . Even the trial judge was unaware of this incident until brought to his attention." There is no indication that the jury was any more aware of the incident. Nor is there any indication that the jury was in any manner influenced by the incident. Within eleven minutes, the jury had completed its second deliberation. The court further questioned the foreman when the jury returned. The gist of this colloquy is that the question of degree had been decided in the first session but, through oversight, the original verdict was misworded.[4] On this *315 record, we cannot conclude that the trial court abused its discretion by refusing to grant the mistrial motion.
Appellant's second argument is that the evidence was insufficient to sustain a conviction of murder in the first degree. We have previously articulated the principles which guide our review in such cases.
"The necessary feature of nonfelony murder in the first degree is the presence of a willful, premeditated and deliberate intent to kill. In establishing the presence of a specific intent to kill, the Commonwealth is not required to depend upon proof by direct evidence, but may meet its burden by circumstantial evidence alone. `The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom . . .' Commonwealth v. Ahearn, 421 Pa. 311, 318, 218 A.2d 561, 565 (1966). See also, Commonwealth v. Williams, 455 Pa. 539, 546-47, 316 A.2d 888 (1970); Commonwealth v. Fostar, 455 Pa. 216, 220-221, 317 A.2d 188 (1974). The task of an appellate court in reviewing the sufficiency claim is to determine whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the jury *316 could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Williams, supra; Commonwealth v. Fostar, supra; Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972)."
Commonwealth v. Bundy, 458 Pa. 240, 243-44, 328 A.2d 517, 519 (1974). See Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976). The evidence must be read in a light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Long, 460 Pa. 461, 333 A.2d 865 (1975). Upon a review of the record, we conclude that the evidence is sufficient to sustain the conviction. Appellant and the victim had fought previously on the evening of the stabbing. During these scuffles, appellant was heard to make threats to kill the victim while the victim repeatedly expressed his unwillingness to fight. When the two met again, a third fight ensued. Witnesses saw the two men grapple, the victim stagger away, fall to the ground, and the appellant run away. When the detective arrived on the scene, he was told that the appellant did it. A medical examination revealed that death was caused by the puncturing of the organs in the upper left chest by a sharp instrument.
Judgment of sentence affirmed.
NIX, J., took no part in the consideration or decision of this case.
ROBERTS, J., concurs in the result.
MANDERINO, J., filed a dissenting opinion.
MANDERINO, Justice, dissenting.
I dissent. I conclude that on the facts of this case the trial court abused its discretion in failing to grant a mistrial in view of the fact that no supplemental instructions *317 regarding distinctions between first and second degree murder were given, and the trial court failed to take any precautionary measures to minimize any possible prejudicial effects of the outburst by courtroom spectators.
The majority opinion fails to mention that the verdict slip in this case contained the following options:
COUNT ONE murder, COUNT TWO voluntary manslaughter, COUNT THREE involuntary manslaughter. The slip did not distinguish between first and second degree murder in Count One.
When the foreman of the jury announced that they had found the defendant guilty of the first count of murder, (as opposed to second count of voluntary manslaughter and third count of involuntary manslaughter) the trial judge queried the foreman as to the degree of murder. The following discussion took place:
"THE COURT: Was it an oversight as to the assessing the degree of the crime, and necessary for further deliberation, or had you in fact deliberated on the
question of degree of crime?
JURY FOREMAN: I can't say from looking at the form we assumed the charges, and it says first count. We just assumed that there was no other degree to go on from there, I guess. We felt that it was it, that it was the highest you could go." (Emphasis added.)
It is obvious from this discussion that the jury did not understand the original charge as to distinctions between first and second degree murder. It is also obvious that they did not deliberate as to the degree of guilt prior to returning the defective verdict. At this point the trial court should have given supplemental instructions prior to further deliberations by the jury. See Commonwealth v. Dzvonick, 450 Pa. 98, 297 A.2d 912, 914, n. 4 (1972).
*318 In Commonwealth v. Komatowski, 347 Pa. 445, 32 A. 2d 905, 910 (1943) this Court noted:
"When a jury tenders a verdict which is defective in substance, uncertain, repugnant, or not responsive to the issue, it is proper for the court to reject it, as not warranted by law, call the attention of the jury to the defect, instruct them as to the form of verdict in case they mean to acquit or convict the defendant and send them back to their room where they can, untrammeled by the presence and influence of others, find such verdict as they think proper." (Emphasis added.)
Since the "spontaneous expression of approval" by one or more spectators in this case occurred when the jury was in the middle of its deliberations, I cannot conclude that they were "untrammeled by the presence and influence of others" in reaching their ultimate verdict. At the very least, the trial court should have cautioned the jury with respect to the prejudicial outburst. See Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970).
The only thing that we can be certain of in this case is that the defendant was found guilty of murder. Accordingly, the only proper judgment is the lowest degree of murder, second degree.
NOTES
[1] Jurisdiction in this matter is conferred by statute. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, Art. II, § 202(1), 17 P.S. § 211.202(1) (Supp. 1976).
[2] The following exchange was recorded subsequent to the announcement of the verdict:
"THE COURT: Mr. Recktenwald, I believe, is the foreman?
THE CLERK: Will you stand up, please?
THE COURT: Did you deliberate on the degree of murder? Did you miss in my charge the fact if you found the defendant guilty of murder, then you must determine the degree of murder, either first degree or second degree?
JURY FOREMAN RECKTENWALD: I think maybe we did overlook that, sir.
THE COURT: All right. Well, the verdict as it now stands is improper as exactly as stated by the foreman: We the jurors impaneled in the above-entitled case find the defendant first count murder guilty. But they have not designated the degree of murder. So at this point I think the proper thing to do is to return the jury to the jury room for the purpose of deliberating further, and if upon further deliberation you find the defendant guilty of murder, then you must designate the degree of murder, either first degree or second degree. All right. Now if after deliberation you find the defendant not guilty of murder, then you must move to the other counts in the indictment, voluntary manslaughter and involuntary manslaughter.
THE CLERK: Please take the jury back out for further deliberations."
[3] After the jury left the courtroom, the audience reaction was brought to the court's attention:
"MR. LITMAN: With regard to the said verdict I would ask for a mistrial under these circumstances, not only because of the jurors' improper finding, but also because of the response of the spectators in the Courtroom when the verdict was read.
MR. VOGRIN: Your Honor, my response to that would be the noise in the Courtroom, I don't know who made it, and defense counsel can disagree with me, I don't think it could be called an outburst, or anything like that. It didn't sound like any more than one individual to me.
MR. LITMAN: It sounded like a cheer to me.
THE COURT: Well, I was preoccupied myself, quite frankly. I didn't notice from whence the outcry came, and as to how one would designate it if you had to apprise it. I do have an impression that somebody, from what I heard, did favor the decision as it was made.
MR. LITMAN: Yes, Your Honor.
THE COURT: I am going to deny the motion."
[4] The colloquy was as follows:
THE COURT: All right. Ladies and gentlemen of the jury, I am going to direct a question to the foreman, juror number seven, Mr. Recktenwald. Mr. Recktenwald, initially as foreman at 3 o'clock p.m. you reported to this Court that the jury had reached a verdict, and that verdict was reported as guilty of count one, murder. The jury was ultimately returned to the jury room for further deliberations on this matter. Now, I would like to ask you this question: In your original deliberations, and you are speaking with the jury, did the jury deliberate on the matter of the degree of count one, murder originally?
JURY FOREMAN: On count one, yes.
THE COURT: They did?
JURY FOREMAN: They did.
THE COURT: Is there any reason why the degree of the crime was not represented on the verdict slip as you originally reported it?
JURY FOREMAN: Other than maybe just a miswording, sir.
THE COURT: Well, could you explain that further?
JURY FOREMAN: Well, in going back we had discussed it that it should have been first. Other than that I don't know why, sir. It was just a miswording.
"THE COURT: Was it an oversight as to the assessing the degree of the crime, and necessary for further deliberations, or had you in fact deliberated on the question of degree of the crime?
JURY FOREMAN: I can't say From looking at the form we assumed the charges, and it says first count. We just assumed that there was no other degree to go on from there, I guess. We felt that it was it, that it was the highest you could go.
THE COURT: Are you telling me that you didn't discuss the matter of degrees of the crime of murder in your original deliberation?
JURY FOREMAN: I guess I can only say we didn't say the word degree. We felt that it said first count, and we thought that it was
THE COURT: I am not talking about what you put on the form. I want to refer back to your deliberations with the other members of your jury, the other eleven members. Now, in those deliberations before you arrived at a decision to find the defendant guilty of murder had you and your fellow jurors discussed the matter of the degree of the crime?
JURY FOREMAN: We discussed it on the basis that there was definite intent as far as we were concerned.
THE COURT: All right. Is there anything further that counsel would like to discuss with the Court at this point?" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267241/ | 174 Cal.App.4th 662 (2009)
___ Cal.Rptr.3d ___
THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL EUGENE JAMES, Defendant and Appellant.
No. C057995.
Court of Appeals of California, Third District.
June 2, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*664 Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SIMS, J.
In this case, we hold that possession of an assault weapon in California remains unlawful and is not protected by the Second Amendment to the federal Constitution as construed by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. ___ [171 L.Ed.2d 657, 128 S.Ct. 2783] (Heller).[1]
Defendant Michael Eugene James was convicted by jury of three counts of unlawful possession of an assault weapon (Pen. Code, § 12280, subd. (b)),[2] one count of unlawful possession of a .50-caliber BMG rifle (§ 12280, subd. (c)), 10 counts of unlawful possession of a firearm (§ 12021, *665 subd. (g)(2)), and one count of unlawful possession of a blowgun (§ 12582). The trial court sentenced defendant to two years in state prison and imposed other orders. On appeal, defendant asserts two claims of instructional error and further asserts that his right to bear arms under the Second Amendment to the United States Constitution has been violated.
In the unpublished portion of the opinion, we reject his claims of prejudicial instructional error. In the published portion, we reject his Second Amendment claim. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May of 2006, Special Agent John Marsh of the California Department of Justice began investigating defendant for possible firearms violations. Special Agent Marsh discovered that a restraining order had been issued against defendant, expressly prohibiting defendant from possessing firearms. The restraining order further directed defendant to "turn in or sell" all firearms in his possession by a certain date. Upon receiving this information, Marsh consulted the Automated Firearms System (AFS) database and discovered that defendant had roughly 20 firearms registered to his name. Marsh then contacted defendant by phone; defendant explained that all of his firearms had been turned in to the Sacramento Police Department. A comparison of the AFS database with the list of weapons turned in to police revealed 10 outstanding firearms.
In an attempt to clear up the discrepancy, Special Agent Marsh again contacted defendant by phone. During this conversation, defendant walked around his house and informed Marsh that he had found two additional firearms. When Marsh arrived at defendant's house to retrieve the newly discovered guns, he found four firearms (including two assault weapons) stacked on the floor near the front door. Defendant explained that he had found two more while Marsh was en route. The specifics of these firearms are as follows: (1) Bushmaster XM-15 assault weapon; (2) Professional Ordnance Carbon 15 assault pistol; (3) Keltec P-32 handgun; and (4) Dan Wesson Arms.357 revolver. After confiscating the weapons, Marsh explained to defendant that according to the AFS records there were still a number of firearms that had not been turned in. Defendant refused Marsh's request to search the house for the remaining guns.
*666 Shortly after leaving defendant's house, Special Agent Marsh realized that he left behind a working file and returned to retrieve it. Marsh arrived to find that defendant had found another gun. This firearm, a Kobray PM-11 handgun, was also confiscated.
Notwithstanding the weapons turned in to the Sacramento Police Department, and the five weapons taken by Special Agent Marsh during the two trips to defendant's house, there were still a number of firearms registered to defendant that had not been turned in. Marsh returned two days later with a search warrant. An Armalite AR-50 .50-caliber BMG rifle was found in its original box on a shelf in the garage. An Eagle Arms AR-15 lower receiver, and a DPMS AR-15 lower receiver, were also found in a box in the garage. An Eagle Flight blowgun and darts were found on a shelf in the garage. A 1911 Springfield .45-caliber semiautomatic handgun, and a Remington 12-gauge shotgun, were found next to the front door.
Defendant told Marsh that he did not turn in the .50-caliber BMG because he knew that he did not register it and if he turned it in, then he could get in trouble. Defendant said he thought he had turned all the other guns in.
Defendant was charged with three counts of unlawful possession of an assault weapon (counts 1, 2 & 4), one count of unlawful possession of a.50-caliber BMG rifle (count 3), 10 counts of unlawful possession of a firearm (counts 5-14), and one count of unlawful possession of a blowgun (count 15). He was tried by a jury. At the conclusion of Agent Marsh's testimony (and before the jury was instructed), the trial court entertained questions from the jurors. The record reflects the following:
"[THE COURT:] There was another question to the effect regarding the laws that apply if Mr. Johnson [sic] had honestly forgotten that he was in possession of the confiscated weapons, is that possession still illegal? [¶] That's not necessarily within the province of this witness to answer, but that issue will be addressed in the instructions of law and the arguments that the attorneys make so that will be made clearer for you."
Defendant was convicted on all counts, and sentenced to an aggregate term of two years in state prison (the middle term of two years on counts 1, 2 and 4; sentence on counts 2 and 4 to run concurrently to count 1), such term to run consecutively to two one-year terms in the county jail on counts 3 and 7 (custody credits to be applied to these county jail terms), plus a concurrent *667 term of one year in the county jail on the remaining 10 counts of unlawful possession of a firearm (counts 5-6 & 9-14) and unlawful possession of a blowgun (count 15).
DISCUSSION
I, II[*]
III
(1) Defendant's final contention on appeal is that section 12280, subdivisions (b) and (c), prohibiting possession of an assault weapon or.50-caliber BMG rifle, violated his right to bear arms under the Second Amendment to the United States Constitution. Defendant relies on language in Heller, supra, 554 U.S. ___ [171 L.Ed.2d 637], "indicating that the Second Amendment is a pre-existing right of the individual and that military type weapons were the type originally sought to be protected."[4] Defendant's reading of Heller does not withstand scrutiny.
A
(2) Section 12280 was enacted by the Legislature as part of the Roberti-Roos Assault Weapons Control Act of 1989. (Stats. 1989, ch. 19, § 3, p. 67.) Subdivision (b) provides in relevant part: "Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison." Section 12276, also enacted as *668 part of the assault weapons control act, defines "assault weapon" by providing a list of proscribed weapons.[5] Section 12276.1 was enacted by the *669 Legislature in 2000 and further defines "assault weapon" by the characteristics which render these weapons more dangerous than ordinary weapons typically possessed by law-abiding citizens for lawful purposes.[6]
Section 12280, subdivision (c), was enacted as part of the .50 Caliber BMG Regulation Act of 2004 (Stats. 2004, ch. 494, § 8), and provides in relevant part: "Any person who, within this state, possesses any .50 BMG rifle, except as provided in this chapter, shall be punished by a fine of one *670 thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed one year, or by both that fine and imprisonment."
In section 12275.5, the Legislature codified its findings, declarations, and legislative intent behind the Roberti-Roos Assault Weapons Control Act of 1989 and the .50 Caliber BMG Regulation Act of 2004: "(a) The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities. [¶] (b) The Legislature hereby finds and declares that the proliferation and use of .50 BMG rifles, as defined in Section 12278, poses a clear and present terrorist threat to the health, safety, and security of all residents of, and visitors to, this state, based upon findings that those firearms have such a high capacity for long distance and highly destructive firepower that they pose an unacceptable risk to the death and serious injury of human beings, destruction or serious damage of vital public and private buildings, civilian, police and military vehicles, power generation and transmission facilities, petrochemical production and storage facilities, and transportation infrastructure. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of these rifles and to establish a registration and permit procedure for their lawful sale and possession." (Italics added.)
In Kasler v. Lockyer (2000) 23 Cal.4th 472 [97 Cal.Rptr.2d 334, 2 P.3d 581] (Kasler), our Supreme Court reviewed the historical context of the assault weapons control act and provided a detailed analysis of its legislative history. As the court explained, the Legislature was motivated by "[t]he crisis created by the proliferation and use of assault weapons." (Id. at p. 482.) The "crisis" was summed up by Speaker of the Assembly Willie L. Brown, speaking to the Assembly, meeting as a Committee of the Whole: "`The shooting incident in Stockton, the drive-by shootings that have been going on in Southern California at an alarming rate, the number of police officers who have been the victims of semi-automatic weapons, and the "stats" that now show the alarming group of arrests that are taking place, and when items are confiscated, on many, many occasions those items have turned out to be semi-automatic weapons. A combination of all those things, plus the volume of editorials, the volume of public comment out there about the question, *671 requires us to address the issues.' [Citation.]" (Id. at pp. 482-483, citing 1 Assem. J. (1989-1990 Reg. Sess.) pp. 436-437.)
The court then placed Speaker Brown's comments in context: "The `shooting incident in Stockton' to which Speaker Brown alluded had occurred at the Cleveland Elementary School in Stockton, California, the month before the meeting of the Committee of the Whole. While 300 pupils, mostly kindergartners through third graders, were enjoying their lunchtime recess, Patrick Purdy, who had placed plugs in his ears to dull the sounds of what he was about to do, drove up to the rear of the school and stepped out of his car carrying a Chinese-made semiautomatic AK-47. `Impassively, Purdy squeezed the trigger of his rifle, then reloaded, raking the yard with at least 106 bullets. As children screamed in pain and fear, Purdy placed a 9-mm pistol to his head and killed himself. When the four-minute assault was over, five children, ages 6 to 9, were dead. One teacher and 29 pupils were wounded.' [Citation.]" (Kasler, supra, 23 Cal.4th at p. 483.)
The court also reviewed the horrific facts of a shooting incident at a San Ysidro McDonald's restaurant that occurred five years earlier in which James Huberty killed 21 people and wounded 15 others with assault weapons fire: "Stepping into the restaurant with a 9-millimeter Browning automatic pistol in his belt and a 12-gauge shotgun and a 9-millimeter UZI semiautomatic rifle slung over his shoulders, Huberty called out, `"Everybody on the floor." About 45 patrons were present. As they scrambled to comply, Huberty marched around the restaurant calmly spraying gunfire. . . . Maria Diaz ran out the side door in panic when the shooting started, then remembered that her two-year-old son was still inside. She crept back to a window and saw him sitting obediently in a booth. She motioned him toward the door, nudged it open, and the boy toddled to safety.' [Citation.] Not everyone was so fortunate. After SWAT sharpshooters finally killed Huberty, `police and hospital workers moved in on the gruesome scene. A mother and father lay sprawled across their baby, apparently in an attempt to shield it. All three were dead.' [Citation.] The carnage was clearly far worse than it would have been had Huberty not been armed with semiautomatic weapons. He fired hundreds of rounds. `The gunfire was so heavy that police at first assumed that more than one gunman was inside. A fire truck took six shots before reversing direction and backing off. One fire fighter was grazed by a bullet that tore through the truck and then landed softly on his head.' [Citation.]" (Kasler, supra, 23 Cal.4th at p. 483.)
That the unusually dangerous nature of assault weapons was the motivation behind the assault weapons control act was underscored by Attorney General John Van de Kamp, who testified before the Committee of the Whole: "Increasingly, `the weapons of choice for this madness,' he noted, were *672 `semi-automatic military assault rifles.' In Los Angeles, he said, it had `become fashionable among hard-core members of the Crips Gang to spray a stream of bullets in hopes of taking down one rival gang member, but infants and grandmothers may be killed as well. They say that the young killers even have a phrase for it. They say, "I spray the babies to [the] eighties."' [Citation.]" (Kasler, supra, 23 Cal.4th at p. 484, citing 1 Assem. J. (1989-1990 Reg. Sess.) p. 438.) A vivid illustration of the Attorney General's observation was provided by Lieutenant Bruce Hagerty of the Los Angeles Police Department: "`Probably the most graphic example, for me, was on Good Friday of last year, where a rival gang entered a neighborhood in South Central Los Angeles and sprayed a crowd of forty to fifty people with an AR-15, and that's an American assault rifle, shooting 14 people, killing a 19 year old boy, hitting a five year old little girl, and a 65 year old man, and all ages in between. I was the field commander of that situation, and I'm here to tell you that that was, in every sense of the word, a war scene. . . . There were bodies everywhere and people were terrified, and the only reason that this gang did that was to terrorize the neighborhood because they wanted to take it over and be able to sell drugs in that neighborhood, and the military assault rifle is the vehicle that they used. [¶] . . . I'm here to tell you that there's only one reason that they use these weapons, and that is to kill people. They are weapons of war.' [Citation.]" (Kasler, supra, 23 Cal.4th at p. 485, citing 1 Assem. J. (1989-1990 Reg. Sess.) p. 450.)
The Kasler court concluded its review of the legislative history by noting that when Governor Deukmejian signed the assault weapons control act into law on May 24, 1989, the Governor explained: "`"It's well known that some drug dealers and violent gang members are using assault-type weapons. . . .'. . . `In the face of such firepower, our state's courageous law enforcement officers need all the help that we can give them as they seek to preserve our public safety . . . ."'" (Kasler, supra, 23 Cal.4th at pp. 486-487.) Accordingly, in enacting the assault weapons control act, the Legislature sought to address "the grave threat to public safety posed by the possession and use of assault weapons by criminals . . . ." (23 Cal.4th at p. 487.)
A review of the legislative history of the .50 Caliber BMG Regulation Act of 2004 reveals that the Legislature was not only concerned by the threat to public safety posed by the prospect of .50-caliber BMG rifles being used by criminals, but also by the threat to national security posed by the prospect of these weapons falling into the hands of terrorist organizations.
As expressed by the author of the bill: "[.50 caliber BMG] sniper rifles and.50 [caliber] BMG ammunition are armaments designed for military applications involving the destruction of infrastructure and anti-personnel purposes. The military uses these weapons to destroy concrete structures, including *673 bunkers, light armored vehicles, and stationary tactical targets such as fuel storage facilities, aircraft, communications structures and energy transfer stations. [¶] . . . [¶] [.50 caliber BMG] weapons and their ammunition have increasingly been manufactured and marketed to civilians over the past several years. There is increasing evidence of these weapons falling into the hands of political extremists and terrorists, and more recently drug and street gangs. The manufacturers of these weapons have been reducing the weight, enhancing portability and lowering the price to own these weapons, so there is currently an expanding proliferation of these war weapons. [¶] The facts indicate that [.50 caliber BMG] sniper weapons and .50 [caliber] BMG ammunition present a clear and present public health and safety danger to California and the nation." (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 50 (2003-2004 Reg. Sess.) as amended June 2, 2003, pp. 13-14; see also Assem. Com. on Public Safety, Analysis of Assem. Bill No. 50 (2003-2004 Reg. Sess.) Apr. 29, 2003, p. 7 ["According to the author, `[t]he fifty-caliber sniper rifle is one of the United States military's highest-powered rifles, capable of ripping through armored limousines. It is said to be able to punch holes through military personnel carriers at a distance of 2,000 yards, the length of 20 football fields. It is deadly accurate at up to one mile and effective at more than four miles. . . .'"].)
The Assembly Committee on Public Safety analysis of the bill contains the following: "The term `.50 BMG' stands for Browning machine gun (one of the earliest firearms to use the ammunition) and is a technical designation for the round used in the weapon. . . . Manufacturers of the rifles claim that the rifle is accurate up to 2,000 yards and effective up to 7,500 yards. . . . The .50 caliber ammunition . . . [is] capable of piercing through body armor. [¶] . . . [¶] . . . [¶] The Violence Policy Center has issued two reports on the .50 caliber sniper rifle. [Citations.] Both reports stated that the unregulated sale of military sniper rifles to civilians creates a danger to national security as the rifles have the ability to shoot down aircraft. [¶] The second report also states that at least 25 Barrett .50 caliber sniper rifles were sold to the Al Qaeda network. [Citations.]" (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 50 (2003-2004 Reg. Sess.) Apr. 29, 2003, pp. 7-9.)
The bill was supported by the Los Angeles County Sheriff's Department, which argued in support of the legislation: "`This weapon, which is readily available on the civilian market, can pierce armored vehicles and concrete structures from one mile away with pinpoint accuracy. In the hands of terrorists, .50 BMG sniper rifles pose a grave threat to airplanes, refineries or other potential targets.'" (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 50 (2003-2004 Reg. Sess.) Apr. 29, 2003, p. 10.)
In sum, the Legislature enacted the Roberti-Roos Assault Weapons Control Act of 1989 and the .50 Caliber BMG Regulation Act of 2004 in order to *674 address the proliferation and use of unusually dangerous weapons: assault weapons, with an incredibly "high rate of fire and capacity for firepower," which can be used to indiscriminately "kill and injure human beings" (§ 12275.5, subd. (a)); and .50 caliber BMG rifles, which "have such a high capacity for long distance and highly destructive firepower that they pose an unacceptable risk to the death and serious injury of human beings, destruction or serious damage of vital public and private buildings, civilian, police and military vehicles, power generation and transmission facilities, petrochemical production and storage facilities, and transportation infrastructure" (§ 12275.5, subd. (b)).
It is against this backdrop that we must analyze Heller, supra, 554 U.S. ___ [171 L.Ed.2d 637], and determine whether section 12280, subdivisions (b) and (c), violate the right to bear arms guaranteed by the Second Amendment to the United States Constitution.
B
(3) In Heller, supra, 554 U.S. ___ [171 L.Ed.2d 637], the United States Supreme Court held that "the [District of Columbia's] ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." (Id. at p. ___ [171 L.Ed.2d at p. 683].) In so holding, the court explained that the Second Amendment codified a pre-existing right of the individual "to possess and carry weapons in case of confrontation." (Id. at p. ___ [171 L.Ed. at p. 657] ["The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it `shall not be infringed.'"].) However, the court was careful to point out that, like the First Amendment's right to freedom of speech, the Second Amendment's right to bear arms is not unlimited: "Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." (Id. at p. ___ [171 L.Ed.2d p. 659].)
Nor does the Second Amendment's protection extend to any type of weapon. As the Heller court explained, its previous decision in United States v. Miller (1939) 307 U.S. 174 [83 L.Ed. 1206, 59 S.Ct. 816] (Miller) held that the Second Amendment did not protect an individual's right to transport an unregistered short-barreled shotgun in interstate commerce. (Heller, supra, 554 U. S. ___ [71 L.Ed.2d at p. 675].) The reason, the court explained, was that "the type of weapon at issue was not eligible for Second Amendment protection: `In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some *675 reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.'" (Ibid., citing Miller, supra, 307 U.S. at p. ___ [83 L.Ed. at p. 1209], italics omitted.)
The Heller court then elaborated on the types of weapons protected by the Second Amendment: "Read in isolation, Miller's phrase `part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's `ordinary military equipment' language must be read in tandem with what comes after: `[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.' [Citation.] The traditional militia was formed from a pool of men bringing arms `in common use at the time' for lawful purposes like self-defense. `In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.' [Citation.] Indeed, that is precisely the way in which the Second Amendment's operative clause [`the right of the people to keep and bear Arms, shall not be infringed'] furthers the purpose announced in its preface [`[a] well regulated militia, being necessary to the security of a free State']. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." (Heller, supra, 554 U.S. at p. ___ [171 L.Ed.2d at p. 677].)
(4) The Heller court continued: "It may be objected that if weapons that are most useful in military serviceM-16 rifles and the likemay be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right." (Heller, supra, 554 U.S. at p. ___ [171 L.Ed.2d at p. 679].)
Accordingly, "the right secured by the Second Amendment is not . . . a right to keep and carry any weapon whatsoever in any manner whatsoever *676 and for whatever purpose." (Heller, supra, 554 U.S. at p. ___ [171 L.Ed.2d at p. 678].) Rather, it is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense. (Id. at p. ___ [171 L.Ed.2d at p. 679].) It protects the right to possess a handgun in one's home because handguns are a "class of `arms' that is overwhelmingly chosen by American society" for the lawful purpose of self-defense. (Ibid.)
(5) As the court's discussion makes clear, the Second Amendment right does not protect possession of a military M-16 rifle. (Heller, supra, 554 U.S. ___ [171 L.Ed.2d at p. 579].) Likewise, it does not protect the right to possess assault weapons or .50-caliber BMG rifles. As we have already indicated, in enacting the Roberti-Roos Assault Weapons Control Act of 1989 and the .50 Caliber BMG Regulation Act of 2004, the Legislature was specifically concerned with the unusual and dangerous nature of these weapons. An assault weapon "has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings." (§ 12275.5, subd. (a).) The .50-caliber BMG rifle has the capacity to destroy or seriously damage "vital public and private buildings, civilian, police and military vehicles, power generation and transmission facilities, petrochemical production and storage facilities, and transportation infrastructure." (§ 12275.5, subd. (b).) These are not the types of weapons that are typically possessed by law-abiding citizens for lawful purposes such as sport hunting or self-defense; rather, these are weapons of war.
Our conclusion that Heller does not extend Second Amendment protection to assault weapons and .50-caliber BMG rifles is supported by post-Heller federal precedent. In United States. v. Fincher (8th Cir. 2008) 538 F.3d 868 (Fincher), the Eighth Circuit Court of Appeals held that Fincher's possession of a machine gun was "not protected by the Second Amendment" because "[m]achine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use." (Fincher, supra, 538 F.3d at p. 874; see United States v. Gilbert (9th Cir. 2008) 286 Fed.Appx. 383, 386 ["Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles."]; Hamblen v. U.S. (M.D.Tenn., Dec. 5, 2008, No. 3:08-1034) 2008 WL 5136586 [also holding that Heller did not extend Second Amendment protection to machine guns].) While the fully-automatic nature of a machine gun renders such a weapon arguably more dangerous and unusual than a semiautomatic assault weapon, that observation does not negate the fact that assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes and likewise fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Moreover, the .50-caliber BMG rifle has the *677 capacity to take down an aircraft, a fact which arguably makes such a weapon more dangerous and unusual than the average machine gun. In any event, assault weapons and .50-caliber BMG rifles are at least as dangerous and unusual as the short-barreled shotgun at issue in United States v. Miller, supra, 83 L.Ed. 1206.
We conclude that section 12280, subdivisions (b) and (c), does not prohibit conduct protected by the Second Amendment to the United States Constitution as defined in Heller, supra, 554 U.S. ___ [171 L.Ed.2d 637].
DISPOSITION
The judgment is affirmed.
Scotland, P. J., and Butz, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I and II of the Discussion.
[1] The Second Amendment to the Constitution of the United States provides, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
[2] Undesignated statutory references are to the Penal Code.
[*] See footnote, ante, page 662.
[4] While defendant acknowledges that the Second Amendment has not been held to apply to the states through the Fourteenth Amendment (see United States v. Cruikshank et al. (1875) 92 U.S. 542, 553 [23 L.Ed. 588], cited with approval in Heller, supra, 554 U.S. at p. ___ [128 S.Ct. at pp. 2812-2813]; United States v. Fincher (8th Cir. 2008) 538 F.3d 868, 873, fn. 2 ["We note that the Supreme Court did not address the question whether the Second Amendment is incorporated through the Fourteenth Amendment and thus applicable to the states."]), he "anticipates" that the Second Amendment will be incorporated, and raises the issue in order "to exhaust state remedies and preserve his right to federal review." Since we hold that defendant's right to bear arms was not infringed by section 12280, subdivisions (b) and (c), we do not address the incorporation issue.
[5] Section 12276 provides in full:
"As used in this chapter, `assault weapon' shall mean the following designated semiautomatic firearms:
"(a) All of the following specified rifles:
"(1) All AK series including, but not limited to, the models identified as follows:
"(A) Made in China AK, AKM, AKS, AK47, AK47S, 56, 56S, 84S, and 86S.
"(B) Norinco 56, 56S, 84S, and 86S.
"(C) Poly Technologies AKS and AK47.
"(D) MAADI AK47 and ARM.
"(2) UZI and Galil.
"(3) Beretta AR-70.
"(4) CETME Sporter.
"(5) Colt AR-15 series.
"(6) Daewoo K-1, K-2, Max 1, Max 2, AR 100, and AR 110C.
"(7) Fabrique Nationale FAL, LAR, FNC, 308 Match, and Sporter.
"(8) MAS 223.
"(9) HK-91, HK-93, HK-94, and HK-PSG-1.
"(10) The following MAC types:
"(A) RPB Industries Inc. sM10 and sM11.
"(B) SWD Incorporated M11.
"(11) SKS with detachable magazine.
"(12) SIG AMT, PE-57, SG 550, and SG 551.
"(13) Springfield Armory BM59 and SAR-48.
"(14) Sterling MK-6.
"(15) Steyer AUG.
"(16) Valmet M62S, M71S, and M78S.
"(17) Armalite AR-180.
"(18) Bushmaster Assault Rifle.
"(19) Calico M-900.
"(20) J&R ENG M-68.
"(21) Weaver Arms Nighthawk.
"(b) All of the following specified pistols:
"(1) UZI.
"(2) Encom MP-9 and MP-45.
"(3) The following MAC types:
"(A) RPB Industries Inc. sM10 and sM11.
"(B) SWD Incorporated M-11.
"(C) Advance Armament Inc. M-11.
"(D) Military Armament Corp. Ingram M-11.
"(4) Intratec TEC-9.
"(5) Sites Spectre.
"(6) Sterling MK-7.
"(7) Calico M-950.
"(8) Bushmaster Pistol.
"(c) All of the following specified shotguns:
"(1) Franchi SPAS 12 and LAW 12.
"(2) Striker 12.
"(3) The Streetsweeper type S/S Inc. SS/12.
"(d) Any firearm declared by the court pursuant to Section 12276.5 to be an assault weapon that is specified as an assault weapon in a list promulgated pursuant to Section 12276.5.
"(e) The term `series' includes all other models that are only variations, with minor differences, of those models listed in subdivision (a), regardless of the manufacturer.
"(f) This section is declaratory of existing law, as amended, and a clarification of the law and the Legislature's intent which bans the weapons enumerated in this section, the weapons included in the list promulgated by the Attorney General pursuant to Section 12276.5, and any other models which are only variations of those weapons with minor differences, regardless of the manufacturer. The Legislature has defined assault weapons as the types, series, and models listed in this section because it was the most effective way to identify and restrict a specific class of semiautomatic weapons."
[6] Section 12276.1, subdivision (a) provides:
"Notwithstanding Section 12276, `assault weapon' shall also mean any of the following:
"(1) A semiautomatic, centerfire rifle that has the capacity to accept a detachable magazine and any one of the following:
"(A) A pistol grip that protrudes conspicuously beneath the action of the weapon.
"(B) A thumbhole stock.
"(C) A folding or telescoping stock.
"(D) A grenade launcher or flare launcher.
"(E) A flash suppressor.
"(F) A forward pistol grip.
"(2) A semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.
"(3) A semiautomatic, centerfire rifle that has an overall length of less than 30 inches.
"(4) A semiautomatic pistol that has the capacity to accept a detachable magazine and any one of the following:
"(A) A threaded barrel, capable of accepting a flash suppressor, forward handgrip, or silencer.
"(B) A second handgrip.
"(C) A shroud that is attached to, or partially or completely encircles, the barrel that allows the bearer to fire the weapon without burning his or her hand, except a slide that encloses the barrel.
"(D) The capacity to accept a detachable magazine at some location outside of the pistol grip.
"(5) A semiautomatic pistol with a fixed magazine that has the capacity to accept more than 10 rounds.
"(6) A semiautomatic shotgun that has both of the following:
"(A) A folding or telescoping stock.
"(B) A pistol grip that protrudes conspicuously beneath the action of the weapon, thumbhole stock, or vertical handgrip.
"(7) A semiautomatic shotgun that has the ability to accept a detachable magazine.
"(8) Any shotgun with a revolving cylinder." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267256/ | 174 Cal.App.4th 443 (2009)
___ Cal.Rptr.3d ___
THE PEOPLE, Plaintiff and Respondent,
v.
ARTHUR VASILYAN, Defendant and Appellant.
No. B205679.
Court of Appeals of California, Second District, Division Eight.
May 28, 2009.
*445 Asherson Klein & Darbinian, Neville Asherson, Leon B. Hazany and Anish Vashistha for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
*446 OPINION
FLIER, J.
Appellant Arthur Vasilyan was charged by the Los Angeles County District Attorney in 1994 with three counts of a violation of Penal Code section 422.7 (section 422.7). He pleaded nolo contendere to two counts; the third count was dismissed. Appellant was placed on probation on the conditions that he would serve 39 days in county jail, pay a fine, and Serve 80 hours of community service. No appeal was taken from the judgment of conviction.
On June 21, 2007, appellant, through his counsel, filed a motion to vacate the judgment and for leave to withdraw his guilty plea. Alternatively, the motion sought relief in terms of petitions for writs of coram nobis, habeas corpus, and audita querela. In large part, the motion relied on People v. Wallace (2003) 109 Cal.App.4th 1699 [1 Cal.Rptr.3d 324] (Wallace), which held that section 422.7 is only a penalty provision; we set forth the entirety of section 422.7 in the margin.[1] An amended motion, much to the same effect as the original motion, was filed on December 7, 2007. The motion was denied. This appeal is from the denial of the motion entered on December 12, 2007. We agree with appellant that the judgment entered in 1994 is void. We vacate appellant's plea of nolo contendere and remand with directions to amend or dismiss the information, as appears appropriate.
FACTS
1. The Facts Underlying the Plea of Nolo Contendere
Our summary of the facts is based on the transcript of the preliminary hearing held on September 12, 1994.
Kiger Hansen and his friend Jason Bane were on Santa Monica Boulevard in Los Angeles when, at approximately 2:00 a.m. on August 28, 1994, a *447 group of four or five men began abusing them verbally by calling them "`fags'" and physically attacked Hansen and Bane. Hansen was hit on the jaw, knocking a tooth loose, and he was also hit on the side of his head. Hansen identified appellant as one of the men who beat Bane. All five attackers continued to yell outrageous taunts intended to demean Hansen and Bane. They also challenged Hansen and Bane to fight, but the two men managed to get away.
Appellant and his cohorts were almost immediately arrested; the attack took place at what Hanson testified was a "hot spot" with a lot of people about and a Los Angeles County Sheriff's Department station across the street. Hansen and Bane identified their attackers within 15 minutes of the attack.
2. The Consequences of the Plea of Nolo Contendere
Appellant was 20 years old in August 1994. He was represented by retained counsel in the proceedings that led to his pleas. One of his contentions in support of the motion to vacate the judgment is that his counsel did not advise him of the immigration law consequences of his pleas.
Appellant currently resides in Yerevan City in Armenia. He entered the United States in 1988 with his family and became lawfully a permanent resident. He was deported in 2004 because of the pleas of nolo contendere in 1994. According to a declaration by an immigration law specialist submitted in support of the motion to vacate the judgment, his pleas in 1994 subjected appellant to three immigration law consequences. They are deportation, exclusion from admission to the United States, and denial of naturalization as a United States citizen.
DISCUSSION
1. Wallace, supra, 109 Cal.App.4th 1699
In Wallace, supra, 109 Cal.App.4th 1699, 1701-1702, the defendant was charged with assault, robbery and battery. It was also alleged that the crimes were hate crimes in terms of Penal Code section 422.75 and that the assault and robbery charges constituted serious felonies for purposes of sentence enhancement. Pursuant to a negotiated disposition, the prosecution amended the information to allege a violation of section 422.7. The defendant pleaded nolo contendere to this charge, in exchange for which the remaining counts were dismissed; the defendant did not plead to any other charge or charges. The sentence was suspended, the defendant was placed on felony probation for three years, and he served 60 days in county jail. Unlike in the case *448 before us, the defendant appealed from the judgment, contending that section 422.7 "is merely a penalty provision for which he cannot be punished in the absence of a conviction on a related substantive offense." (Wallace, supra, 109 Cal.App.4th at p. 1701.)
(1) After noting that in In re M.S. (1995) 10 Cal.4th 698, 725 [42 Cal.Rptr.2d 355, 896 P.2d 1365], the California Supreme Court characterized section 422.7 as a penalty enhancement provision (Wallace, supra, 109 Cal.App.4th at p. 1702), the Wallace court found that section 422.7 does not "identify any particular substantive crime" but rather elevates certain crimes from misdemeanors to felonies, which makes section 422.7 "plainly a penalty provision." (Wallace, at pp. 1702-1703.) The court went on to analyze section 422.7 from perspectives that we need not repeat here; suffice it to say that this analysis only confirmed the conclusion that section 422.7 is a penalty provision and that section 422.7 does not identify or establish a substantive crime.
(2) The court then turned to the question of the appropriate remedy. We set forth this part of the court's opinion in full: "Having concluded that section 422.7 is a penalty provision, we now turn to the question of the appropriate remedy to be applied. Wallace contends that his conviction should be reduced to a misdemeanor violation of section 422.6. The People, by contrast, assert that Wallace's conviction and sentence should be affirmed because his plea was knowing, voluntary and intelligent. Neither position is persuasive. First, Wallace is not entitled to have his conviction reduced to a misdemeanor because his sentence reflects his understanding that he was pleading to a felony. As the People correctly note, to reduce Wallace's sentence under the circumstances would unfairly compromise the negotiated settlement upon which the parties had agreed. (People v. Bean (1989) 213 Cal.App.3d 639, 645 [261 Cal.Rptr. 784].) Second, we cannot affirm a conviction and sentence imposed for a crime that does not exist, notwithstanding the defendant's consent. (See People v. Soriano (1992) 4 Cal.App.4th 781, 785 [6 Cal.Rptr.2d 138] [`where fundamental jurisdiction is lacking, it cannot be conferred by consent or estoppel'].) Because Wallace's plea to a violation of section 422.7 is a legal nullity, the judgment must be reversed." (Wallace, supra, 109 Cal.App.4th at p. 1704.)
Significantly, the appellate court's order in Wallace was to vacate the defendant's plea, to order the dismissed counts reinstated, and to remand the matter "for plea or trial, as appropriate." (Wallace, supra, 109 Cal.App.4th at p. 1704.)
*449 2. The Judgment Convicting Appellant of Violations of Section 422.7 Must Be Vacated
(a) The Statutory Framework
(3) "No person can be punished for a public offense, except upon a legal conviction in a Court having jurisdiction thereof." (Pen. Code, § 681.) "A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: [¶] 1. Death; [¶] 2. Imprisonment; [¶] 3. Fine; [¶] 4. Removal from office; or, [¶] 5. Disqualification to hold and enjoy any office of honor, trust, or profit in this State." (Pen. Code, § 15.) In relevant part, Penal Code section 6, enacted in 1872, provides: "No act or omission, commenced after twelve o'clock noon of the day on which this Code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this Code . . . ." "`There is no criminal common law in California. All public offenses or crimes are statutory, and unless there is in force at the time of the commission or omission of a particular act a statute making it a crime or a public offense, no one can be adjudged to suffer punishment for its commission or omission.'" (In re Harder (1935) 9 Cal.App.2d 153, 155 [49 P.2d 304].)
(b) The Statutory Framework Explained
(4) The subject matter jurisdiction of a California court presiding over a criminal prosecution is predicated on the offense. "To constitute jurisdiction in a criminal case there must be two elements, namely, jurisdiction of the person, and jurisdiction of the subject matter or, as it is sometimes called, of the offense." (Burns v. Municipal Court (1961) 195 Cal.App.2d 596, 599 [16 Cal.Rptr. 64].) "The most important is jurisdiction of the subject matter. `No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof.' (P.C. 681.) In other words, the court in a criminal trial, like the court in a civil proceeding, must have jurisdiction of the subject matter (in criminal cases, the offense)." (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Jurisdiction and Venue, § 1, p. 86, citing, inter alia, Burns v. Municipal Court, supra, 195 Cal.App.2d 596, 599.)
(5) "Section 15 of the Penal Code defines a crime: `A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: [listing various punishments].' There must then exist both prohibited or commanded acts and punishment for violation thereof; without both, there is no crime." (People v. Crutcher (1968) 262 Cal.App.2d 750, 754 [68 Cal.Rptr. 904].) That there must be a substantive crime and a *450 punishment for that crime in order to constitute a criminal offense has been long recognized. (E.g., People v. McNulty (1892) 93 Cal. 427, 437 [29 P. 61].)
It follows that if there is no crime, the court lacks subject matter jurisdiction. This conclusion is compelled not only by the statutes and cases interpreting those statutes, this conclusion comports with fundamental principles of justice. The notion that a person can be punished under the criminal law for committing an act that is not a crime is entirely outside our system of jurisprudence. This is not to say that appellant may very well have committed a crime or crimes such as assault and battery under circumstances that are particularly offensive and blameworthy. Nonetheless, the fact remains that the act with which he was charged is not a crime.
The foregoing principles validate the conclusions of the court in Wallace that the court lacked subject matter jurisdiction, that a court "cannot affirm a conviction and sentence imposed for a crime that does not exist" (Wallace, supra, 109 Cal.App.4th at p. 1704) and that the plea in that case was a "legal nullity."
(c) A Void Judgment Is Subject to Collateral Attack
(6) It is fundamental and it cannot be questioned that a judgment that is void for lack of subject matter jurisdiction is subject to collateral attack. "Moreover, lack of jurisdiction will render the judgment void, and subject not only to reversal on appeal but to collateral attack, motion to vacate, or extraordinary writ. (See 2 Cal. Proc. (4th), Jurisdiction, §387; 8 Cal. Proc. (4th), Attack on Judgment in Trial Court, §6 et seq.; 8 Cal. Proc. (4th), Extraordinary Writs, §§39, 50; 6 Cal. Crim. Law (3d), Criminal Writs, §85.)" (4 Witkin & Epstein, Cal. Criminal Law, supra, Jurisdiction and Venue, § 1, p. 86.) Lack of jurisdiction in its most fundamental sense means an entire absence of power to hear or determine the case, i.e., an absence of authority over the subject matter or the parties. When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and such a judgment is vulnerable to direct or collateral attack at any time. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 [16 Cal.Rptr.3d 76, 93 P.3d 1020].) This is a venerable rule of long standing. (E.g., Conlin v. Blanchard (1933) 219 Cal. 632, 635-636 [28 P.2d 12]; Chipman v. Bowman (1859) 14 Cal. 157, 158-159.)
In Andrews v. Superior Court (1946) 29 Cal.2d 208, 209 [174 P.2d 313] (Andrews), the defendant pleaded guilty in 1935 in the Police Court of the City of Stockton to contributing to the delinquency of a minor, in violation of Statutes 1915, chapter 631, section 21, the "Juvenile Court Law," which is *451 now found in the Welfare and Institutions Code. The court first held that the then existing police courts did not have jurisdiction to enforce juvenile court law. (Andrews, supra, 29 Cal.2d at p. 213.) A void judgment may be attacked "`anywhere, directly or collaterally whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither a basis nor evidence of any right whatever.'" (Id. at pp. 214-215.) The court concluded that a writ of mandate directing the trial court to "strike the judgment . . . is the proper remedy." (Id. at p. 215.) It is noteworthy that the conviction in Andrews was over 10 years old when the mandate was issued by the Andrews decision, i.e., that judgment was long since final yet it was set aside by a writ of mandate.
(d) The Dissent
Our dissenting colleague writes that "there is no question that the superior court in the present case had the authority to proceed on charges brought against a defendant like Vasilyan based on assaultive felony conduct committed in the court's territorial jurisdiction." (Dis. opn., post, at p. 461.)
There are three erroneous premises in this conclusion.
First. The court did not have authority to proceed on charges based on "assaultive felony conduct." There is no such crime as "assaultive felony conduct." The court could proceed on charges of assault (Pen. Code, § 240) and/or battery (Pen. Code, § 242) and other variations of assault and battery recognized by the Penal Code. The point is that none of these offenses was charged.
Second. The court's subject matter jurisdiction had to be predicated on the charged offense, which must be one set forth in the Penal Code. (See parts 2.(a) & (b) of the Discussion, ante.) The term used by the dissent, "assaultive felony conduct," suggests, erroneously, that there is such a thing as a nonstatutory, common law crime in California.
(7) Third. The reference to the court's "territorial jurisdiction" introduces an irrelevant consideration. Territorial jurisdiction "is the nonfundamental, waivable aspect of jurisdiction" (People v. Klockman (1997) 59 Cal.App.4th 621, 627 [69 Cal.Rptr.2d 271]) and it is not to be confused with subject matter jurisdiction.[2] There is no issue in this case about the court's territorial jurisdiction. If the implicit suggestion is that territorial jurisdiction is the same as subject matter jurisdiction, we disagree.
*452 The dissent states that this court concluded that fundamental jurisdiction was lacking in 1994 because the Wallace decision held, years later, that the "criminal allegations in Vasilyan's case were mislabeled." (Dis. opn., post, at p. 461.)
Wallace did not hold that "criminal allegations" were "mislabeled." Wallace held that section 422.7 does not set forth a crime in that it does not set forth a substantive offense. Nor is it legally accurate to say that in Vasilyan's case there were "criminal allegations." There were allegations that Vasilyan had violated the Penal Code but the provisions of that code that he was alleged to have violated do not set forth a crime. Finally, and most importantly, this court does not conclude that there was an error in labels. There was an error in the alleged offense that was charged, i.e. the alleged offense that was charged was not a crime under the Penal Code. As Wallace, supra, 109 Cal.App.4th at page 1704 points out, a person cannot be convicted of a crime that does not exist.
The cases cited by our dissenting colleague are, in our view, distinguishable.
In People v. Level (2002) 97 Cal.App.4th 1208, 1210 [119 Cal.Rptr.2d 551], the defendant was charged with grand theft and forgery and a with prior strike conviction for robbery. The defendant contended that the prior strike should be treated as a juvenile adjudication because she was, in fact, a juvenile when she had pleaded guilty to robbery. The appellate court rejected this contention, principally on the ground that the defendant had waived her right to have the robbery prosecution proceed in juvenile court. (Id. at p. 1211.) Subject matter jurisdiction simply was not an issue in People v. Level.
The same is true of People v. Collins (1996) 45 Cal.App.4th 849 [53 Cal.Rptr.2d 367] and In re Griffin (1967) 67 Cal.2d 343 [62 Cal.Rptr. 1, 431 P.2d 625]; neither decision involves subject matter jurisdiction. In People v. Collins the issue was whether the trial court could vacate, on the People's motion, a commitment to the California Youth Authority that had been entered in accordance with a plea agreement; the defendant had not complied with his side of the agreement. (People v. Collins, supra, at p. 862.) The appellate court concluded that the trial court had the jurisdiction to entertain such a motion. (Id. at p. 864.) The jurisdiction at issue was the power to entertain a motion to vacate; the issue was not fundamental subject matter jurisdiction, which was not challenged. In In re Griffin, the claim was that the trial court lacked jurisdiction to revoke probation; the Supreme Court expressly rejected the contention that this was a matter of subject matter jurisdiction. (In re Griffin, supra, at p. 347.)
*453 Finally, People v. Ellis (1987) 195 Cal.App.3d 334, 336-337 [240 Cal.Rptr. 708], was a case in which the defendant was charged with burglary, four counts of vehicle theft and eight counts of passing bad checks. The defendant admitted a prior conviction for bank robbery in federal court. It turned out that the federal offense did not include all of the elements of the parallel crime under California law. On appeal, the defendant claimed that the admission of the prior federal conviction was invalid. The trial court's subject matter jurisdiction over the multiple charged California offenses was not at issue. The question was one of law, i.e., whether the admission of the prior federal conviction was valid in that the elements of the federal and the parallel California offense were not the same. While there was no question that the federal conviction was lawful, it was error to treat that conviction as a California prior conviction; the court went on to conclude that this error was waived. In any event, the trial court's subject matter jurisdiction rested on the charged California offenses and was not predicated on the federal conviction.
The cases cited by the dissent involve instances of courts acting, arguably, in excess of jurisdiction. This conforms with the dissent's conclusion that at most the present case is one when the court acted in excess of its jurisdiction.[3] But when there is no crime under the Penal Code, there is no subject matter jurisdiction. (See parts 2.(a) & (b) of the Discussion, ante.)
Finally, we have explained in part 2.(c) why the void judgment before us is subject to collateral attack. Thus, contrary to the dissent's conclusion, it is immaterial that appellant did not raise this defect in a prior direct appeal.
We agree with the dissent that the petitions for writs of habeas corpus, coram nobis and audita querela are unavailable for the reasons stated by the dissenting opinion. Specifically, for the purposes of his petition for a writ of habeas corpus, appellant does not satisfy the requirement that he must be in custody or that he is otherwise deprived of his liberty. (People v. Villa (2009) 45 Cal.4th 1063, 1072 [90 Cal.Rptr.3d 344, 202 P.3d 427].) And, as noted in the dissent, the writ of error coram nobis is not available for the fundamental reason that this writ applies "where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment." (People v. Kim (2009) 45 Cal.4th 1078, 1093 [90 Cal.Rptr.3d 355, 202 P.3d 436].) The matter at hand is an error of law, which is not cognizable in a coram nobis proceeding. (Ibid.) We also agree with the dissent that it is questionable that audita querela is available in this case but we need not address this issue. Under the facts and circumstances of this *454 case, a motion to vacate the judgment is the proper procedural vehicle to raise the defect of a lack of subject matter jurisdiction.
3. Respondent's Contentions Are Without Merit
(8) In considering respondent's contentions, we note preliminarily that it is no small matter to set aside a criminal conviction that is long since final. In the rare instance when this happens, the People are put into the position of having to decide whether to retry a case that was long closed or of not proceeding at all. This is likely to be a difficult decision. On the other hand, prejudice and inconvenience cannot be taken into account when a court is faced with a void judgment. The interest that is protected by a collateral attack on a void judgment is not only the defendant's personal interest. Ultimately, the interest that is at stake is the integrity of the judicial system itself. A conviction resting on a void judgment simply cannot stand.
With this in mind, we address respondent's claim that appellant cannot now contend that section 422.7 is only a penalty provision because he could have advanced this contention in an appeal from the judgment. As the authorities establish without ambiguity or contradiction, the court lacked subject matter jurisdiction in 1994 in that section 422.7 is only a penalty provision. Accordingly, the judgment is void. And a void judgment may be attacked collaterally at any time, as we have shown.
Respondent also contends that appellant is without a remedy in that a writ of error coram nobis will only set aside a guilty plea induced by mistake, fraud or coercion and, as appellant is not in custody, he cannot avail himself of a petition for a writ of habeas corpus. Respondent also claims that appellant cannot avail himself of a petition for a writ of audita querela. While we agree, it is also true that appellant may move to vacate the void judgment, which is exactly what he did. He sought to rely on these extraordinary writs only in the alternative.
4. The Terms of Our Remand
We decline to dismiss the case against appellant or to order the trial court to do so. On this record, we cannot say whether or under what circumstance the information might be amended. Accordingly, we remand with directions to amend or dismiss the information, as appears to the trial court to be appropriate.
*455 DISPOSITION
The judgment of conviction and appellant's pleas of nolo contendere are vacated. The case is remanded with directions to amend or dismiss the information, as appears appropriate, and for such further proceedings as are appropriate.
Rubin, Acting P. J., concurred.
O'NEILL, J.,[*] Dissenting.
Fifteen years ago, defendant and three accomplices committed a violent hate crime on a public street. Early in 1995, defendant accepted a favorable disposition which included a felony no contest plea, probation, and a 39-day jail term. In 2003, defendant was deported for reasons not clear from this record, but apparently based in part on the 1995 convictions, as well as additional felonies committed at a later time. In 2007, defendant, unable to enter the United States legally, moved through counsel to vacate the 1995 convictions on the ground that the People's charging theory was invalidated by a Court of Appeal decision rendered in 2003. I respectfully dissent from a decision which allows a belated collateral attack under these circumstances by a defendant no longer subject to the jurisdiction of any California court.
FACTUAL AND PROCEDURAL HISTORY
On August 28, 1994, Arthur Vasilyan drove his brother and two other males to an area near the intersection of Santa Monica Boulevard and Hilldale Avenue, where all four men began yelling at two pedestrians with epithets to the effect, "Come on fag[g]ot. Come on fight, fag[g]ot. I'm going to fuck you up." "Do something about it, fag[g]ot." "What are you looking at?" "Fucking faggots." The Vasilyans and their companions then got out of the car, physically attacked their targets, and fled. A witness wrote down the license plate number, and, shortly thereafter, Vasilyan and the others were detained, identified in a street lineup, and arrested.
In September 1994, a magistrate found there was sufficient evidence to hold Vasilyan to answer three counts charging him with violating Penal Code section 422.7.[1]
On February 7, 1995, Vasilyan agreed to waive his constitutional rights and plead no contest to two counts charging him with violating section 422.7. In *456 conjunction with the waiver of rights, the prosecutor also advised Vasilyan as follows: "The law requires that I tell you if you're not a citizen of the United States, consequences of pleading guilty to this offense may result in your deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." When asked whether he understood this, Vasilyan answered, "Yes." The trial court thereafter found that Vasilyan had expressly, knowingly and intelligently waived his constitutional rights, that his plea was freely and voluntarily made with an understanding of its consequences, and that there was a factual basis for his plea. The court placed Vasilyan on probation for 3 years, on condition he serve 39 days in county jail, with 39 days of custody credits, perform 80 hours of community service, and pay $200 to the victim restitution fund.
Vasilyan's probation was revoked in March 1996, and eventually reinstated, based on a new felony case. In that matter, Vasilyan pleaded guilty to 10 counts of burglary and fraudulent use of a credit card, and received a new probation grant and jail sentence in July 1996.
In April 2003, the United States Department of Justice Immigration and Naturalization Service (INS) issued a warrant authorizing Vasilyan's arrest for violation of the immigration laws, and, in May 2003, INS served Vasilyan with a copy of the warrant. The exact nature of the immigration charges against Vasilyan is not documented in the record; he asserts the deportation proceedings are a consequence of his 1995 convictions. The prosecutor argued otherwise, as will be discussed below.
On June 30, 2003, Division Six of this court ruled that section 422.7 is a "penalty provision," and does not define a substantive criminal offense. (People v. Wallace (2003) 109 Cal.App.4th 1699 [1 Cal.Rptr.3d 324] (Wallace).)
In February 2004, federal immigration officials deported Vasilyan for having committed an "aggravated felony."
On June 21, 2007, Vasilyan filed a motion to vacate his 1995 convictions, or, in the alternative, petitions for writs of error coram nobis or habeas corpus. The sole ground argued by Vasilyan in his original 2007 filing was that he had not understood the immigration consequences of his 1995 plea because his lawyer at the time of the 1995 plea hearing had provided ineffective assistance of counsel by failing to advise him of those consequences, and by failing to assure that Vasilyan had the assistance of an Armenian translator at the hearing. In a supporting declaration, Vasilyan stated that his 1995 convictions had "resulted in [his] being . . . removable/deportable from the United States" and made him "inadmissible to *457 the United States." He further stated that he did "not recall ever being made aware [by counsel] that by entering the no-contest pleas [he] would be subject to such consequences."
On December 7, 2007, Vasilyan filed an amended motion and petition in which he arguedbased on the Wallace decisionthat the trial court was required to vacate his 1995 convictions for violating section 422.7 because they were of "no legal effect" from their inception. The amended papers added to the requested remedies a "petition for writ of audita querela."[2] Further, Vasilyan requested that, if no other remedy was available, the court grant him "declaratory relief so that interested parties may be placed on notice that his [1995] convictions . . . have no legal effect."
At the December 10, 2007 superior court hearing, Vasilyan's counsel's argument focused on Wallace. Counsel argued relief should be granted as a matter of equity because Vasilyan stood convicted of "something which is not a criminal offense." The prosecutor argued that the case involved a legal rather than factual mistake; Vasilyan's lack of diligence required denial; and Vasilyan's deportation had resulted not from his 1995 convictions, but as a direct result of a later conviction and prison sentence for felony drug charges, evading a peace officer, and hit and run.
The court denied relief on all grounds, stating the following reasons and findings:
Vasilyan, having been deported to his Armenian homeland, was not in state or federal custody, and was therefore not entitled to bring a habeas corpus petition;
Coram nobis was unavailable because Vasilyan had not been diligent in seeking relief, which he should have pursued, if not immediately after conviction, at the time of the deportation proceedings or the Wallace decision;
Relief pursuant to section 1016.5 was unavailable because Vasilyan in fact understands English, as evidenced by his long-term residence in the United States, attendance at a Pasadena high school and use of English during the instant crimes as well as in court and interviews by the probation officer, *458 and because Vasilyan had not shown that he would not have entered the plea had he been advised differently about its immigration consequences.
The court noted that Vasilyan's appeal to the court's sense of equity was severely undercut by his overall criminal record and the nature of the instant offenses, including the use of extremely vile hate crime epithets against the 1995 victims.
Although the court did not expressly discuss the audita querela writ petition, it clearly indicated it was denying relief on all theories asserted by Vasilyan. The court also found that Vasilyan's claims that he did not understand English and that his original attorney was ineffective as to advice on immigration consequences were not supported by the record. The court noted the practical problem that Vasilyan was seeking to vacate his convictions without submitting himself to the court's jurisdiction for further proceedings on new aggravated assault charges that could be filed. Finally, the court expressed the view that the "mislabeling" of the 1995 charges against Vasilyan was not a fundamental or constitutional error because the plea was based on conduct that would have supported other felony hate crime charges had section 422.7 not been utilized.
On January 24, 2008, Vasilyan filed a timely notice of appeal.
DISCUSSION
I.
Conventional Remedies
As the majority tacitly concedes, defendant's delay in seeking relief has made standard remedies unavailable.
Denial of a petition for habeas corpus is not appealable (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7 [21 Cal.Rptr.2d 509, 855 P.2d 729]; In re Hochberg (1970) 2 Cal.3d 870, 876 [87 Cal.Rptr. 681, 471 P.2d 1]). Further, Vasilyan lacks standing for habeas corpus in any event because he is not in California custody or otherwise deprived of liberty to the extent required for purposes of the writ. (People v. Villa (2009) 45 Cal.4th 1063, 1072 [90 Cal.Rptr.3d 344, 202 P.3d 427]; In re Azurin (2001) 87 Cal.App.4th 20, 23-27 [104 Cal.Rptr.2d 284].) Consequently, I would dismiss the purported appeal from the denial of habeas corpus, which disposes entirely of any claim that Vasilyan was ineffectively represented by counsel at the time of the plea. That claim can only be raised by means of a direct appeal or habeas corpus petition. (People v. Gallardo (2000) 77 Cal.App.4th 971, 987 [92 Cal.Rptr.2d 161].) Vasilyan's *459 claim that he did not understand his plea proceedings is also a matter which goes beyond the record and could only be properly raised in a habeas corpus proceeding.
Coram nobis was properly denied because Vasilyan's challenge to his 1995 convictions raised an issue of lawthe validity of a conviction for violating section 422.7not an issue involving newly discovered facts affecting his convictions. (See People v. Shipman (1965) 62 Cal.2d 226, 230 [42 Cal.Rptr. 1, 397 P.2d 993].) As explained recently by our Supreme Court, coram nobis requires discovery of a fact unknown to the parties and the court at the time of the judgment that, "if known, would have prevented rendition of the judgment." (People v. Kim (2009) 45 Cal.4th 1078, 1093 [90 Cal.Rptr.3d 355, 202 P.3d 436] (Kim).) Even constitutional issues "cannot be vindicated on coram nobis" if they do not meet the required test. (Id. at p. 1095; see, e.g., People v. Blalock (1960) 53 Cal.2d 798, 801 [3 Cal.Rptr. 137, 349 P.2d 953].) In Kim, the court held that claimed misunderstandings concerning deportation and other collateral consequences of a guilty plea were not cognizable on coram nobis. (Kim, at p. 1102; see also People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 [27 Cal.Rptr.3d 448] [mistaken belief as to length of sentence]; People v. Ibanez (1999) 76 Cal.App.4th 537, 547 [90 Cal.Rptr.2d 536] [ignorance of possibility conviction will have civil consequences under Sexually Violent Predator Act].)
Further, the trial court properly relied on Vasilyan's lack of diligence, which is an appropriate ground for denying coram nobis. (People v. Shorts (1948) 32 Cal.2d 502, 513 [197 P.2d 330].) The petition was brought 12 years after the convictions, four years after the Wallace decision, and four years after the initiation of Vasilyan's deportation proceedings. (See Kim, supra, 45 Cal.4th at p. 1100 [lack of diligence established where petition was filed eight years after conviction and almost seven years after the defendant was first subjected to an attempt to deport him].) Finally, as noted in Kim, the failure to pursue other available remedies is also a proper reason to deny coram nobis, even where such failure is not the petitioner's fault. (Id. at p. 1099.) Appellant could have made his claim during the trial proceedings, on direct appeal, or in a timely petition for writ of habeas corpus.
To the extent Vasilyan sought statutory relief pursuant to section 1016.5,[3] the motion was properly denied because the appropriate warning as to *460 immigration consequences was given at the time of the plea, and Vasilyan has not established an inability to understand English. (See People v. Soriano (1987) 194 Cal.App.3d 1470, 1477 [240 Cal.Rptr. 328].) Further, as the trial court found, Vasilyan has demonstrated no prejudice from any assumed language barrier because he has not shown either (1) a likelihood he would not have entered his plea (in return for probation and a short jail sentence) had he fully understood the possible immigration consequences, or (2) that he was deported solely as a result of the 1995 convictions. (See People v. Totari (2002) 28 Cal.4th 876, 884 [123 Cal.Rptr.2d 76, 50 P.3d 781].)
Nonstatutory requests to vacate or set aside judgments essentially duplicate coram nobis, and are normally treated as such. (See People v. Griggs (1967) 67 Cal.2d 314, 316 [61 Cal.Rptr. 641, 431 P.2d 225]; People v. Miranda (2004) 123 Cal.App.4th 1124, 1132, fn. 6 [20 Cal.Rptr.3d 610].) To the extent the majority has identified authority for an exception in the case of a void judgment, further discussion appears below.
As mentioned earlier, Vasilyan contends, without citation to California authority, that the common law writ of audita querela is alive and well in this state, as it apparently is in federal court. This is a highly questionable claim. (See Arechiga v. Housing Authority (1958) 159 Cal.App.2d 657, 660 [324 P.2d 973] [audita querela does not exist in California civil cases, its function having been preempted by certain sections of the Code Civ. Proc.].) I have located no California criminal case answering the question definitively. I would decline to hold such a remedy exists on the present facts, which, as noted by the trial court, do not cry out for equity so long after a prosecution based on such egregious conduct. Even assuming that audita querela exists and encompasses Vasilyan's situation, I see no abuse of discretion in the trial court's denial of such relief. Vasilyan's long-delayed petition does not claim factual innocence, nor does he claim conviction without notice of the factual underpinnings of the case against him. What the trial court called the "mislabeling" of the charges could have been raised by Vasilyan at any time, just as it was raised on direct appeal in 2003 by the defendant in Wallace.
II.
Nonstatutory Motion to Vacate
In light of the absence of any standard remedy, the majority's characterization of the original proceedings as void for lack of subject matter jurisdiction is crucial to Vasilyan's right to belated collateral relief. I agree with the *461 majority that a truly void judgment should be subject to collateral attack at any time. However, I respectfully disagree that the instant trial court lacked subject matter jurisdiction. Unlike Andrews v. Superior Court (1946) 29 Cal.2d 208 [174 P.2d 313], where a statutory "police court" lacked the power to litigate juvenile matters, there is no question that the superior court in the present case had the authority to proceed on charges brought against a defendant like Vasilyan based on assaultive felony conduct committed in the court's territorial jurisdiction.
The majority concludes, in effect, that the trial court lacked fundamental jurisdiction in 1994 because a Court of Appeal decision rendered years later, applied retroactively, established that the criminal allegations in Vasilyan's case were mislabeled. I conclude that, at worst, the acceptance of Vasilyan's no contest plea was in excess of the original trial court's jurisdiction, and Vasilyan should be estopped from challenging the proceedings based on his acceptance of a very favorable "time served" probationary sentence. (See 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Jurisdiction and Venue, § 8, pp. 95-96.)
The cases cited by Witkin and Epstein are instructive. Most recently, it was held that a defendant who failed to disclose she was a minor when convicted of grand theft was estopped from later challenging the court's jurisdiction to convict and sentence her as an adult. (People v. Level (2002) 97 Cal.App.4th 1208, 1213 [119 Cal.Rptr.2d 551].) In People v. Collins (1996) 45 Cal.App.4th 849 [53 Cal.Rptr.2d 367], a plea agreement included a requirement that the defendant testify truthfully in later proceedings. When the prosecutor later asserted a breach of that term and moved to set aside the agreement, the defendant was estopped to assert the court's lack of jurisdiction to hear such a motion. (See also In re Griffin (1967) 67 Cal.2d 343, 348 [62 Cal.Rptr. 1, 431 P.2d 625] [although the expiration of a probation term normally precludes revocation, a defendant who successfully sought a continuance without informing the court probation would expire before the new date was estopped to object to the belated proceedings].)
Also instructive is People v. Ellis (1987) 195 Cal.App.3d 334 [240 Cal.Rptr. 708], where a defendant's nine-year prison sentence included five years based on defendant's admission that a federal felony conviction included all elements of a California serious felony, when, as a matter of law, it did not. The Court of Appeal noted that such a "conclusive legal falsehood" is ordinarily open to collateral attack as "an unlawful act in excess of the trial court's statutory authority and thus in excess of its jurisdiction." (Id. at p. 342.) The court then addressed whether Ellis's consent to a plea bargain which included admitting the validity of the prior estopped a later claim of error. It concluded that the strong public policy against defendants pleading *462 guilty to "crimes they did not commit" was outweighed by the policy against allowing defendants to "trifle with the courts" by claiming error after agreeing to a favorable plea bargain. (Id. at pp. 345-347.)
A similar analysis should be applied to the present case. The favorable plea bargain agreed to by Vasilyan, coupled with his delay in making complaint and the fact that he is not even before the courts of California should result in estoppel of his claim of error.
It should be added that the defect in the original charging document did not materially affect the disposition of the case. As can be seen from the factual summary above, there is no question that the evidence at the preliminary examination supported at least misdemeanor assault and battery charges. Had Vasilyan raised the defect in a timely fashion, such charges could have been added and would have been elevated to felonies by the very statute at issue here, section 422.7. In the alternative, the prosecution could have sought misdemeanor convictions for violations of section 422.6, subdivision (a),[4] a charging section closely related to the erroneously charged section 422.7. Either prosecution tactic would undoubtedly have resulted in the same probationary sentence that was actually imposed. Thus, the original trial court's error was really harmless in any event.
III.
Proceedings on Remand
Finally, I respectfully disagree with the absence of guidance to the court below on remand. I understand the majority opinion to authorize a nonstatutory, equitable motion to vacate the judgment. Such an action is most often utilized in civil cases to set aside a judgment based on excusable legal mistake. (See 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 215, p. 823.) Because the superior court will be sitting as a court of equity, I would direct it to impose appropriate conditions on such relief so as to afford fundamental fairness to the People. For example, if the People so request, they should be allowed to file an amended information or a new complaint and either proceed against Vasilyan if he is before the court, or seek a warrant for Vasilyan's arrest based on the amended charges. *463 Another option would be to condition relief on Vasilyan's agreement that a new judgment be entered reflecting misdemeanor convictions for violations of section 422.6, subdivision (a), which, as discussed above, is the best outcome Vasilyan could have hoped for had he raised the charging defect in a timely fashion.
CONCLUSION
For the foregoing reasons, I would dismiss the purported appeal from the denial of habeas corpus, and affirm the trial court's denial of all other forms of relief.
NOTES
[1] In 1994, then section 422.7 stated: "Except in the case of a person punished under Section 422.6, any crime which is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in the state prison or in a county jail not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person's free exercise or enjoyment of any right secured to him or her by the constitution or laws of this state or by the Constitution or laws of the United States and because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, under any of the following circumstances, which shall be charged in the accusatory pleading: [¶] (a) The crime against the person of another either includes the present ability to commit a violent injury or causes actual physical injury. [¶] (b) The crime against property causes damage in excess of five hundred dollars ($500). [¶] (c) The person charged with a crime under this section has been convicted previously of a violation of subdivision (a) or (b) of Section 422.6, or has been convicted previously of a conspiracy to commit a crime described in subdivision (a) or (b) of Section 422.6." (Italics omitted.)
[2] "`The jurisdictional power of a court to act is conceptually divided into subject matter and territorial jurisdiction.'" (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 169 [45 Cal.Rptr.2d 40].)
[3] The dissent notes that the cases cited at 4 Witkin and Epstein, California Criminal Law, supra, Jurisdiction and Venue, section 8, page 95 are instructive. The cited section in this treatise deals with "Estoppel To Attack Excess of Jurisdiction."
[*] Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] All further section references are to the Penal Code.
[2] According to Black's Law Dictionary (8th ed. 2004) page 141, column 1, audita querela is "[a] writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses." It has also been noted, in the case cited by Vasilyan, that, "[w]hile . . ., coram nobis is used to attack a judgment that was infirm, for reasons that later came to light, at the time it was rendered, audita querela was a means of attacking a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition." (U.S. v. Reyes (5th Cir. 1991) 945 F.2d 862, 863, fn. 1.)
[3] Section 1016.5, subdivision (a) requires notification to defendants that a guilty or no contest plea may result in deportation or denial of naturalization. Subdivision (b) provides, in relevant part: "If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense . . . may have the consequences for the defendant of deportation . . ., the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea . . . and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement."
[4] Section 422.6, subdivision (a), provides: "No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55." Subdivision (c) of the same section provides for misdemeanor punishment of violations of subdivision (a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267259/ | 146 N.J. Super. 548 (1977)
370 A.2d 95
STATE OF NEW JERSEY, PLAINTIFF,
v.
ANTHONY COMPLETO, DEFENDANT.
Superior Court of New Jersey, Law Division (Criminal).
Decided January 17, 1977.
*549 Mr. Jeffrey S. Blitz, Assistant Prosecutor, for the State (Mr. Richard J. Williams, Atlantic County Prosecutor, attorney).
Mr. Steven I. Kaplan for defendant.
MANUEL H. GREENBERG, J.C.C., Temporarily Assigned.
This matter is before the court on application by defendant for an order compelling the State to return to him a certain shotgun now in its possession. The facts are not in dispute and may be summarized as follows:
Prior to January 4, 1969 defendant was the owner and possessor of a certain 12-gauge Winchester shotgun. He apparently had no firearms purchaser identification card and since the issue is not raised by the State it may be assumed that defendant acquired the weapon prior to the effective date of the statute imposing such requirement upon purchasers of shotguns, thereby obviating the requirement of such a card on the part of defendant. See State v. Repp, 129 N.J. Super. 588 (App. Div. 1974). On the date mentioned defendant was arrested on certain game law violation charges and the shotgun was seized by the arresting officers. In due course these charges were disposed of by pleas of guilty and fines were imposed. However, the shotgun was not returned to defendant despite his requests therefor. On January 17, 1975 defendant was indicted by a state grand jury on a charge of bookmaking. In due course defendant pleaded guilty to the charge and sentence was imposed on March 29, 1976.
Defendant contends that he is entitled to the return of the shotgun since the convictions of game law violations would not result in a forfeiture of the weapon under the authority of Sawran v. Lennon, 19 N.J. 606 (1955). While *550 the State does not contend that there would be a forfeiture of the shotgun under N.J.S.A. 2A:151-16, it does contend that it may not return it to defendant since such action on its part would violate the provisions of N.J.S.A. 2A:151-32(B), which section provides in part that
No person shall sell, give, transfer, assign or otherwise dispose of nor receive, purchase or otherwise acquire a rifle or shotgun unless the purchaser, assignee, donee, receiver or holder * * * possesses a valid firearms purchaser identification card. * * *
Defendant now having been convicted of a crime, he could not presently have issued to him such a card. N.J.S.A. 2A:151-33. Thus, if the State's contention is valid, the result is the somewhat anomalous situation of the weapon being in a type of limbo, not to be forfeited and not to be returned, at least in the absence of the court's fashioning some type of solution such as a sale of the weapon with the proceeds paid to defendant.
The question is whether the return of the weapon to its owner under the circumstances would constitute a disposition of it within the meaning of N.J.S.A. 2A:151-32(B). I conclude that it would not and that defendant is entitled to have the weapon returned to him. The statute must be read to contemplate that the transferee is acquiring some interest in the weapon that he did not have prior to the transfer. The obvious public interest lies in the registration requirement in such circumstances. Here defendant is the owner of and has for many years been entitled to possession of the shotgun. Delivery of the weapon is in no sense a disposition of it within the meaning of the statute but is merely a relinquishment by the State of its possession which has no legal basis. The State's argument has no more merit than a situation in which it contended that a recovered stolen weapon should not be returned by it to the owner on the same basis now urged. Moreover, it was the State's delay which caused the present *551 problem. Had the weapon been returned to defendant, as it should have been in 1969, he would now possess it legally.
If defendant had had a firearms purchaser identification card as of January 4, 1969, the date of its seizure, the State would not be able to raise its present argument. However, defendant's possession of the gun on that date was no less legal because of his lack of such card, State v. Repp, supra, and to deny him the return of the gun because he would not now qualify for the issuance of such card would be illogical. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385665/ | 289 S.C. 85 (1986)
344 S.E.2d 867
Harriette C. BRAMLETT, Respondent
v.
Johnny Lee DAVIS and Eva Nell Davis, Appellants.
0714
Court of Appeals of South Carolina.
Heard March 19, 1986.
Decided May 19, 1986.
*86 Harold R. Lowery and Richard E. Thompson, Jr., both of Lowery, Hood & Thompson, Anderson, for appellants.
Richard H. Warder, of Warder & Steele, Greenville, for respondent.
Heard March 19, 1986.
Decided May 19, 1986.
Per Curiam:
This is an appeal from an award transferring custody of a minor child to the mother from the maternal grandmother and step-grandfather. We affirm.
The minor child, Jeramie Shane Cagle (Jeramie), at age 9 months, was placed in the permanent custody of his grand-parents, Eva Nell and Johnny Lee Davis, pursuant to a March 18, 1982, family court order. At that time the trial judge found that the mother, Harriette Bramlett (the mother), had been living a Bohemian lifestyle for the preceding two years which included the abuse of alcohol and drugs. During this period she could neither maintain steady employment nor a steady relationship; however, at the time of the March 1982 custody action, she had been married for less than a month to Doug Bramlett, her present husband. The order granted the mother visitation rights which she and her new husband have fully exercised.
On July 28, 1983, the mother filed this action praying that custody of Jeramie be placed with her and her husband *87 based on change of circumstances since the March 1982 order. The mother contends she has rehabilitated herself and established a stable marriage and homelife. She has sought successful treatment and counseling for her previous drug abuse problems. The mother also contends that the marital home of the grandparents has deteriorated and the grandmother has emotional problems, all to the detriment of the minor child's welfare.
The trial judge issued an order dated December 30, 1983, which transferred custody back to the mother. Upon remand by the Supreme Court for compliance with South Carolina Family Court Rule 27, the trial court issued a new order dated May 15, 1984, which is the subject of this appeal. On January 17, 1984, Chief Justice Littlejohn granted a writ of supersedeas staying the transfer of custody. The child today remains in the custody of the grandparents.
The grandparents on appeal argue that the trial judge erred (1) by not limiting testimony to the events occurring after a dismissed action for failure of the pleadings, (2) by not limiting the testimony of an alcohol and drug abuse counselor, (3) by applying the best interest of the child standard, (4) in using his personal observance of the witness grandmother as a basis for his decision and (5) in ruling that circumstances had in fact changed.
The South Carolina family courts have jurisdiction to hear and determine questions of custody of a child as well as the power to modify custody based upon a change of condition. Section 20-7-420, Code of Laws of South Carolina (1976), as amended. We reject the grandparents' contention that the family court could not consider circumstances prior to the dismissal of a previous action for insufficient pleadings. See Sealy v. Dodge, ___ S.E. (2d) ___ Op. No. 22475 (S.C. filed February 21, 1986).
The grandparents' contention that the testimony of an alcohol and drug abuse counselor should have been sticken is without merit. At trial the Davises objected to the counselor's testimony as being hearsay and a letter of the counselor because its author was there to testify to the same information. On appeal it is only argued that the counselor's testimony should have been stricken because she did not qualify as an expert. An evidentiary objection must state the proper grounds for objection; a party who relies on *88 grounds not taken at the trial level will not be deemed to have preserved the issue for appeal. Grant v. White, 288 S.C. 86, 340 S.E. (2d) 791 (Ct. App. 1986); Kirkland v. Peoples Gas Co., 269 S.C. 431, 237 S.E. (2d) 772 (1977).
We hold that the change of circumstances asserted by the wife and found by the trial judge support the appealed order; that, we hold, comports with the principle that the child's welfare and best interests are primary consideration in custody matters. See Kemry v. Fox, 273 S.C. 268, 255 S.E. (2d) 836 (1979). We, therefore, reject the grandparents' contention that the trial judge erred in this regard.
On appeal this court is not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to evaluate testimony. Mann v. Walker, 285 S.C. 194, 328 S.E. (2d) 659 (Ct. App. 1985). The contention that the trial judge could not pass upon the demeanor of the witness is without merit, and we so hold.
Finally, the contention that the trial judge erred in ruling that there had been a change in circumstances is without merit. A preponderance of the evidence demonstrates that the mother has substantially improved her living style in order to accommodate a family and that negative developments have occurred in the grandparents' home. See Mann v. Walker, supra. These are adequate findings in the trial judge's opinion and ours to warrant a change of custody to the mother with visitation rights accorded the grandparents.
For the above-stated reasons, we affirm the family court judge's ruling.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385685/ | 344 S.E.2d 357 (1986)
John W. SHERRILL and Joseph T. Walsh
v.
TOWN OF WRIGHTSVILLE BEACH, North Carolina, Board of Aldermen of the Town of Wrightsville Beach, North Carolina; Eugene N. Floyd, Individually and as Mayor; Cornielle Sineath, Individually and as Alderman, Frances L. Russ, Individually and as Alderman, Carlton B. Hall, as Alderman and James W. Summey, III, Individually and as Alderman; John T. Nesbitt, Town Building Inspector.
No. 855SC1279.
Court of Appeals of North Carolina.
June 17, 1986.
*359 James A. MacDonald, Wilmington, for plaintiffs-appellants.
John W. Sherrill, pro se.
Womble Carlyle Sandridge and Rice, by Anthony H. Brett, Winston-Salem, for defendants-appellees.
PARKER, Judge.
Plaintiffs assign error to the ruling by the trial court that any challenge to the ordinance originally zoning plaintiffs' property for single-family dwellings only was barred by the applicable statute of limitations since the ordinance was in effect at the time plaintiffs acquired their interest in the properties. The Town of Wrightsville Beach passed its first zoning ordinance in 1972. Plaintiffs' property was included in an R-1 district, which at that time permitted duplexes. The ordinance was amended in 1975 to delete duplexes as a permissible use in R-1 districts.
General Statute 160A-364.1 provides that the nine-month statute of limitations in G.S. 1-54.1 will govern challenges to zoning ordinances or amendments. Clearly, then, any challenge by plaintiffs to the 1975 amendment prohibiting duplexes in R-1 districts as being violative of the purposes of zoning is barred by the statute of limitations. Plaintiffs' arguments to the contrary are unpersuasive.
The nine-month statute of limitations does not, as plaintiffs contend, deny disaffected property owners adequate avenues of redress. Instead, the property owner is merely required to go through the statutorily mandated procedures for an amendment or variance. Whatever action was taken by the town's legislative body on the amendment would then be appealable.
In this case, plaintiffs are limited to challenging the refusal of the Wrightsville Beach Board of Aldermen to amend the town's zoning ordinance to allow them to build duplexes and to challenging the allegedly arbitrary enforcement of the single-family restriction against their property.
Plaintiffs also contend that the action of the Board of Aldermen denying their petition to rezone the Coral Drive area of Wrightsville Beach to allow duplexes was invalid because the charter of the Town of Wrightsville Beach requires a unanimous vote of the Board to pass a zoning change. Plaintiffs assert that this requirement of unanimity violates G.S. 160A-75, which says local ordinances must pass by a majority vote, and G.S. 160A-385, which provides that a zoning change requires a three-fourths vote of a town's governing body only if twenty percent of the local homeowners sign a "protest petition." Since four out of five Aldermen voted against their rezoning petition, plaintiffs were not prejudiced by the requirement of unanimity. This assignment of error is overruled.
Plaintiffs further contend that the denial of their rezoning petition was invalid due to the failure of the Board of Aldermen to follow their own procedures, established by town ordinances. The procedures allegedly violated include the failure of the Town to give proper notice and publication of various zoning votes, the failure of the Town to maintain an ordinance book containing all amendments to the zoning ordinance, and the failure of the Town to maintain a file of decisions by the Board on variances and special use permits. Plaintiffs also assert the denial of their rezoning request was arbitrary and capricious as no members of *360 the public spoke out against the proposed change and the Town Attorney recommended that the change be made. Although the Board is not required by the ordinances to follow the public sentiment or the recommendations of the Town Attorney, plaintiffs assert that such was the routine practice of the Board and departure from it demonstrates the arbitrary nature of the Board's decision to deny their petition.
The Board of Aldermen have clearly violated their own established procedures in enacting various changes to their zoning laws. Such a failure to follow procedures can result in the particular action taken being declared void and invalid by the courts. See Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974). However, plaintiffs made no evidentiary showing that the Board had not followed proper procedures for the votes at issue herethe denials of the petitions to rezone Coral Drive or to rezone the entire town. Plaintiffs rely solely on isolated comments by members of the Board to allege that improper factors were considered by the Board members in voting down plaintiffs' petition. For example, one Alderman allegedly said that plaintiffs' plight should be used as a "lever" to alter the zoning scheme of the entire town. Even if this were said, it is not improper, as it is the duty of the zoning authority to consider the needs of the entire community when voting on a rezoning, and not just the needs of the individual petitioner. See Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971).
Rezoning is a legislative act, whereas a proceeding to grant a variance or special use permit is quasi-judicial in nature. See Application of Rea Construction Co., 272 N.C. 715, 158 S.E.2d 887 (1968). A court may not substitute its judgment for that of the law-making body. See Blades v. City of Raleigh, 280 N.C. 531, 550, 187 S.E.2d 35, 46 (1972). The original zoning ordinance is presumed to be valid. See Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961). In the instant case, plaintiffs are not asking the court to set aside an ordinance improperly enacted, but rather to order the Town of Wrightsville Beach to enact an amendment. For us to do so, plaintiffs would have to meet an extraordinarily high burden of showing the invalidity of the refusal of the Board to amend the zoning ordinance. In order for such an action to be constitutionally invalid, it must be shown that "the governmental body could have had no legitimate reason for its decision." Shelton v. City of College Station, 780 F.2d 475, 483 (5th Cir.1986). Plaintiffs did not meet this burden, and the assignment of error based on the failure of trial court to conclude that the actions of the Town violated their due process rights is overruled.
Next, plaintiffs argue that the refusal of the Town to allow them to build duplexes on their lots amounts to an invalid arbitrary and discriminatory enforcement of the zoning ordinance. In support of this argument, plaintiffs have shown that thirteen of the twenty-four residences in their zoning district are duplexes. Some of these duplexes were in existence in 1975 when the zoning ordinance was amended to prohibit duplexes in R-1 districts. Those, then, are valid nonconforming uses. However, the trial court did find as a fact that the Board had allowed at least one nonconforming duplex which had been destroyed to be rebuilt as a duplex in violation of the zoning ordinance. The court also found the following: (i) the Town allowed a single-family residence in R-1 zone to be converted to a duplex, ostensibly by variance but without the findings of facts or conclusions of law required by law; (ii) the Town allowed the owner of a nonconforming duplex to resume duplex use after being discontinued for twelve months, in violation of the ordinance; (iii) the Town allowed a quadraplex to be built on a lot split between C-3 and R-1 zoning; and (iv) the Town allowed enlargement of a nonconforming residence in an R-1 zone ostensibly by variance but again without the required findings and conclusions. The court was unable to determine which of the other duplexes *361 were validly nonconforming or were illegal, but specifically found that the Town had violated its duty to make that determination itself. There were two instances found by the court where the Town had taken action to force an end to an illegal duplex.
The Town has no formal enforcement plan and takes action only when the zoning violation is brought to its attention even though there are two readily available sources which list the number of units at a given address. These fairly reliable sources are the list of water line connections and the list of trash cans (each unit is required by ordinance to have one trash can). Plaintiffs contend that by utilizing these lists, the Town could easily discover the illegal duplexes and enforce its zoning laws. According to plaintiffs, the enforcement as to their property is arbitrary, and they seek an order enjoining enforcement of the single-family restriction against their property.
Clearly, the Town of Wrightsville Beach has violated its own zoning ordinance. Equally clear is the fact that the Town is very lax in the enforcement of its zoning laws. However, as plaintiffs admit in their brief, mere laxity of enforcement will not invalidate the restrictions. See City of Gastonia v. Parrish, 271 N.C. 527, 157 S.E.2d 154 (1967). See generally 16A Am. Jur.2d, Constitutional Law, § 803 (1979), and cases cited therein. For plaintiffs to prove a violation of their constitutional rights entitling them to relief, they must show that the Town's actions were arbitrary and capricious so as to violate their due process rights; or that the enforcement infringes upon their constitutional guarantee of equal protection; or that the alleged arbitrary enforcement amounts to a "taking" of their property without just compensation. We have already discussed the failure of appellants to show that the Town's actions, as applied to them, were a violation of due process.
To establish that the actions of the Town in enforcing the zoning ordinance resulted in a denial of equal protection, plaintiffs must show that the Board created a classification with the intent to discriminate. See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974); Kresge Co. v. Davis, 277 N.C. 654, 178 S.E.2d 382 (1971). The classification of plaintiffs' properties as single-family residential, as discussed above, has a rational basis, and was not enacted with the intent to discriminate against plaintiffs. The fact that the differences between the permitted use, single-family residential, and the desired use, duplexes, are relatively insignificant is also indicative of the lack of discriminatory intent. See Blades, supra, 280 N.C. at 548, 187 S.E.2d at 45. Nothing more appears in the record of this case than that the Town was extraordinarily lax in enforcing its zoning laws. No equal protection violation has been shown.
Zoning restrictions on property may be so strict as to amount to a taking of that property by the Town. See A-S-P Assoc. v. City of Raleigh, 298 N.C. 207, 258 S.E.2d 444 (1979). However, for there to be such a "taking," the restriction must deprive the owner of the property of virtually all the beneficial uses of his land. Id. In this case, plaintiffs' lots are in a neighborhood which is roughly half single-family and half duplex. Both lots are clearly suitable for the construction of a single-family dwelling. Both plaintiffs acquired their property after the single-family restriction was in place. Neither is losing any "investment-backed expectations" by not being allowed to construct a duplex. See Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). Therefore, no "taking" has occurred.
Having found that no constitutional rights of plaintiffs have been violated, their claims for damages under the Civil Rights Act of 1871, 42 U.S.C. § 1983, must also fail.
Plaintiffs' final assignment of error is that the trial court erred in not admitting into evidence a newspaper article *362 entitled "Beach Residents Flout Zoning Laws." This assignment is without merit. Substantial evidence of violations of the zoning laws had already been admitted, and the article was redundant. No prejudice could have resulted to plaintiffs in any event as the trial judge allowed a witness to read many quotes from the article while on the stand. This assignment of error is overruled.
While certain actions of the Board of Aldermen of the Town of Wrightsville Beach unrelated to plaintiffs' property were in violation of the law as established in the town's own ordinances, such actions did not infringe upon any constitutionally protected rights of plaintiffs so as to entitle them to the relief sought.
In view of our disposition of plaintiffs' appeal, we do not address defendants' cross-assignment of error.
Affirmed.
WEBB and EAGLES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385684/ | 30 Cal. 3d 358 (1981)
636 P.2d 783
178 Cal. Rptr. 783
PETER SPRECHER, Cross-complainant and Appellant,
v.
ADAMSON COMPANIES et al., Cross-defendants and Respondents.
Docket No. L.A. 31394.
Supreme Court of California.
December 7, 1981.
*360 COUNSEL
Gary S. Elster, Dunne, Shallcross & Kane and Mark C. Kane for Cross-complainant and Appellant.
Tuttle & Taylor and Douglas W. Beck for Cross-defendants and Respondents.
OPINION
BIRD, C.J.
This case concerns the present validity of the old common law rule which immunized a possessor of land from liability for injury caused by a natural condition of his land to persons or property not on his land.
I.
The following facts are not in dispute. Respondent, South Winter Mesa Associates, a joint venture between respondents the Adamson Companies and Century-Malibu Ventures, Inc., owns a 90-acre parcel of land in Malibu, California. The parcel is bounded on the north by *361 the Pacific Coast Highway and on the south by Malibu Road. Across Malibu Road and opposite the parcel are a number of beach front homes, including the home of appellant, Peter Sprecher.
Respondents' parcel of land contains part of an active landslide which extends seaward from the parcel for some 1,700 feet along Malibu Road and beyond the boundaries of respondents' property. The Sprecher property is situated within the toe of this slide. The landslide, which has been evident since the area was first developed in the early 1900's, is classified as active because it exhibits periodic cycles of activity and dormancy. The parties agree that the slide is a natural condition of the land which has not been affected by any of respondents' activities on the 90-acre parcel.
In March 1978, heavy spring rains triggered a major movement of the slide which caused appellant's home to rotate and to press against the home of his neighbor, Gwendolyn Sexton. As a result, Sexton filed an action against appellant, seeking to enjoin the encroachment of his home upon hers. Appellant cross-complained against Sexton, the County of Los Angeles and respondents.[1] Specifically, appellant sought damages for the harm done to his home by the landslide. He alleged that such damage proximately resulted from respondents' negligent failure to correct or to control the landslide condition.
Respondents moved for summary judgment, arguing primarily that a possessor of land has no duty to remedy a natural condition of the land in order to prevent harm to property outside his premises. Since the landslide was a natural condition, they argued that they were not liable for the damage to appellant's home.[2]
In opposition, appellant challenged the present validity of the common law rule of nonliability for a natural condition, arguing that the rule is neither premised upon sound public policy nor in accord with modern principles of tort liability.
The trial court ruled in favor of respondents and this appeal followed.
*362 II.
Summary judgment is properly granted where the evidence in support of the moving party, here the respondents, is sufficient to establish a complete defense to appellant's claims and there is no triable issue of fact. (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal. App. 3d 331, 338 [138 Cal. Rptr. 670]; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal. 2d 412, 417 [42 Cal. Rptr. 449, 398 P.2d 785].) Obviously, a rule of law, such as the traditional rule regarding natural conditions, which provides that a defendant has no duty to protect plaintiff is a complete defense to a claim of negligence. Its effect is to immunize or exempt the defendant from liability for negligence. (1), (2) Therefore, the first question this court must decide is whether a possessor of land should be immunized from liability for harm caused by a natural condition of his land to persons outside his premises. That is, should a possessor's exposure to liability be determined by reference to the origin of the condition causing harm or in accord with the ordinary principles of negligence.
Under the common law, the major important limitation upon the responsibility of a possessor of land to those outside his premises concerned the natural condition of the land. (Prosser, Law of Torts (4th ed. 1971) § 57, p. 354.)[3] While the possessor's liability for harm caused by artificial conditions[4] was determined in accord with ordinary principles of negligence (id., at p. 355; see Rest.2d Torts, §§ 364-370), the common law gave him an absolute immunity from liability for harm caused by conditions considered natural in origin. (Prosser, supra, at p. 354; see Rest.2d Torts, § 363, subd. (1).) No matter how great the harm threatened to his neighbor, or to one passing by, and no matter how small the effort needed to eliminate it, a possessor of land had no duty to remedy conditions that were natural in origin. (Rest.2d Torts, § 363, com. a; Prosser, supra, at p. 354.)
*363 This court has held that it will not depart from the fundamental concept that a person is liable for injuries caused "by his want of ordinary care ... in the management of his property or person ..." (Civ. Code, § 1714) except when such a departure is "clearly supported by public policy." (Rowland v. Christian (1968) 69 Cal. 2d 108, 112 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R. 3d 496].) Accordingly, common law distinctions resulting in wholesale immunities have been struck down when such distinctions could not withstand critical scrutiny. (E.g., id., at pp. 118-119; Dillon v. Legg (1968) 68 Cal. 2d 728 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R. 3d 1316]; Elmore v. American Motors Corp. (1969) 70 Cal. 2d 578 [75 Cal. Rptr. 652, 451 P.2d 84]; see generally, Levy & Ursin, Tort Law in California: At the Crossroads (1979) 67 Cal.L.Rev. 497, 504-511 [collecting cases].)
In Rowland, this court stated that "[a] departure from [the] fundamental principle [of Civ. Code, § 1714] involves the balancing of a number of considerations[.] [T]he major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and [the] consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian, supra, 69 Cal.2d at pp. 112-113.)
There appear to be only five California cases which refer to or deal with the distinction between artificial and natural conditions on land.[5] (Coates v. Chinn (1958) 51 Cal. 2d 304 [332 P.2d 289]; Harris v. De La Chapelle (1976) 55 Cal. App. 3d 644 [127 Cal. Rptr. 695]; Wisher v. Fowler (1970) 7 Cal. App. 3d 225 [86 Cal. Rptr. 582]; Potter v. Empress Theatre Co. (1949) 91 Cal. App. 2d 4 [204 P.2d 120]; Boarts v. Imperial Irrigation Dist. (1947) 80 Cal. App. 2d 574 [182 P.2d 246].) Three of these decisions were concerned with the question of liability for damage caused by a natural, as opposed to an artificial, condition. Boarts relied on this distinction to deny recovery (Boarts v. Imperial Irrigation Dist., supra, at p. 578); Wisher questioned its applicability in an urban setting *364 (Wisher v. Fowler, supra, 7 Cal. App.3d at p. 229); and Harris held that in an urban area, "a landowner is liable for conditions occurring where he fails to exercise reasonable care to [prevent] an unreasonable risk of harm to users of the highway from trees on his property" (Harris v. De La Chapelle, supra, 55 Cal. App.3d at p. 648). This court has not previously addressed the wisdom of the common law rule of nonliability for harm caused by a natural condition to persons outside the premises. Coats v. Chinn, supra, 51 Cal.2d at page 308, did no more than tacitly recognize that the rule of nonliability existed.
This progression of the law in California mirrors what appears to be a general trend toward rejecting the common law distinction between natural and artificial conditions. Instead, the courts are increasingly using ordinary negligence principles to determine a possessor's liability for harm caused by a condition of the land. The early case of Gibson v. Denton (1896) 4 A.D. 198 [38 N.Y.S. 554] was a precursor of this trend. In Gibson, the court held a possessor of land liable for damage caused when a decayed tree on her premises fell on the home of her neighbor during a storm. After noting that the defendant clearly would be liable for the fall of a dilapidated building, or artificial structure, the court observed that it could "see no good reason why she should not be responsible for the fall of a decayed tree, which she allowed to remain on her premises." (Id., at p. 555.) "[T]he tree was on her lot, and was her property. It was as much under her control as a pole or building in the same position would have been." (Ibid.) Thus, "[t]he defendant had no more right to keep, maintain, or suffer to remain on her premises an unsound tree ... than she would have had to keep a dilapidated and unsafe building in the same position." (Id., at pp. 555-556.)
In more recent years, at least 13 other states and the District of Columbia have begun applying ordinary negligence principles in determining a possessor's liability for harm caused by a natural condition. These states include Illinois (Mahurin v. Lockhart (1979) 71 Ill. App. 3d 691 [390 N.E.2d 523]); Oregon (Taylor v. Olsen (1978) 282 Ore. 343 [578 P.2d 779]); Georgia (Cornett v. Agee (1977) 143 Ga. App. 55 [237 S.E.2d 522]); Pennsylvania (Barker v. Brown (1975) 236 Pa.Super. 75 [340 A.2d 566]); Rhode Island (Fabbri v. Regis Forcier, Inc. (1975) 114 R.I. 207 [330 A.2d 807]); Maryland (Hensley v. Montgomery County (1975) 25 Md. App. 361 [334 A.2d 542]); North Carolina (Rowe v. McGee (1969) 5 N.C. App. 60 [168 S.E.2d 77]); Arizona (Carver v. Salt River Valley Water Users' Ass'n. (1968) 5 Ariz. App. 386 [446 P.2d 492], vacated on other grounds (1969) 104 Ariz. 513 *365 [456 P.2d 371]); Louisiana (Farbe v. Klein (La. App. 1966) 187 So. 2d 467); Massachusetts (Kurtigian v. City of Worcester (1965) 348 Mass. 284 [203 N.E.2d 692]); Washington (Albin v. National Bank of Commerce of Seattle (1962) 60 Wash. 2d 745 [375 P.2d 487]); Kentucky (Lemon v. Edwards (Ky.App. 1961) 344 S.W.2d 822); and Ohio (Hay v. Norwalk Lodge No. 730, B.P.O.E. (1951) 92 Ohio App. 14 [109 N.E.2d 481]). (See also Husovsky v. United States (D.C. Cir.1978) 590 F.2d 944; Dudley v. Meadowbrook, Inc. (D.C.Mun.App. 1961) 166 A.2d 743; Turner v. Ridley (D.C.Mun.App. 1958) 144 A.2d 269.)
Not surprisingly, all these cases involved an injury caused by a fallen tree. However, the principles expressed by these courts are not so limited. For example, the court in Dudley v. Meadowbrook, Inc., supra, 166 A.2d 743, held that a possessor of land has a "duty of common prudence in maintaining his property, including trees thereon, in such a way as to prevent injury to his neighbor's property." (Id., at p. 744; see also Turner v. Ridley, supra, 144 A.2d at pp. 270-271 [same court: duty applied to automobile parked on public road].)
The courts are not simply creating an exception to the common law rule of nonliability for damage caused by trees and retaining the rule for other natural conditions of the land. Instead, the courts are moving toward jettisoning the common law rule in its entirety and replacing it with a single duty of reasonable care in the maintenance of property. This development is reflected in the Restatement Second of Torts, which now recognizes that a possessor of land may be subject to liability for harm caused not just by trees but by any natural condition of the land. (Compare Rest.2d Torts, § 363, subd. (2) [promulgated in 1963-1964] with Rest.2d Torts, § 840, subd. (2) [promulgated in 1977]; see also, id., § 840, com. c.)
Furthermore, the courts are not imposing the duty of reasonable care only on possessors of land located in urban and suburban areas. The cases indicate that the duty of reasonable care for the protection of those outside the premises against natural conditions applies even in rural areas. (E.g., Hensley v. Montgomery County, supra, 334 A.2d at p. 545; see generally Rest.2d Torts (appen.) § 363, rptr.'s notes, p. 323.) Some of the cases, however, have drawn a distinction between the standard of care owed with respect to natural conditions in urban areas and the standard owed in rural areas. (E.g., Hensley v. Montgomery County, supra, 334 A.2d at pp. 545-547; Hay v. Norwalk Lodge No. 730, B.P.O.E., supra, 92 Ohio App. 14 [109 N.E.2d 481].)
*366 While the courts have imposed liability for harm caused by a natural condition where the possessor of land located in a rural area knew or had reason to know (see Rest.2d Torts, § 12, subd. (1) & com. a) of the danger it posed, some courts have refused to impose a duty of inspection on the possessor of rural land. (Rest.2d Torts (appen.) § 363, rptr.'s notes, p. 323.) Other courts have questioned the efficacy of a "rural" versus "urban" distinction even as regards the standard of care, noting that with the growth of suburbs and the increase in traffic through rural areas, it has become less workable. (E.g., Husovsky v. United States, supra, 590 F.2d at p. 951, fn. 15; Albin v. National Bank of Commerce of Seattle, supra, 375 P.2d at p. 490; Carver v. Salt River Valley Water Users' Ass'n., supra, 446 P.2d at pp. 498-499.) In Taylor v. Olsen, supra, 578 P.2d at page 782, the Oregon Supreme Court went even further. The court held that, in most cases, the location of the land becomes but one of many factors to be considered by the trier of fact in evaluating the reasonableness of the defendant's conduct. (Ibid.)
The latest formulation of the duty owed by a possessor of land to persons outside his premises with regard to natural conditions which is set forth in the Restatement Second of Torts still limits the reach of the duty to persons traveling on the public streets and highways. (Rest.2d Torts, § 840, subd. (2).) The American Law Institute, however, noted that at the time this formulation was promulgated, the authority was insufficient to support a position regarding whether the duty was owed adjoining landowners as well. (See Rest.2d Torts, § 840, com. c.) Nevertheless, a number of jurisdictions have held a possessor of land liable for harm caused an adjoining landowner by a natural condition of the land. (E.g., Mahurin v. Lockhart, supra, 390 N.E.2d 523; Barker v. Brown, supra, 340 A.2d 566; Kurtigan v. City of Worcester, supra, 203 N.E.2d 692; Dudley v. Meadowbrook, supra, 166 A.2d 743.) It is difficult to discern any reason to restrict the possessor's duty to individuals using the highways. To do so would create an unsatisfying anomaly: a possessor of land would have a duty of care toward strangers but not toward his neighbor.
In rejecting the common law rule of nonliability for natural conditions, the courts have recognized the inherent injustice involved in a rule which states that "a landowner may escape all liability for serious damage to his neighbors [or those using a public highway], merely by allowing nature to take its course." (Prosser, supra, at p. 355.) As one commentator has observed: "[w]here a planted tree has become dangerous *367 to persons on the highway or on adjoining land, and causes harm, the fault lies not in the planting of the tree but in permitting it to remain after it has become unsafe." (Noel, Nuisances From Land in Its Natural Condition (1943) 56 Harv.L.Rev. 772, 796-797.)
Historically, the consideration most frequently invoked to support the rule of nonliability for natural conditions was that it was merely an embodiment of the principle that one should not be obligated to undertake affirmative conduct to aid or protect others (Rest.2d Torts, § 314; see generally, James, Scope of Duty in Negligence Cases (1953) 47 Nw.U.L.Rev. 778, 800-809; Noel, Nuisances From Land in Its Natural Condition, supra, 56 Harv.L.Rev. at pp. 773, 796-797 and fn. 102; McCleary, The Possessors' Responsibilities as to Trees (1964) 29 Mo.L.Rev. 159; 2 Harper & James, The Law of Torts (1956) § 27.19, pp. 1521-1522.) This doctrine rested on the common law distinction between the infliction of harm and the failure to prevent it, or misfeasance and nonfeasance. (Rest.2d Torts, § 314, com. c.) Misfeasance was determined to exist when a defendant played some part in the creation of a risk, even if his participation was innocent. Nonfeasance occurred when a defendant had merely failed to intervene in a plaintiff's behalf. (See generally, Weinrib, The Case for a Duty to Rescue (1980) 90 Yale L.J. 247, 251-258.) Liability for nonfeasance, or the failure to take affirmative action, was ordinarily imposed only where some special relationship between the plaintiff and defendant could be established. (Id., at p. 248 and fn. 7; Rest.2d Torts, § 314, com. a.)
Proponents of the rule of nonliability for natural conditions argued that a defendant's failure to prevent a natural condition from causing harm was mere nonfeasance. A natural condition of the land was by definition, they argued, one which no human being had played a part in creating (see ante, fn. 3). (See Noel, Nuisances From Land in Its Natural Condition, supra, 56 Harv.L.Rev., at p. 773.) Therefore, no basis for liability existed because a duty to exercise reasonable care could not arise out of possession alone. (Ibid.) Since there was no special relationship between the possessor of land and persons outside the premises, there could be no liability. (See Rest.2d Torts, § 314, com. f.) Conversely, a defendant's failure to prevent an artificial condition from causing harm constituted actionable misfeasance.
Whatever the rule may once have been, it is now clear that a duty to exercise due care can arise out of possession alone. One example is provided *368 by modern cases dealing with the duty of a possessor of land to act affirmatively for the protection of individuals who come upon the premises. In days gone by, a possessor of land was deemed to owe such a duty of care only to invitees. That is, the duty to act affirmatively was grounded in the special relation between the possessor-invitor and the invitee. (See Rowland v. Christian, supra, 69 Cal. 2d 108, 114; Prosser, supra, at p. 385.) Rowland held that whether the individual coming upon the land was a trespasser, a licensee or an invitee made no difference as to the duty of reasonable care owed but was to be considered only as to the issue of whether the possessor had exercised reasonable care under all the circumstances. (Rowland v. Christian, supra, 69 Cal.2d at pp. 118-119.)
Modern cases recognize that after Rowland, the duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises. (E.g., Rogers v. Jones (1976) 56 Cal. App. 3d 346, 350 [128 Cal. Rptr. 404]; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal. App. 3d 798, 802-803 [142 Cal. Rptr. 487].)
Moreover, the possessor's control and supervisory power over the land has been expressly relied upon by some courts in imposing a duty of reasonable care with regard to a natural condition of the land. Husovsky v. United States, supra, 590 F.2d 944, involved a motorist's suit for injuries he sustained when a poplar tree fell on his automobile while he was driving through a public park. Although India, not the United States, owned the tract of land upon which the tree stood, a federal agency serviced and maintained the tract as well as the surrounding parkland.
In considering whether the United States had a duty to use reasonable care to protect motorists from hazards posed by natural conditions on the tract, the court reasoned as follows. "[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by the person in possession of the land [citations omitted] because [of the possessor's] supervisory control over the activities conducted upon, and the condition of, the land." (Id., at p. 953.) In the case before the court, it was the United States that exercised such control and supervision over the tract of land on which the tree stood. Accordingly, the court held that "the United States had a duty to exercise reasonable care in its supervision thereof, *369 and thereby became obligated to use reasonable diligence to protect motorists ... from hazards posed by the land." (Ibid.; see also Gibson v. Denton, supra, 38 N.Y.S. at pp. 555-556.)
Thus, it becomes clear that the traditional characterization of a defendant's failure to take affirmative steps to prevent a natural condition from causing harm as nonactionable nonfeasance conflicts sharply with modern perceptions of the obligations which flow from the possession of land. Possession ordinarily brings with it the right of supervision and control. As Justice Mosk has aptly stated, the right of supervision and control "goes to the very heart of the ascription of tortious responsibility ..." (Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal. 2d 850, 874 [73 Cal. Rptr. 369, 447 P.2d 609, 39 A.L.R. 3d 224] [dis. opn. of Mosk, J.].)
Another deficiency of the historical justification of the rule of nonliability is simply that it proves too much. Under the traditional analysis, a possessor of land should be excused from any duty to prevent harm to persons outside his land whenever he has played no part in the creation of the condition which threatens the harm, be it artificial or natural. However, most courts recognize that the possessor is under an affirmative duty to act with regard to a dangerous artificial condition even though the condition was created solely by some predecessor in title or possession (Rest.2d Torts, § 366;[6] see e.g., Dye v. Burdick (1977) 262 Ark. 124 [553 S.W.2d 833, 836-837]); or by the unauthorized conduct of some other third person (Rest.2d Torts, § 364, subd. (c)).[7] "To impose such a duty is to cross the line from misfeasance to nonfeasance" unless the present possessor somehow aggravates the danger. (See *370 Weinrib, The Case for a Duty to Rescue, supra, 90 Yale L.J. at p. 257.)[8]
Interestingly enough, in the cases holding that a possessor has an affirmative duty to prevent harm by a dangerous artificial condition created solely by another, the liability of the defendant has been predicated upon his possession and control of the artificial condition which caused the harm. (E.g., Dye v. Burdick, supra, 553 S.W.2d 833; cf. Pridgen v. Boston Housing Authority (1974) 364 Mass. 696 [308 N.E.2d 467, 475-478, 70 A.L.R. 3d 1106].) Thus, these cases confirm that mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act. (See generally, 2 Harper & James, supra, at pp. 1523-1525.) In sum, the historical justification for the rule of nonliability for natural conditions has lost whatever validity it may once have had.
In addition, adherence to the rule in California would produce an anomalous result. A possessor of land would owe a duty of care to protect trespassers, invitees and licensees, but not his neighbor, from harms threatened by a natural condition of the land. It has long been established in California that a possessor of land is subject to liability for harm caused a person upon the land by a natural condition. (E.g., Austin v. Riverside Portland Cement Co. (1955) 44 Cal. 2d 225, 233 [282 P.2d 69]; but see Civ. Code, § 846.) It is difficult to see why this court should support a rule which would allow a trespasser to bring an action in negligence that would be denied a neighbor, where both were standing on either side of the possessor's boundary line and were both struck by a dead limb from his tree.
Finally, it is apparent that the distinction between artificial and natural conditions, and the immunity from liability predicated on that distinction, bears little relationship to the major factors which should determine whether immunity should be given the possessor of land for *371 harm done by a natural condition of the land. (See ante, p. 363.) The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, and the extent of the burden to the defendant and the consequence to the community of imposing a duty to exercise care have little, if any, relationship to the natural, as opposed to artificial, origin of the condition causing harm.
The remaining factors, the availability, cost, and prevalence of insurance may in some cases bear a relationship to the natural origin of the condition. Insurance may not be readily available for the risks posed by some natural conditions. On balance, however, it is clear that a departure from the fundamental concept that a person is liable for the harm caused "by his want of ordinary care ... in the management of his property...." (Civ. Code, § 1714) is unwarranted as regards natural conditions of land.
The trend in the law is in the direction of imposing a duty of reasonable care upon the possessor of land with regard to natural conditions of land. The erosion of the doctrinal underpinning of the rule of nonliability is evident from even a cursory review of the case law. Also evident is the lack of congruence between the old common law rule of nonliability and the relevant factors which should determine whether a duty exists. All this leads to but one conclusion. The distinction between artificial and natural conditions should be rejected. "A [person's] life or limb [or property] does not become less worthy of protection by the law nor a loss less worthy of compensation under the law" because that person has been injured by a natural, as opposed to an artificial, condition. (Rowland v. Christian, supra, 69 Cal.2d at p. 118.)
"It bears repetition that the basic policy of this state ... is that everyone is responsible for any injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant a departure from this fundamental principle do not warrant the wholesale immunit[y] resulting from the common law [distinction].... The proper test to be applied to the liability of the possessor of land ... is whether in the management of his property he has acted as a reasonable [person] in view of the probability of injury to others...." (Id., at pp. 118-119.)
*372 It must also be emphasized that the liability imposed is for negligence. The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor's degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant's conduct.[9]
III.
Respondents next contend that the summary judgment must be affirmed because appellant failed to introduce admissible evidence sufficient to raise a triable issue of fact regarding the reasonableness of respondent's failure to take affirmative steps to control the landslide condition on the 90-acre parcel. "[E]ven when there is no dispute as to the facts, it usually is for the jury to decide whether the conduct in question meets the reasonable man standard...." (Wright & Miller, Federal Practice and Procedure (1973) § 2729, pp. 572-573.) "In short, negligence is a [triable issue] of fact if different conclusions can be rationally drawn from the evidence." (Maxwell v. Colburn (1980) 105 Cal. App. 3d 180, 186 [163 Cal. Rptr. 912].) Moreover, "doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion." (Stationers Corp. v. Dun & Bradstreet, Inc., supra, 62 Cal.2d at p. 417.)
Respondents' expert witness testified, by affidavit, that it ordinarily would be quite expensive for respondents even to determine the measures required to correct the landslide condition on the 90-acre parcel. Construction of the corrective measures would entail even greater expense. Moreover, it would not be possible for respondents totally to control the landslide. A full solution would require that measures also be taken upon the property of other landowners in the slide area. Finally, respondents' geologist asserted that the measures proposed for control of the slide by appellant's expert witness would be, at best, only slightly effective and that the cost of implementing them, therefore, would not be justified by the benefit to appellant.
*373 On the other hand, that portion of appellant's evidence which is conceded to be admissible establishes that respondents knew or had reason to know of the landslide but did nothing to abate the condition. Further, proper excavation and sloping at the head of the slide together with dewatering might have been effective in preventing the landslide from harming appellant's home.
Construing appellant's evidence liberally and respondents' narrowly, as this court must (Stationers Corp. v. Dun & Bradstreet, Inc., supra, 62 Cal.2d at p. 417), a rational inference can be drawn that effective measures for the control of the slide were within respondents' reach and that such measures would have entailed a substantial expense. Although the cost of implementing only slightly effective measures would not be justified by the benefit to appellant, it can be inferred that the cost of implementing effective measures might (or might not) be justified by the benefit to appellant and to respondents. Although the case is a close one, the evidence does not conclusively establish that no rational inference of negligence can be drawn under the circumstances of this case.
Moreover, it should be noted that the motion for summary judgment was heard relatively early in the course of this litigation. Furthermore, respondents' moving papers gave little warning, prior to the filing of the reply memorandum of points and authorities, that they would seek summary judgment on the ground that the failure to take steps to control the landslide was reasonable. It is, then, understandable why appellant did not marshal extensive facts addressing a contention not made in the respondents' moving papers. (See Webster v. Southern Cal. First Nat. Bank (1977) 68 Cal. App. 3d 407, 416 [137 Cal. Rptr. 293].) When this contention was made, only two days remained before the hearing on the motion. For these reasons, the summary judgment should not have been granted.
IV.
The judgment of the trial court is reversed and the cause remanded to the trial court for further proceedings consistent with the views expressed in this opinion.
Tobriner, J., Mosk, J., Newman, J., Work, J.,[*] and McClosky, J.,[*] concurred.
*374 RICHARDSON, J.
I concur in the judgment of the court which reverses the trial court's entry of summary judgment in favor of respondents. It seems proper to require that landowners act reasonably with reference to their property, thus preventing damage to their neighbors. This is so regardless of whether the condition threatening the injury or damage is artificial or natural.
I think, however, that it is unfortunate that this salutary principle of tort law which is consistent with, but an extension of, our holding in Rowland v. Christian (1968) 69 Cal. 2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R. 3d 496], is expressed within the circumstances alleged in this case. I find it exceedingly difficult to imagine what respondents reasonably could have done to prevent or reduce the damage caused by the natural condition here present.
It is apparently conceded by all parties that the damage caused in the case before us consisted of a landslide triggered by unseasonably heavy rains falling on an active landslide area. This area is very large, very deep and very old. It is characterized by unstable soil which, when it slides, accretes a toe at the edge of the Pacific Ocean. The toe, which helps to hold back the upland soil, is, in turn, subject to wave action by Pacific waters which weakens it. When the rains are heavy and the toe is thus weakened, there are periodic slides. This land subsidence has been continuing apparently for aeons in the area between respondents' property and the Pacific Ocean. The instability of the soil is an ancient geological phenomenon widely known and accepted by the inhabitants of the area. No activity by respondents contributed in any manner to the slide or to the damage. Any corrective measures would have involved the properties along the entire width of the slide area, only a small portion of which extends onto respondents' land. Under the foregoing circumstances, described by the majority as "close," I am unable to conjure what, if any, restraining engineering procedures reasonably could be required of respondents.
Nonetheless, I agree that appellant should be entitled before a fact finder to explore the propriety of respondents' conduct referrable to the geological condition.
NOTES
[1] Neither Sexton nor the County of Los Angeles is a party to this appeal.
[2] Two days before the hearing on the motion for summary judgment, respondents filed a reply memorandum of points and authorities in which they argued for the first time that their failure to remedy the landslide condition on the 90-acre parcel was reasonable under all the circumstances.
[3] The term "`[n]atural condition of the land' is used to indicate that the condition of land has not been changed by any act of a human being.... It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them." (Rest.2d Torts, § 363, com. b.)
[4] "[A] structure erected upon land is a non-natural or artificial condition, as are trees or plants planted or preserved, and changes in the surface by excavation or filling, irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces." (Rest.2d Torts, § 363, com. b.)
[5] The law governing the rights and liabilities of land owners with respect to surface waters has, to some extent, developed over the years separately and independently from tort law generally and is not considered here. (See Keys v. Romley (1966) 64 Cal. 2d 396, 400-408 [50 Cal. Rptr. 273, 412 P.2d 529].)
[6] Section 366 provides: "One who takes possession of land upon which there is an existing structure or other artificial condition unreasonably dangerous to persons or property outside of the land is subject to liability for physical harm caused to them by the condition after, but only after,
"(a) the possessor knows or should know of the condition, and
"(b) he knows or should know that it exists without the consent of those affected by it, and
"(c) he has failed, after a reasonable opportunity, to make it safe or otherwise to protect such persons against it."
[7] Section 364, subdivision (c), provides: "A possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of harm, if ...
"(c) the condition is created by a third person without the possessor's consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it."
[8] Weinrib gives the following example of aggravating an independent risk. "Although it may be nonfeasance to refuse to rescue a drowning person whose predicament arose independently, it is misfeasance to hide the rope that others might toss out to him." (Id., at p. 258.) It can be argued that by virtue of taking possession of a tract of land, and thus preventing another from doing so, a possessor "hides the rope" that others might toss to those outside the premises. That is, his possession of land, having on it a dangerous condition, forestalls its possession by another who might abate the condition. So viewed, any unreasonable failure to abate would constitute misfeasance. But it would be misfeasance whether the dangerous condition was a natural or an artificial one.
[9] To the extent that they are inconsistent with this decision, the following cases are disapproved: Coates v. Chinn, supra, 51 Cal. 2d 304; Harris v. De La Chappelle, supra, 55 Cal. App. 3d 644; Wisher v. Fowler, supra, 7 Cal. App. 3d 225 [86 Cal. Rptr. 582]; Potter v. Empress Theatre Co., supra, 91 Cal. App. 2d 4 [204 P.2d 120]; Boarts v. Imperial Irrigation Dist., supra, 80 Cal. App. 2d 574 [182 P.2d 246].
[*] Assigned by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385706/ | 178 Ga. App. 791 (1986)
344 S.E.2d 543
IVEY
v.
FORT VALLEY UTILITIES COMMISSION.
71873.
Court of Appeals of Georgia.
Decided April 22, 1986.
Franklin E. Remick, for appellant.
Emitte H. Griggs, for appellee.
POPE, Judge.
Appellant Sharon D. Ivey went to appellee's office to pay a bill, as she had done on previous occasions, and while exiting the building was injured when a stationary glass panel beside the glass lobby door shattered, causing multiple lacerations. She filed the instant action alleging that appellee had maintained a dangerous condition in its office by failing to provide proper signs or window markings in the vicinity of the glass door. By letter to appellee, which was attached to the complaint as Exhibit A, appellant stated that she had "bumped" the glass panel and that appellee's negligence causing her injuries resulted from "having a dangerous condition in the building caused by the defective construction and failure to properly maintain guardrails which led to the existence of a pitfall or mantrap." On deposition appellant testified that she did not touch the glass panel before it shattered.
Appellee moved for summary judgment based upon uncontroverted affidavits that it had been located in the same building since 1972; that no one had ever been involved in any accident involving the glass panels in the lobby either by walking into them or by their spontaneously shattering; that the lobby at the time of appellant's injury was in all respects the same as it had been since 1972; and that nothing in the appearance of the glass panel on the date of the incident suggested that anything was wrong with them. The trial court found that appellant did not strike the glass panel and the cause of its breaking was unknown, there being nothing in its appearance on the date of the accident to suggest that anything was wrong with it. On appeal appellant asserts that the grant of summary judgment was improper because issues of fact exist as to whether the glass broke because it was accidentally bumped or because it was defective, and whether appellee was negligent in failing to adequately warn or safeguard against the potential danger.
We find no ground for reversal. "To state a cause of action for negligence, there must be a legally attributable causal connection between the defendant's conduct and the alleged injury. The inquiry is not whether the defendant's conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. We find this to be such a case." (Citations and punctuation omitted.) Hercules, Inc. v. Lewis, 168 Ga. App. 688 (309 SE2d 865) (1983). "Because of the necessity of establishing that defendant's negligence caused injury to *792 the plaintiff, if the cause was remote and furnished only the condition or occasion of the injury, it was not the proximate cause thereof. One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen or what, as it is sometimes said, is only remotely and slightly probable." (Citations and punctuation omitted.) Rustin Stamp &c. Shop v. Ray Bros. Roofing &c. Co., 175 Ga. App. 30, 32 (332 SE2d 341) (1985).
"To presume that because a customer [is injured] that the proprietor has somehow been negligent would make the proprietor an insurer of his customer's safety which he is not in this state. What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the premises safe as a good business man is in such matters accustomed to use. We find no evidence that the construction or design of the [glass panels] is defective . . . . Only [appellant's] bare assertion that the situation is unsafe opposes [appellee's] evidence [to the contrary.] This simply is insufficient to show any breach of duty to [appellant] by [appellee]. It shows only that [appellant] unfortunately [was injured]. In these circumstances, the trial court did not err in granting summary judgment to [appellee]." (Citations and punctuation omitted.) Martin v. Bank South, 175 Ga. App. 422, 423-24 (333 SE2d 616) (1985).
Judgment affirmed. McMurray, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385708/ | 344 S.E.2d 783 (1986)
STATE of North Carolina
v.
Eric Lee GILLIAM and Jeffery Jerome Battle.
No. 704A85.
Supreme Court of North Carolina.
July 2, 1986.
*785 Lacy H. Thornburg, Atty. Gen. by Ann Reed, Sp. Deputy Atty. Gen., for the State.
Jay Trehy, Asst. Public Defender, for defendant-appellant Gilliam.
John G. Britt, Jr., Asst. Public Defender, for defendant-appellant Battle.
BRANCH, Chief Justice.
Defendants' first assignment of error concerns the use of peremptory challenges by the prosecutor to remove blacks from the venire. They argue that the prosecutor excused qualified blacks from the venire solely on account of their race and thereby violated the defendants' rights to due process of law and equal protection of the law under the fourteenth amendment to the Federal Constitution and Article I, Sections 19 and 24 of the North Carolina Constitution.
In the recent case of Batson v. Kentucky, ___ U.S. ___, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the United States Supreme Court overruled the requirement of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759, reh'g denied, 381 U.S. 921, 85 S. Ct. 1528, 14 L. Ed. 2d 442 (1965), that a black defendant must show that prosecutors in the judicial district in which he was tried had over a period of time systematically used peremptory challenges to remove blacks from petit juries. Under the rule laid down by Batson a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.' Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.
....
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.
Batson, ___ U.S. at ___, 106 S.Ct. at 1714, 90 L.Ed.2d at 76-77 (citations omitted).
The record reveals that the prosecutor in this case challenged peremptorily five of the six blacks called to the jury. One black, a retired noncommissioned army officer, was seated on the jury. Prior to the impaneling of the jury counsel for both defendants moved to strike the entire venire or those jurors who had been passed. These motions were denied by the trial judge. At the end of the State's case, these motions were renewed in the form of motions for mistrial and were again denied. The prosecutor did not provide any reason for his peremptory challenges of black veniremen.
In the recent case of State v. Jackson, 317 N.C. 1, 343 S.E.2d 814 (1986), we examined the rulings of the United States Supreme Court on the retroactivity of decisions of that Court affecting rights *786 secured by the Federal Constitution and held that the ruling in Batson v. Kentucky applied only to those cases in which jury selection occurred after the Batson decision was rendered. State v. Jackson, 317 N.C. at ___, 343 S.E.2d at 820. Since jury selection in the instant case occurred prior to the filing of Batson, that decision is inapplicable. Therefore, to establish that the prosecutor's use of peremptory challenges to excuse blacks from the venire deprived them of the equal protection of the law, defendants must meet the test set out in Swain v. Alabama. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, Carter v. North Carolina, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976). See also State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980). This they have failed to do.
Defendants have asked this Court to hold that the use of peremptory challenges by the prosecutor in this case to remove blacks from the venire violates Article I, Sections 19 and 24 of the North Carolina Constitution. However, they have cited no authority nor made any arguments based on the language of the pertinent constitutional provisions to support their position. Questions raised by assignments of error but not presented and discussed in a party's brief are deemed abandoned. N.C.R.App. P. 28(a). Thus, defendants have abandoned any question concerning the North Carolina Constitution.
This assignment of error is overruled.
By their remaining assignments of error which were briefed and argued, defendants contend that the trial judge committed prejudicial error by allowing the State to introduce into evidence the straight razor and knife found on the person of Raymond Eugene Brown and the knives found in the car occupied by defendants at the time of their arrest. Because Ms. Maness never identified any of the weapons as the one used by her assailants, defendants argue that the only reason for the introduction of these weapons was to impeach their character by showing them to be guilty of having concealed weapons in their automobile and to generally arouse the emotions of the jury against them. Also, defendants argue that the trial judge committed prejudicial error by allowing the prosecutor to refer to the knives and razor in his closing argument.
N.C.G.S. § 8C-1, Rule 404(b), states that [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
This is essentially a codification of the rule announced in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). "If ... there is evidence that the crime charged and another offense were committed by the same person, and identity is an issue, evidence of the other offense is admissible for the purposes of establishing the identity of the defendant as the perpetrator of the crime charged." State v. Williams, 308 N.C. 357, 359-60, 302 S.E.2d 438, 440 (1983).
In the instant case the State produced evidence that one of the defendants had threatened Ms. Maness with a knife when they abducted her and that one of the three assailants had told her that he liked her and would be back for her and that she would be shot if she reported the crimes. Approximately five nights after the assaults defendants Gilliam and Battle came to Ms. Maness's apartment around 1:00 a.m. They beat on the door and attempted to open it before leaving when a neighbor stepped outside his apartment. When their car was stopped by Sheriff's deputies a short distance from the apartment and its occupants were arrested and searched, Brown was found to have a knife and straight razor concealed on his person, three other knives were found concealed in various locations in the car, and one was found on the console.
By entering pleas of not guilty and denying that they were Ms. Maness's assailants, defendants have made identity an issue in *787 this case. State v. Perry, 275 N.C. 565, 570, 169 S.E.2d 839, 843 (1969). Therefore, the State was entitled to introduce into evidence any evidence of other crimes by defendants which would tend to establish their identity as perpetrators of the kidnapping and sexual assaults committed against Ms. Maness. State v. Williams, 308 N.C. 357, 359-60, 302 S.E.2d 438, 440. Their action in coming to her apartment heavily armed just a few days after the kidnapping and sexual assaults and then attempting to gain entry to her apartment raises a reasonable inference that they were "coming back for her" or had returned to carry out the threat that Ms. Maness would be harmed if she reported the crimes committed against her. This evidence clearly bears on the issue of identity. It is relevant evidence under N.C.G.S. § 8C-1 Rule 401 and is a recognized exception to the prohibitions set forth in N.C.G.S. § 8C-1 Rule 404(b). Therefore, we hold that the trial judge did not err in admitting the knives and razor into evidence.
We next consider defendants' objection to the prosecutor's reference to the knives and razor in his final argument. They contend that his argument invited the jury to speculate as to which, if any, of the weapons were involved in the crime and that it likely caused the jurors to be less able to give a reasoned consideration to the evidence.
"Arguments of counsel are largely in the control and discretion of the trial court." State v. Huffstetler, 312 N.C. 92, 111, 322 S.E.2d 110, 122 (1984), cert. denied, ___ U.S. ___, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985). "The trial judge's decision to allow improper argument will not be reversed unless the impropriety of the remarks is extreme and is clearly calculated to prejudice the jury. The parties may argue to the jury the facts and all reasonable inferences to be drawn therefrom." State v. Mason, 315 N.C. 724, 736-37, 340 S.E.2d 430, 438 (1986) (citations omitted).
The statement of which defendants complain and relevant preceding portions of the prosecutor's argument are as follows:
So let's take a look at the evidence. Miss Maness told you what happened to her and she gave descriptions of the people involved. And the descriptions she gave with regard to number one was [sic] written up by Detective Wiggs.
He [sic] said number one was age twenty-two. When Eric Gilliam was arrested he was age twenty. Not much diference [sic] there at all.
He was a black male, height five eleven. A two inch difference. Weight, one sixty-five to one seventy. He weighs one seventy-one.
When asked to describe number two she says he is twenty-two to twenty-three years old. Sure enough he is twenty-two years old. Black male, six foot or over. He is six foot three. Weight, one ninety to one ninety-five. A little off on the weight. But you've got to consider her situation. She is comparing people of different sizes and that sort of thing.
You may be a good judge of weight yourself. But I dare say if you discussed it back there you would find some among your crowd that is [sic] not.
But more particularly the other descriptions given. She talks about a purple or burgandy jogging suit with stripes down the side and a hat to match it. When they are picked up, what is this defendant, Battle, wearing?
She talks about sunglasses being on one of them. Sure enough, what is found in the car?
She talks about them havingone of them having handcuffs. And what is found in the car?
She was assaulted with a knife. Well, folks, take your pick: one, two, three, four, five knives and a straight razor.
MR. BRITT: Objection. And move to strike.
COURT: Objection is overruled. And motion to strike is denied.
When the prosecutor's final statement is viewed in context it is clear that he was not inviting the jury to speculate as to *788 which of the five knives and straight razor was the weapon involved in the kidnapping and sexual assaults. The theme of this portion of the prosecutor's argument was that Ms. Maness's identification of defendants and Brown as her assailants was trustworthy because it was based on accurate descriptions of their age, clothing, physical characteristics, and objects in their possession when they were arrested. Because the circumstances of defendants' arrest near Ms. Maness's apartment tend to identify them as her assailants the prosecutor was entitled to refer to the fact that a handcuff key had been found on Brown and that knives were found in defendants' possession at the time of their arrest to corroborate Ms. Maness's statements to law enforcement officials that she was threatened with a knife and that one of her assailants had a pair of handcuffs. The prosecutor was merely inviting the jury to draw the reasonable inference that defendants' possession of the knives corroborated Ms. Maness's statements and testimony, particularly her identification testimony. State v. Mason, 315 N.C. 724, 736-37, 340 S.E.2d 430, 438; State v. Huffstetler, 312 N.C. 92, 111, 322 S.E.2d 110, 122. Since the knives were admissible as evidence tending to identify defendants as Ms. Maness's assailants the prosecutor's statement concerning them was entirely proper. Though there was no evidence that a razor was used during the kidnapping and sexual assaults the prosecutor's statement that Ms. Maness was assaulted with a knife made it clear that the razor could not have been the weapon defendants used during the commission of those crimes. His technically improper reference to the razor was not calculated to prejudice the jury, and the trial judge did not abuse his discretion in overruling defendants' objections. State v. Mason, 315 N.C. 724, 736-37, 340 S.E.2d 430, 438; State v. Huffstetler, 312 N.C. 92, 111, 322 S.E.2d 110, 122. Therefore, we hold that the trial judge did not err in overruling defendants' objections to the prosecutor's argument.
For the reasons stated, defendant received a fair trial free from prejudicial error.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385687/ | 178 Ga. App. 581 (1986)
344 S.E.2d 247
WILLIAMS
v.
THE STATE.
71507.
Court of Appeals of Georgia.
Decided March 18, 1986.
Rehearing Denied April 3, 1986.
Alden W. Snead, for appellant.
Robert E. Wilson, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, for appellee.
McMURRAY, Presiding Judge.
The defendant was charged under a multi-count indictment by the DeKalb County Grand Jury for the following offenses: Count 1, rape; Count 2, robbery; Count 3, burglary (all occurring on October 4, 1984, involving the same victim); Count 4, rape; Count 5, kidnapping with bodily harm (injury); Count 6, aggravated sodomy; Count 7, robbery; Count 8, burglary (all occurring on November 2, 1984, involving *582 a different victim from Counts 1, 2 and 3); and, Count 9, rape (occurring on December 30, 1984, and involving a different victim). Pursuant to a motion for severance filed by the defendant, the trial court severed Count 9 from the indictment. From May 20, 1985, through May 25, 1985, the defendant was tried for the crimes charged in Counts 1 through 8 of the indictment. The evidence adduced at trial, construed most favorably to support the verdict, showed the following: On November 2, 1984, at around 4:00 in the afternoon, the victim in Counts 4, 5, 6, 7 and 8, was at home alone when she heard something outside her door. The victim then heard the doorbell ring and when she opened the door a young man, later identified by the victim as the defendant, was standing outside. He asked whether her husband was home and referred to her husband by his correct name. When she answered "no," the defendant pushed in the door, jumped into the apartment and said, "This is a stickup." The victim started to scream, and the defendant, who had her by the arm, said, "If you scream, I'll cut you." The defendant then asked the victim for money. She told him that she did not have any. He then asked, "Do you have any gold?" She answered, "no." The defendant then said, "Well, I'll have some of you then." The defendant held the victim and each time she tried to move, he hit her in the face. He tried to push her into the bedroom to get her purse, and when she resisted he hit her in the jaw so hard that she fell down on the floor. He then removed her pants and panties and pulled down his own pants, got on top of her and raped her. He hit her in the face again and started to have "oral sex" with the victim. She told him that her husband would be home any minute and he jumped up and said, "Where's your purse?" She pointed to it in a room across the hall and he told her to go get it with him. The defendant then dragged the victim into the bedroom. He went through her jewelry box on the dresser and took her high school graduation ring, a pearl necklace and some other jewelry. He then put his pants back on and picked up her purse. The victim asked the defendant if they could go into the living room, and he agreed. After they entered the living room, the defendant began going through her purse. He became angry when he saw that there was no money in the purse and threw in on the floor. The defendant then pushed the victim onto the arm of the couch and started having "oral sex" with her again. When he was done, the defendant got up and asked her if she was going to call the police. She said no. The defendant asked her where the telephone was, and when she said that they didn't have one, he called her a liar. The defendant said, "Well, I'm going to leave now. I'll be right outside the door, so don't move. Don't do anything." After the defendant left, the victim put her pants on and waited about ten minutes until her husband came home. She told her husband what had happened and they got into the car and went to the *583 police station. The victim told the police what happened and gave them a description of the defendant. The defendant had left a Falcons' cap in the apartment and the victim's husband gave the cap to the police. The police then took the victim to Grady Hospital to be examined.
That evening, Investigator C. E. Thacker of the DeKalb County Police Department showed the victim a photographic lineup which included a photograph of the defendant that was several years old. She tentatively identified the defendant. On January 17, 1985, at the police station, the victim viewed a physical lineup which included the defendant. At that time, she was able to positively identify the defendant as the man who raped her.
The State then introduced the following evidence concerning the rape, robbery and burglary charges in Counts 1, 2 and 3. During the early morning hours of October 4, 1984, a young man, later identified by this victim as the defendant, broke into her apartment. The man called her by a variation of her given name and told her that he was there to take her valuables. After having the victim get her purse for him, he made her dump the contents of the purse out on the floor. He told her if she made any noise or cried out he would hurt her children who were asleep in the apartment. He then raped the victim. Next, the man rummaged around in the dresser and took her engagement ring. He told her that he knew where she worked and that if she called the police he would hurt her children. The man then left, taking the victim's engagement ring, a washcloth, and the bedsheet.
The evidence as to the description of the assailant that the victim in Counts 1, 2 and 3 gave to the police was inconsistent. On direct examination, she testified that the man who attacked her did not wear glasses. On cross-examination, she testified that her assailant may have been wearing glasses, but she wasn't certain. Investigator H. P. Brown of the DeKalb County Police Department testified that the victim told him that the man wore eyeglasses.
The State introduced the following evidence of a similar crime committed by the defendant: This victim testified that during the afternoon of May 11, 1983, at about 5:30 or 6:00, the defendant jumped into her car while she was stopped at a red light at the intersection of Glendale and North Decatur. The victim had her six-month-old son with her. After the defendant "jerked open the door," he put a flat edged razor to her son's throat and told her to start driving. The defendant made her drive around for about 1-1/2 hours. While the victim was driving, the defendant was holding the razor to the baby's neck. The defendant told this victim to drive into the gymnasium of a school that had garage type doors. While parked inside the gymnasium, the defendant took fifteen dollars and some change from the victim's purse. The defendant then "threw" the baby into the back *584 seat of the car. When the baby started crying, the defendant told the victim "that if [she] didn't shut [him] up, he would shut him up permanently." The defendant then performed oral sex on the victim and forced her to perform oral sodomy on him. The defendant then told her that he was going to rape her. He said that she could "do it in the front seat of the car or . . . do it on the concrete where [they] were parked inside the gymnasium." The victim pleaded to the defendant, asking him not to rape her. The defendant threatened her and she said, "Okay, I'll do anything, but just don't hurt me or my son." She told the defendant that "if [she] had to, [she] would rather go outside the car, because [she] didn't want to do that in front of [her] child." The victim got out of the car and the defendant raped her on the floor of the gymnasium. Afterwards, the defendant escorted the victim back to the car, and told her to stay there and not to move. The defendant then fled on foot.
From the foregoing and other evidence adduced at trial, the jury returned a verdict of not guilty as to Counts 1, 2 and 3 and guilty as to Counts 4, 5, 6, 7 and 8. The defendant filed a motion for new trial on June 19, 1985. This motion was denied and the defendant appeals. Held:
1. In his first enumeration of error the defendant contends that the trial court erred by refusing to sever Counts 1, 2 and 3. The defendant argues that he was entitled to a severance because the incident relating to Counts 4, 5, 6, 7 and 8, and the incident relating to Counts 1, 2 and 3 were dissimilar. "Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. Dingler v. State, 233 Ga. 462 (211 SE2d 752). However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court. `(I)f there is a valid reason for joinder other than similarity of offense, then severance of offenses becomes discretionary with the trial court.' Davis v. State, 159 Ga. App. 356 (1) (283 SE2d 286). `(W)here the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined subject to the right of the defendant to a severance in the interests of justice. (Cits.).' Id. at 357." Mack v. State, 163 Ga. App. 778 (1), 779 (296 SE2d 115).
"[W]e find that the court did not abuse its discretion in denying severance as `the crimes charged were so similar as to evidence a common plan or scheme and revealed [a similar] modus operandi.' Davis v. State, 158 Ga. App. 549 (1), 550 (281 SE2d 305)." Mack v. State, 163 Ga. App. 778 (1), 779, supra. See Gober v. State, 247 Ga. 652 (1) (278 SE2d 386); Williams v. State, 251 Ga. 749, 804 (312 SE2d 40).
*585 Further, since the defendant was acquitted of the charges in Counts 1, 2 and 3 and since he has shown no harm or prejudice which might have been avoided by severing the trials, any questions concerning the trial court's failure to grant the defendant's motion to sever are moot. Brown v. State, 173 Ga. App. 640, 641 (327 SE2d 515).
2. In his second enumeration of error the defendant contends that the trial court erred in failing to grant his motion for continuance. "A motion for continuance is addressed to the sound discretion of the trial court. Absent a showing that it has been abused, that discretion will not be controlled. Crow v. State, 86 Ga. App. 11 (1) (70 SE2d 601) (1952). `There is no fixed rule as to the number of days that should, of right, be allowed counsel in a criminal case to prepare the case for trial, but the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. A statement by counsel for the defendant that he has not had sufficient time to investigate and prepare the defense is a mere conclusion. Questions of this nature must of necessity be entrusted to the discretion of the trial judge. Smith v. State, 198 Ga. 849, 852 (33 SE2d 338); Foster v. State, 213 Ga. 601 (100 SE2d 426).' Brown v. State, 140 Ga. App. 160, 161 (230 SE2d 128) (1976)." Hill v. State, 161 Ga. App. 346 (1) (287 SE2d 779).
In the case sub judice, the record shows that counsel was appointed on April 29, 1985, 21 days prior to trial. Notwithstanding argument to the contrary, the record shows that defense counsel had adequate opportunity and time to prepare for trial. Furthermore, even though the trial lasted five days, the evidence was not complex or complicated. Consequently, the trial court did not abuse its discretion in denying the defendant's motion for continuance. See Weaver v. State, 170 Ga. App. 731, 732 (3) (318 SE2d 196).
3. Defendant next contends that the trial court erred by failing to grant discovery regarding two rape cases in which the defendant was not charged.
On May 10, 1985, the defendant filed a pre-trial discovery motion pursuant to Brady v. Maryland, 373 U.S. 83 (83 SC 1194, 10 LE2d 215), in which he asked for the circumstances surrounding two rapes in which the victims did not identify the defendant as the perpetrator. The defendant was not charged in either case.
The evidence at trial showed that three other rape victims, other than the victim in Count 1 and the victim in Count 4, viewed an incustody lineup which included the defendant. The victim in Count 1 and the victim in Count 4 identified the defendant, the three other women did not. The defendant argues that information concerning two of the outside rape cases was exculpatory because the cases were *586 similar to the Count 1 and Count 4 rapes and he could have argued that the respective victims in Counts 1 and 4 were mistaken in identifying the defendant.
"At the threshold, an appellant must show that the exculpatory evidence which was not produced is material. It has been said that the mere fact that some undisclosed information might have helped the defense or might have affected the outcome of the trial does not establish its materiality in a constitutional sense. The defendant has the burden of showing that the evidence withheld `so impaired his defense that he was denied a fair trial within the meaning of the Brady rule.' [Cits.]" Ga. Crim. Trial Prac., (1985 ed.), § 14-11 (by Judge William W. Daniel). See Williams v. State, 251 Ga. 749, 787, supra.
In the case sub judice, the defendant has not shown how the evidence withheld "so impaired his defense that he was denied a fair trial . . ." The fact that three other victims were unable to identify the defendant may be relevant to those victims' ability to identify their assailant; however, we fail to see how it is relevant to the Count 1 victim's and the Count 4 victim's ability to identify their assailant. Further, the basis for the defendant's argument is speculative, as the evidence produced by the defense concerning the two uncharged rapes failed to show the similarities between those crimes and the crimes charged. "Mere speculation that the items the appellant wishes to review possibly contain exculpatory information does not satisfy [the defendant's] burden [of showing that the evidence is material.]" Williams v. State, 251 Ga. 749, 789, supra. Consequently, we find no error.
4. The defendant next contends that the trial court erred by allowing testimony as to a pre-trial identification of the defendant.
The record shows that the defendant was identified at a pre-trial lineup by the Count 1 victim and the Count 4 victim on January 17, 1985. At the time of the lineup, the defendant was not charged with the rapes of either the Count 1 victim or Count 4 victim, but was charged with the rape of another woman. Counsel for defendant was not present at the lineup. After the defendant was identified at the lineup by the Count 1 victim and the Count 4 victim he was charged with their rapes. "The presence of counsel at a lineup `at or after the beginning of adversary judicial proceedings' is required under Kirby v. Illinois, 406 U.S. 682 (92 SC 1877, 32 LE2d 411) (1972). However, in the present case, the record fails to show that at the time of the lineup and thereafter when the [victims] viewed the lineup . . . the appellant had been formally charged with committing these crimes. Thus, we must conclude that the viewing of the [defendant at the] lineup took place during [the] investigatory [stages] of the case at a time when appellant was not required to have counsel present. See *587 Mitchell v. Smith, 229 Ga. 781, 782 (194 SE2d 414) (1972); West v. State, 229 Ga. 427 (1) (192 SE2d 163) (1972); and, see also, Hicks v. Caldwell, 231 Ga. 575, 576 (203 SE2d 212) (1974)." Godbee v. State, 232 Ga. 259, 262 (206 SE2d 432). See Ga. Crim. Trial Prac. (1985 ed.), § 6-7. Consequently, this enumeration is without merit.
5. In his fifth enumeration of error the defendant argues that testimony regarding scientific reports, prepared pursuant to the investigation of the Count 1 rape, was improperly admitted at trial because he was not furnished with a copy of the report pursuant to OCGA § 17-7-211. Any error committed by the State's failure to produce the scientific reports concerning the Count 1 rape is moot since the defendant was acquitted of the charges in that case.
With regard to the testimony concerning the scientific report in the Count 4 rape, the defendant does not complain that the report was not properly submitted pursuant to OCGA § 17-7-211; instead, he argues that testimony of the State Crime Laboratory scientist who prepared the report was not admissible because the scientist's name was not included on the State's list of witnesses to be called at trial. We are without jurisdiction to consider this issue. "Our jurisdiction is limited to consideration of the legal points raised by enumerations of error. [Cits.]" King v. State, 133 Ga. App. 426, 429 (3) (211 SE2d 363). See Phelps v. State, 130 Ga. App. 344 (3) (203 SE2d 320).
6. Defendant contends that the trial court erred in denying his motion for mistrial.
The State called G. H. Greene, an investigator with the DeKalb County Police Department, who testified that he knew the defendant, that he knew where the defendant lived and that he had seen the defendant at an apartment complex known as Barron Estates. After this testimony, the defendant moved for a mistrial, arguing that Investigator Greene's testimony improperly placed the defendant's character into evidence. The trial judge denied this motion and instructed the jury as follows: "Ladies and Gentlemen, before we recessed I believe Investigator Greene testified that he had seen the defendant at Barron Estates at some time in the past. I have granted a motion to strike that testimony, or I will strike that testimony and instruct you to disregard it. That statement was incorrect. So you will just disregard that statement. We will continue now with the examination of Investigator Greene."
"`A decision to grant a motion for mistrial lies within the sound discretion of the trial judge. His judgment will not be overturned on appeal without a showing of abuse of this discretion.' [Cit.]" Lehman v. State, 165 Ga. App. 15 (1), 16 (299 SE2d 88). However, where a State's attorney has through improper questioning introduced "immaterial" evidence which would likely prejudice the jury against the defendant, and a motion for mistrial has been made, the trial court *588 must either grant the motion or issue curative instructions in ruling the testimony out. See Hamilton v. State, 155 Ga. App. 799 (2), 800 (272 SE2d 763). In Brown v. State, 118 Ga. App. 617 (165 SE2d 185), this court restated the rule that "`(e)ach case presents a different combination of facts, and must therefore rest on its own bottom, keeping in mind that it is the highest duty to insure a fair and impartial trial to all parties, and not to allow to be injected into the proceedings any illegal element to the prejudice of the defendant's rights in a criminal case, where his liberty and perhaps his life are at stake.' [Cit.]" Brown v. State, 118 Ga. App. 617, 620 (1), supra.
Under the particular facts and circumstances of the case sub judice, we find that since the trial court took curative action by instructing the jury to disregard the "incorrect" testimony of Investigator Greene, the trial court did not abuse its discretion in denying the defendant's motion for mistrial.
7. In his seventh enumeration of error the defendant argues that it was error to fail to grant his motion for mistrial after the magistrate who conducted the defendant's preliminary hearing testified concerning statements made by the defendant at the preliminary hearing.
First, the defendant maintains that the magistrate's testimony violated his request for a Jackson-Denno (Jackson v. Denno, 378 U.S. 368 (84 SC 1774, 12 LE2d 908)) hearing. The record shows that, upon the defendant's request, the trial court conducted a Jackson-Denno hearing immediately following the magistrate's testimony. After the hearing, the court found that the defendant's statements were voluntarily made. Consequently, any error in failing to conduct a Jackson Denno hearing prior to the magistrate's testimony was cured. See Cofield v. State, 247 Ga. 98, 106 (4), 109 (274 SE2d 530); Parks v. State, 254 Ga. 403, 405 (1), 406 (330 SE2d 686).
Next, the defendant argues that because he was not advised of his Miranda rights before he made statements to the magistrate, it was error for the magistrate to testify. We do not agree.
The record shows that the defendant made the statements while he was proceeding pro se at the preliminary hearing. The statements were not made pursuant to an in-custody interrogation. Consequently, Miranda v. Arizona, 384 U.S. 436 (86 SC 1602, 16 LE2d 694), was not applicable. See Ga. Crim. Trial Prac. (1985 ed.), § 5-10. The trial court did not err in allowing the testimony into evidence.
Finally, the defendant argues that the magistrate's testimony was not relevant. This argument is without merit. The magistrate testified that the defendant told him at the hearing that he could produce people "who would say he wasn't there at those times." ("alibi witnesses.") The defendant did not produce alibi witnesses at trial. It is not improper for the State to introduce evidence showing that the defendant at one time claimed to have alibi witnesses and then failed *589 to produce alibi witnesses at trial. See Smith v. State, 245 Ga. 205, 207 (4) (264 SE2d 15). The trial court did not abuse its discretion in allowing the magistrate's testimony.
8. In his eighth enumeration of error the defendant contends that the trial court erred in allowing the State to introduce evidence of a prior criminal transaction.
First, the defendant argues that the prior criminal transaction was inadmissible because it was dissimilar to the crimes charged. The trial court allowed the State to introduce evidence of the rape occurring on May 11, 1983. The court based its decision on the following findings of fact: "As to the [May 11, 1983] case, there are many similarities with the two offenses on trial. One is that it did occur or was initiated at the same general location; there was a robbery; a Caucasian of young age; and there were threats. There was also a weapon apparently in the [May 11, 1983] case, and I know there never was any weapon revealed in the cases on trial; but there was a threat in the [Count 4] case, according to [the Count 4 victim], that if she screamed he would cut her. [The May 11, 1983, incident] occurred approximately a year and a half prior to the cases on trial; her wallet was gone through; there was sodomy; she was threatened if she called the police; and there was a forced entry, even though it was an automobile as to [May 11, 1983, victim] and apartments as to the others. She was a stranger, as were [the Count 1 victim and Count 4 victim]. I think those are sufficient similarities to get that into evidence." The record supports these findings of fact and further shows that the May 11, 1983, victim identified the defendant as the man who raped her. "In Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984), we held that evidence of prior criminal actions is admissible if relevant to the issues in the present case. The state must show, however, that the defendant was in fact the perpetrator of the prior action and that sufficient similarity exists between the prior action and the offense charged. Walraven v. State, 250 Ga. 401 (297 SE2d 278) (1982). Once this foundation is laid, evidence of prior crimes is admissible to show motive, intent, plan, identity, bent of mind or course of conduct." Sport v. State, 253 Ga. 689 (1) (324 SE2d 184). See Moore v. State, 254 Ga. 674, 676 (333 SE2d 605). The defendant having been identified as the perpetrator of the prior action we find there are sufficient similarities to make the evidence admissible for illustrating the defendant's motive, plan, scheme, bent of mind and course of conduct. See Neal v. State, 159 Ga. App. 450 (1) (283 SE2d 671).
Next, the defendant argues that it was error to allow evidence of the May 11, 1983, rape because the DeKalb County Grand Jury returned a no bill to an indictment where the defendant was accused of the May 11, 1983, rape during the July Term 1983. This argument is without merit. The case sub judice is not a case wherein a defendant *590 was acquitted of the prior criminal action as was the case in Moore v. State, 254 Ga. 674, supra, but is one in which the Grand Jury returned a no bill. Thus, in the case sub judice the no bill left unresolved the issue of whether the defendant in the case sub judice was in fact the perpetrator of the prior offense occurring on May 11, 1983. Moreover, this issue was resolved by the victim of the prior May 11, 1983, offense identifying the defendant here in the case sub judice as the individual who raped her on that prior occasion.
9. Enumerated errors 9, 11 and 14 are deemed abandoned pursuant to Rule 15 (c) (2) of the Rules of the Court of Appeals of Ga. Lewis v. State, 148 Ga. App. 16, 17 (3) (251 SE2d 18); Stewart v. State, 254 Ga. 233, 235 (5) (326 SE2d 763).
10. Enumeration 10 sets out that the trial court erred by allowing into evidence an in-custody statement defendant made to Investigator C. E. Thacker of the DeKalb County Police Department. Investigator Thacker testified that he advised the defendant that he was going to be placed in a physical lineup. In response to this information Thacker testified that the defendant refused to be in the lineup. According to Thacker, the defendant said, "I want to look at the victims before I agree to stand up there." Thacker also testified that after he advised the defendant that he was a suspect in several rapes and burglaries in the Clarkston, Avondale and Scottdale area, the defendant told him: "You're going to have to force me." At this point, defense counsel objected on the grounds that the court had not conducted a Jackson-Denno hearing prior to Thacker's testimony. The defense moved for a mistrial and the trial judge responded: "All right. Let's have a hearing on it." After the hearing, the trial court found that the defendant's "[s]tatements were made, voluntarily and spontaneously and not in response to any questions or interrogation by Mr. Thacker; but Mr. Thacker merely advised Mr. Williams that he was going to place him in a lineup, and then Mr. Williams made these statements of his own free will. So I'll deny the motion and overrule the objection and let the testimony in."
First, the defendant argues that the statements were introduced in violation of his request for a Jackson-Denno hearing. This argument is without merit. As stated in Division 7 of this opinion, any error in failing to hold a Jackson-Denno hearing was cured when such a hearing was held immediately after Thacker's testimony. Cofield v. State, 247 Ga. 98, 106 (4), 109, supra; Parks v. State, 254 Ga. 403, 406 (1), supra.
Next, the defendant asserts that because he was not advised of his Miranda rights before he made the statements to Officer Thacker, the statements were erroneously admitted into evidence. We do not agree. "Interrogation" as it relates to Miranda v. Arizona, 324 U.S. 436, supra, applies "to any words or actions on the part of the police *591. . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 292 (100 SC 1682, 64 LE2d 297). In the case sub judice, the circumstances surrounding the defendant's statements to Officer Thacker could not reasonably be construed to fit within the above-described definition of interrogation. Consequently, Miranda was not applicable. The trial court did not err in allowing the testimony into evidence.
Third, the defendant argues that the testimony relating defendant's statements was introduced in violation of OCGA § 17-7-210. OCGA § 17-7-210 in pertinent part provides: "(c) Failure of the prosecution to comply with a defendant's timely written request for a copy of his statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution's use in its case-in-chief or in rebuttal." This argument is not supported by the record. Upon defense counsel's own admissions at trial, the State complied with OCGA § 17-7-210.
We have found the defendant's final argument in this enumeration of error to be wholly without merit. The trial court did not err in admitting into evidence Investigator Thacker's testimony concerning in-custody statements made by the defendant.
11. In his twelfth enumeration of error the defendant contends that the trial court violated his constitutional right to confront a witness because the court sustained an objection made by the State to a question asked of the witness by the defense on cross-examination. This argument is without merit.
The record shows that after the trial court sustained the State's objection, the defendant chose not to pursue further cross-examination of the State's witness. This was a tactical decision by defense counsel. There is no evidence showing that the trial court "cut off" the defendant's right to further cross-examine the State's witness. In any event, we have examined the record and find that the testimony which defense counsel was attempting to elicit from the witness, was later admitted into evidence by the defense without objection by the State. Consequently, any error in excluding the evidence was harmless.
12. Next, the defendant contends that the trial court erred by not granting his motion for directed verdict because the evidence was insufficient to send the "kidnapping with bodily harm" of the Count 5 victim issue to the jury. We do not agree. OCGA § 16-5-40 (a) provides: "A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will." In the case sub judice, the evidence showed that the Count 5 victim was forced to get into several rooms against her will. This is sufficient evidence to support a kidnapping *592 conviction. "[U]nlawful asportation, however slight, is sufficient to support a kidnapping conviction. [Cits.]" Chambley v. State, 163 Ga. App. 502, 503 (1), 504 (295 SE2d 166). See Helton v. State, 166 Ga. App. 662 (1) (305 SE2d 592). Further, we find "that there was sufficient evidence introduced by the State at trial to authorize the jury in convicting the appellant of kidnapping with bodily injury to the victim." Peek v. State, 239 Ga. 422, 427 (238 SE2d 12). See Lassiter v. State, 175 Ga. App. 338, 340 (4) (333 SE2d 412).
The defendant's argument that the robbery and burglary charges merged is without merit. "`[N]either [robbery nor burglary] is a lesser, or included, offense of the other as a matter of law or fact, for the facts must differ to convict under the statutes. [Cits.]' Moore v. State, 140 Ga. App. 824 (2) (232 SE2d 264) (1976)." Luke v. State, 171 Ga. App. 201, 202 (1) (318 SE2d 833).
13. In his fifteenth enumeration of error the defendant argues that the trial court erred in forcing him to proceed with a motion for new trial without a transcript. The hearing on the motion for new trial was conducted less than two weeks after the jury's verdict. The same attorney who represented the defendant at trial also represented him at his motion for new trial. Since the evidence at trial was fresh in defense counsel's memory, the trial court did not err in conducting the hearing on the motion for new trial prior to preparation of the transcript. McClure v. State, 163 Ga. App. 236, 237 (2) (293 SE2d 496). See OCGA § 5-5-40.
14. In his final enumeration of error the defendant argues that the trial court erred in failing to grant a new trial after it was discovered that the jury had access to the Criminal Code of Georgia and a handwritten sentence summary sheet during their deliberations.
The transcript of the hearing on the defendant's motion for new trial showed that on the third day after the jury returned its verdict, defendant's counsel (a public defender), along with Ms. Bedingfield (another public defender), and an assistant district attorney, discovered a paper on the table in the jury room listing criminal offenses and summarizing possible punishments for the various crimes in Georgia. Ms. Bedingfield testified that she prepared the two-page sentence summary sheet and said that she used it "as a quick reference guide to help defendants know what their sentences might be" when she counselled with a client. Also found in the jury room was Ms. Bedingfield's Title 16 of the Official Code of Georgia (Volume 14 Crimes & Offenses). Ms. Bedingfield testified that her criminal code volume was discovered "up on the back shelf in the jury room in an area where ordinarily I would not have noticed it."
"The burden is upon the party challenging the legality of a ruling to prove error by the record." Conley v. State, 172 Ga. App. 884, 885 (2) (324 SE2d 750). Furthermore, "[i]njury as well as error must be *593 shown by one who claims irreparable prejudice and this must be shown on the record." Abbott v. State, 172 Ga. App. 70, 74 (321 SE2d 808). See Collier v. State, 244 Ga. 553, 559 (261 SE2d 364). Defendant has failed to demonstrate any such error which has harmed him. Therefore, this enumeration is without merit.
Judgment affirmed. Banke, C. J., and Benham, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385716/ | 344 S.E.2d 68 (1986)
Douglas E. OPSAHL and wife, Hildegard M. Opsahl
v.
PINEHURST INC., Purcell Co., Inc., and Pinehurst Receivables Associates, Inc.
No. 8520SC1121.
Court of Appeals of North Carolina.
June 3, 1986.
*71 Thigpen and Evans by John B. Evans, and Barringer, Allen & Pinnix by Noel L. Allen and Miriam J. Baer, Raleigh, for plaintiffs.
Van Camp, Gill, Bryan, Webb & Thompson, P.A. by Douglas R. Gill, Pinehurst, for defendant Pinehurst Inc.
WHICHARD, Judge.
Defendant appeals from that portion of the judgment rescinding the contract on the basis of mutual mistake of fact. Plaintiffs appeal from the court's failure to find an unfair and deceptive trade practice under N.C.Gen.Stat. 75-1.1 and its failure to award plaintiffs' moving and rental expenses as contract damages.
In defendant's appeal we hold that the court should not have applied the doctrine of mutual mistake to the facts here. We further hold, however, that rescission nevertheless may be justified on the basis of a material breach of the contract by defendant.
In plaintiffs' appeal we hold that the court did not err in failing to find an unfair and deceptive trade practice under N.C. Gen.Stat. 75-1.1. We also hold that plaintiffs are not entitled to an award for moving and rental expenses should the court, on remand, grant a rescission for material breach.
Accordingly, the judgment is affirmed in part and vacated in part, and the cause is remanded for further proceedings consistent with this opinion.
Defendant's Appeal
Defendant contends the court erred in rescinding and cancelling the contract on the basis of mutual mistake of fact. We agree.
Under certain circumstances a contract for the sale of real estate may be rescinded on the basis of mutual mistake of fact. See, e.g., MacKay v. McIntosh, 270 N.C. 69, 153 S.E.2d 800 (1967). In MacKay the Court rescinded an executory real estate contract when the parties, at the time of execution, shared the mistaken belief that "the subject property was within the boundaries of an area zoned for business." MacKay, 270 N.C. at 73-74, 153 S.E.2d at 804. The Court reasoned:
"The formation of a binding contract may be affected by a mistake. Thus, a contract may be avoided on the ground of mutual mistake of fact where the mistake is common to both parties and by reason of it each has done what neither intended. Furthermore, a defense may be asserted when there is a mutual mistake of the parties as to the subject matter, the price, or the terms, going to show the want of a consensus ad idem. Generally speaking, however, in order to affect the binding force of a contract, the mistake must be of an existing or past fact which is material; it must be as to a fact which enters into and forms the basis of the contract, or in other words it must be of the essence of the agreement, the sine qua non, or, as is sometimes said, the efficient cause of the agreement, and must be such that it animates and controls the conduct of the parties." 17 Am.Jur.2d, Contracts Sec. 143.
Id. at 73, 153 S.E.2d at 804.
However, in Hinson v. Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975), our Supreme Court expressly refused to apply the mutual mistake of fact theory to an executed, as opposed to executory, real estate sale contract. Hinson, 287 N.C. at 432-33, 215 S.E.2d at 109-10. The parties there mistakenly assumed the subject property could support an on-site sewage disposal *72 system and thus be suitable for a residence. Id. The Court explained:
[B]ecause of the uncertainty surrounding the law of mistake we are extremely hesitant to apply this theory to a case involving the completed sale and transfer of real property. Its application to this type of factual situation might well create an unwarranted instability with respect to North Carolina real estate transactions and lead to the filing of many nonmeritorious actions. Hence, we expressly reject this theory as a basis for plaintiff's rescission.
Id. The Court found, instead, that defendants had breached an implied warranty arising out of the restrictive covenants that the subject property was suitable for residential purposes. Id. at 435-36, 215 S.E.2d at 110-11. Accordingly, the Court held that plaintiff was entitled to full restitution of the purchase price provided she reconveyed title to the subject lot to defendants. Id. at 436, 215 S.E.2d at 111.
Our Supreme Court later qualified Hinson in Financial Services v. Capitol Funds, 288 N.C. 122, 217 S.E.2d 551 (1975). The Court there held that a real estate contract was not subject to rescission for mutual mistake of fact where the purchaser mistakenly assumed that an effective driveway permit for the subject property had been obtained by the assignor of an option to purchase the property. Financial Services, 288 N.C. at 137-39, 217 S.E.2d at 561-63. The Court stated:
Although this Court will readily grant equitable relief in the nature of reformation or rescission on grounds of mutual mistake when the circumstances justify such relief, we jealously guard the stability of real estate transactions and require clear and convincing proof to support the granting of this equitable relief in cases involving executed conveyances of land. [Citation omitted.]
Id. at 139, 217 S.E.2d at 562.
In Homes, Inc. v. Gaither, 31 N.C.App. 118, 228 S.E.2d 525, disc. rev. denied, 291 N.C. 323, 230 S.E.2d 675 (1976), this Court, following MacKay, supra, upheld the trial court's application of the mutual mistake of fact theory. The parties in Homes, Inc. mistakenly assumed that the applicable zoning ordinance permitted conversion and use of the subject property from a hotel to an apartment complex. Homes, Inc., 31 N.C.App. at 119, 228 S.E.2d at 526. The Court found that this mistake was as to a material fact and held that plaintiff was entitled to rescind the contract for sale. Id. at 120-21, 228 S.E.2d at 527.
Viewing the facts here in light of the foregoing decisions, we hold that the court incorrectly relied on the theory of mutual mistake of fact as the basis for granting rescission. The court concluded that "[t]he parties contracted on the mistaken belief that all roadway and utility services would be available on the lot in question on or before December 31, 1981." While timely completion may have been material to the parties' agreement (see infra ), it does not justify rescission based on a mutual mistake of fact. Specifically, the firmness of the completion dates pertains to future performance rather than to "`an existing or past fact....'" MacKay, supra, 270 N.C. at 73, 153 S.E.2d at 804. In general, to justify a rescission of a contract for a mutual mistake of fact, the mistake must concern facts as they existed at the time of the making of the contract; reliance on a prediction as to future events will not support a claim for rescission based on mutual mistake of fact. Boles v. Blackstock, Ala., 484 So. 2d 1077, 1081-82 (1986). See also Duane Realty Corp. v. Great Atlantic & Pacific Tea Co., 8 Mass. App.Ct. 899, 394 N.E.2d 964 (1979) (there is no mistake where a party is disappointed that its expectation as to future events proved to be erroneous). See, generally, Restatement (Second) of Contracts Sec. 151 (1979) at Comment a ("A party's prediction or judgment as to events to occur in the future, even if erroneous, is not a `mistake' as that word is defined here."). The Court in Hinson, supra, acknowledged this distinction as a relevant factor in mutual mistake cases for determining whether the aggrieved party is entitled to some kind of *73 relief. 287 N.C. at 430, 215 S.E.2d at 108. In light of our Supreme Court's reluctance to apply the mutual mistake of fact doctrine to completed sales of real estate, Hinson, supra, and Financial Services, supra, we hold that the doctrine should not apply here, where the mistake pertains to a future contingency or probability regarding the certainty of future performance rather than to a fact which existed at the time the parties entered the agreement, such as existing zoning restrictions, MacKay, supra.
As in Hinson, supra, the question now arises: "[Are] plaintiff[s] therefore without a remedy?" Hinson, 287 N.C. at 433, 215 S.E.2d at 109; and the answer here is: not necessarily. It follows from Hinson that, although rescission for mutual mistake is not proper, the evidence may support another theory of recovery which provides plaintiffs with comparable relief. In Hinson this theory was an implied warranty arising out of the restrictive covenants. Hinson, 287 N.C. at 435-36, 215 S.E.2d at 110-11. The Court's substitution of theories in Hinson was consistent with the general principle that a trial court's "ruling must be upheld if it is correct upon any theory of law[,]" and thus it should "not be set aside merely because the court gives a wrong or insufficient reason for [it]." Manpower, Inc. v. Hedgecock, 42 N.C.App. 515, 519, 257 S.E.2d 109, 113 (1979). See also Sanitary District v. Lenoir, 249 N.C. 96, 99, 105 S.E.2d 411, 413 (1958) (if correct result reached, judgment should not be disturbed even though court may not have assigned the correct reasons for the judgment entered); Payne v. Buffalo Reinsurance Co., 69 N.C.App. 551, 555, 317 S.E.2d 408, 411 (1984) (it is common learning that a correct judgment must be upheld even if entered for the wrong reason).
While the court here improperly based rescission on the theory of mutual mistake, rescission may nevertheless be proper on the theory of material breach of contract. We are unable to conclude from the record as a matter of law, however, whether the particular facts and circumstances warrant application of this theory. We thus vacate those portions of the judgment relating to mutual mistake and remand the cause for consideration under the theory of material breach.
The Supreme Court has indicated that upon the breach of a contract for the purchase and sale of real estate by the seller, the buyer has the following remedies available to him, among others: (1) the buyer may sue at law for damages for the breach; (2) he may sue in equity and seek specific performance; or (3) he may abandon and thereby rescind the contract and recover what he has paid.
Johnson v. Smith, Scott & Assoc., Inc., 77 N.C.App. 386, 389, 335 S.E.2d 205, 207 (1985) citing Brannock v. Fletcher, 271 N.C. 65, 73, 155 S.E.2d 532, 541 (1967). However, "[n]ot every breach of a contract justifies a cancellation and rescission." Childress v. Trading Post, 247 N.C. 150, 156, 100 S.E.2d 391, 395 (1957). "The breach must be so material as in effect to defeat the very terms of the contract." Id. In Childress the Court held that a two month delay in completion of a dwelling did not justify cancellation and rescission of the parties' real estate contract where time was not of the essence. Id. The Court reasoned that:
Time for completion is not normally regarded as a part of the plans or specifications for the construction of a dwelling nor is time normally a substantial or vital element in a contract of purchase and sale. [Citations omitted.]
"As a general rule, time is not of the essence of a building or construction contract, in the absence of a provision in the contract making it such. Failure to complete the work within the specified times does not ipso facto terminate the contract, but only subjects the contractor to damages for the delay." [Citation omitted.]
Id. at 155, 100 S.E.2d at 395. See also Sanders v. Meyerstein, 124 F. Supp. 77, 83 (E.D.N.C.1954). In Johnson, supra, this Court, following Childress, held that a delay of at most two weeks in completion of a *74 dwelling did not provide grounds for rescission where the contract did not expressly provide that time was of the essence and the Court found nothing in the contract or the parties' actions which demonstrated their intent to make time of the essence. Johnson, 77 N.C.App. at 390, 335 S.E.2d at 207.
Unlike the agreements in Childress and Johnson, the contract here expressly provides that, "[t]ime is of the essence of this contract...." Accordingly, timely completion of the roads and utilities may have been a substantial or material element of the contract. Thus, defendant's failure to complete the work within the times specified in the HUD report may justify plaintiffs' cancellation and rescission of the contract.
However, we cannot determine from the record as a matter of law whether defendant's delay here constitutes a material breach justifying rescission by plaintiffs. As Judge (now Justice) Mitchell stated in Insurance Co. v. McDonald, 36 N.C.App. 179, 184, 243 S.E.2d 817, 820 (1978), whether failure to perform a contractual obligation is so material as to discharge the other parties' performance is a question of fact for the jury or for the trial court without a jury. See also Snider v. Hopkins, 314 N.C. 529, 334 S.E.2d 776 (1985) (whether plaintiff breached babysitting contract held to be a jury question).
Thus, while we cannot simply affirm or reverse the judgment as in Hinson, consistent with Hinson we hold that plaintiffs are not necessarily without a remedy simply by virtue of the court's erroneous application of the mutual mistake doctrine. Accordingly, we vacate those portions of the judgment granting rescission for mutual mistake and remand the cause to the trial court to enter findings and conclusions as to the extent of defendant's delay and whether such delay constituted a material breach justifying rescission.
Should the court on remand find a material breach justifying rescission, each party would be entitled "to be placed in statu quo ante fuit." Brannock, supra, 271 N.C. at 75, 155 S.E.2d at 542. See also Town of Nags Head v. Tillet, 314 N.C. 627, 632, 336 S.E.2d 394, 398 (1985). As the court ordered, plaintiffs would be entitled to full restitution of the purchase price, including principal and interest, assessments, and ad valorem taxes, "provided that [plaintiffs] execute and deliver a deed reconveying the subject lot to defendant...." Hinson, supra, 287 N.C. at 436, 215 S.E.2d at 111. "[A]s a general rule, a party is not allowed to rescind where he is not in a position to put the other in statu quo by restoring the consideration passed." Bolich v. Insurance Company, 206 N.C. 144, 156, 173 S.E. 320, 327 (1934).
We note that no provision in the written agreement addresses the time when the roads and utilities were to be completed. It thus is necessary to refer to parol or extrinsic evidence to determine defendant's performance obligations under the contract in this regard. In general, "[t]he parol evidence rule excludes prior or contemporaneous oral agreements which are inconsistent with a written contract if the written contract contains the complete agreement of the parties." Cable TV, Inc. v. Theatre Supply Co., 62 N.C.App. 61, 64-65, 302 S.E.2d 458, 460 (1983). In Cable TV the Court held that the parol evidence rule applied to exclude parol testimony where the written contract included a merger or integration clause which stated that "[t]his instrument constitutes the entire agreement between the parties.... Id.
The written contract here contains a comparable merger or integration clause:
10. It is further mutually agreed that the terms, covenants and conditions appearing on both sides of this contract contain the entire agreement of the parties, it being understood that the authority of Seller's representatives is limited and confined to securing purchasers for the property upon the terms and conditions set out in this written agreement, and not otherwise; that sales representatives have no power or authority to make any change, alteration, modification, stipulation, *75 inducement, promise or any representation whatsoever other than those herein stated; that said sales representatives are acting as special representatives and all representations of Seller not herein set forth are deemed waived by Buyer.
However,
"[t]he parol evidence rule presupposes the existence of a legally effective written instrument. It does not in any way preclude a showing of facts which would render the writing inoperative or unenforceable. Thus it may be proved that... there was such mistake as to prevent the formation of a contract or make it subject to reformation or rescission." Stansbury, N.C. Evidence (Second Edition), Sec. 257.
MacKay, supra, 270 N.C. at 73, 153 S.E.2d at 803-04. Parol evidence generally is admissible to show grounds for granting or denying rescission even if the written agreement includes a merger clause. Calamari, et al. Contracts, Secs. 3-4 at 113 (2d ed., 1977). Accordingly, on remand the court may consider the parol evidence in the record regarding the parties' provisions for completion of the roads and utilities in order to determine whether defendant committed a material breach warranting rescission.
We further note that the doctrine of merger may operate to render the contract here unenforceable since the parties subsequently transferred title to the lot by deed. "Generally, a contract for the sale of land is not enforceable when the deed fulfills all the provisions of the contract, since the executed contract then merges into the deed." Biggers v. Evangelist, 71 N.C.App. 35, 38, 321 S.E.2d 524, 526 (1984), disc. rev. denied, 313 N.C. 327, 329 S.E.2d 384 (1985). "However, it is well-recognized that the intent of the parties controls whether the doctrine of merger should apply." Id. In Biggers the Court, "look[ing] to the instruments to discern the parties' intent," held that the "contract did not merge in the deed [since] the parties' clearly-defined intent rebut[ted] the presumption of merger [, and plaintiffs thus] were entitled to bring an action on the contract." Id. at 38-39, 321 S.E.2d at 526-27. Inclusion of a survival clause in the contract coupled with the absence of any language in the deed suggesting waiver of survivability demonstrated that the parties in Biggers clearly intended to avoid the doctrine of merger. Id. See also Town of Nags Head, supra, 314 N.C. at 632, 336 S.E.2d at 398.
The written contract here, unlike the ones in Biggers and Town of Nags Head, does not contain a survival clause. By the same token, there is no provision which expressly addresses the survivability of the contract, and the language of the deed is silent on this issue as well. Accordingly, the court on remand must also determine whether the parties intended to avoid the docrine of merger. Should the court find that the parties did not intend to avoid it, plaintiffs may not maintain an action to rescind the contract. Biggers, supra. In this regard the court should consider the following provision of the contract:
6. It is further mutually agreed that Seller shall have the right at any time during this contract, and without waiting for full performance by the Buyer, to deliver a good and sufficient deed to the Buyer with title in the same state and condition as hereinbefore required upon fulfillment by Buyer of all the terms and conditions of this contract, and to require of the Buyer an executed promissory note and deed of trust for the balance of principal and interest, payable in the manner as herein provided. Such note and balance of purchase money deed of trust shall be upon forms satisfactory to Seller. Buyer shall do all things necessary to make such purchase money deed of trust a first lien on said property in the same condition of the title as herein called for to be delivered to Buyer.
It was pursuant to this provision that the parties transferred title even though plaintiffs had not fully paid the purchase price. This provision suggests that, should defendant decide, as it did, to exercise its right to transfer title prior to plaintiffs' *76 completion of payments, the other rights and obligations of the parties under the contract still remain in force and thus, in essence, "survive" until plaintiffs have fully paid the purchase price. The court should consider this provision with other evidence of the parties' intent as to survivability of the contract.
Plaintiffs' Appeal
Plaintiffs contend the court erred in failing to conclude that defendant violated N.C.Gen.Stat. 75-1.1 and that plaintiffs thus were entitled to treble damages under N.C.Gen.Stat. 75-16. We disagree. For the reasons stated below, we hold that while defendant's conduct was within the scope of N.C.Gen.Stat. 75-1.1, the court was not required to find it unfair or deceptive.
N.C.Gen.Stat. 75-1.1 provides that "unfair or deceptive acts or practices in or affecting commerce ... are declared unlawful." "The Act does not, however, define an unfair or deceptive act, `nor is any precise definition of the term possible.'" Bernard v. Central Carolina Truck Sales, 68 N.C.App. 228, 229-30, 314 S.E.2d 582, 584, disc. rev. denied, 311 N.C. 751, 321 S.E.2d 126 (1984). The facts surrounding the transaction and the impact on the marketplace determine whether a particular act is unfair or deceptive, and this determination is a question of law for the court. Id. at 230, 314 S.E.2d at 584. Whether defendant acted in bad faith is not pertinent. Id.
Before a court can declare a practice unfair or deceptive, it must first determine whether the practice or conduct is within the scope of N.C.Gen.Stat. 75-1.1, i.e., whether it "takes place within the context of the statute's language pertaining to trade or commerce." Johnson v. Insurance Co., 300 N.C. 247, 261, 266 S.E.2d 610, 620 (1980). Defendant does not contend that its conduct was outside the scope of the statute. In Overstreet v. Brookland, Inc., 52 N.C.App. 444, 452-53, 279 S.E.2d 1, 7 (1981), this Court considered the application of N.C.Gen.Stat. 75-1.1 to the conduct of a residential subdivision developer vis-a-vis plaintiff-purchasers of a lot within the subdivision. While the court there found the evidence insufficient to establish unfair or deceptive acts or practices, it is clear from Overstreet that defendant's conduct here is within the scope of N.C.Gen.Stat 75-1.1.
The pertinent question is whether the evidence and findings of fact compel a conclusion of law that defendant engaged in unfair or deceptive acts or practices. "The concept of `unfairness' is broader than and includes the concept of `deception.' " Johnson, supra, 300 N.C. at 263, 266 S.E.2d at 621. "A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." Id. Specifically, "[a] party is guilty of an unfair act or practice when it engages in conduct which amounts to an inequitable assertion of its power or position." Id. at 264, 266 S.E.2d at 622. "An act or practice is deceptive ... if it has the capacity or tendency to deceive." Id. at 265, 266 S.E.2d at 622. "In determining whether a representation is deceptive, its effect on the average consumer is considered." Id. at 265-66, 266 S.E.2d at 622.
The court here found, in pertinent part, that:
7. It was the practice of Phillips as a land sales agent of Pinehurst, Incorporated to assure all prospective purchasers of real estate from Pinehurst, Incorporated that the dates set forth in the Property Reports filed with the U.S. Department of Housing & Urban Development were firm dates and all promised actions would be completed by the stated dates. Mr. Phillips believed at that time that the dates were firm and would in fact be met. It was his practice as a real estate agent to so assure prospective purchasers of real estate, but it was also the practice generally within the Land Sales Office of Pinehurst, Incorporated to assure prospective purchasers generally that the dates were firmly established for completion of amenities. In *77 truth and fact said dates were not firm and were not met.
As in Overstreet, supra, "[w]e do not find that plaintiffs have shown that defendant's acts ... meet any of [the Johnson] criteria...." 52 N.C.App. at 453, 279 S.E.2d at 7. Courts take judicial notice of subjects and facts of common knowledge. Smith v. Kinston, 249 N.C. 160, 166, 105 S.E.2d 648, 653 (1958); McClure v. McClure, 64 N.C. App. 318, 322, 307 S.E.2d 212, 215 (1983), disc. rev. denied, 310 N.C. 308, 312 S.E.2d 651 (1984). It is common knowledge that projected completion dates in the construction industry are often missed for a variety of reasons and may be impossible or impractical to fulfill. In light of this common knowledge and the capacity of consumers to contract with reference thereto, we do not believe the legislature intended that the representation of such dates as firm when in fact they are not, standing alone, should rise to the level of immoral, unethical, oppressive, or unscrupulous conduct, or amount to an inequitable assertion of power or position. We thus hold that the court did not err in failing to find a violation of N.C.Gen.Stat. 75-1.1 and to award plaintiffs treble damages. Plaintiffs' remedy lies in contract for material breach only.
Plaintiffs next contend that the "court erred in failing to award as part of the reasonable contract damages moving expenses and rental incurred by the plaintiffs." While technically we need not address this contention, given our disposition of defendant's appeal, we will consider it to assist the court on remand.
In general damages for breach of contract are not available when there has been a lawful rescission of the agreement. 17 Am.Jur.2d Contracts Sec. 516 at 1002. Our Supreme Court has recognized a limited exception to this rule where fraud is involved. Kee v. Dillingham, 229 N.C. 262, 265-66, 49 S.E.2d 510, 512 (1948). In such cases a plaintiff may recover special damages sustained as the result of the fraud which rescission of the contract does not repair. Id. Further, plaintiffs contend that a court "will, where necessary to effect complete justice, award to the party not in default his expenses necessarily incident to the contract." 17 Am.Jur.2d Contracts Sec. 519 at 1007.
However, the record here reveals that plaintiffs sold their Tennessee home, moved to Moore County and rented a home, and then moved away, all with full knowledge that defendant had not completed the roads and utilities by the promised dates. Thus, these were not "expenses necessarily incident to the contract" but voluntary expenditures by plaintiffs made after they were aware of defendant's breach. Accordingly, should the court on remand find a material breach justifying rescission, plaintiffs will not be entitled to damages for moving and rental expenses.
Affirmed in part, vacated in part, and remanded.
ARNOLD and JOHNSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385691/ | 344 S.E.2d 310 (1986)
STATE of North Carolina
v.
Wallace Christopher COLLINS.
No. 8525SC1385.
Court of Appeals of North Carolina.
June 17, 1986.
*312 Atty. Gen. Thornburg by Sp. Deputy Atty. Gen. Ann Reed, Raleigh, for the State.
Ronald E. Bogle, Hickory, for defendant-appellant.
EAGLES, Judge.
Defendant argues seven assignments of error. However, he failed to *313 place any exceptions in the record "immediately following the record of judicial action" which his assignments and exceptions purport to address. See App.R. 10(b)(1). Rather, defendant's exceptions simply direct us to various groups of pages in the record where he contends the erroneous actions occurred. Defendant has therefore not properly presented his questions for review by this Court. App.R. 10(a); State v. Smith, 50 N.C.App. 188, 272 S.E.2d 621 (1980). Nevertheless, in our discretion we consider the merits of the case.
I
Defendant first argues that the court erred in joining the three defendants' cases for a single trial. The question of joinder was addressed to the sound discretion of the trial court. State v. Samuel, 27 N.C. App. 562, 219 S.E.2d 526 (1975). Abuse of that discretion must be shown by demonstrating some palpable prejudice, as opposed to mere general grievances. See State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976). The only specific prejudice claimed consisted of the admission of Bowers' statements.
A
Defendant argues that Bowers' statements should have been excluded under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Generally the Bruton rule provides that extrajudicial confessions of a non-testifying co-defendant implicating a defendant are inadmissible as violative of the Sixth Amendment. See State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968). The Bruton rule is a limited one, however. La Grenade v. Gordon, 60 N.C.App. 650, 299 S.E.2d 809 (1983). Where the incriminating admissions of a non-testifying co-defendant are admissible under other well-recognized rules of evidence, Bruton does not apply. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977).
B
One well-recognized exception to the general proscription against the introduction of hearsay evidence is that statements made by co-conspirators during the course of and in furtherance of the conspiracy are admissible. G.S. 8C-1, R.Ev. 801(d)(E). We have recently held that Bruton does not apply to evidence admissible under this exception. State v. Brewington, 80 N.C. App. 42, 341 S.E.2d 82 (1986). See also State v. Mettrick, 54 N.C.App. 1, 283 S.E.2d 139 (1981) (suggesting, but not reaching, similar result), aff'd 305 N.C. 383, 289 S.E.2d 354 (1982). This is consistent with federal decisions considering co-conspirator statements and the Bruton rule. See e.g. United States v. Norton, 755 F.2d 1428 (11th Cir.1985); United States v. Archbold-Newball, 554 F.2d 665 (5th Cir.) (would be admissible if tried jointly or separately), cert. denied, 434 U.S. 1000, 98 S. Ct. 644, 54 L. Ed. 2d 496 (1977). See also Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970) (distinguishing right to confrontation and rules excluding hearsay evidence). Bruton accordingly did not require exclusion of Bowers' statements.
II
The key question is whether Bowers' statements fit the co-conspirator exception to the hearsay rule. Defendant argues (1) that not only did the State fail to prove a conspiracy, but (2) that at the time Bowers made the incriminating statements the alleged conspiracy had failed and terminated, making the statements outside its scope. We disagree.
A
A conspiracy may be proven by direct or circumstantial evidence. State v. Rozier, 69 N.C.App. 38, 316 S.E.2d 893, cert. denied, 312 N.C. 88, 321 S.E.2d 907 (1984). The crime is established upon a showing of an agreement to do an unlawful act or to do a lawful act by unlawful means, whether or not overt acts occurred. State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975). A conspiracy may be shown by *314 a number of indefinite acts, which, taken individually, might be of little weight, but taken collectively point to its existence. State v. Whiteside, 204 N.C. 710, 169 S.E. 711 (1933). An express agreement need not be shown; a mutual, implied understanding is sufficient. Id.; State v. Rozier, supra. The evidence is considered in the light most favorable to the State. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). Ordinarily the factual issue of the existence or nonexistence of a conspiracy is for the jury. State v. Rozier, supra.
We think the evidence presented sufficed to establish prima facie the existence of a conspiracy sufficient to allow admission of statements of co-conspirators and to go to the jury. Stubbs went to the restaurant to make a drug contact. A truck similar to one later identified as belonging to defendant's brother and driven by defendant dropped off Bowers. Rather than enter the restaurant or go about any other business, Bowers waited and was picked up by Stubbs, indicating a prior arrangement. Stubbs testified without objection that Bowers said "Cara and Chris" dropped him off. The pickup then returned and pulled up immediately next to Stubbs' car though the parking lot was not crowded, again indicating a prior arrangement. Lipford entered Stubbs' car and a drug deal was discussed. Only after Lipford had gone back to the driver of the truck and returned to Stubbs' car was the deal with Stubbs finalized and the money handed over. This evidence, that the meeting with Bowers and Lipford was arranged in advance and that the drug deal was not finalized until Lipford had gone back to the truck, sufficed to establish the participation of the driver of the truck (who came to the restaurant twice) in whatever transaction was arranged. There was sufficient evidence that defendant was the driver in the testimony that "Chris" dropped Bowers off, the match of the yellow baseball cap, and the facts that the truck was registered to defendant's brother, defendant was driving it six hours later and it was seen parked at his home.
In State v. Caldwell, 68 N.C.App. 488, 315 S.E.2d 362, disc. rev. denied, 312 N.C. 86, 321 S.E.2d 901 (1984), we reached a similar result. There was evidence that a dealer came to defendant's house, was seen talking to defendant (there was no evidence of the words exchanged), went away with defendant and returned with defendant and the drugs (no evidence that defendant ever possessed drugs), and gave money to defendant. Likewise, in State v. Allen, 57 N.C.App. 256, 291 S.E.2d 341 (1982), we affirmed a conviction for conspiracy to rob a store where the only substantive evidence was that defendant was present when the robbery was suggested and volunteered to provide a gun. He got the gun but did not participate in the robbery. Here there was evidence from which the jury could find that defendant brought Bowers and Lipford to the restaurant pursuant to a previously agreed plan, and that the plan was to sell cocaine. This evidence, taken collectively in the light most favorable to the State, sufficed to establish a conspiracy involving defendant. Bowers' statements, if they met the other criteria of G.S. 8C-1, R.Ev. 801(d)(E), were therefore admissible.
B
Defendant argues that the statements implicating him in an extended course of cocaine dealings came after Lipford had absconded and therefore did not occur during the course of the conspiracy. Statements made prior to or subsequent to the conspiracy are not admissible under R.Ev. 801(d)(E). State v. Gary, 78 N.C. App. 29, 337 S.E.2d 70 (1985), disc. rev. denied, 316 N.C. 197, 341 S.E.2d 586 (1986). When a conspiracy ends under the rule is a question of fact. Id. This determination can be a difficult one. See generally 4 J. Weinstein & M. Berger, Weinstein's Evidence Section 801(d)(2)(E)[01] at 801-247 et seq. (1985) (discussing identical federal rule).
In United States v. Mason, 658 F.2d 1263 (9th Cir.1981), defendant contended that a statement by an unarrested co-conspirator (which tended to identify defendant *315 as a participant in the conspiracy), made after all other conspirators, including defendant, had been arrested, was inadmissible. The court rejected the argument on two main grounds: (1) the conspirator at large may still act in furtherance of the conspiracy and (2) from the perspective of the unarrested conspirator, the conspiracy was still in existence. Likewise, in United States v. Rucker, 586 F.2d 899 (2d Cir. 1978), the court concluded that the original conspiracy to rob a bank still existed even though the gunman assigned to carry out the actual robbery lost his nerve and fled before he carried out the robbery. Therefore statements made after the aborted attempt were admissible. These decisions are persuasive.
Here, as far as Bowers knew, the original plan to sell cocaine was still in effect. In fact, he took Stubbs to Lipford's home and hangouts after the statements were made. The court did not err in finding that Bowers' statements were made "in the course of" the conspiracy.
C
Defendant also contends that the statements were not "in furtherance of" the conspiracy. Again, we turn to federal decisions, which have regularly held that statements of "reassurance" are in furtherance of a conspiracy. United States v. Mason, supra (statement that source not scared off); United States v. Sandoval-Villalvazo, 620 F.2d 744 (9th Cir.1980) (reassurance during 3½ hour wait that source would produce drugs); United States v. Cambindo Valencia, 609 F.2d 603 (2d Cir. 1979) (reassurance of steady supply), cert. denied sub nom. Bermudez Prado v. United States, 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 795 (1980). Bowers' statements were made to reassure Stubbs that Lipford would return and that the conspiracy would achieve its ends. His statements of reassurance were clearly in furtherance of the conspiracy.
D
Accordingly, we overrule defendant's assignments regarding joinder of the cases, the admission of Bowers' statements, and the sufficiency of the evidence.
III
Defendant next contends that the court erred in denying his motion for mistrial, based on the State's attempt to use certain statements of the three co-defendants. Defendant contends these had not been properly supplied pursuant to his discovery requests. The versions provided to defendant in discovery and those presented at trial appear substantially similar, and none of the new material was introduced. The court allowed a recess to consider the statements. We condemn the practice of withholding portions of statements from discovery, but under the circumstances of this case, we cannot say that any error was prejudicial.
IV
Defendant also contends that the court erred in admitting into evidence his own statement that he was at the restaurant. He relies on Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980), arguing that Officer Clontz elicited the evidence by making statements intended to provoke an incriminating response before defendant had been read his rights, thus making the statement inadmissible. Defendant himself testified on voir dire that he admitted being present without being provoked by Clontz ("I just said that"). This was evidence permitting the court to find, as it did, that the statement was not the product of interrogation. In addition, the State produced substantial other evidence that defendant was the driver of the truck. We find no error, but even assuming error, we find it insufficiently prejudicial to warrant reversal.
V
Defendant argues that the court erred in denying his motions to dismiss and to set aside the verdict. As we have noted, the motions were correctly denied even without Bowers' incriminating statements. With *316 those statements, the evidence clearly sufficed to go to the jury.
VI
Finally, defendant contends that the punishment received, the statutory minimum seven years imprisonment and $50,000 fine, was unconstitutionally disproportionate to the crime proven. He argues that no drugs were ever actually delivered, and he was therefore unduly harshly punished. We note that it is the illegal agreement, not the amount of illicit drugs delivered (even if none at all) that controls. State v. Rozier, supra. This is simply not one of those "exceedingly rare" non-capital cases where the Eighth Amendment requires resentencing. See Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983), relying on Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). We note too that defendant received the statutory minimum sentence mandated by the legislature for all persons convicted of this class of crime. This assignment is overruled.
CONCLUSION
The jury convicted defendant on sufficient evidence and the sentence was the minimum set by law. He received a fair trial, free of prejudicial error.
No error.
HEDRICK, C.J., and COZORT, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267213/ | 174 Cal. App. 4th 1297 (2009)
JESS MEXIA, Plaintiff and Appellant,
v.
RINKER BOAT COMPANY, INC., et al., Defendants and Respondents.
No. E045443.
Court of Appeals of California, Fourth District, Division Two.
June 15, 2009.
*1300 Law Offices of Rene Korper, Rene Korper and Sophie A. Hubscher for Plaintiff and Appellant.
Cummings, McClorey, Davis, Acho & Associates and Sarah L. Overton for Defendants and Respondents.
OPINION
KING, J.
Plaintiff Jess Mexia sued Rinker Boat Company, Inc. (Rinker), and Miller's Landing (Miller) for breach of the implied warranty of merchantability under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) (the Song-Beverly Act). In essence, Mexia alleged that he *1301 purchased from Miller a boat manufactured by Rinker that was unmerchantable due to a latent defect, which subsequently caused the boat's engine to corrode. He commenced his action within four years after purchasing the boat.
In support of their demurrer to the complaint, Rinker and Miller asserted that Civil Code section 1791.1, subdivision (c)a provision of the Song-Beverly Act that defines the duration of the implied warranty of merchantabilityis a one-year statute of limitations that bars Mexia's claim.[1] The court sustained the demurrer without leave to amend. After judgment was entered in favor of Rinker and Miller, Mexia appealed.
On appeal, Rinker and Miller concede that the duration provision is not a statute of limitations and that the applicable statute of limitations is four years. They argue, however, that the judgment can be affirmed on other grounds. Among other arguments, they contend that the duration provision of the Song-Beverly Act should be interpreted as barring an action for breach of the implied warranty of merchantability when the purchaser fails to discover and report the defect to the seller within the time period specified in that provision. We reject this argument because the plain language of the statute, particularly in light of the consumer protection policies supporting the Song-Beverly Act, make clear that the statute merely creates a limited, prospective duration for the implied warranty of merchantability; it does not create a deadline for discovering latent defects or for giving notice to the seller. Because we also reject Rinker and Miller's other arguments, we reverse the judgment.
I. SUMMARY OF FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY[2]
Mexia bought a boat from Miller on April 12, 2003. The boat was manufactured by Rinker. Rinker gave an express "Limited Warranty" to Mexia, a copy of which is attached to the complaint. Rinker's limited warranty provides that the boat "will be free from substantial defects in materials and workmanship for a period of one (1) year from the date of purchase . . . [and] the boat hull will be free of structural defects in material and workmanship for a period of five (5) years from date of purchase . . . ." The express warranty does not apply to certain equipment and accessories, *1302 including the boat engine. Rinker's limited warranty expressly limits "the duration of any implied warranties of merchantability and all implied warranties of fitness for a particular purpose to the term of this limited warranty" and "disclaims any implied warranties of merchantability and implied warranties of fitness for a particular purpose after expiration of this limited warranty." (Capitalization omitted.) Finally, the limited warranty states that "[n]o action to enforce this Limited Warranty shall be commenced later than six (6) months after expiration of this Limited Warranty."
By July 2005, repairs to the boat were needed "because of defects, nonconformities, misadjustments or malfunctions relating to corrosion in the engine." (Mexia did not allege the date he first observed the defects, etc.) On July 8, 2005, Mexia returned the boat to a boat dealer authorized to make repairs under the written warranties. Subsequently, the boat "exhibited further and additional defects, nonconformities, misadjustments or malfunctions in the same components or systems." Each time, Mexia notified Rinker and Mercury Marine of the problems within a reasonable time after discovering the problem, demanding that the boat be repaired under the warranties. Defendants failed to make the boat "conform to the applicable warranties . . . ." On October 3, 2006, Mexia discovered that defendants "were unable or unwilling to make the [boat] conform to the applicable warranties."
Mexia alleges that at the time he acquired the boat, each defendant "impliedly warranted that the [boat] was merchantable as provided in [the Song-Beverly Act]." The boat, however, "was not merchantable as evidenced by the defects, nonconformities, misadjustments, and malfunctions" alleged in the complaint.
The complaint was filed on November 27, 2006three years seven months after Mexia purchased the boat.
Rinker and Miller demurred to the single cause of action asserted against thembreach of the implied warranty of merchantability under the Song-Beverly Act. As stated above, the court sustained the demurrer without leave to amend.[3] Judgment was thereafter entered in favor of Rinker and Miller.
II. ANALYSIS
A. Standard of Review
We independently review the ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action. *1303 (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal. 4th 412, 415 [106 Cal. Rptr. 2d 271, 21 P.3d 1189].) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1081 [6 Cal. Rptr. 3d 457, 79 P.3d 569].) We construe the pleading in a reasonable manner and read the allegations in context. (Ibid.) We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court's stated reasons. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967 [9 Cal. Rptr. 2d 92, 831 P.2d 317].)
B. Background
(1) Under the Song-Beverly Act, every retail sale of "consumer goods" sold in California includes an implied warranty by the manufacturer and the retail seller that the goods are "merchantable" unless the goods are expressly sold "as is" or "with all faults."[4] (Civ. Code, §§ 1791.3, 1792.) Merchantability, for purposes of the Song-Beverly Act, means that the consumer goods: "(1) Pass without objection in the trade under the contract description. [¶] (2) Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [And] [¶] (4) Conform to the promises or affirmations of fact made on the container or label." (Civ. Code, § 1791.1.) "`The core test of merchantability is fitness for the ordinary purpose for which such goods are used. [Citation.]' [Citations.]" (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal. App. 4th 19, 26 [65 Cal. Rptr. 3d 695].) Such fitness is shown if the product "is `in safe condition and substantially free of defects' . . . ." (Id. at p. 27.)
"When there has been a breach of the implied warranty of merchantability, a buyer `may bring an action for the recovery of damages and other legal and equitable relief.' (Civ. Code, § 1794, subd. (a).)" (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal. App. 4th 402, 406 [7 Cal. Rptr. 3d 546] (Mocek).)
(2) Although the Uniform Commercial Code provides a similar warranty of merchantability (Cal. U. Com. Code, § 2314), its provisions proved "limited in providing effective recourse to a consumer dissatisfied with a purchase." (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal. App. 3d 205, 213 [285 Cal. Rptr. 717] (Krieger).) In order to provide greater protections and remedies for consumers, the Legislature enacted the Song-Beverly Act. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal. App. 4th 785, 801 [50 Cal. Rptr. 3d 731].) It "is strongly pro-consumer" *1304 and "makes clear its pro-consumer remedies are in addition to those available to a consumer pursuant to the [Uniform] Commercial Code . . . ." (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal. 4th 985, 990 [73 Cal. Rptr. 2d 682, 953 P.2d 858].) To "the extent that the [Song-Beverly] Act gives rights to the buyers of consumer goods, it prevails over conflicting provisions of the Uniform Commercial Code." (4 Witkin, Summary of Cal. Law (10th ed. 2005) Sales, § 52, p. 63, citing Civ. Code, § 1790.3.)
One innovation of the Song-Beverly Act is an express provision for a duration of the implied warranty of merchantability.[5] (Civ. Code, § 1791.1, subd. (c).) The Uniform Commercial Code, by contrast, did not expressly set forth a duration of the warranty. However, in order to prove a breach of the implied warranty, the purchaser was required to show that the defect existed at the time the product was sold or delivered. (1 White & Summers, Uniform Commercial Code (5th ed. 2006) § 9-12, pp. 657-658; see, e.g., Makuc v. American Honda Motor Co. (1st Cir. 1987) 835 F.2d 389, 392-393; Hargett v. Midas International Corp. (Miss. 1987) 508 So. 2d 663, 665.) In effect, therefore, there is no "duration" of the implied warranty under the Uniform Commercial Code in any meaningful sense; the product is either merchantable or not (and a breach of the implied warranty occurs or not) only at the time of delivery. (See Cal. U. Com. Code, § 2725, subd. (2).)
The duration provision in the Song-Beverly Act provides that the "duration of the implied warranty of merchantability . . . shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above." (Civ. Code, § 1791.1, subd. (c).) By defining a duration for the implied warranties under the Song-Beverly Act, the Legislature arguably "made an improvement in clarity over the [California Uniform Commercial] Code[,] which says nothing about their duration except that a cause of action for their breach accrues upon delivery." (Comment, Consumer Warranty Law in California Under the Commercial Code and the Song-Beverly and Magnuson-Moss Warranty Acts (1979) 26 UCLA L.Rev. 583, 638, fn. omitted.)
(3) The implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale. (See Moore v. Hubbard & Johnson *1305 Lumber Co. (1957) 149 Cal. App. 2d 236, 241 [308 P.2d 794]; Brittalia Ventures v. Stuke Nursery Co., Inc. (2007) 153 Cal. App. 4th 17, 24 [62 Cal. Rptr. 3d 467]; Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal. App. 4th 937, 950-952 [56 Cal. Rptr. 3d 177].) Indeed, "[u]ndisclosed latent defects . . . are the very evil that the implied warranty of merchantability was designed to remedy." (Willis Mining, Inc. v. Noggle (1998) 235 Ga.App. 747, 749 [509 S.E.2d 731].) In the case of a latent defect, a product is rendered unmerchantable, and the warranty of merchantability is breached, by the existence of the unseen defect, not by its subsequent discovery. This distinction is explained in Moore. In that case, a defendant sold lumber to a contractor for use in the construction of a building. (Moore v. Hubbard & Johnson Lumber Co., supra, at pp. 237-238.) The lumber was infested with beetles that would eat their way out of the wood, leaving holes in the wood. (Id. at p. 238.) The lumber was sold with an implied warranty of merchantability, which was "`"sufficiently broad to impose liability . . . if the goods contain an impurity of such a nature as to render them unusable and therefore unsaleable, for the general uses and purposes of goods of the kind described. [(]Burr v. Sherwin Williams Co. (1954) 42 Cal. 2d 682, 694 [268 P.2d 1041].[)]"'" (Id. at pp. 240-241.) The court adopted the trial court's explanation of how this rule applied when the alleged defect is latent: "`Since this defect was hidden it was in the nature of a latent defect. Further, there was evidence that if such a defect were known the lumber would be discarded as not being [of the quality described in the sales contract]. In such a case the lumber would be unusable and unsalable. Applying the rationale of the Burr case, supra, such goods would not be merchantable. Further, it is usually stated that the goods must be such that with the defects known they would be salable as goods of the general kind which were described or supposed to be when bought. [Citations.] As has been pointed out, if this defect were known they would not have been salable "as goods of the general kind which were described." They would not measure up to the description given by the purchaser, and hence would breach the implied warranty of merchantability.'" (Id. at p. 241.) Thus, although a defect may not be discovered for months or years after a sale, merchantability is evaluated as if the defect were known.
The Song-Beverly Act does not include its own statute of limitations. (Krieger, supra, 234 Cal.App.3d at p. 213.) California courts have held that the statute of limitations for an action for breach of warranty under the Song-Beverly Act is governed by the same statute that governs the statute of limitations for warranties arising under the California Uniform Commercial Code: section 2725 of the California Uniform Commercial Code. (Krieger, supra, at p. 215; Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th 112, 132 [41 Cal. Rptr. 2d 295]; Carrau v. Marvin Lumber & Cedar Co. (2001) 93 Cal. App. 4th 281, 297 [112 Cal. Rptr. 2d 869].) Under this statute, "(1) An *1306 action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . . [¶] (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." (Cal. U. Com. Code, § 2725, subds. (1), (2).)
C. Rinker and Miller's Statute of Limitations Argument
In support of its demurrer before the trial court, Rinker and Miller argued that the duration provision of the Song-Beverly Act constitutes a one-year statute of limitations for breach of implied warranty claims. Because Mexia commenced this action more than one year after purchasing the boat, defendants asserted, his action is barred. The trial court apparently accepted this argument and sustained the demurrer.
(4) Rinker and Miller do not repeat the same argument on appeal. They now concede that the statute of limitations for an action for breach of warranty under the Song-Beverly Act is four years pursuant to section 2725 of the California Uniform Commercial Code.[6] (See Krieger, supra, 234 Cal.App.3d at p. 215; Jensen v. BMW of North America, Inc., supra, 35 Cal.App.4th at p. 132.) Under that statute, a cause of action for breach of warranty accrues, at the earliest, upon tender of delivery. (Cal. U. Com. Code, § 2725, subd. (2).) Thus, the earliest date the implied warranty of merchantability regarding Mexia's boat could have accrued was the date Mexia purchased itApril 12, 2003.[7] Because he filed this action three years seven months after that date, he did so within the four-year limitations period. Therefore, Mexia's action is not barred by a statute of limitations.
On appeal, Rinker asserts a statute of limitations argument different from the argument it made below. It argues that it had expressly limited the time to bring an action to six months after the expiration of its express warranty.[8] Rinker refers us to its written limited warranty, which states: "No action to *1307 enforce this Limited Warranty shall be commenced later than six (6) months after expiration of this Limited Warranty." The argument is without merit. Mexia is not suing Rinker to enforce its express limited warranty; it is suing Rinker for breach of the implied warranty of merchantability, which arises by operation of law and has a four-year statute of limitations. The contractual six-month period to enforce the express warranty is inapplicable here.
D. The Duration Provision and Other Arguments
(5) In the principal argument asserted in their brief, Rinker and Miller emphasize that Mexia did not notify them of any problem with the boat or bring the boat in for repairs until more than two years after the purchase of the sale. They rely upon sections 2602 and 2607 of the California Uniform Commercial Code. Section 2602, along with section 2601, gives a buyer a right to "reject" nonconforming goods prior to acceptance and thereby avoid any obligation to pay the purchase price. (Cal. U. Com. Code, §§ 2601, 2602, subd. (2)(c).) The rejection must occur "within a reasonable time after their delivery or tender" of the goods. (Id., § 2602, subd. (1).) Section 2607 requires a buyer of goods to notify the seller of any breach within a reasonable time after the buyer discovers or should have discovered the breach. (Id., § 2607, subd. (3)(A).)
These notification requirements, however, do not apply to an action brought under the Song-Beverly Act. (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal. App. 4th 294, 300-302 [45 Cal. Rptr. 2d 10].) In contrast to the Uniform Commercial Code, the Song-Beverly Act "contains no `reasonable time' requirement by which the consumer must invoke the [Song-Beverly] Act or lose rights granted by that statutory scheme." (Krotin v. Porsche Cars North America, Inc., supra, at pp. 301-302.) Nor is there any requirement that the buyer allow the seller or manufacturer an opportunity to repair the product prior to bringing an action for breach of the implied warranty of merchantability. (Mocek, supra, 114 Cal.App.4th at pp. 406-407.) Moreover, even if California Uniform Commercial Code sections 2601 and 2602 might apply in some case arising under the Song-Beverly Act, they have no application here; Mexia's claim is not based upon an alleged rejection of Miller's tender of the boat to Mexia. And even if section 2607 (governing notification of breach) applied to Mexia's Song-Beverly Act claim, Mexia alleged that he notified Rinker and Miller of the breach within a reasonable time after his discovery of the breach, an allegation we must assume is true for purposes of a demurrer. Finally, in cases arising under the California Uniform Commercial Code, where such notification is required, the question of whether the buyer notified the seller of a breach within a reasonable time is usually a question of fact that cannot be decided at the pleading stage. (See Fitl v. Strek (2005) 269 Neb. 51, 55 [690 N.W.2d 605]; Wal-Mart Stores, Inc. v. *1308 Wheeler (2003) 262 Ga.App. 607, 608 [586 S.E.2d 83]; see also Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal. App. 4th 357, 370 [62 Cal. Rptr. 2d 701] ["The question of whether notice was reasonable must be determined from the particular circumstances and, where but one inference can be drawn from undisputed facts, the issue may be determined as a matter of law."]; cf. Whitfield v. Jessup (1948) 31 Cal. 2d 826, 831-832 [193 P.2d 1] [applying Civ. Code, former § 1769, what constitutes reasonable time depends upon the particular circumstances].)
Rinker and Miller further assert that "the boat was fit for its ordinary purpose since Mexia did not seek repair from the defendants until over two years from the time of purchase." They appear to argue that the delay in seeking repairs after the defect was discovered compels the conclusion that the boat was merchantable as a matter of law at the time of sale. This argument ignores the distinction between unmerchantability caused by a latent defect and the subsequent discovery of the defect; the fact that the alleged defect resulted in destructive corrosion two years after the sale of the boat does not necessarily mean that the defect did not exist at the time of sale. To be sure, the failure to seek repair until after two years could mean, as Rinker and Miller suggest, that the boat was merchantable at the relevant time and that the subsequent corrosion was, as they contend, a "maintenance issue" not covered by the implied warranty. At this stage of the case, of course, there is no evidence in the record one way or the other as to whether the alleged defects existed at the time of sale (or within the duration period); all we have are allegations that we must assume are true. Although the evidence produced at later stages of the case could show that the corrosion was due to improper maintenance, it is also possible that Mexia can present evidence that the corrosion was due to a defect that existed at the time of sale but remained latent and undiscoverable for two years. Resolution of the issue is necessarily dependent upon the facts and, if there be any conflict in the evidence, is a matter for a jury. (See Fry v. Pro-Line Boats, Inc. (2008) 163 Cal. App. 4th 970, 977 [77 Cal. Rptr. 3d 622].) At this point in the proceeding, we cannot hold that the boat was merchantable as a matter of law.
Although Rinker and Miller now recognize that the duration provision is not a statute of limitations and that the action was filed within the limitations period, they nevertheless assert that the duration provision should be construed so as to bar Mexia's implied warranty claim. They refer to the duration provision in connection with the assertion that, "[b]y the time Mexia brought the boat for repairs, the implied warranty had already expired by over a year." The argument appears to be based on the premise that a buyer of unmerchantable goods must return them to a retailer within the duration period. During oral argument, Rinker and Miller clarified their position. According to them, the duration provision precludes an action for breach of the implied warranty of merchantability under the Song-Beverly Act when the action is based upon *1309 a latent condition that is not discovered by the consumer and reported to the seller within the duration period.[9] This period could be as little as 60 days and is never longer than one year. (Civ. Code, § 1791.1, subd. (c).) Rinker and Miller do not point to any particular language in the statute or refer us to any authority that supports this interpretation.
(6) "Our primary duty when interpreting a statute is to `"determine and effectuate'" the Legislature's intent." (Van Horn v. Watson (2008) 45 Cal. 4th 322, 326 [86 Cal. Rptr. 3d 350, 197 P.3d 164], fn. omitted.) We begin with the statute's "plain language, affording the words their ordinary and usual meaning, as the words the Legislature chose to enact are the most reliable indicator of its intent." (Vasquez v. State of California (2008) 45 Cal. 4th 243, 251 [85 Cal. Rptr. 3d 466, 195 P.3d 1049].) (7) The word "duration" has a clear and readily understood meaning, viz., the period of time during which something exists or lasts. (Webster's 3d New Internat. Dict. (1993) p. 703; Black's Law Dict. (7th ed. 1999) p. 520, col. 1.) In the duration provision, the "something" that has a period of existence is the implied warranty of merchantability. (Civ. Code, § 1791.1, subd. (c).) According to its plain language, the implied warranty exists for at least 60 days and at most one year after delivery of the product; after that time, the warranty ceases to exist.
To say that a warranty exists is to say that a cause of action can arise for its breach. Defining the time period during which the implied warranty exists, therefore, also defines the time period during which the warranty can be breached. Thus, by giving the implied warranty a limited prospective existence beyond the time of delivery, the Legislature created the possibility that the implied warranty could be breached after delivery. As discussed above, this is a change from the California Uniform Commercial Code, under which the implied warranty could be breached only at the time of delivery. Giving the implied warranty a prospective existence, however, is not new under the law. Prior to the adoption of the California Uniform Commercial Code, California courts recognized that the implied warranty of merchantability could have a prospective existence. (See, e.g., Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal. 2d 573, 582 [12 Cal. Rptr. 257, 360 P.2d 897] (Aced); Atkinson v. Elk Corporation of Texas (2006) 142 Cal. App. 4th 212, 230 [48 Cal. Rptr. 3d 247] (Atkinson).)[10]
*1310 (8) Rinker and Miller's interpretation of the duration provisionthat latent defects must be discovered and reported to the seller within the specified timehas no support in the text of the statute. The duration provision provides, in essence, that the duration of the implied warranty of merchantability shall be the same as the duration of any reasonable express warranty that accompanies the product, but in no event shorter than 60 days or longer than one year. (Civ. Code, § 1791.1, subd. (c).) There is nothing that suggests a requirement that the purchaser discover and report to the seller a latent defect within that time period.
If the Legislature intended to create a deadline by when a purchaser of goods covered by the Song-Beverly Act must report a defect to the seller, it had a ready model for doing so. As discussed above, section 2607 of the California Uniform Commercial Code provides that when a buyer has accepted a tender of goods, he or she "must, within a reasonable time after he or she discovers or should have discovered any breach, notify the seller of breach or be barred from any remedy . . . ." (Cal. U. Com. Code, § 2607, subd. (3)(A).) If the Legislature intended the duration provision to impose a deadline for consumers to give notice of defects under the Song-Beverly Act, it could have easily done so. It did not.
Rinker and Miller's construction of the duration provision would not only impose a notification requirement in the Song-Beverly Act, but would create a notification deadline that would apply even if the consumer has not discovered or could not have discovered the breach within the duration period. This is in sharp contrast to the California Uniform Commercial Code provision which imposes a "reasonable" time within which to notify the seller only after the point the purchaser knew or should have known of the breach. (Cal. U. Com. Code, § 2607.) During oral argument, Rinker and Miller acknowledged that their interpretation of the duration provision would narrow and restrict the rights and remedies available to consumers vis-à-vis the purchasers of goods under the California Uniform Commercial Code. Indeed, *1311 the curtailment of the remedy for those who purchase products with latent defects could be severe. A purchaser of an unmerchantable product who could not and does not discover the product's defect until 13 months after delivery (and then gives timely notice of the defect to the seller) would have almost three years to bring an action for breach of the implied warranty of merchantability under the California Uniform Commercial Code; under Rinker and Miller's interpretation of the duration provision, the same purchaser would be barred from any remedy under the Song-Beverly Act even if the purchaser notified the seller and commenced an action immediately upon discovering the defect.[11] Their interpretation thus conflicts with the policy repeatedly expressed by California courts of the need to construe the Song-Beverly Act so as to implement the legislative intent to expand consumer protection and remedies. (See, e.g., Murillo v. Fleetwood Enterprises, Inc., supra, 17 Cal.4th at p. 990; Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal. App. 4th 174, 184 [28 Cal. Rptr. 2d 371].)
Rinker and Miller nevertheless urge us to adopt their interpretation because of the burden and expense on small businesses in defending implied warranty claims years after the sale. The concern is a valid consideration for those who are charged with setting legislative policy and drafting statutes governing commercial transactions. Indeed, it is out of concern for "modern business practice" and "commercial record keeping" that the drafters of the California Uniform Commercial Code adopted a four-year statute of limitations that would generally commence upon delivery of the product. (U. Com. Code com., 23A pt. 2 West's Ann. Cal. U. Com. Code (2002 ed.) foll. § 2725, p. 155; Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal. App. 4th 116, 129 [87 Cal. Rptr. 3d 5].) To further restrict the rights of consumers in the manner Rinker and Miller suggest is unquestionably a legislative function. We must decline the request to do so.
(9) In light of the plain language of the duration provision, and the policy considerations at play in construing a provision of the Song-Beverly Act, we interpret the duration provision as providing the implied warranties under the Song-Beverly Act with a limited prospective existence beyond the date of delivery. We reject Rinker and Miller's proposed construction because it is unsupported by the text of the statute, legal authority, or sound policy.
*1312 III. DISPOSITION
The judgment is reversed. Mexia is awarded his costs on appeal.
Ramirez, P. J., and Hollenhorst, J., concurred.
NOTES
[1] We will refer to Civil Code section 1791.1, subdivision (c) at times as the duration provision.
[2] Our statement of facts is based upon Mexia's complaint, the properly pleaded allegations of which we accept as true. (See Blank v. Kirwan (1985) 39 Cal. 3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58]; First Nationwide Savings v. Perry (1992) 11 Cal. App. 4th 1657, 1662 [15 Cal. Rptr. 2d 173].)
[3] A first cause of action for breach of express warranty is asserted against Mercury Marine, the manufacturer of the boat's engine. Mercury Marine did not demur to the complaint and is not a party to this appeal.
[4] "Consumer goods" is defined in the Song-Beverly Act as "any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables." (Civ. Code, § 1791, subd. (a).)
[5] The duration provision was enacted one year after the enactment of the Song-Beverly Act as part of a bill "designed to clarify and refine the [Song-Beverly Act]." (Cal. Dept. of Consumer Affairs, Enrolled Bill Rep. on Sen. Bill No. 742 (1971 Reg. Sess.) Nov. 5, 1971.)
[6] Although Rinker and Miller did not expressly concede that the action was brought within the four-year statute of limitations in their appellate brief, when the question was put to their counsel at oral argument, counsel conceded that the duration provision is not a statute of limitations and that the statute of limitations is four years.
[7] Although the complaint uses the term "purchased," and does not explicitly state when the boat was "delivered," we construe the pleading liberally to mean that the boat was delivered on or after the date it was purchased. A delivery date later than the date of purchase would, of course, result in a later accrual date and extend further the limitations period.
[8] Miller, who did not give an express warranty for the boat, does not make this argument.
[9] At oral argument, when pressed for clarification, counsel stated that under duration provision, "where there is even a latent defect, that [defect] must be discovered and reported within the warranty period."
[10] In Aced, a case involving a latent defect in steel tubing that subsequently caused the tubes to corrode, the California Supreme court held "that this is a case which could properly be found to come within the operation of the principle that, if a warranty relates to a future event before which the defect cannot be discovered by the exercise of reasonable diligence, the warranty, though accompanied by a representation as to present condition, is prospective in character and the statute of limitations begins to run as of the time of that event." (Aced, supra, 55 Cal.2d at pp. 583-584.) The implied prospective warranty was not unlimited or perpetual; rather, it would exist for only "a reasonable period of time." (Id. at p. 584.) The effect of giving the implied warranty a prospective existence, or duration, was to extend the time within which to commence an action for breach of the warranty. (Id. at p. 585.)
In Atkinson, the court considered whether Aced's "reasonable" duration of the implied warranty of merchantability had continuing validity in light of the duration provision in the Song-Beverly Act. (Atkinson, supra, 142 Cal.App.4th at pp. 229-230.) The court concluded that the enactment of the duration provision superseded the Aced decision and that Aced was no longer good authority for a "reasonable," but indeterminate, duration of the implied warranty of merchantability. (Atkinson, supra, 142 Cal.App.4th at pp. 230-231.) The duration provision of the Song-Beverly Act, which has a limited, determinable period, the court held, "controls the length of the implied warranty of merchantability. . . ." (142 Cal.App.4th at p. 231, italics added.)
[11] In Brittalia Ventures v. Stuke Nursery Co., Inc. (2007) 153 Cal. App. 4th 17 [62 Cal. Rptr. 3d 467], a walnut farmer purchased walnut trees from the defendant. Approximately two years after the delivery of the trees, a latent defect (a disease) in the trees was discovered. (Id. at pp. 21-22.) The farmer subsequently notified the seller of the problem and brought an action for breach of the implied warranty of merchantability under the California Uniform Commercial Code. (Id. at p. 22.) A jury found in the farmer's favor and the Court of Appeal affirmed. (Id. at pp. 22-23, 32.) Under Rinker and Miller's interpretation of the duration provision, a consumer who purchased one of the same diseased trees would be barred from any remedy under the Song-Beverly Act. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267217/ | 999 F. Supp. 493 (1998)
Juan Carlos CABREJA-ROJAS A30-123-793, Petitioner,
v.
Janet RENO, Attorney General of the United States, and Edward McElroy, New York District Director, Immigration and Naturalization Service, Respondents.
No. 98 Civ. 1737(LAK).
United States District Court, S.D. New York.
March 25, 1998.
*494 Michael M. Maney, Sean R. O'Brien, Helaine Barnett, Gemma Solimene, Olivia Cassin, David M. Stern, The Legal Aid Society, Lucas Guttentag, Judy Rabinovitz, American Civil Liberties Union Immigrants' Rights Project, Scott A. Rosenberg, Civil Appeals & Law Reform Unit Foundation, for Petitioner.
Aaron M. Katz, Asst. U.S. Atty., Mary Jo White, U.S. Atty., for Respondents.
MEMORANDUM OPINION
KAPLAN, District Judge.
This petition for a writ of habeas corpus presents the question whether the Due Process Clause requires that a permanent resident alien who is subject to a final order of deportation is entitled to a hearing before a decision maker independent of the Immigration and Naturalization Service ("INS"), rather than the INS district director, on his application for release pursuant to the Transitional Period Custody Rules ("TPCR"). On the return of petitioner's order to show cause, the Court concluded that it does and entered an order directing the petitioner's release unless the INS affords petitioner a hearing before an Immigration Judge ("IJ") within ten days of the date of the order. This opinion now sets forth the basis for that decision.
Facts
Petitioner, now age 32, has been a lawful permanent resident of the United States since the age of 4. His entire family resides in this country.
In 1990, petitioner was convicted in New York State court of attempted sale of a controlled substance in the third degree and sentenced to probation. He was convicted of parole violation in 1995, based in part on a New Jersey credit card theft conviction, and sentenced to one to three years in prison. He succeeded in shortening the sentence by serving time in a shock incarceration program and was released in late 1995.
While petitioner was in New Jersey custody, the INS commenced deportation proceedings against petitioner on the basis of the New York drug conviction. Petitioner sought a waiver of deportation pursuant to Section 212(c) of the Immigration and Nationality *495 Act.[1] In 1996, however, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"),[2] which eliminated the possibility of waiver of deportation for those convicted of aggravated felonies. The statute did not directly answer the question whether it precluded waivers in favor of aliens who, like petitioner, had applied prior to the enactment of AEDPA. Nevertheless, in February 1997, the Attorney General ruled that AEDPA precluded waivers in favor those who had applied prior to its enactment.[3] In consequence, the IJ denied petitioner's application and ordered him deported, a decision that was affirmed in January 1998 by the Board of Immigration Appeals ("BIA"). Petitioner has sought review of the deportation order in the Second Circuit, which has stayed the order pending its review. His case evidently will be governed by the decision in Henderson v. INS,[4] which raises the same issue and was argued on January 21, 1998.
On January 20, 1998, petitioner was taken into INS custody in the wake of the BIA's affirmance of the deportation order and now is incarcerated in Pike County, Pennsylvania. On January 27, 1998, petitioner, through counsel, applied pursuant to the TPCR to the district director of the INS for release on his own recognizance or on bond pending review of the deportation order. The request was denied on February 13, 1998 in a brief letter. Petitioner promptly appealed the district director's custody decision to the BIA.
Petitioner filed this petition on March 10, 1998. Although the initial filing appeared to seek review of the district director's decision as well as other relief, petitioner at oral argument limited his claim to the single contention that the Due Process Clause entitles him to have his application for release pursuant to the TPCR heard by a decision maker independent of the INS such as an IJ.
Discussion
Insofar as is relevant here, the TPCR[5] provide that the Attorney General may release petitioner and others similarly situated if "the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding..."[6] The regulations implementing the TPCR provide that an alien seeking release thereunder may apply to the district director,[7] whose decision is subject to de novo review by the BIA.[8]
In this case, it is undisputed that petitioner was admitted lawfully to the United States. He contended before the district director, unsuccessfully, that he should be released pending the outcome of his petition for review of the deportation order because he would not pose a danger and would appear for scheduled proceedings. Much of his petition reads as if he were seeking review by this Court of the district director's decision, which of course he may not now obtain because he has appealed from that decision to the BIA and he therefore has not exhausted *496 his administrative remedies.[9] As noted above, however, petitioner has abandoned all such claims. He presses only a more basic, structural issue concerning the procedure by which his application for release pending review was determined he contends that the Due Process Clause entitles him to a hearing on the issue before an impartial adjudicator.
Exhaustion
The government's threshold response is that this aspect of the petition too should be dismissed for failure to exhaust. In considering exhaustion arguments, however, "it is important to focus on the precise issue as to which the petitioner seeks judicial relief."[10] The question therefore is whether petitioner has any administrative remedy with respect to his procedural due process claim, which is in the nature of a facial challenge to the INS regulations governing procedures under the TPCR, and, if so, whether he must exhaust it. The Court is persuaded that he has no administrative remedy and, in any case, that exhaustion would not be required in view of the purely constitutional nature of the claim.
To begin with, the parties agree that the BIA is not empowered to address constitutional challenges to statutes and regulations.[11] Moreover, while the government certainly is correct in saying that administrative procedures may not be bypassed simply by converting one's claim into an alleged deprivation of due process,[12] it concedes the point that is dispositive here: exhaustion is not required with respect to "facial constitutional attacks on a statute or regulation, inasmuch as administrative agencies such as the BIA may not pass upon direct constitutional challenges to the statutes or regulations they administer."[13] In consequence, the Court holds that petitioner has no administrative remedy with respect to the specific issue that remains before this Court his claimed entitlement to a bail or parole hearing before an impartial adjudicator.
The Merits
Lawful resident aliens may not be deprived of their liberty without due process of law.[14] The fundamental question presented here thus is whether the application to the district director was all the process that was due.
The standard that governs the sufficiency of the process afforded prior to the deprivation of a constitutionally protected interest is set out in the Supreme Court's decision in Mathews v. Eldridge.[15] The court must consider the private interest that the government action in question affects, the risk that the procedures used may result in erroneous deprivation of that interest, and the government's interest in maintaining the current procedures.[16]
Petitioner's private interest here is that of freedom from confinement, a liberty interest "of the highest constitutional import."[17] While the parole decision affects petitioner's liberty only for an interim period, the interest nevertheless is extremely substantial, all the more so in light of the delays that seem to occur in a great many immigration-related matters.
The second of the Eldridge factors addresses the issue whether there are "good structural reasons to think that, absent an *497 impartial decisionmaker, the alien may be erroneously deprived of a liberty interest."[18] As Judge Wood has pointed out in the analogous context of determining whether permanent resident aliens have a constitutional right to an independent decision maker with respect to parole pending exclusion proceedings, that element is satisfied here.
"The INS ... has every incentive to continue to detain aliens with aggravated felony convictions, even though they have served their sentences, on the suspicion that they may continue to pose a danger to the community. In contrast, because permanent resident aliens cannot vote, the INS has little incentive ... to release such aliens."[19]
They are a prime example of a "discrete and insular minority" unable to protect itself through the political process.[20]
Finally, the Court acknowledges that the INS has some interest in adhering to the procedure set out in the regulations determination of bail or parole applications in these circumstances by the district director on papers. But the interest is not particularly weighty. To begin with, the government has made no showing the INS would be inconvenienced to any greater extent by having these applications decided by IJs rather than district directors.[21] And while a requirement of full-blown testimonial hearings before immigration judges as opposed to determinations by district directors on paper applications would impose a substantial added burden, that is not the issue here. At this stage, petitioner contends only that he is entitled to an impartial adjudicator.[22]
These considerations have led several judges in this district to hold that the Due Process Clause requires an independent decision maker in analogous circumstances. Judges Cote, Martin, Mukasey and Wood all have held that a legal resident alien has a due process right to an independent decision maker on the issue of parole pending exclusion proceedings.[23] These cases are indistinguishable in principle from this one, as the distinction between parole pending exclusion and parole pending deportation is not material here. The government's reliance on Judge Jones' ruling in Garcia v. United States[24] is misplaced because the issue there was whether the applicant was entitled to a full blown hearing on his parole application, not whether the proceeding, whatever it was, had to be conducted before an independent decision maker.
While the government does not concede that the Constitution requires an independent decision maker, it does argue that any such requirement is satisfied by the availability to petitioner of de novo review of the district director's decision by the BIA. The *498 difficulty with the argument, however, is that the BIA's review is strictly appellate in nature. It rules on a fixed record passed up to it by the district director.[25] In consequence, the INS procedures do not permit petitioner and others similarly situated to make their cases for release pending deportation to an independent decision maker in the first instance and thus do not permit them to attempt to persuade such a decision maker that they are believable, that testimonial evidence should be taken in the context of a particular case, or any of the host of other things that may contribute to an informed nisi prius decision. Thus, the lack of an independent decision maker at the first stage in the process, the stage at which the record is compiled, may well affect the scope and nature of the record that the BIA reviews de novo. Accordingly, the Court is unpersuaded by the government's contention and holds that the Due Process Clause requires that applications for bail or parole pending deportation proceedings must be determined in the first instance by independent decision makers, not the district director of the INS.
Conclusions
The Court emphasizes that this is a very narrow decision. It intimates no view as to whether petitioner should be released or on what terms, as those are matters entirely for the executive branch in the first instance and subject thereafter only to limited review by the courts. Nor does it pass on the question whether the independent decision maker must conduct a testimonial hearing. It holds only that the petitioner is entitled to have his application for release pending the resolution of his deportation proceedings determined by a decision maker independent of the INS. In consequence, it has entered an order providing that petitioner is entitled to have his application heard by such a decision maker on or before a date certain, absent which he must be released. As this fully disposes of the petition, the Clerk is directed to close the file.
SO ORDERED.
NOTES
[1] 8 U.S.C. § 1182(c).
[2] Pub.L. 104-132, 110 Stat. 1214 (1996).
[3] Matter of Soriano, Int. Dec. No. 3289, 1996 WL 426888, 1997 WL 159795 (A.G. Feb. 21, 1997).
[4] No. 97-4050.
[5] The TPCR were triggered on October 9, 1996 for a one year period when the INS Commissioner, acting on behalf of the Attorney General, notified Congress of the Attorney General's intention to invoke the rules. See Matter of Noble, Int. Dec. 330 1, 1997 WL 61453 (BIA 1997). They were reinvoked for an additional year, and now are in effect until October 1998. See 74 Int.Rel. 1552 (Oct. 10, 1997).
[6] Pub.L. 104-208, Div. C, Title III, § 303(b), 110 Stat. 3009-587 (1996), reprinted following 8 U.S.C.A. § 1226 (1997 Supp.).
[7] 8 C.F.R. § 236.1(d) (Mar. 6, 1997). References to regulations dated March 6, 1997 are to those provisions promulgated to implement changes in the Act made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, Title III-A, 110 Stat. 3009 (Sept. 30, 1996). The regulations were published in the Federal Register on March 6, 1997. See 62 Fed.Reg. 10312, 1997 WL 93131 (Mar. 6, 1997).
[8] See Hazzard v. INS, 951 F.2d 435, 440 n. 4 (1st Cir.1991); Rivera v. INS, 791 F.2d 1202, 1205 (5th Cir.1986); see also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266, 74 S. Ct. 499, 98 L.Ed. 681(1954).
[9] See, e.g., Salazar v. Reich, 940 F. Supp. 96, 98 (S.D.N.Y.1996).
[10] Id. at 99 (citing United States v. LaVallee, 312 F.2d 308, 309 (2d Cir.1963)).
[11] Resp.Br. 15; Pet.Br. 18; see St. John v. McElroy, 917 F. Supp. 243, 249-50 (S.D.N.Y.1996) (INS hearing officer empowered only to apply relevant regulations, "not to hold that due process required that the parole decision be transferred to another decisionmaker"); Matter of C-, Int. Dec. 3180, 1992 WL 200361 (BIA 1992).
[12] Resp.Br. 15 (citing Johnpoll v. Thornburgh, 898 F.2d 849, 850-51 (2d Cir.1990)).
[13] Id. (citing Johnpoll v. Thornburgh, 898 F.2d at 851).
[14] See Landon v. Plasencia, 459 U.S. 21, 32, 103 S. Ct. 321, 74 L. Ed. 2d 21 (1982) (resident alien "entitled to a fair hearing when threatened with deportation").
[15] 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
[16] Id. at 335.
[17] St. John, 917 F.Supp. at 250.
[18] Id. at 251.
[19] Id. See also Cruz-Taveras v. McElroy, No. 96 Civ. 5068(MBM), 1996 WL 455012, at *6 (S.D.N.Y. Aug. 13, 1996) (expressing concern over "`cookie cutter' parole adjudication" by INS, indicating that INS may be "affording alien parole applicants considerably less than the individualized consideration that due process requires").
[20] See Graham v. Richardson, 403 U.S. 365, 372, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971) (quoting United States v. Carolene Products Co., 304 U.S. 144, 152-53, 58 S. Ct. 778, 82 L. Ed. 1234 (1938)). This is not to say, however, that federal actions affecting lawful resident aliens are subject to strict constitutional scrutiny. As explained in Abreu v. Callahan, 971 F. Supp. 799, 810-15 (S.D.N.Y.1997), they ordinarily are not.
[21] See Cruz-Taveras, 1996 WL 455012, at *7 (noting that IJs conduct bond hearings in deportation proceedings daily and that such hearings typically last 10 to 15 minutes).
[22] That is not to say that petitioner concedes that the decision maker need not take testimonial evidence. He is free to make such an argument to the IJ, who will have to decide whether there are any material issues of fact and, if so, decide in the first instance whether the resolution of any such issues requires the taking of testimony. The Court notes that in the analogous context of bail determinations, district courts have broad discretion in determining the manner in which they gather the information pertinent to pretrial detention decisions. See, e.g., United States v. Martir, 782 F.2d 1141, 1145 (2d Cir.1986).
[23] Alba v. McElroy, No. 96 Civ. 8748(DLC), 1996 WL 695811, at *3-4 (S.D.N.Y. Dec.4, 1996) (Cote, J.); Thomas v. McElroy, No. 96 Civ. 5065(JSM), 1996 WL 487953, at *4 (S.D.N.Y. Aug.27, 1996) (Martin, J.); Cruz-Taveras, 1996 WL 455012, at *5-6 (Mukasey, J.); St. John, 917 F.Supp. at 243 (Wood, J.)
[24] Garcia v. U.S., 96 Civ. 4061(BSJ), 1996 WL 412018 (S.D.N.Y. July 22, 1996).
[25] 8 C.F.R. § 3.5 (1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267223/ | 171 Conn. 630 (1976)
DOLLIE EASON
v.
WELFARE COMMISSIONER[1]
Supreme Court of Connecticut.
Argued May 5, 1976.
Decision released September 21, 1976.
HOUSE, C. J., LOISELLE, BOGDANSKI, LONGO and BARBER, JS.
*631 Charles A. Pirro III, with whom were Richard L. Tenenbaum and David Branch, for the appellant (plaintiff).
Robert A. Nagy, assistant attorney general, with whom, on the brief, was Carl R. Ajello, attorney general, for the appellee (defendant).
LOISELLE, J.
The plaintiff appeals from a judgment of the Superior Court dismissing her appeal from the denial by the Juvenile Court of her motion to "reopen" the commitment of a minor child to the welfare commissioner.
On October 10, 1974, the plaintiff filed a motion to "reopen" commitment in Juvenile Court. That motion alleged that, in 1968, a child was placed by her mother with the plaintiff. In 1969, the plaintiff attempted to adopt the child but the natural mother did not consent. In June, 1973, the Juvenile Court, acting upon a petition of neglect against the mother, granted temporary custody of the child to the welfare commissioner who, in turn, placed the child *632 in the plaintiff's home where the plaintiff assumed the role of a foster parent. In February, 1974, the Juvenile Court committed the child to the custody of the welfare commissioner who continued the child's placement in the plaintiff's home. On October 3, 1974, the welfare commissioner removed the child directly from school to the home of the natural mother. The motion also alleged that the plaintiff, although not the biological mother of the child, is the psychological and emotional parent of the child. The plaintiff alleged that the child had lived with her from September, 1968, to October 3, 1974. In the appeal from the Juvenile Court to the Superior Court, the plaintiff alleges that the child was represented by counsel.
The Juvenile Court treated the motion as one made under General Statutes § 17-62 (f), and considered it as a motion to revoke the commitment of the child to the welfare commissioner. Both parties have characterized the motion in this manner. The Juvenile Court ruled that it had no jurisdiction to hear the plaintiff's motion because § 17-62 (f) fails to include a foster mother as one who may file a motion to revoke. The Superior Court denied the plaintiff's appeal from the Juvenile Court on the same grounds.
The plaintiff has assigned as error the court's failure to find that a foster parent is a "parent" as the word is used in General Statutes § 17-62 (f); that a foster parent has standing to file a motion to revoke commitment in Juvenile Court; that the Juvenile Court has jurisdiction to entertain a motion by a foster parent to revoke commitment.
We turn initially to the plaintiff's contention that she is among those listed in § 17-62 (f). General
*633 Statutes § 17-62 (a)[2] empowers the Juvenile Court to summon the parents or guardian of a child to appear in court when a petition is filed containing information that a child is uncared for and neglected. Subsection (d) of § 17-62[3] provides that after a hearing and adjudication that a child is uncared for or neglected the court may commit the child to the welfare commissioner or other persons and agencies designated in the statute.
The power to revoke such commitment is controlled by § 17-62 (f),[4] which restricts the right to *634 file an application for revocation to a "parent," a "relative" and other persons or agencies named therein.
We find without merit the plaintiff's contention that her status is to be found among those listed in § 17-62 (f). The meaning to be given a statute is determined by legislative intent and that legislative intent must be determined by language actually used in the legislation. Knoll v. Kelley, 142 Conn. 592, 594, 115 A.2d 678. Foster parents are not mentioned in § 17-62 (f). If the legislature had intended to include a foster parent among the persons permitted the right to file an application to revoke commitment, it could easily have done so. Our statutes contain numerous instances in which a distinction is drawn between natural or adoptive parents and foster parents.[5] We presume that the legislature was aware of the use of foster homes when it enacted § 17-62 (f) since it specifically authorized the welfare commissioner to place children committed to him in foster homes in § 17-62 (d). We, therefore, conclude that the legislature intentionally excluded foster parents from § 17-62 (f).
*635 The plaintiff also contends that the Juvenile Court has jurisdiction to entertain a motion by a foster parent to revoke commitment. The Juvenile Court is a statutory court. General Statutes §§ 17-53 to 17-74. "It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44. Under § 17-62 (f), one of those specified persons or agencies must apply to trigger the Juvenile Court's power to revoke the commitment to the welfare commissioner. As the plaintiff did not fall within one of those categories, the Juvenile Court did not have jurisdiction to revoke the commitment under §17-62 (f).
The plaintiff asserts that the due process clause of the federal constitution's fourteenth amendment guarantees her the right to initiate a hearing to revoke the commitment to the welfare commissioner. The record of the proceedings of the Juvenile Court includes only a motion entitled "motion to reopen," the court's memorandum of decision and a transcript devoted entirely to comments of counsel. At the hearing on the motion, counsel admitted that the plaintiff was a party at the neglect hearing. The Juvenile Court's memorandum of decision also states that the plaintiff was represented by counsel at that hearing. In any event, there is no claim that the plaintiff was deprived of due process because of the hearings in June, 1973, and in February, 1974. As a result of those hearings, the welfare commissioner was made guardian of the children. The plaintiff had an opportunity to request that *636 the child be committed to her as a person "suitable and worthy" of the responsibility of caring for the child. See General Statutes § 17-62 (d). In her "motion to reopen," she made no claim that was different from that which she could have made at the neglect hearing. She had an opportunity to be heard at the most critical time in the proceedings before the Juvenile Court. Due process does not require a rehearing of issues that have been litigated. See cases in 16 Am. Jur. 2d, Constitutional Law, § 583.
While the principal brief is mainly concerned with the plaintiff's right to be heard upon the deprivation of her interests in the child, and while the argument is in traditional due process terms, the plaintiff's reply brief emphasizes an equal protection argument: "Appellee has incorrectly stated in his brief that Appellant does not challenge the constitutionality of the classification by the legislature of those persons permitted to seek revocation of commitment in Juvenile Court.... Appellant does argue that the word `parents' in the relevant statute, C.G.S. § 17-62 (f), can be construed to include foster parents.... However, if this Court does not see fit to adopt this construction, then Appellant argues it has no other choice but to find C.G.S. § 17-62 (f) unconstitutional." As to her claim of lack of due process because she was not included with the other persons allowed to bring motions for revoking commitment under § 17-62 (f), the argument concerns her right under the equal protection clause of the fourteenth amendment. The issue, then, is not whether a foster parent should be included as one who may initiate a hearing to preserve interests in a child, but whether a foster parent should be included among those who may *637 move to revoke a commitment to the welfare commissioner, now commissioner of children and youth services.
The requirement of equal protection of the laws does not deny a state the right to make classifications in law so long as there is no invidious discrimination. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S. Ct. 461, 99 L. Ed. 563, reh. denied, 349 U.S. 925, 75 S. Ct. 657, 99 L. Ed. 1256. "Under traditional equal protection principles, a State retains broad discretion to classify as long as its classification has a reasonable basis." Graham v. Richardson, 403 U.S. 365, 371, 91 S. Ct. 1848, 29 L. Ed. 2d 534. In the area of social welfare, a statute is not impermissible because the classifications are imperfect. So long as a classification has some reasonable basis, the statute does not offend constitutional requirements simply because a classification found therein "`is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S. Ct. 337, 55 L. Ed. 369]." Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491, reh. denied, 398 U.S. 914, 90 S. Ct. 1684, 26 L. Ed. 2d 80. In McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393, the court said (p. 425): "Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their *638 constitutional power despite the fact that, in practice, their laws result in some inequality." A proper classification must include all who naturally belong to the class. There must be some natural and substantial difference germane to the subject or purposes of the legislation between those within the class and those excluded. Kellems v. Brown, 163 Conn. 478, 493, 313 A.2d 53, appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678.
It would seem that a legislature could reasonably make a distinction between a foster parent and those included in the statute as parties who may move to revoke commitment to the commissioner. A logical argument can be made that a foster parent, after having had a child in its care for some appreciable time, becomes a psychological parent and that its interest in the child is equal to that of a biological parent. A reasonable extension of this argument would also include any considerate neighbor or relative who has had a child for a period of time for one reason or another.
On the other hand, once a commitment has been made, foster parents and concerned relatives and neighbors generally act more on a temporary basis, with the legal guardianship of the child in another. Although in some instances a long-term placement may develop a close relationship between the foster parent and child, generally speaking, a foster parent acts more as a custodian awaiting either the return of the child to parents or the adoption of the child. Goldstein, Freud & Solnit, "Beyond the Best Interests of the Child," p. 23. Furthermore, after a commitment under § 17-62 (d) to the welfare commissioner a foster parent derives custody from the commissioner's placement. It is reasonable to *639 include those who are legally responsible and biologically related to a child among those that have a statutory right to move to revoke the guardianship and custody of the commissioner and to exclude those who derive custody from the commissioner.
There is no error.
In this opinion HOUSE, C. J., and BARBER, J., concurred.
LONGO, J. (dissenting.) I respectfully dissent. It seems to me that the plaintiff had the constitutional right to a hearing after the child was taken from her custody in October, 1974, and that General Statutes § 17-62 (f) is an appropriate avenue for pressing this claim under the unique circumstances of this case.
The thrust of the majority opinion in this regard is that the plaintiff received all the due process to which she was entitled by virtue of her appearance with counsel at the February, 1974, hearing when a finding of neglect by the natural mother was made and custody of the child was transferred to the welfare department. In my opinion, however, the due process accorded the plaintiff at the hearing on the issue of the natural mother's neglect cannot limit or govern the due process right to a hearing which arose in the plaintiff after the state had entrusted the child to her and then summarily removed the child from her care. That due process must be accorded in a state action involving revocation of a state-given right or privilege has been a concept developed in the opinions of the United States Supreme Court in recent years. As examples, it is now well-established that elements of due process such as notice and the opportunity for a hearing *640 and cross-examination must be present in proceedings to revoke welfare benefits; Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287; driver's licenses; Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90; and parole and probation; Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484; Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656. It seems to me that the state's removal of foster children from foster parents should be no less subject to the same guarantees.
In Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551, a natural father successfully challenged an Illinois statute which allowed the state to deprive him of custody of his illegitimate children without a hearing. The court held that individual hearings were constitutionally required before the state could separate unfit parents from their children, and stated (p. 651): "It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' Kovacs v. Cooper, 336 U.S. 77, 95 [69 S. Ct. 448, 93 L. Ed. 513] (1949) (Frankfurter, J., concurring)."
Stanley is distinguishable from the present case in that the plaintiff here is not the natural parent of the child in question. Recent cases, however, have blurred the distinction between rights of natural parents and the rights of foster parents in this area; see, e.g., Borsdorf v. Mills, 49 Ala. App. 658, 275 So. 2d 338; In re One Minor Child, 254 A.2d 443 (Del.); In re Fleming, 271 Minn. 337, 136 *641 N.W.2d 109; Pace v. Curtis, 496 S.W.2d 931 (Tex. Civ. App.); and much commentary has been written in recent years about biological and psychological parents and to what respect each is entitled in custody determinations. One of the most influential works in the area is Goldstein, Freud & Solnit, "Beyond the Best Interests of the Child," in which the authors contend (p, 19) that the role of a psychological parent may be filled by any concerned, attentive adult on the basis of "day-to-day interaction, companionship, and shared experiences."
I do not suggest that all legal distinctions between biological, legal and psychological parents be abolished, but rather suggest that the one who has cared for a child over a long period of time will develop mutual bonds of love and dependence with the child. Despite the lack of a biological tie in this case, the plaintiff has stood in loco parentis since the child was four months old and was for six years, until the child was removed from her home, the only full-time mother the child had ever known. Under these circumstances, the absence of a biological connection cannot be regarded as fatal to the plaintiff's claim.
In James v. McLinden, 341 F. Sup. 1233 (D. Conn.), the court held that failure to notify foster parents of the filing of a petition of alleged neglect violated the due process and equal protection guarantees of the fourteenth amendment, as well as the express terms of General Statutes § 17-61. The court observed (p. 1235): "There is no sound reason to deny a person who has voluntarily assumed the obligations of parenthood over a child the same basic rights to due process a natural or legal parent possesses when the state *642 intervenes to disrupt or destroy the family unit." Of course, in the present case, the plaintiff did attend the hearing on the neglect petition, although she did not participate. Nonetheless, the principle announced in James v. McLinden has equal currency when applied to the state's action removing the child from the plaintiff's care. The latter action was taken with no due process guarantees; the plaintiff has averred that she received a letter which informed her of the commissioner's decision and that the child was then removed directly from school to the home of the natural mother. Under the circumstances the plaintiff had, at a minimum, the right to a hearing with respect to the propriety of the commissioner's action.
In a recent decision, a three-judge district court invalidated on fourteenth amendment grounds a New York statute which allowed the state to remove foster children from foster homes without affording a prior evidentiary hearing to either parents or children. The court held (p. 282) that, in placements lasting over one year, "before a foster child can be peremptorily transferred from the foster home in which he has been living, be it to another foster home or to the natural parents who initially placed him in foster care, he is entitled to a hearing at which all concerned parties may present any relevant information to the administrative decisionmaker charged with determining the future placement of the child." Organization of Foster Families v. Dumpson, 418 F. Sup. 277 (S.D. N.Y.).
It is thus apparent that the state action in removing the child from the plaintiff-foster parent's home should be subject to the due process guarantees of the fourteenth amendment. To vindicate this right, the plaintiff proceeded under General *643 Statutes § 17-62 (f) to move to "reopen" the commitment in the Juvenile Court. The essential allegation in her motion to "reopen" is not that she has a right to continued custody of the child, but that "[i]n handling the placement change in this emergency manner, the Welfare Department disrupted the most significant relationship [the child] has in a substitute family that she sees as her own and created exactly the kind of traumatic situation which its guidelines state must be avoided." It is therefore clear that, while the motion was not filed by the child, it was filed for the child. And, although the plaintiff as a foster mother is not given the right to file such a motion in her own behalf, the legislature has specified in § 17-62 (f) that the child is a proper party to move to "reopen" commitment. As a practical matter, a child may often be unable to bring a court suit of his own initiative. Accordingly, there must be some instances in which another party is entitled to file under § 17-62 (f), asserting the rights of the child and giving effect to the legislative intent. The plaintiff's unique position in this case so entitles her.
I am unpersuaded that an action under § 17-62 (f) should be foreclosed by a strict reading of that statute. The plaintiff's motion raised before the Juvenile Court the issue of whether the welfare department's action was in the best interest of the child. The legislature has explicitly vested "exclusive original jurisdiction" over matters pertaining to the custody of neglected children in the Juvenile Court. General Statutes § 17-59. As a motion under § 17-62 (f) is the most efficacious manner in which the best interest of the child can be determined, the plaintiff's motion should have been considered in that light and decided on the merits.
*644 In conclusion, then, the child has rights and interests which must be effectively protected, just as the plaintiff has rights which must be vindicated. A hearing conducted under General Statutes § 17-62 (f) is a fact-finding proceeding at which the child's best interest is determined from an examination of all the relevant circumstances and events. Likewise, a determination by the department that a foster parent is not acting in the best interest of the child is based wholly on facts which should be established only after the protections of due process have been extended to the foster parent. See Goldberg v. Kelly, 397 U.S. 254, 269, 90 S. Ct. 1011, 25 L. Ed. 2d 287. As the rights are not protected and guarantees of due process have been denied in the present case, the welfare department's action is open to challenge by the plaintiff-foster parent, and a hearing conducted pursuant to General Statutes § 17-62 (f) is an appropriate method for resolving issues pertaining to the best interest of the child, and the adequacy of the plaintiff's care.
In this opinion BOGDANSKI, J., concurred.
NOTES
[1] In accordance with the spirit and intent of General Statutes § 17-70 (b) and Practice Book § 405, it is ordered that the name of the child involved in this appeal shall not be disclosed and that the record, briefs and appendices shall not be distributed to the various libraries of the state by the reporter of judicial decisions. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Superior Court.
[2] At the time of the proceedings in Juvenile Court, § 17-62 (a) provided: "Any selectman, town manager, or town, city, or borough welfare department, any probation officer, the Connecticut Humane Society, or the welfare commissioner, the commissioner of children and youth services or any other child-caring institution or agency approved by the welfare commissioner or, after April 1, 1975, the commissioner of children and youth services, having information that a child is neglected, uncared-for or dependent, may file with the juvenile court in the district where such child is resident a verified petition plainly stating such facts as bring the child within the jurisdiction of the court as neglected, uncared-for, within the meaning of section 17-53, or dependent, the name, date of birth, sex, and residence of the child, the name and residence of his parents or guardian, and praying for appropriate action by the court in conformity with the provisions of this chapter...."
[3] [General Statutes] Sec. 17-62 .... (d) Commitment to commissioners or private or public agency. Commissioner as guardian, placement. Upon finding and adjudging that any child is uncaredfor, neglected or dependent, the court may commit him to the welfare commissioner, or, after April 1, 1975, to the commissioner of children and youth services, or may vest his care and personal custody in any private or public agency which is permitted by law to care for neglected, uncared-for or dependent children or with any person found to be suitable and worthy of such responsibility by the court...."
[4] "[General Statutes] Sec. 17-62.... (f) Revocation of commitment. Any court by which a child has been committed pursuant to the provisions of this section may, upon the application of a parent, including any person who acknowledges before said juvenile court paternity of a child born out of wedlock, or other relative of such child, the selectman or any original petitioner, or a licensed child-caring agency or institution approved by the commissioner, or said commissioner, and while such child is under the guardianship of said commissioner, upon hearing, after reasonable notice to said commissioner, and, if said commissioner made the application, after reasonable notice to such parent, relative, original petitioner, selectman or child-caring agency or institution, upon finding that cause for commitment no longer exists, revoke such commitment, and thereupon such guardianship and all control of said commissioner over such child shall terminate. Any such court may further revoke the commitment of any child upon application by the commissioner or by the child concerned and after reasonable notice to the parties affected upon a finding that such revocation will be for the best interest and welfare of such child. No hearing shall be held for such reopening and termination of commitment or transfer of commitment more often than once in six months, except upon the application of said commissioner."
[5] See, e.g., General Statutes §§ 17-320, 45-20, 46-1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2630219/ | 231 P.3d 1191 (2010)
235 Or. App. 380
STATE
v.
NELSON.
A138711 (Control), A138712.
Court of Appeals of Oregon.
May 19, 2010.
Affirmed without opinion. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267250/ | 147 N.J. Super. 9 (1977)
370 A.2d 511
THE TOWNSHIP OF EDISON, IN THE COUNTY OF MIDDLE-SEX, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY L. MEZZACCA, DOMINICK SEMENZA, PETER WHITE, BRUCE DANCSECS, GLENN H. HANSEN, ARTHUR JENSEN, FRED GALATI, DONALD MERKER AND JOHN CANAVERA, DEFENDANTS-APPELLANTS.
Superior Court of New Jersey, Appellate Division.
Argued December 20, 1976.
Decided January 31, 1977.
*11 Before Judges BISCHOFF, MORGAN and E. GAULKIN.
Mr. Anthony L. Mezzacca argued the cause for appellants.
No brief filed on behalf of respondent.
The opinion of the court was delivered by MORGAN, J.A.D.
This appeal requires us to determine the scope of a municipality's obligation, imposed by N.J.S.A. 40A:14-155, to provide officers of its police force "with necessary means for the defense" of "any action or legal proceedings arising out of or incidental to the performance of" their duties.
*12 The issue arose when one Frank Stankiewicz commenced action in the United States District Court alleging that eight patrolmen of the Township of Edison (township) deprived him of his civil rights by unlawfully arresting, detaining and assaulting him. The township was also made a party defendant on allegations that it was responsible under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., for the acts of these officers and for its negligent failure to properly select, train and supervise them.
Subsequent to the filing of the federal suit defendant officers retained Anthony L. Mezzacca to represent them in connection therewith. Mezzacca sent a letter to the township advising it that he had been retained by the eight officers, and requesting a retainer of $8,000, $1,000 for each officer. Following the receipt of this letter the township sought a declaratory judgment with respect to its officers' right to choose their own counsel at the township's expense. More specifically, the township demanded judgment declaring that the obligation imposed by N.J.S.A. 40A:14-155 is satisfied by providing the services of its attorney in defense of the police officers or, when his services would be inappropriate, by the township's retaining outside counsel by agreement with the municipality as to the services to be provided and the cost thereof.
The trial judge determined, in substance, that the township's contentions were correct. Defendants' insistence that N.J.S.A. 40A:14-155 gave them the right to counsel of their own choosing at municipal expense was deemed to be without merit. Under the given circumstances, however, representation of defendants by the township attorney was held inappropriate because of a potential for a conflict of interest on his part. Instead, the township was ordered to designate outside counsel to represent defendants in the federal court suit, and such selected counsel would be solely obligated to the defendants and not subject to the township's control. The trial judge adjudged that the retention of Anthony Mezzacca by the eight police officers without the consent *13 of the township could not be at public expenses, although defendants were free to retain him at their own expense. Defendants appeal.
N.J.S.A. 40A:14-155 provides:
Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in a criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.
No statutory language, legislative history or reported opinion explains what shall be deemed compliance with the key words "shall provide said member or officer with necessary means for the defense of such action or proceeding."
Cognate enactments dealing with governmental obligations to provide for the defense of their employees define the obligation in varying terms and give little help in solving the problem before us. Municipal firemen, sued in connection with their employment, are entitled to "counsel and costs incidental to such representation for the defense of such action or proceeding." N.J.S.A. 40A:14-28. Teachers are entitled, under N.J.S.A. 18A:16-6, to have the "costs" of defending any civil action brought against them arising out of or in the course of the performance of their duties, "together with costs of appeal," defrayed by the board of education; in connection with this obligation, boards of education are expressly empowered to maintain insurance to cover these costs. With respect to a favorably terminated criminal action instituted against a teacher, "the board of education shall reimburse him for the cost of defending such proceeding, including reasonable counsel fees and expenses of *14 the original hearing or trial and all appeals." N.J.S.A. 18A:16-6.1.[1]
When a statute speaks in term of reimbursement, it focuses on costs already incurred and contemplates governmental liability for expenditures, reasonable in amount, for services rendered by counsel of the employee's own choice. In the enactment here under consideration, but in a portion not involved in this appeal, it is provided that a public officer against whom disciplinary or criminal proceedings are instituted by the municipality "shall be reimbursed for the expense of his defense" if he prevails. Obviously, this would include the reasonable fees of counsel selected by the officer, for the municipality could have no say in the choice of counsel to defend against charges made by it.
However, in dealing with the defense of actions other than those initiated by the municipality, the statute does not speak of reimbursement; it requires the municipality "[to] provide said * * * officer with necessary means for the defense * * *." We conclude that this means that the municipality must provide competent counsel, its own or outside counsel, or it may approve counsel requested by the officer, but the employee does not have the absolute right to counsel of his own choosing at municipal expense. Were this not so, there would have been no need to distinguish between the right to reimbursement provided for in the last sentence of N.J.S.A. 40A:14-155 and the portion relevant to the present appeal; both obligations could easily have been couched in terms of reimbursement. Instead, the Legislature provided for reimbursement only where the municipality's obligation was conditional on the outcome and arose after the fact; no right of reimbursement was provided for where, as here, the obligation to provide for the defense *15 arose at the inception of the proceeding against the officer and was independent of the outcome of the proceeding.
We, therefore, conclude that the municipality's obligation under N.J.S.A. 40A:14-155 does not require it to pay counsel chosen by a police officer without the prior agreement of the municipality to do so. The municipality's obligation under this enactment can be met in several ways, as long as the means chosen fulfills the statutory purpose of providing officers with a defense at municipal expense. It can proffer the services of the municipal attorney when that attorney can function in that capacity free from potential conflicts of interest. When he cannot, or in any event, the municipality can proffer the services of an outside attorney who, when selected, would owe exclusive allegiance to the officer free from municipal control. Or, it can come to an agreement with counsel of the officer's choosing as to services to be rendered and the costs thereof. In any of these methods of complying with the statutory mandate, the officer will be provided with an attorney, admitted in this State, of reasonable competence, at municipal expense and the statutory goal will have been achieved.
We, therefore, agree with the trial judge that the municipality's obligation under N.J.S.A. 40A:14-155 cannot be defined simply as an obligation to pay reasonable fees to an attorney chosen by the police officer. Such a definition would be at once too simple and too difficult. The term "reasonable fee" does not admit of specificity; it generally refers to a range, sometimes broad, within which a fee will be regarded as reasonable. It varies from attorney to attorney and with his experience and standing at the bar. In re Quinn, 25 N.J. 284, 289 (1957). Although obligated to provide for an officer's defense, the municipality should have some control over costs, and at least be in a position to know in advance what those costs will be. See State v. Horton, 34 N.J. 518, 534 (1961). It cannot do this if required to accept the officer's choice of attorney at his or a court's assessment of a reasonable fee for his services.
*16 We see nothing unusual or untoward in requiring a police officer to accept representation by competent counsel not chosen by him. Criminal matters are routinely handled in New Jersey and elsewhere by assignment of counsel to an accused or by assignment of a public defender to handle the defense. State v. Rush, 46 N.J. 399, 405-06 (1966). Civil litigation is frequently defended by attorneys retained by insurance companies. In both civil and criminal matters selected counsel owes sole allegiance to his client although paid by another, and (except where a conflict of interest appears and there the issue is dealt with separately, see Burd v. Sussex Mutual Ins. Co., 56 N.J. 383, 391-94 (1970)), this arrangement has worked reasonably well.
Of course, nothing said herein should be construed to preclude an officer from selecting his own attorney either to assume sole control of the defense or to cooperate with the attorney selected by the municipality; in either case, however, the officer's selection of counsel, without municipal concurrence, carries with it his own personal obligation to pay his fees.
Applying these principles to this case, we conclude that defendant officers have no right to be represented by Mezzacca at the township's expense without the express agreement of the township. They are free to retain Mezzacca in lieu of the attorney selected by the township, but at their expense. They can retain Mezzacca to work with the township attorney or the attorney selected by him, but again they will have to pay him.
Notwithstanding this ruling, defendant officers do have a right to object to the appointment of an attorney perceived by them to be in a position of a conflict of interest. During the course of the trial court hearing it was suggested that the township's attorney may be thus disqualified because of the possibility of a later disciplinary proceeding by the township in the event of an unfavorable termination of the federal litigation. Defendant officers may thus be warranted in questioning the ability of the township's *17 attorney to accord them full loyalty in connection with their defense. The trial judge took that view and we have no quarrel with it. Accordingly, the trial judge held that the township's obligation in this case would not be fulfilled by appointment of its attorney to represent the defendants. Instead, it ordered the township to retain outside counsel who would, when selected, owe sole allegiance to the officers. We concur in that ruling.
The other issues resolved by the trial judge have not been questioned on this appeal and we therefore do not comment thereon.
Affirmed.
NOTES
[1] The predecessor to N.J.S.A. 40A:14-155 required a municipality to "provide all necessary legal aid necessary for the defense of such suit or other legal proceeding." N.J.S.A. 40:11-19. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267267/ | 117 N.H. 136 (1977)
POST ROAD REALTY, INC.
v.
ZEE-BAR, INC.
No. 7508
Supreme Court of New Hampshire.
February 28, 1977.
*137 Deachman & Gruber and James A. Shuchman, of Plymouth (Mr. Shuchman orally) for the plaintiff.
Leo R. Lesieur, of Nashua, by brief and orally, for the defendant.
LAMPRON, J.
Action by plaintiff to recover the balance of a real estate brokerage commission of $1,830 resulting from the sale of defendant's property. Trial was held before a Master (William E. Lovejoy, Esq.) who recommended that a verdict be entered for plaintiff in the amount of $830. The Trial Court (Johnson, J.) approved the master's report, and a decree in accordance with the report was ordered. Defendant's exceptions to the denial of its motions for a nonsuit and to set aside the verdict were reserved and transferred.
Defendant's property in Franconia Village was sold to a buyer procured by plaintiff for a total price of $30,500. Plaintiff claims to be owed a six percent commission, amounting to $1,830. Plaintiff received from defendant a check in the amount of $1,000, the amount defendant alleges to be the agreed upon commission. On the face of the check defendant had written: "CommissionYellow Building in Franconia Village. Full payment without recourse." We hold that the master properly found that a commission of six percent was agreed to and that defendant's $1,000 check did not constitute an accord and satisfaction of the $1,830 commission due.
Defendant's first argument is that the master erred in finding that there was no agreement for a commission of less than six percent and that plaintiff was entitled to a six percent commission. At trial, conflicting testimony was introduced as to the amount of the real estate commission the parties had agreed upon in the event plaintiff effected a sale of defendant's property.
*138 There was evidence tending to show that the agreement between the parties was for a six percent commission, but that this arrangement was contingent on defendant's receiving a net figure of $29,500; otherwise, the commission was to be $1,000. There was also evidence tending to show that the agreement between plaintiff and defendant was for a six percent commission with no net figure condition and that six percent was a standard commission for this type of service.
[1] The only question on appeal relative to a question of fact such as this is whether a reasonable person could find as the master did. New England Tel. & Tel. Co. v. Mitchell, 114 N.H. 478, 480, 322 A.2d 613, 615 (1974); Weeks v. Morin, 85 N.H. 9, 12, 153 A. 471, 472 (1931). We hold that the master's finding of fact that a six percent commission was agreed upon is supported by the evidence of record.
Plaintiff caused defendant's check to be certified by the bank on which it was drawn within three days of its receipt of it, but did not cash it. Approximately a month prior to receiving the check, plaintiff had sent a letter to defendant indicating that plaintiff expected a six percent commission if defendant should sell the Franconia property to the buyer procured by plaintiff. Within nine days of receipt of the check, plaintiff instituted the action from which this appeal was taken. Defendant argues that plaintiff's act of having the $1,000 check from defendant certified either constituted an acceptance of the terms on which the check was remitted or estopped plaintiff to deny that an accord and satisfaction had been established.
[2, 3] The check was clearly marked as an offer of full payment of the sales commission. However, in order to establish an accord and satisfaction, it is necessary that plaintiff have accepted, or agreed to accept, the satisfaction proposed by defendant. 15 S. Williston, Contracts § 1838 (Jaeger ed. 1972); see Hackett v. Railroad, 95 N.H. 511, 514, 67 A.2d 340, 341 (1949). The rule in New Hampshire is that the question of whether accord and satisfaction has been established is a question of fact. Kramas v. Beattie, 107 N.H. 321, 324, 221 A.2d 236, 237 (1966); Corey Steeplejacks Co. v. Cray, 106 N.H. 126, 130, 206 A.2d 617, 620 (1965); C. & R. Construction Co. v. Manchester, 89 N.H. 506, 508, 1 A.2d 922, 923 (1938); Frye v. Hubbell, 74 N.H. 358, 68 A. 325 (1907); see 15 S. Williston, Contracts § 1854, at 543 (Jaeger ed. 1972). *139 The burden was on defendant to prove an accord and satisfaction by establishing either an express agreement or an estoppel in fact. Kramas v. Beattie, 107 N.H. at 324, 221 A.2d at 238; C. & R. Construction Co. v. Manchester, 89 N.H. at 508, 1 A.2d at 923; 6 A. Corbin, Contracts § 1280 (1962).
[4] Defendant argues that RSA 382-A:3-411(1) which provides in part: "Certification of a check is acceptance" governs this case, and that certification of the check by the bank constituted acceptance by plaintiff of the conditions on which the check was remitted. However, this court has construed the above provision to mean that "[c]ertification of a check is acceptance by the drawee." Perry v. West, 110 N.H. 351, 354, 266 A.2d 849, 852 (1970); see RSA 382-A:3-410(1). This section does not apply to plaintiff as payee of the check. Obtaining the drawee bank's certification of the check constituted less of a gesture of acceptance than cashing the check would have been, and cashing of the check in these circumstances would not alone have established an accord and satisfaction. See Kramas v. Beattie, 107 N.H. 321, 221 A.2d 236 (1966); Corey Steeplejacks Co. v. Cray, 106 N.H. 126, 206 A.2d 617 (1965); Pike v. Buzzell, 76 N.H. 120, 79 A. 992 (1911).
[5] The facts in this case are also distinguishable from those in C. & R. Construction Co. v. Manchester, 89 N.H. 506, 1 A.2d 922 (1938), upon which defendant relies to support his claim of estoppel. In that case, the court held that "the payee of the check is estopped to deny the accord and satisfaction when he fails to do what the ordinary man would do to notify the drawer of non-acceptance of the conditions on which the check is tendered." Id. at 508, 1 A.2d at 923. Plaintiff initiated this action within nine days of receipt of the check. This was neither an unreasonable means of notification of nonacceptance nor an unreasonable delay in doing so.
It was the master's finding that plaintiff "did not in any way intend to or accept" defendant's check as payment in full of plaintiff's claim and the verdict for the plaintiff constituted a finding that plaintiff was not estopped to deny accord and satisfaction. See Ransmeier v. Time Share Corp., 115 N.H. 300, 301, 338 A.2d 550, 551 (1975); Davis v. American Plastics, 108 N.H. 454, 455, 237 A.2d 688, 690 (1968). The master's findings were supported by the evidence and must therefore be upheld. New England Tel. & Tel. Co. v. Mitchell, 114 N.H. 478, 480, 322 A.2d 613, 615 (1974); see *140 Corey Steeplejacks Co. v. Cray, 106 N.H. 126, 130, 206 A.2d 617, 620 (1965).
Judgment on the verdict.
DOUGLAS, J., did not sit; the others concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267278/ | 370 A.2d 670 (1977)
Elmer M. HIGGINS, Jr.
v.
Ingeborg HIGGINS.
Supreme Judicial Court of Maine.
March 7, 1977.
*671 James H. Dineen, Kittery, for plaintiff.
Bennett, Kelly & Zimmerman, P. A. by Alton C. Stevens, John N. Kelly, Peter J. DeTroy, III, Portland, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE,[*] POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
DUFRESNE, Chief Justice.
The bonds of matrimony between the plaintiff husband, Elmer M. Higgins, Jr., and the defendant wife, Ingeborg Higgins, were severed by the Judge of the Tenth District Court, Division of Southern York, on the husband's complaint, the judgment of divorce issuing on August 20, 1974. When her appeal to the Superior Court was denied on November 7, 1974, the wife appealed to this Court, raising for our consideration the single issue: whether it was reversible error for the District Court Judge to deny her request for an electronic record of the proceedings in the District Court pursuant to Rule 76, D.C.C.R.[1] We deny her appeal.
*672 The issue arose in the following sequence of events. On August 16, 1974, at approximately 11:30 a. m., counsel for the defendant wife communicated with the Chief Clerk of the Tenth District Court, Division of Southern York in which the divorce complaint against Mrs. Higgins was pending to advise her that electronic recording of the divorce proceeding was desired. Shortly before the hearing commenced, a formal request to that effect was made to the Court. In his findings of fact, the Judge explained his denial of the request in the following language:
"The request was denied and [the] attorney [for the defendant] was informed that the Court required 24 hour notice to that effect. This practice is not unusual in other courts. The Court also indicated its willingness to continue the matter to a later date. [The attorney for the defendant] indicated that since the Defendant and a witness were to return to Germany it was impractical to continue the matter.
"Mrs. Patricia Beatty was in the Court as Chief Clerk of District Court, District Ten, Division of Southern York, on that date.
"Mrs. Patricia Beatty is competent to operate the electronic recording equipment which was installed in said District Court.
"Mrs. Patricia Beatty, although present, was not available to operate said equipment on that date, in that the Clerk's office was operating without the benefit of full clerical staff.
"That the use of Mrs. Patricia Beatty as an operator of the electronic device would have left the Clerk's office during a regular court day with the services of one full time clerk as opposed to three."
The defendant contends that she had an absolute right to an electronic recording of the divorce proceedings at that time and place as she had requested and that the denial thereof was reversible error.
We note, however, that the Rules do provide for a record on appeal through means other than the transcript of the proceedings made from electronic sound recording equipment.
Rule 75(c), D.C.C.R. provides in part as follows:
"In any case in which electronic recording would be routine or has been *673 timely requested under Rule 76(a) of these rules, if for reasons beyond the control of any party, no recording, or no transcript thereof, was made, or is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a transcript. . . ."
Rule 75(d), D.C.C.R. permits a record based on agreed statement of the parties:
"When the questions presented by an appeal to the Superior Court can be determined without an examination of all the pleadings, evidence, and proceedings in the court below, the parties may prepare and sign a statement of the case showing how the questions arose and were decided and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the questions by the Superior Court. . . ."
No attempt appears to have been made to show, nor is there any evidence demonstrating, that the defendant could not have presented to the Superior Court and ultimately to this Court on appeal the substantive issue of the propriety of the Judge's divorce decree in favor of her husband, if she had, pursuant to Rule 75(c), D.C.C.R., prepared for use a statement of the evidence, reconstructed from memory, instead of a transcript and submitted the same for settlement and approval of the District Court Judge.
We do agree with the defendant Rule 76(a), D.C.C.R., in providing that "[a]ny proceedings not routinely recorded shall be recorded at the request of any party in such proceedings" (emphasis added), is mandatory on the District Court. It cannot be arbitrarily ignored. To this extent, we concur with the Advisory Committee's note of January 18, 1974 which states:
"Subdivision (a) gives the Chief Judge leeway either to allow recording on a case-by-case basis where requested by the parties or the court, or to provide by regulation for routine recording in all cases or certain types of cases. In any case where recording is not routine, the parties have an absolute right to a recording upon request." (Emphasis supplied) Maine Civil Practice, Field, McKusick and Wroth, (1974 Supp.) p. 125.
It is true that the purpose of the rule is "to encourage use of the recording and transcript procedure and to eliminate the administrative burdens involved in the adversary formulation of the statement, except where the statement is truly necessary." Id. at page 121.
The instant record disproves arbitrariness on the part of the District Court Judge. The defendant's rejection of a continuance of the hearing to a date when her request for an electronic sound recording of the divorce proceeding could be met and her full participation in the hearing without further protest was a strategic acceptance, then and there, of the secondary means of appellate procedure provided by the rules, should an appeal become necessary. Whatever disadvantage may have accrued to the defendant by reason of the absence of electronic sound recording of the proceeding necessitating the preparation of a record in the alternative form stems from her deliberate insistence that the hearing proceed forthwith.
While a party has a right to an electronic recording of the proceeding on request, that right may be subject to adjustment as to time or place depending upon the exigent circumstances existing at the time of the request. An individual's right must yield to practical considerations arising out of every day operation of the court system.
Reasonable delays must of necessity be anticipated for untoward causes due to limitations in court facilities and personnel. The rule does not guarantee availability of electronic recording equipment and qualified *674 operators of such equipment at any moment's notice.
Subsection (c) of Rule 76, D.C.C.R. provides in part:
"At all times, the operation of the recording equipment shall be subject to the direction and order of the trial judge, provided that the right of any party to have any proceedings recorded shall not thereby be defeated."
We believe that this provision empowers the Court not only with supervisory authority over the mechanical operation of the recording equipment, but further allows the judge to establish an accommodation by balancing the parties' rights to a recording as against particular exigencies which from time to time may arise.
Notwithstanding the rule provisions that the Chief Judge shall designate as authorized operators of electronic recording equipment a sufficient number of court personnel in each District to assure that an authorized operator will be available whenever and wherever the court is in session in that District and shall establish standards and procedures for courtroom operation of electronic recording equipment that will assure a complete and accurate oral recording of all proceedings, nevertheless, it is obvious that, at times, unforeseen eventualities will occur which will prevent strict compliance with the rule.
When required to protect a party's right to electronic sound recording of the proceedings, a continuance of the matter to a time when such recording will be available is proper judicial action, provided that the granting thereof is guided by judicial discretion. See Rule 40(b), D.C.C.R.
When particular circumstances warrant it and such action does not have the effect of defeating a party's right to an electronic recording, the granting of a continuance will not be held to constitute an abuse of discretion.
The findings of fact in the instant case indicate that the continuance was refused as impractical, since the defendant and her witness were to return to Germany. The record is devoid of any evidence respecting the nature and degree of impracticality to be caused by the proffered continuance. A party attacking the propriety of the exercise of discretionary power has an obligation to demonstrate that the court's action constituted an abuse thereof. Chenell v. Westbrook College, 1974, Me., 324 A.2d 735.
A careful review of this record causes us to conclude the defendant has not sustained the burden resting upon her to demonstrate that the action of the District Court Judge in proceeding to a hearing of the divorce complaint without electronic sound recording contrary to her request constituted an abuse of discretion, or that it was error of law. When a decree or ruling rests on the exercise of judicial discretion the court's decision may not be successfully reviewed unless an abuse of discretion is shown or there is error of law. In re Wagner's Petition, 1959, 155 Me. 257, 265, 153 A.2d 619, 624; Augusta Water District v. Augusta Water Company, 1905, 100 Me. 268 at 270, 61 A. 176.
Without an evidentiary record demonstrating that the suggested impracticality of the defendant's acceptance of the proffered continuance was such as to make it manifest that a plain and unmistakable injustice to the defendant would result from the court's action, this Court has nothing by which to measure the propriety of the findings of fact upon which the lower Court's decision rested. See McAvoy v. Rush, 1969, 248 A.2d 764; Young v. Carignan, 1957, 152 Me. 332, 337, 129 A.2d 216, 218.
The entry will be
Appeal denied.
All Justices concurring.
NOTES
[*] Weatherbee, J. sat at argument and participated in consultation, but died before the opinion was adopted.
[1] Rule 76 of the District Court Civil Rules in pertinent part provides as follows:
ELECTRONIC SOUND RECORDING
(a) Recording of Proceedings. The Chief Judge of the District Court shall provide for the electronic sound recording of proceedings in the District Court by the use of recording equipment to be procured and installed in such manner as the Chief Judge may direct. The Chief Judge may by administrative order in his discretion direct that all proceedings, or certain proceedings, be recorded routinely without special request or order. Any proceedings not routinely recorded shall be recorded at the request of any party in such proceedings or by order of the District Court judge on his own motion. Nothing in this rule shall prevent any party or counsel from recording or transcribing such proceedings independently at his own expense, provided, however, that no recording or transcription therefrom nor any part thereof, made other than under the authority granted to the Chief Judge by this rule shall be incorporated in or substituted for any portion of a transcript included in a record on appeal without the consent of all parties to the proceedings and the approval of the District Court judge.
(b) Personnel.
(1) Operators. The Chief Judge of the District Court shall designate as authorized operators of electronic recording equipment a sufficient number of court personnel in each District to assure that an authorized operator will be available whenever and wherever the court is in session in that District. It shall be the responsibility of the Chief Judge to employ and train personnel in the use of electronic equipment.
(2) Transcribers. The Chief Judge shall appoint a sufficient number of transcribers of electronic recordings to assure that all transcription of such recordings required under this rule is accomplished without unreasonable delay. All persons appointed as transcribers shall be sworn to the faithful discharge of their duties.
(c) Courtroom Operation. The Chief Judge of the District Court shall establish standards and procedures for courtroom operation of electronic recording equipment that will assure a complete and accurate oral recording of all proceedings, as well as a written record of all information necessary for an accurate transcription. At all times, the operation of the recording equipment shall be subject to the direction and order of the trial judge, provided that the right of any party to have any proceedings recorded shall not thereby be defeated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385817/ | 344 S.E.2d 578 (1986)
ROANOKE CHOWAN REGIONAL HOUSING AUTHORITY, Plaintiff,
v.
Malachi and Carrie VAUGHAN, Defendants.
No. 861DC11.
Court of Appeals of North Carolina.
June 17, 1986.
*579 Legal Services of the Coastal Plains by Marcus W. Williams, Ahoskie, for defendants-appellants.
JOHNSON, Judge.
The evidence presented tended to show the following: defendants, Carrie Vaughan and Malachi Vaughan, three daughters and a granddaughter were certified as eligible for public housing. On 1 June 1982, they moved into public housing administered by *580 plaintiff. Because neither Carrie nor Malachi Vaughan can read or write, Ms. Betty Jane Vaughan, a daughter and tenant at the time, signed the lease agreement. The Vaughans have resided continuously in the three-bedroom apartment located at 622 South Drive in Murfreesboro since June 1982.
On 7 February 1985, Ms. Marilyn C. Powell, Food Stamp Supervisor for Hertford County Social Services, received a January 1985 food stamp report from the Vaughans, which contained an application for food stamps for twelve people. Ms. Powell reported this information to plaintiff. Mrs. Rosaline Harris, Eligibility Specialist and fraud worker for the Department of Social Services of Hertford County, investigated and determined that ten or twelve persons lived at the Vaughan residence.
On 20 February 1985, Mr. Leroy Hill, then Acting Executive Director of the Roanoke Chowan Regional Housing Authority, met with defendants and informed them that, based upon the information he had received from the Department of Social Services, he would take action to evict them. He did not apprise defendants of their right to request a grievance hearing.
In a letter to defendants dated 21 February 1985 and entitled "TERMINATION NOTICE," Leroy Hill gave defendants notice that their lease would be terminated as of 23 March 1985, showing as grounds for the termination "Section 7 of Lease Agreement[:] by allowing individuals not named on the lease to reside in your apartment." The letter concluded as follows:
You have the right to defend this action in Court if any Court action is brought.
You have ten (10) days within which to discuss the proposed termination of tenancy with the Housing Authority.
The letter did not inform defendants of their right to a grievance hearing.
The defendants each testified that they thought the lease allowed guests. Carrie Vaughan testified that in mid-January 1985, defendants allowed their daughter and their grandchildren to visit with them for two weeks. Defendant Carrie Vaughan testified that she did not intend to receive anything of value for their accomodation, that she did not herself apply or authorize her visiting daughter to apply for additional food stamps, that she tried to return the increased allotment of food stamps and refused to apply for food stamps, even for those under the prior allotment, in all subsequent months since the increased allotment was received in March 1985.
In defendants' first Assignment of Error defendants contend that plaintiff's fatal noncompliance with the termination of tenancy procedures precluded the court from having subject matter jurisdiction and, therefore, their motion to dismiss at the outset of the trial was improvidently denied. We disagree.
We agree with defendants that special legal safeguards articulated in the Housing and Urban Development (HUD) regulations must be adhered to before a tenant of a Public Housing Authority (PHA) can be evicted. Those regulations governing termination of a lease provide, in pertinent part, as follows:
(1) The lease shall set forth the procedures to be followed by the PHA and by the tenant in terminating the lease which shall provide:
(1) That the PHA shall not terminate or refuse to renew the lease other than for serious or repeated violation of material terms of the lease...or for other good cause.
(2) That the PHA shall give written notice of termination of the lease....
(3) That the notice of termination to the tenant shall state reasons for the termination, shall inform the tenant of his right to make such reply as he may wish and of his right to request a hearing in accordance with the PHA's grievance procedure.
24 C.F.R. sec. 966.4(1) (1985). "Grievance" is defined as "any dispute which a tenant may have with respect to PHA action or failure to act in accordance with the individual tenant's lease or PHA regulations, which adversely affect the individual tenant's *581 rights, duties, welfare or status." 24 C.F.R. sec. 966.53(a).
Section 12 of defendants' Dwelling Lease states as follows:
12. TERMINATION OF LEASE.
....
This lease may be terminated by the Management at any time by giving written notice as set forth in Section 11. Such notice shall be given in accordance with the following.
....
Such notice may only be given for good cause, such as non-payment of rent, serious or repeated violations of the material terms of the lease. Such notice shall state the reasons for the termination, shall inform the tenant of his/her right to make such a reply as he/she may wish and his/her right to request a hearing in accordance with the Grievance Procedure. At the time of lease termination, all charges shall become due and collectible.
We hold that the above provision of the lease is in strict compliance with the above-stated HUD regulation governing termination of a lease.
Defendants contend that, even though the lease contains a precise statement of the necessary termination procedure as required by the HUD regulations, notice of termination was still fatally defective because the written notice defendants received failed to satisfy Section 12 of the Dwelling Lease. Specifically, defendants contend that the 21 February 1985 letter of notice of termination contained two defects: (1) the grounds asserted as the basis for termination incorrectly cite Section 7 of the Dwelling Lease and (2) a statement informing defendants of their right to request a grievance hearing was completely omitted.
Although the letter of notice of termination incorrectly cited Section 7 of the lease, the specific grounds for termination are also stated, to wit: "by allowing individuals not named on the lease to reside in your apartment." This statement controls and is sufficient to put defendants on notice regarding the specific lease provision deemed to have been violated.
The Dwelling Lease, Section 12, does provide that the mandatory written notice of termination "shall inform the tenant of his/her right to ... request a hearing in accordance with the Grievance Procedure." Notice is a due process consideration, required under the fourteenth amendment to the United States Constitution and art. 1, sec. 19 of the state constitution. City of Randleman v. Hinshaw, 267 N.C. 136, 140, 147 S.E.2d 902, 905 (1966). A tenant in a publicly subsidized housing project is entitled to due process protection. Swann v. Gastonia Housing Authority, 675 F.2d 1342 (4th Cir.1982); Caulder v. Durham Housing Authority, 433 F.2d 998 (4th Cir.1970). Before an eviction determination is administratively made, due process requires, succinctly stated:
(1) timely and adequate notice detailing the reasons for a proposed termination,
(2) an opportunity on the part of the tenant to confront and cross-examine adverse witnesses,
(3) the right of a tenant to be represented by counsel, provided by him to delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination and generally to safeguard his interests,
(4) a decision, based on evidence adduced at the hearing, in which the reasons for decision and the evidence relied on are set forth, and
(5) an impartial decision maker.
Caulder, supra, at 1004, citing Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
An eviction proceeding in a North Carolina state court pursuant to the North Carolina eviction statute "will provide the tenant with all the process that is due." Swann, supra, at 1348. A hearing before the housing agency therefore is not constitutionally required. Id. Defendants cannot claim injury resulting from the omission of a statement in the letter of notice of termination informing defendants of their *582 right to request a grievance hearing when they received the benefit of a full jury trial in state court. We hold no reversible error occurred.
Due process expresses the requirement of fundamental fairness. Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). Our holding does not offend due process when due process is couched in terms of fundamental fairness. These tenants had notice of their right to air their grievance pursuant to the Grievance Procedure as stated in the Dwelling Lease, section 13, which was signed by defendants' daughter who, unlike defendants, could read and write. Further, the project is required to post the Grievance Procedure in the project's office at all times, in its entirety. Defendants had notice of their right to request a grievance hearing. Further, defendants were duly notified of the state eviction proceeding. Defendants had adequate time to obtain counsel to fully litigate whether good cause existed to terminate their lease. A decision was reached, based on the evidence presented before a jury of twelve impartial decision makers. Defendants' constitutional right to due process was well protected. The injury claimed by defendants would be more appropriately addressed as a breach of the Dwelling Lease, wherein plaintiff specifically contracted to provide written notice in compliance with Section 12. Defendants' first Assignment of Error is overruled.
In defendants' second Assignment of Error, they contend the court erred in denying their motions for a directed verdict and judgment notwithstanding the verdict. Specifically, defendants contend that there was no evidence sufficient to establish that good cause existed to warrant a termination of tenancy. Defendants' argument is without merit.
A motion for a directed verdict presents the question of law whether the plaintiff's evidence was sufficient for submission to the jury. Stewart v. Nation-Wide Check Corp., 279 N.C. 278, 283, 182 S.E.2d 410, 413 (1971). The propriety of granting a motion for judgment notwithstanding the verdict is determined by the same considerations as that of a motion for a directed verdict. Investment Properties of Asheville, Inc. v. Allen, 281 N.C. 174, 184, 188 S.E.2d 441, 447 (1972), vacated on other grounds on rehearing, 283 N.C. 277, 196 S.E.2d 262 (1973). The trial judge must determine whether the evidence was sufficient, taken in the light most favorable to the plaintiff and giving it the benefit of every reasonable inference which can be drawn therefrom. Sawyer v. Shackleford, 8 N.C.App. 631, 636, 175 S.E.2d 305, 309 (1970).
We have carefully reviewed the evidence before the court. We find there was ample evidence from which one could reasonably infer that the members of defendants' family living in the apartment not listed in the Dwelling Lease were not guests or visitors, and that this constituted a breach of the lease agreement. Whether these family members were temporary guests as opposed to unauthorized persons residing with defendants was a question of fact properly to be decided by the jury. This Assignment of Error is overruled.
In defendants' last Assignment of Error they contend the court erred (1) by failing to rule on their objection at trial to plaintiff's closing argument and (2) by later refusing to poll the jury so that closing arguments could be reconstructed.
In defendants' brief they maintain that during plaintiff's closing argument they asserted a specific objection to plaintiff's attorney's statement that "the defendants were thieves, who had been caught and who should be evicted" (quoting from defendants' brief). They now claim unfair prejudice resulting from the court's refusal to rule or otherwise comment upon their objection.
On 26 November 1985, a hearing was conducted for the purpose of settling the record on appeal in accordance with Rule 11(c), N.C. Rules App. P. The court ordered what narrative of arguments and *583 evidence presented at trial was to be included in the record on appeal. This narrative of the transcript is devoid of a closing argument, or any objection thereto. Matters discussed in the brief outside the record will not be considered on appeal. Elliott v. Goss, 254 N.C. 508, 509, 119 S.E.2d 192, 193 (1961). This Court will not speculate as to matters outside the record. C.C.T. Equipment Co. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802 (1962).
At the 26 November 1985 hearing to settle the record on appeal, defendants moved the court to poll the jury for the purpose of reconstructing closing arguments. Defendants so moved the court because the recorded transcript of the August 1985 trial did not contain the closing arguments. We find no abuse of discretion in the court's failure to attempt to poll a jury that had been discharged. Defendants' third Assignment of Error is overruled.
No error.
WEBB and WHICHARD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385815/ | 288 S.C. 644 (1986)
344 S.E.2d 191
Mary Ann West WINGARD, Respondent-Appellant
v.
Robert Allen WINGARD, Appellant-Respondent.
0707
Court of Appeals of South Carolina.
Heard March 26, 1986.
Decided May 12, 1986.
*645 H. Ray Ham, West Columbia, for appellant-respondent.
Ann L. Furr of Furr & Delgado, Columbia, for respondent-appellant.
Heard March 26, 1986.
Decided May 12, 1986.
CURETON, Judge:
The family court granted Mary Ann West Wingard (West)[1] a divorce from Robert Allen Wingard (Wingard) on *646 the ground of adultery. Wingard appeals from portions of the order which address the distribution of marital property. West appeals from the lump-sum alimony award and the denial of attorney's fees and costs. We affirm in part and remand in part.
When the parties were married in 1971, West was a widow with four young children. She and her children owned their own home and were supported by social security benefits. West's social security benefits were terminated when she remarried.
Wingard, too, had been married before and he moved into West's home when they married. He wanted West to be a full-time homemaker. She complied and for six years was a full-time homemaker. Then for three years she worked part-time as an administrative assistant and during the final three years of the marriage she has worked full-time. Even though West worked outside of the home, she still performed necessary domestic chores e.g. cooking and cleaning. West's gross annual salary is Eleven Thousand Seven Hundred Dollars ($11,700.00); Wingard's is Thirty Thousand Two Hundred Four Dollars ($30,204.00).
For the first five years of the marriage West paid the house payment with the children's social security check. Wingard paid for utilities and food. Once West began to work outside of the home, all of her income and the children's social security benefits were used to support the household. Wingard made monthly contributions to the payment of household bills. However, a portion of his income was invested in stock offered by his employer, South Carolina Electric and Gas Company (SCE&G). All of the SCE&G stock was acquired during the marriage.
At trial the SCE&G payroll supervisor testified about Wingard's stock. He testified that although Wingard had 1,839 fully paid for shares, valued at $32,872.125, he had access to only 359 shares without a penalty. (If Wingard resigned from SCE&G or became deceased, he or his estate would have immediate access to all of the shares.) Some of the stock was financed entirely by his employer's contributions and as the shares matured, Wingard could transfer them into his retirement fund.
*647 The issues on appeal concern the equitable distribution of the marital estate, alimony, an alleged outstanding motion, costs and attorney's fees.
I.
Equitable Distribution
On appeal Wingard argues that the trial judge erred by not complying with Rule 27(C) of the Rules of Practice for the Family Court. This rule requires the trial judge to set out salient facts which support her decision. He specifically takes issue with West's being awarded both a fifty-percent (50%) interest in the marital property including a fifty percent (50%) interest in the SCE&G stock and with his not being credited with Three Thousand Six Hundred Dollars ($3,600.00) expended for West's automobile.
While the trial judge may have structured the order more systematically, we find that there are ample facts and data in the record which support the award to West. The order sets forth facts from which the trial judge could conclude that West had a homemaker's equity in the marital property i.e. she remained out of the work force for six years at her husband's request and she performed domestic duties throughout the twelve year marriage.
We have reviewed the record and after considering among other things, the parties' financial contributions to the marital estate, West's homemaker's equity and Wingard's fault, we conclude that the facts and circumstances of this case support an equal division of the marital property. See Shaluly v. Shaluly, 284 S.C. 71, 325 S.E. (2d) 66 (1985); Simmons v. Simmons, 275 S.C. 41, 267 S.E. (2d) 427 (1980).
However, we remand for determination the division of the SCE&G stock. The trial judge should determine the number of shares in Wingard's retirement fund which was financed solely by SCE&G contributions and exclude these shares from equitable distribution. See Johnson v. Johnson, 341 S.E. (2d) 811 (S.C. Ct. App. 1986); Smith v. Smith, 280 S.C. 257, 312 S.E. (2d) 560, 563-64 (Ct. App. 1984) (a pension plan funded by the employer is non-marital property). The trial judge should also determine the value of the remaining shares as of the date of separation and thereafter *648 determine what interest each party has in them. See Anderson v. Anderson, 282 S.C. 163, 318 S.E. (2d) 566, 567 (1984).
II.
Alimony
West argues that the trial court erred in awarding her Four Thousand Eight Hundred Dollars ($4,800.00) as lump-sum alimony. Wingard argues that West does not need any alimony because her earnings virtually meet her expenses.
We are persuaded by West's argument and unpersuaded by Wingard's Lump-sum alimony is appropriate upon a finding of special circumstances. Harris v. Harris, 279 S.C. 148, 303 S.E. (2d) 97, 100 (1983); Mills v. Millis, 282 S.C. 610, 320 S.E. (2d) 66, 67 (Ct. App. 1984). Here, the trial judge erred in awarding lump-sum alimony without a finding of special circumstances justifying the award. If on remand the trial judge is unable to find special circumstances justifying a lump-sum award, he should then make appropriate findings in accordance with the factors to be considered in making a periodic alimony award set forth in Lide v. Lide, 277 S.C. 155, 283 S.E. (2d) 832 (1981).
III.
Outstanding Motion
On appeal Wingard argues that the trial judge erred by not ruling on a motion to amend a written pendente lite order to conform with a July 13, 1983 order issued from the bench at the close of a pendente lite hearing. At the pendente lite hearing the judge said that he was requiring Wingard to pay the mortgage payments for the marital home for three months. The written order dated July 27, 1983 required Wingard to "pay directly to [West] as alimony, the sum of Four Hundred Seventy-four Dollars and Ten Cents ($474.10) per month and she shall make mortgage payments ... until final hearing in this matter." (Emphasis added). Wingard claims that he has made four extra support payments which total One Thousand Six Hundred Fifty-five Dollars and Twelve Cents ($1,655.12)[2] and cites as error the trial judge's failure to rule on this matter.
This argument is without merit. There is no indication *649 that the family court judge who rendered the pendente lite order intended to award a lump-sum alimony award for only three months. Moreover, the written order described the Four Hundred Ninety-four Dollars and Ten Cents ($494.10) per month figure as alimony. The trial judge clearly rendered a decision on the alimony issue.
IV.
Attorney's Fees and Costs
West argues on appeal that the trial judge erred in not awarding her attorney's fees and costs. "She states that the breakdown of the marriage was caused by Wingard's behavior and that she has few assets from the marriage while [Wingard's] assets are great." The denial of attorney's fees is a matter within the sound discretion of the family court. Courie v. Courie, 341 S.E. (2d) 646 (S.C. Ct. App. 1986); Nelson v. Merritt, 281 S.C. 126, 131, 314 S.E. (2d) 840, 843 (Ct. App. 1984). The same equitable considerations which apply to attorney's fees also apply to costs. Nienow v. Nienow, 268 S.C. 161, 232 S.E. (2d) 504, 510 (1977). Here, the trial court adopted the agreement of the parties regarding the proceeds of sale of the marital home. West was thus provided with a source of funds to pay her attorney. Under these circumstances we cannot conclude that the trial judge abused her discretion.
In conclusion, the judgment below is affirmed except that the issues concerning alimony and the valuation and determination of the parties' interest in the SCE&G stock are remanded for resolution consistent with this decision.
Affirmed in part, remanded in part.
GOOLSBY, and SHAW, JJ., concur.
NOTES
[1] After the divorce decree Mary Ann West Wingard resumed using West as her surname.
[2] We cannot determine how this figure was reached. Wingard claims that he paid four extra mortgage payments. This amount should be One Thousand Nine Hundred Twenty-six Dollars and Forty Cents ($1,926.40) and not the One Thousand Six Hundred Fifty-five Dollars and Twelve Cents ($1,655.12) sought on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385813/ | 344 S.E.2d 389 (1986)
Leroy CUNNINGHAM
v.
COMMONWEALTH of Virginia
Record No. 0476-85.
Court of Appeals of Virginia.
May 20, 1986.
Joseph W. Kaestner (Bell & Kaestner, Richmond, on brief), for appellant.
Russell Williams, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.
Present: BENTON, DUFF and COLE, JJ.
*390 COLE, Judge.
This appeal raises two issues: (1) whether the prosecutor's persistence in questioning a witness after he had invoked his fifth amendment right against self-incrimination denied appellant a fair trial; and (2) whether the trial court erred by unfairly examining defense witnesses. Finding no error, we affirm.
Upon his trial by jury, the appellant, Leroy Cunningham ("Cunningham"), was convicted of robbery, malicious wounding and use of a firearm in the commission of a crime. He received sentences of seventeen years in the state penitentiary.
The Commonwealth's evidence showed that on April 12, 1984, Horace Monroe, the sixty-two year old victim, was walking home from the grocery store when he noticed a man leave the Baker Street School playground and position himself on the sidewalk ahead of him. Monroe stated that he watched the man carefully as he passed within two feet of him on the sidewalk because of his peculiar behavior. Immediately after passing the man, Monroe testified that he heard a gunshot from behind him. As he turned instinctively to look back, a second shot pierced his right eye and passed through his nose. Monroe fell to his knees, and although he was bleeding from his right eye, he testified that he could see clearly through his left eye. Monroe stated that he again observed the face of his assailant who was now within six inches of him searching for Monroe's wallet. After a brief struggle, Monroe surrendered his wallet, containing fifty-two dollars in cash, and his assailant fled on foot to meet two other men. All three men ran from the area. Monroe could not identify the two other individuals, but he described the man who shot him as an 18 year old black male, having a medium dark complexion and a thin mustache, and wearing a blue gym suit with white stripes down the arm and leg. He later identified Cunningham as his assailant from a photographic spread and testified at trial that there was no question in his mind that Cunningham was the perpetrator.
I.
The Commonwealth called as a witness Leroy "Weasel" Clements who, according to the Commonwealth's theory of the case, was one of the two individuals who fled the area with Cunningham following the shooting. Clements, although not charged with any crime in connection with the shooting, was represented by counsel. As his defense, Cunningham attempted to show that Clements was actually the gunman who shot Monroe. On advice of counsel, Clements answered five preliminary questions. He then invoked the fifth amendment and refused to answer the following questions propounded by the Commonwealth:
Were you out on Baker Street School playground on April 12, 1984?
Did you shoot Horace Monroe?
Isn't it true, sir, that you, in fact, saw the shooting of Horace Monroe?
Did you and James Rome and this man, were you all involved in that shooting?
Isn't it true that you and James Rome and this man were all together, and he said he was going to go over and rob the little old man coming over the bridge; isn't that true?
Didn't you and James Rome run off after this man was shot?
On cross-examination, Clements continued to refuse to answer any questions. Counsel for Cunningham asked the court to direct Clements to answer his questions, but the court declined to do so. Cunningham's counsel asked the following questions, to which Clements pled the fifth amendment:
Do you recall telling Douglas Cunningham that you were the man who shot Horace Monroe?
Mr. Clements, do you recall meeting with James Rome on the evening of April 12, the date of the robbery?
Do you recall telling James Rome at that time that you were the man who shot Horace Monroe?
Do you recall meeting with the defendant on the sidewalk and James Rome at that *391 time telling the defendant that you were the person who shot the old man?
Mr. Clements, if you were not involved in this, why would it incriminate you to tell this jury what you were doing and what you saw?
Cunningham contends that by continuing to question Clements after a fifth amendment privilege claim had been made, the prosecutor unfairly implanted his guilt in the minds of the jury, thereby prejudicing his defense. Cunningham contends that he was deprived of his constitutional right to confront the witness.
The fifth amendment does not provide a blanket right to refuse to answer any questions. Once a witness asserts his fifth amendment right, some investigative questioning must be allowed, for it is well settled that the "prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous." Namet v. United States, 373 U.S. 179, 188, 83 S. Ct. 1151, 1155, 10 L. Ed. 2d 278 (1963). By its language, the fifth amendment privilege pertains only to situations where an individual is compelled to become "a witness against himself." The Constitution of Virginia likewise confers a right to a witness to be free from being compelled "to give evidence against himself." Va. Const., art. I, § 8.
The question whether the privilege is properly invoked is one for the trial court. As stated by the Supreme Court in Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951):
The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, ... and to require him to answer if `it clearly appears to the court that he is mistaken.'
Id. at 486, 71 S.Ct. at 818 (citations omitted).
The Commonwealth's theory of the case was that Clements possessed nonprivileged information that could properly be used to corroborate its case. This theory was that Clements saw Cunningham shoot Monroe. The trial court acted correctly in allowing the prosecutor and Cunningham's counsel to attempt to elicit the nonprivileged information. In fact, it turned out that self-incrimination was not Clement's primary concern:
The Commonwealth: Isn't it true, sir, have you told me and your lawyer as well that the reason you are not testifying is because you are scared of his brother, not because you are afraid of incriminating yourself?
A: Yes.
Cunningham's counsel specifically requested during cross-examination that Clements be compelled to testify. The Commonwealth had already made the same request. At first the trial court refused, adding that it would consider later Clements' potential testimony in camera.
Upon completion of all the evidence the trial court invoked Code § 19.2-270, called Clements as a court witness, and ordered him to testify. Clements stated that Cunningham shot Monroe. Cunningham's counsel then conducted a vigorous and thorough cross-examination of Clements, unfettered by any claim of privilege. Cunningham's assertion that the trial court denied his right to effectively confront and cross-examine Clements is refuted by the record.
Code § 19.2-270 benefits both the witness-in-jeopardy and the accused by immunizing the witness. Benefit to the witness from use of immunity is manifest. The benefit to the accused lies in taking away the obstacle to confrontation posed by the witness' continued assertion of the fifth amendment privilege. A third, and equally important, benefit accrues to the truthfinding process. As the trial judge stated: "The reason behind this statute ... is obvious. There is a search for justice and we must have the truth." Since the error of which Cunningham complains only results where "inferences from a witness' refusal to answer added critical weight to *392 the prosecution's case in a form not subject to cross-examination," Namet, 373 U.S. at 187, 83 S.Ct. at 1155, any such infirmity at Cunningham's trial was cured by his extensive cross-examination pursuant to Code § 19.2-270. After Clements was compelled to testify under the grant of immunity, the "critical weight" came not from Clements' earlier invocation of privilege, but rather from his testimony that he had seen Cunningham shoot Monroe.
Immunization of the witness to protect Cunningham, Clements and the Commonwealth distinguishes the case at bar from all the cases on which Cunningham relies to support his prosecutorial misconduct contention. Cf. Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963); United States v. Mayes, 512 F.2d 637 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S. Ct. 2629, 45 L. Ed. 2d 670 (1975); United States v. Maloney, 262 F.2d 535 (2d Cir.1959); State v. Corrales, 138 Ariz. 583, 676 P.2d 615 (1983); People v. Berg, 59 N.Y.2d 294, 464 N.Y.S.2d 703, 451 N.E.2d 450 (1983); People v. Malphurs, 111 App. Div.2d 266, 489 N.Y.S.2d 102 (1985); West v. State, 74 Wis. 2d 390, 246 N.W.2d 675 (1976). Although no Virginia cases on point can be found, immunization has been held in other jurisdictions to cure any possible prejudice, because the defendant is enabled to cross-examine. See Annot., 19 A.L.R. 4th 368, 416-418 (1983).
In sum, Cunningham's confrontation rights and Clements' rights against self-incrimination were adequately protected by the trial court. In addition, Clements' important testimony, which corroborated the victim's eyewitness account, was put before the jury. Cunningham has shown no error.
II.
Cunningham claims that the trial court unfairly projected itself into the examination of the defense witnesses. A review of the record discloses a number of specific complaints.
Cunningham claims that the trial court prevented him from establishing why the witness, Linda Diane Cunningham, remembered the clothing he was wearing at the time of the crime and in so doing improperly commented upon the evidence.
Linda Cunningham, sister of appellant, testified that her brother came home on April 12, 1984, at about 6:00 p.m. and was wearing a red shirt and bluejeans. On cross-examination she was asked by the Commonwealth's Attorney how she remembered so clearly what he was wearing on April 12, 1984. She replied: "I was there and I remember what he was wearing." Later in the interrogation she stated again that "[t]he only reason I am sure I know what he was wearing on the 12th is because he came in the house and was talking to me." A third time, in response to the same question, she said: "[B]ecause he came in the house to talk to me on April 12 and I remember what he had on." On redirect examination Cunningham's counsel asked some leading questions indicating that there might be something significant about the 12th that would make her remember. The court sustained the objections to those leading questions, and stated that if the question was framed correctly he would permit it. We find nothing in the record to support the contention that the trial court improperly ruled upon the admissibility of the evidence or improperly commented upon the evidence.
Cunningham contends that the court prevented him from cross-examining the victim about the acuity of his vision after he testified that he wore reading glasses and that his identification of Cunningham was made when the assailant was close to him. Monroe testified that he wore reading glasses when he read, but at the time of the incident he was not wearing them. Cunningham's counsel asked one confusing, awkwardly worded compound question. Upon objection, the trial court properly sustained the objection to the question. Counsel asked no further questions on the subject, and he was not prevented by the trial court from pursuing the *393 matter further had he so desired. There is no merit to this argument.
Appellant cites a series of excerpts from the transcript and argues that the trial court questioned defense witnesses more frequently than witnesses for the Commonwealth. He concludes that this pattern showed bias and prejudice on the part of the trial judge against him.
The conduct of a trial is committed to the sound discretion of the trial court. Justus v. Commonwealth, 222 Va. 667, 676, 283 S.E.2d 905, 910 (1981), cert. denied, 445 U.S. 983, 102 S. Ct. 1491, 71 L. Ed. 2d 693 (1982). A trial judge has the right, and sometimes the duty, to question witnesses, but neither opinion on the evidence nor bias may be disclosed. Goode v. Commonwealth, 217 Va. 863, 865, 234 S.E.2d 239, 240 (1977). To warrant reversal, error must be more than mere impatience; it must prejudice the minds of the jury against the accused or influence them in weighing the evidence. Moore v. Commonwealth, 186 Va. 453, 463, 42 S.E.2d 871, 876 (1947). In Parsons v. Commonwealth, 154 Va. 832, 152 S.E. 547 (1930), the appellant claimed that his trial judge interfered with the testimony so frequently as to deny him a fair trial. In Parsons the appellant cited a series of transcript excerpts to show bias without actually "laying his finger" on the error. Cunningham's claims suffer from the same infirmity. This court has no duty to deduce bias from the record. 154 Va. at 851, 152 S.E. at 554.
A review of the record does not disclose that the trial judge made any comments upon the testimony of the witnesses. He asked some questions of the witnesses to clarify their testimony and to bring out some evidence not fully developed by counsel. The interrogation was fair to both sides. It was as beneficial to Cunningham as to the Commonwealth. As stated by Cunningham, "this was a hotly contested case." Many objections were made by counsel for both sides which required the trial judge to inquire into the purpose of the evidence and to rule upon the objections. The judge also had to warn the prosecutor to confine himself on redirect to the scope of the cross-examination, not to repeat testimony, and not to echo responses on cross-examination. The court had to warn defense counsel not to incorporate argument into his opening statement, not to echo responses on cross-examination, to keep his inquiries relevant to the case being tried, not to add interpretations to responses of witnesses, not to ask repetitive questions, or questions calling for hearsay responses. The court had to warn counsel for both sides that examination of witnesses was limited to direct, cross and redirect, and to "stop making comments at each other." The trial judge cannot be accused of projecting himself into the case when he is required to deal with problems of this nature.
Cunningham contends that the court improperly engaged in extensive cross-examination of two important defense witnesses, Cathy Carter and William Edward Jones, Jr., and that this was prejudicial; that the court prevented the treating doctor from testifying whether a person shot through the nose and eye would bleed at the points where the bullet entered and exited the nose; that the court acted improperly when, at the conclusion of all the evidence, it recalled Leroy "Weasel" Clements to the stand, sua sponte, granted him immunity under Code § 19.2-270, and ordered him to testify; and that the court recalled to the witness stand a defense witness out of the presence of the jury and warned her of perjury, thus indicating the attitude of the court toward Cunningham's case. Cunningham made no objections to the actions of the trial court in any of these instances. He is not entitled to raise these issues for the first time on appeal. Rule 5A:18. Had he directed the trial court's attention to his perceived grievances, the court would have had an opportunity to ensure that the jury was left with no misapprehensions about its conduct. Dickerson v. Commonwealth, 186 Va. 951, 961-962, 45 S.E.2d 243, 248 (1947).
*394 For these reasons, the judgment of the trial court is affirmed.
Affirmed.
BENTON, Judge, concurring.
I concur in the decision affirming the conviction; however, I disagree with the conclusion in Part I of the majority opinion that no error was committed in connection with the testimony of the witness Clements. I believe that there was clear error. Nevertheless, under the circumstances of this case the error was harmless and does not compel reversal.
At the outset I believe that it is important to emphasize the precise issues raised by Cunningham in this appeal. We are not called upon to decide whether Cunningham was deprived of his Fifth or Sixth Amendment rights. Although the question presented is whether Cunningham was denied the right to a fair trial by the conduct of the prosecutor and the trial judge when the prosecutor was permitted to examine Clements after Clements invoked the Fifth Amendment and refused to testify, Cunningham frames his argument to assert error of an evidentiary nature and no specific constitutional violation is raised. See Namet v. United States, 373 U.S. 179, 185, 83 S. Ct. 1151, 1154, 10 L. Ed. 2d 278 (1963).
The record demonstrates that the Assistant Commonwealth's Attorney called Clements to testify as a witness during the Commonwealth's case-in-chief with the knowledge that Clements intended to invoke the Fifth Amendment privilege against self-incrimination and with the knowledge that Clements intended improperly to invoke that privilege. Clements responded to a question of the Assistant Commonwealth's Attorney on direct examination as follows:
Q: Isn't it true, Sir, have you told me and your lawyer as well that the reason you are not testifying is because you are scared of his brother, not because you are afraid of incriminating yourself?
A: Yes
Under the appropriate circumstances the Commonwealth may be justified in putting a person on the stand to testify in order to determine whether, in fact, the witness will refuse to testify by invoking the Fifth Amendment privilege. See United States v. Gernie, 252 F.2d 664, 669 (2d Cir.), cert. denied, 356 U.S. 968, 78 S. Ct. 1006, 2 L. Ed. 2d 1073 (1958). The Fifth Amendment privilege against self-incrimination is a personal privilege of the testifying witness and not the defendant who is being tried but is not testifying. Rogers v. United States, 340 U.S. 367, 371, 71 S. Ct. 438, 440, 95 L. Ed. 344 (1951). Based on the record before us, however, I can discern no justification for the Commonwealth's failure to advise the trial judge prior to calling Clements as a witness that Clements intended to invoke the Fifth Amendment testimonial privilege, and to seek the court's ruling on the issue whether Clements was entitled to assert the privilege under the circumstances presented. Had the trial judge been so advised, he would have had an opportunity to make appropriate inquiry of Clements and his counsel outside the presence of the jury concerning Clements' basis for invoking the privilege. See State v. Armstrong, 6 Ariz.App. 139, 430 P.2d 718 (1967).
Instead, the Commonwealth called Clements to testify, knowing that he would assert the Fifth Amendment privilege, and requested the opportunity to cross-examine him as a hostile witness. The trial judge refused the request and the Commonwealth over Cunningham's objection proceeded to place its theory of the case before the jury:
Q: Were you out on Baker Street School playground on April 12, 1984?
A: I plead the Fifth Amendment.
Q: Did you shoot Horace Monroe?
A: I don't understand. I plead the Fifth.
Q: Isn't it true, sir, that you, in fact, saw the shooting of Horace Monroe?
A: I plead the Fifth. I would rather not talk.
* * * * * *
Q: Isn't it true, sir, have you told me and your lawyer as well that the reason you *395 are not testifying is because you are scared of his brother, not because you are afraid of incriminating yourself?
A: Yes.
* * * * * *
Q: Did you and James Rome and this man, were you all involved in that shooting?
A: I plead the Fifth.
* * * * * *
Q: Isn't it true that you and James Rome and this man were all together, and he said he was going to go over and rob the little old man coming over the bridge; isn't that true?
MR. KAESTNER: Objection. Leading.
THE COURT: Well, just leave it that way. Is that true?
THE WITNESS: I plead the Fifth.
Q: Isn't it true that after this man shot him all three of you ran?
MR. KAESTNER: Objection. Leading.
Q: Is that true?
THE COURT: Well, don't say that. You can ask him did you run with the other two people. I think that calls for a yes or no answer.
Q: Didn't you and James Rome run off after this man was shot?
A: I plead the Fifth.
The trial judge then refused the Commonwealth's request at the conclusion of the direct examination of Clements to compel Clements to testify. The Commonwealth made the request because "[h]e is invoking his Fifth Amendment privilege not because he shot him but because he is afraid." During cross-examination, defense counsel's request to the court to compel Clements to testify was joined by the Commonwealth and similarly was refused by the trial court.
I believe that the trial court erred in allowing the Commonwealth to continue to question Clements for the purpose of suggesting the prosecutor's theory of the case to the jury after Clements had invoked the privilege. See Saunders v. United States, 373 F.2d 735 (9th Cir.1967); State v. Dinsio, 176 Ohio St. 460, 200 N.E.2d 467 (1964).
Clements' assertion of the privilege might have led the jury to draw an improper inference of Cunningham's guilt because Clements, who was involved with Cunningham that day, was refusing to testify. See United States v. Coppola, 479 F.2d 1153, 1160 (10th Cir.1973).
When Clements repeatedly invoked the Fifth Amendment privilege and, certainly, at the time Clements gave his reason for invoking the privilege, the trial court erred in not making inquiry, out of the presence of the jury and before allowing further questioning, in order to determine whether to compel Clements to testify or whether to take other measures. See People v. Poma, 96 Mich.App. 726, 294 N.W.2d 221 (1980).
At the conclusion of the cross-examination of Clements, the trial judge indicated that he would consider Clements' claim of privilege at a later time in camera. It was only after the Commonwealth and the defense had presented evidence and prior to the submission of the case to the jury that the trial judge called Clements to the stand and granted him immunity on the basis of Code § 19.2-270. The record does not reflect that the Commonwealth made a request for immunity. Nevertheless, as stated in the majority opinion, the Commonwealth without objection conducted further direct examination of Clements and the defense conducted a thorough cross-examination.
I would affirm the conviction despite what I perceive to be errors in the presentation of Clements' testimony because under the circumstances of this case any impermissible inferences that the jury may have drawn from Clements' repeated assertion of the privilege during his initial examination also could have been drawn from Clements' testimony following the grant of immunity. Moreover, the error as cured did not lend "critical weight" to the Commonwealth's case. See State v. Black, 291 N.W.2d 208, 213 (Minn.1980); Burkley v. United States, 373 A.2d 878, 880 (D.C. 1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385816/ | 344 S.E.2d 82 (1986)
OLIVETTI CORPORATION
v.
AMES BUSINESS SYSTEMS, INC.
No. 8526SC1129.
Court of Appeals of North Carolina.
June 3, 1986.
*89 Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Campbell, P.A. by Hugh B. Campbell, Jr., Charlotte, for plaintiff.
Joe C. Young, Charlotte, for defendant.
WELLS, Judge.
Olivetti's Appeal
Olivetti first argues that the trial court erred in finding that it made material misrepresentations and that Ames' reliance on such misrepresentations was reasonable. It is well established that in a non-jury trial the trial court's findings of fact are conclusive if supported by competent evidence even though there is evidence to the contrary. Goldman v. Parkland, 277 N.C. 223, 176 S.E.2d 784 (1970). The trial court found that the following conduct constituted fraud: (1) Olivetti's conduct in August *90 1979 in falsely telling Ames, when Olivetti announced the TES-701, that it had a five-year agreement with NBI for supply of the TES-701; (2) Olivetti's conduct in November 1980 when it intentionally misled Ames by falsely telling Ames that its relationship with NBI was all right, that it was negotiating with NBI for a continuation of the NBI agreement and that the NBI agreement provided for certain support for five years; and (3) Olivetti's conduct in the fall of 1981 in falsely telling Ames in connection with the sale by Olivetti to Ames of TES-701's and 351's that it was selling the 701's at a discounted price in order to lower its inventory so that it could purchase additional 701's from NBI pursuant to the NBI agreement.
The trial record shows that competent evidence was presented which supports the court's findings that the representations just described were made and that such representations were false. The findings of fact made by the court, which are extensive and supported by competent evidence in the record, clearly demonstrate the materiality of the misrepresentations made by Olivetti. Moreover, the magnitude of the damage suffered by Ames as a result of its reliance on Olivetti's misrepresentations further shows the materiality of those misrepresentations.
The court found that Ames reasonably relied on the false statements made by Olivetti in August 1979, November 1980 and the fall of 1981 regarding the status and terms of the NBI agreement and that Ames passed up an opportunity to become an NBI dealer in early 1981 in reliance upon Olivetti's misrepresentations. Competent evidence was presented which supports these findings. Olivetti argues, however, that Ames passed up the opportunity, if any, to become an NBI dealer in reliance upon the letter written by Kohart to Epley and that such reliance was unreasonable as a matter of law. We disagree. The evidence shows that Ames decided not to become an NBI dealer in early 1981 in reliance upon the prior misrepresentations made by Olivetti and that such reliance was reasonable. Since the findings in question are supported by competent evidence, they are binding upon us. See Goldman, supra.
Olivetti next argues that the court erred in its findings as to the amount of damages suffered by Ames. Of the damages awarded to Ames, Olivetti contests only that part awarded for lost profits. In determining that Ames was entitled to damages for lost profits in the amount of $401,000, the court reasoned as follows: Had it not been for Olivetti's misrepresentations, Ames would have become an NBI dealer in late 1980 or early 1981. If Ames had become an NBI dealer at that time, it is reasonable to assume that Ames' salesman, Jay Ozment, and Ames' serviceman, David Harrison, would have remained with Ames. Thus, Ames would have had the sales which Ozment produced for IPC, the NBI dealer for which Ozment went to work after leaving Ames; the service business which Ames lost to IPC; and the normal amount of service business from the additional sales. Ames' profits as an NBI dealer, based on the projections of Ames' president and owner, Wade Perry, would have been $77,000 in 1982, $121,000 in 1983 and $203,000 in 1984, for a total of $401,000 for the three-year period.
Olivetti argues that Ames is not entitled to damages for lost profits because it did not have a history of profits, that the court's finding that Ames could have become an NBI dealer has no support in the record, that the court did not use a proper measure to determine Ames' lost profits and that insufficient evidence was presented to support the award.
Olivetti's argument that Ames is precluded from recovering damages for lost profits because it did not have a history of profits is based on what is sometimes called the "new business rule." See Comment, RemediesLost Profits as Contract Damages for an Unestablished Business: The New Business Rule Becomes Outdated, 56 N.C.L. Rev. 693 (1978). Under this rule, recovery for lost profits is not allowed for injury to a new or unestablished business *91 without a history of profits because evidence of expected profits from such a business is necessarily too speculative. Id. See also 22 Am.Jur.2d, Damages § 173 (1965); Dobbs, Handbook on the Law of Remedies § 3.3 (1973). In contrast, lost profits may be recovered for injury to an "old" or established business because its profit record provides a sufficient minimum basis for calculation of the damages with the degree of certainty required. See Dobbs, supra; 22 Am.Jur.2d, Damages § 173. It has been said that the name "new business rule" is somewhat misleading because the rule applies to any business without a history of profits in the period immediately preceding the period for which lost profits are sought to be recovered. Comment, supra. Thus, this rule could possibly be applied in the present case since Ames did not have a history of profits.
The "new business rule" has been criticized and there is an increasing trend in other jurisdictions either to create exceptions and mitigating sub-doctrines to the rule or simply to recognize that its rationale is not persuasive. See Comment, supra; Dobbs, supra. As noted by one authority:
Courts are now taking the position that the distinction between established businesses and new ones is a distinction that goes to the weight of the evidence and not a rule that automatically precludes recovery of profits by a new business. What is required is reasonable evidence, and that may at times be found in some fact other than the fact of past profit rates.
Dobbs, supra. Those jurisdictions which do not follow the "new business rule" hold that it is enough to merit recovery if the existence and amount of lost profits is shown with reasonable certainty. Comment, supra. See also 22 Am.Jur.2d, Damages § 173.
It appears from our research that North Carolina has never adopted the "new business rule." On the contrary, North Carolina apparently follows the view that recovery for lost profits is allowed for injury to a business, regardless of whether the business has a history of profits, as long as the loss of profits is shown with a reasonable degree of certainty. See Rannbury-Kobee Corp. v. Machine Co., 49 N.C.App. 413, 271 S.E.2d 554 (1980); Hightower, North Carolina: Law of Damages § 2-8 (1981). We agree that this view is by far the better and more equitable one. Accordingly, we reject Olivetti's argument that Ames is precluded from recovering damages for lost profits simply because it did not have a past record of profits.
In order to recover damages for lost profits, Ames had the burden of proving with a reasonable degree of certainty that it would have realized profits had it not been for Olivetti's wrongful conduct and the amount of those profits, and that its loss was the direct and necessary result of the wrongful conduct. See Hightower, supra; 22 Am.Jur.2d Damages §§ 171, 177. As with any damages, damages for lost profits may only be recovered if sufficient evidence is presented that the trier of fact can find with reasonable certainty the fact and amount of the damages. See Hightower, supra at § 7-1; 22 Am.Jur.2d, Damages § 172. Recovery for lost profits may not be based on speculation or guesswork but it will be enough if the evidence justifies an inference that the damages awarded are just and reasonable compensation for the injury suffered. See Hightower, supra at § 7-1. As one authority noted in discussing damages generally, courts seem to have striven for a balance that permits a claimant to recover even if his proof is incomplete as long as he has proven as much as he reasonably can and has proven something relevant to computation of damages. Dobbs, supra. It must be borne in mind that lost profits are to some extent uncertain and problematical. 22 Am.Jur.2d, Damages § 172. Absolute certainty is not required but the evidence must be sufficiently specific to permit the fact finder to arrive at a reasoned conclusion. Hightower, supra. See also Weyerhaeuser Co. v. Supply Co., 292 N.C. 557, *92 234 S.E.2d 605 (1977). Courts state that less certainty is required to prove the amount of the lost profits than is required to show the fact that the profits were lost. 22 Am.Jur.2d, Damages § 172. See also Story Parchment Co. v. Paterson P. Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931).
The degree to which the evidence will succeed in establishing the reasonable certainty of lost profits depends in large part on the circumstances of the particular case. Note, The Requirement Of Certainty In The Proof Of Lost Profits, 64 Harv. L.Rev. 317 (1950). Consistent with this, it appears that the degree of acceptable uncertainty varies with the strength of the underlying substantive legal policy. Dobbs, supra; Comment, supra. See also Note, supra. "The more reprehensible a defendant's behavior, the more the law will feel justified in resolving doubts against him concerning the consequences of the behavior." Comment, supra. Thus, courts have applied a more liberal rule in cases involving wrongful conduct such as tort and antitrust cases. See, e.g., Steffan v. Meiselman, 223 N.C. 154, 25 S.E.2d 626 (1943) (Whatever may be the rule in contract actions, a more liberal rule should prevail in tort actions); Bigelow v. RKO Radio Pictures, 327 U.S. 251, 66 S. Ct. 574, 90 L. Ed. 652 (1946); Story Parchment Co., supra. See generally Comment, supra. As the United States Supreme Court stated in Story Parchment Co., supra:
Where the tort itself [or the wrongful conduct] is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, 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. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.
In such situations, justice and sound public policy require that the wrongdoer bear the risk of the uncertainty which his own wrong has created. Id. See also Bigelow, supra.
We now apply these principles to the present case and consider the remaining arguments made by Olivetti regarding the damages awarded to Ames for lost profits. We first conclude that there is sufficient evidence in the record to support the finding that Ames could have become an NBI dealer. Although the evidence does not conclusively show that Ames could have become an NBI dealer in early 1981, sufficient evidence was presented to permit the court to find with reasonable certainty that Ames could and would have become an NBI dealer in early 1981 had it not been for the false representations made by Olivetti.
The evidence tends to show that in early 1981, NBI was interested in establishing a dealership in the Charlotte area; that in March 1981, Audley Downs, NBI's eastern regional manager for dealer operations, met with Wade Perry and Ames' other personnel to discuss the possibility of Ames becoming an NBI dealer; that one of Mr. Downs' primary duties was to recruit new dealers for NBI; that Mr. Downs was very much impressed with the personnel at Ames and thought that Ames could be successful in selling, supporting and servicing the NBI product line and that Ames could have been a good NBI dealer; and that it would cost Ames between $26,000 and $45,000 to become an NBI dealer. Although Mr. Downs testified that to the best of his knowledge he did not make a formal offer to Ames to become an NBI dealer, the testimony of Wade Perry, Jay Ozment and David Harrison shows that Ames was told that it could become an NBI dealer if it purchased $25,000-$30,000 worth of NBI equipment. The evidence tends to show that Ames decided not to become an NBI *93 dealer based on the promises and assurances it had received from Olivetti and based on the purchase it had recently made of additional Olivetti equipment in reliance on Olivetti's misrepresentations and that if Olivetti had told Ames the truth about its relationship and agreement with NBI, Ames would not have passed up the opportunity to become an NBI dealer. In addition, sufficient evidence was presented to permit the court to find that Ames either had the financial capability in early 1981 to become an NBI dealer or that it would have had such financial capability had it not been for Olivetti's misrepresentations. We conclude that there is adequate support in the record for the finding in question.
We next consider Olivetti's argument that the trial court did not use a proper measure to determine Ames' lost profits. Olivetti contends the court used IPC's sales to measure Ames' lost profits and that such measure was error as a matter of law because a more definite measureAmes' history of profits or losseswas available and because IPC is too different from Ames to be used as a meaningful yardstick. The court, however, did not determine Ames' lost profits by using the sales record of IPC, as a comparable business, as suggested by Olivetti. The court's determination of the fact and amount of Ames' lost profits is based on the sales and service business which Ames lost to IPC because it passed up the opportunity to become an NBI dealer in reliance on Olivetti's misrepresentations. The sales and service business which the court considered is that which was produced for IPC, an NBI dealer, by Ames' former salesman, Ozment, and Ames' former serviceman, Harrison, both of whom the court found would have remained with Ames had it not been for Olivetti's wrongful conduct. The court's finding that Ozment and Harrison would have remained with Ames if Ames had become an NBI dealer in late 1980 or early 1981 is clearly supported by the evidence.
In determining Ames' lost profits, the court basically accepted the projections of Ames' president and owner, Wade Perry. Perry's projections were based on Ozment's actual sales during the period between October 1981 and March 1984, the projected gross profit margin on those sales which figure was based on the gross profit margin realized by Ames in prior years, the projected service revenue generated by Ozment's sales which projection was based on Perry's knowledge of and experience in the industry and on Ames' past record, and Ames' projected operating expenses which projection was based on Ames' operating expenses in prior years. We note that the court correctly based its award on Ames' projected net, rather than gross, profits. See 22 Am.Jur.2d, Damages § 178. The court found that Perry's projections were reasonable, particularly in view of the fact that Olivetti's wrongful conduct made more definite projections difficult to ascertain, and we agree. Perry's projections are reasonable and conservative and are adequately supported by evidence in the record.
Various means are available to claimants in attempting to prove lost profits with the requisite degree of certainty. Note, supra. See Rannbury-Kobee Corp. v. Machine Co., supra. There is no single method of determining lost profits which can be applied in all cases. 22 Am.Jur.2d, Damages § 178. Each case must be determined according to its own facts, keeping in mind the goal of the damage remedy for those facts. Id. We are unable to say that the method used by the court here to ascertain Ames' lost profits was improper given the circumstances of this case. Ozment testified that there was no substantial difference between the sales techniques he used while working for IPC and those he used while with Ames. Given this, use of the sales made by Ozment for IPC, an NBI dealer, during the relevant time period and in the same or similar geographical area in which Ames operated and the service business generated from those sales to determine the profits which Ames would have made during the same time period as an NBI dealer seems particularly reliable.
Olivetti argues, however, that even if the measure used by the court to determine *94 Ames' lost profits was proper, the only basis in the record for the court's findings as to those profits is the unsubstantiated opinion testimony of Wade Perry and that such testimony alone is inadequate to support the award. We disagree. The court's findings as to the profits lost by Ames are supported not only by Perry's testimony but also by Ozment's testimony and certain documentary evidence submitted to the court, such as Ames' tax returns. Perry's projections, in turn, are not mere guesswork, but are based on evidence in the record and therefore provide a sufficient basis for the findings and award made. See Tillis v. Cotton Mills, 251 N.C. 359, 111 S.E.2d 606 (1959).
We conclude that sufficient evidence was presented to permit the court to find with a reasonable degree of certainty that Ames lost profits for the years 1982 through 1984 in the amount of $401,000 and that such loss was the direct and necessary result of Olivetti's wrongful conduct. The evidence supports the findings and award made with respect to such profits and justifies the conclusion that the damages awarded are fair and reasonable compensation for the injury suffered. Accordingly, we find no error in the damages awarded to Ames for its loss of profits for the years 1982 through 1984.
Olivetti next contends the court erred in applying N.C.Gen.Stat. § 75-1.1 (1985) to the distributor-dealer relationship between Olivetti and Ames. Olivetti argues that G.S. § 75-1.1 applies only to transactions involving consumers, that Ames is a dealer rather than a consumer or "user" of Olivetti equipment and that therefore Ames has no standing to sue Olivetti under N.C.Gen. Stat. § 75-16 (1985). G.S. § 75-1.1 provides in relevant part as follows:
(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.
(b) For purposes of this section, "commerce" includes all business activities, however denominated, but does not include professional services rendered by a member of a learned profession.
G.S. § 75-16 provides:
If any person shall be injured or the business of any person, firm or corporation shall be broken up, destroyed or injured by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter, such person, firm or corporation so injured shall have a right of action on account of such injury done, and if damages are assessed in such case judgment shall be rendered in favor of the plaintiff and against the defendant for treble the amount fixed by the verdict. [Emphasis added.]
G.S. § 75-1.1(b) has been broadly applied to cover many activities. Kim v. Professional Business Brokers, 74 N.C. App. 48, 328 S.E.2d 296 (1985). This section is not broad enough, however, to encompass "all forms of business activities," but was adopted to ensure that the original intent of G.S. § 75-1.1 as set forth in G.S. § 75-1.1(b) (1977) was effectuated. Threatt v. Hiers, 76 N.C.App. 521, 333 S.E.2d 772 (1985), disc. rev. denied, 315 N.C. 397, 338 S.E.2d 887 (1986). G.S. § 75-1.1 as originally enacted contained the following declaration of legislative intent in Section (b):
The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State, to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State. [Emphasis added.]
N.C.Gen.Stat. § 75-1.1 (1975). Any party claiming to be exempt from the provisions of the statute has the burden of proof with respect to such claim. G.S. § 75-1.1(d) (1985); Edmisten, Attorney General v. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977).
We think it is clear that the activities concerned herein fall within the intended *95 scope of G.S. § 75-1.1. The actions in question undoubtedly were in commerce and Olivetti has failed to show that it is otherwise exempt from the operation of the statute's provisions. It is also clear that individual consumers are not the only ones protected and provided a remedy under G.S. §§ 75-1.1 and 75-16. This is obvious both from the language of the statutes and from the decisions of the appellate courts of this State. See, e.g., Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985); Johnson v. Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980); Oil Co. v. State, 80 N.C.App. 139, 341 S.E.2d 371 (1986); Concrete Service Corp. v. Investors Group, Inc., 79 N.C.App. 678, 340 S.E.2d 755 (1986). The case on which Olivetti primarily relies for this argument, Bunting v. Perdue, Inc., 611 F. Supp. 682 (E.D.N.C.1985), is distinguishable and unpersuasive on this issue and certainly is not controlling on this Court. We conclude that G.S. § 75-1.1 is applicable in the present case and that Ames has standing under G.S. § 75-16 to bring this action.
Olivetti argues that even if G.S. § 75-1.1 is applicable in this case, there is no basis in the record for the court's findings that Olivetti committed unfair and deceptive acts and practices. This argument is premised on Olivetti's previous argument that the court erred in finding that Olivetti made material misrepresentations. We rejected that argument and reject the present argument as well. The court found that Olivetti's conduct as particularly described in findings numbers 30, 31 and 32 constituted fraud. There is competent evidence in the record which supports these findings. "Proof of fraud necessarily constitutes a violation of the prohibition against unfair and deceptive acts." Winston Realty Co., supra, citing Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975).
Olivetti further contends that G.S. § 75-1.1, as applied in this case, is unconstitutionally vague and overbroad. The constitutional doctrine that statutes may be held void for vagueness is designed to require that statutes adequately warn people of conduct required or prohibited. Ellis v. Ellis, 68 N.C.App. 634, 315 S.E.2d 526 (1984). See also United States v. Mazurie, 419 U.S. 544, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975). As our Supreme Court stated in In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971):
"A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."... Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges or juries to interpret and administer it uniformly, constitutional requirements are fully met. [Citations omitted.]
Courts should scrutinize the constitutionality of a statute only as applied in the case at hand. 16 Am.Jur.2d, Constitutional Law § 173 (1979). See also In re Biggers, 50 N.C.App. 332, 274 S.E.2d 236 (1981); State v. Covington, 34 N.C.App. 457, 238 S.E.2d 794 (1977), disc. rev. denied, 294 N.C. 184, 241 S.E.2d 519 (1978). Clearly, the language of G.S. § 75-1.1 provides adequate notice that conduct constituting fraud is prohibited. See Hardy v. Toler, supra. Therefore, we do not agree that the statute is unconstitutional as applied in this case.
Olivetti assigns as error the trial court's refusal to award to it the full amount allegedly owed to it by Ames on accounts receivable for goods sold. Of the $148,990.68 which Olivetti sought to recover, the court awarded Olivetti $57,800.00 plus interest. The court further directed Ames to return to Olivetti the two 351's and the seven 701's which Ames purchased from Olivetti in the fall of 1981 or pay the purchase price for each piece of equipment not returned. Olivetti argues that the court erred in not awarding to it the amount owed by Ames for the two 351's and the seven 701's.
*96 The court concluded that since Ames purchased the 351's and the 701's as a result of Olivetti's fraud and unfair and deceptive acts and practices and had not yet sold the machines or paid Olivetti for them, as a matter of equity the sale of the machines should be rescinded and Ames should return the machines to Olivetti and owe nothing for them or pay the purchase price for each machine not returned. We find no error in this and therefore overrule this assignment of error.
Lastly, Olivetti argues that the court erred in not deducting the amount of its recovery from the damages awarded to Ames prior to trebling Ames' damages. We disagree. Offsetting Ames' damages by the amount of Olivetti's recovery prior to trebling the damages would amount to a triple recovery for Olivetti and would frustrate the punitive function of the treble damage provision. See Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981) (G.S. § 75-16 is partly punitive in nature). Certainly this is not what our legislature intended.
Ames' Appeal
Ames contends the trial court erred in not awarding it damages for the expenses it wasted during the period from August 1979 through December 1981 due to Olivetti's misrepresentations and for its loss of profits after 1984 resulting from Olivetti's wrongful conduct. Ames was awarded damages for its loss of profits in 1982, 1983 and 1984 and for the loss it sustained on the sale of two 701's but was not otherwise awarded any damages for the period from August 1979 through December 1981 or for any time period after 1984. We conclude that Ames failed to prove with the requisite degree of certainty that it was entitled to recover any damages other than those which it was awarded.
At trial, Ames sought to recover in full the amount of its expenses for the period from August 1979 through December 1981. It now in essence concedes that it is not entitled to the full amount it requested at trial and asks that this Court calculate its damages according to a new formula proposed by it which it maintains is a more reasonable and conservative measure of its actual damages for the period. Under this formula, Ames asks that the court determine its damages by calculating the amount of its expenses devoted to the 701 during the period in question and subtract from that amount the profit made and the service revenue obtained by it as a result of its sales of 701's during the period.
Even if we were so inclined to calculate Ames' damages for Ames and accepted the formula just stated as a proper measure of the damages in question, insufficient evidence was presented at trial to permit the calculation of the damages under this formula with the requisite degree of certainty. Ames had the burden of presenting sufficient evidence to permit the trier of fact to find with reasonable certainty the fact and amount of these damages. See Hightower, supra at § 7-1. This it failed to do. Specifically, Ames failed to present sufficient evidence to permit the court to find with reasonable certainty the portion or amount of its expenses or losses during this period which was attributable to Olivetti's wrongful conduct rather than to other factors. In addition, we note that, had Ames been awarded the damages it now seeks for its expenses incurred from August 1979 until December 1981 as well as damages for lost profits in the years 1982 through 1984, it would have received to a certain extent a double recovery.
The evidence presented in support of Ames' claim for loss of profits after 1984 was simply too speculative to permit recovery. As Ames concedes, the certainty of its profits after 1984 is less than the certainty of its profits prior to that time when Ozment's actual sales are known. The evidence presented was not sufficient to permit the court to determine with any degree of certainty the fact or amount of Ames' lost profits after 1984; thus, Ames' claim for such damages was properly denied.
Ames next argues that the trial court erred in refusing to assess punitive damages against Olivetti in an amount greater than and in lieu of the treble damages *97 awarded Ames. Both the awarding of punitive damages and the amount to be allowed, if any, rest in the sound discretion of the trier of fact. Worthy v. Knight, 210 N.C. 498, 187 S.E. 771 (1936). Given the substantial amount of the treble damages, we find no abuse of the court's discretion in refusing to award punitive damages in an even greater amount. It is clear that the court believed that the amount awarded was sufficient to compensate Ames for the injury suffered by it and to penalize Olivetti for its wrongful conduct. We are inclined to agree.
Lastly, Ames argues that the court abused its discretion in refusing to award reasonable attorney's fees to Ames pursuant to N.C.Gen.Stat. § 75-16.1 (1985). G.S. § 75-16.1 authorizes the presiding judge to allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party upon the finding of certain facts. Award or denial of such fees, even where supporting facts exist, is within the discretion of the trial judge. Concrete Service Corp. v. Investors Group, Inc., supra. We perceive no abuse of that discretion here.
The judgment entered by the trial court is hereby affirmed.
Affirmed.
HEDRICK, C.J., and MARTIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1385851/ | 178 Ga. App. 823 (1986)
344 S.E.2d 754
THOMAS et al.
v.
CLARK.
71857.
Court of Appeals of Georgia.
Decided April 23, 1986.
James E. Palmour III, for appellants.
Jack M. Carey, for appellee.
POPE, Judge.
Thomas purchased in excess of 70 dairy cattle from Clark and on September 25, 1980, the parties executed a lease of property owned *824 by Clark, including a dwelling house, dairy barn, equipment, buildings, truck, tractor and farm implements, on which the dairy cattle were to be kept. In the spring of 1985 Clark requested Thomas to vacate the premises as the property was to be sold. Upon Thomas' refusal, dispossessory proceedings were instituted by Clark seeking possession and rent and other damages. This appeal from the grant of Clark's motion for summary judgment involves only the issue of the validity of the lease agreement.
The lease document contained the following uncompleted provision: "1. Lessor does hereby rent and lease to the Lessee the following described property . . . for a term commencing on the ____ day of ____, 19 ____, and ending on the ____ day of ____, 19 ____, at midnight." Clark contends that he and Thomas entered into an oral agreement for a two-year lease of the property, and that after the expiration of the lease Thomas remained in possession as a tenant at will subject to termination upon notice to vacate after 60 days pursuant to OCGA §§ 44-7-6 and 44-7-7. Thomas asserts that he had to borrow the purchase money from the FHA to pay Clark for the dairy cattle and executed a promissory note for that purpose; that the parties orally agreed the term of the lease would run for the same term as the promissory note (approximately six years and nine months); that when the lease was executed the maturity date of the note was not known so the spaces for commencement and termination of the lease were left blank until the exact dates of the loan were determined and could be inserted in the written document; but that these dates were never inserted in the lease. Thus, each party acknowledges that the written lease was incomplete, but differs on the length of the term to which they orally agreed, which, Thomas contends, presents a jury question as to the contemplation of the parties at the time the lease was executed.
The trial court concluded that since no assent of the parties was reached, no valid lease existed because of the lack of an essential element of the contract, and a tenancy at will resulted under OCGA § 44-7-6. We do not concur with that analysis. This was not an agreement to agree in the future, which imposes no obligations on the parties thereto, such as Sierra Assoc. v. Continental Ill. Nat. Bank &c. Co., 169 Ga. App. 784 (1) (315 SE2d 250) (1984); and John Bleakley Ford v. Estes, 164 Ga. App. 547 (1) (298 SE2d 270) (1982). Here the written contract is silent as to the length of the term of the lease, but the blank spaces inserted therein clearly indicate that the parties did not intend to specify the dates at the time of execution, which presents a different situation.
"`The general rule is that parol evidence is inadmissible to add to, take from, vary or contradict the terms of a written instrument . . . . (OCGA §§ 24-6-1; 13-2-2 (1)). However, "if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract *825 only is reduced to writing (such as a note given in pursuance of a contract), and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible.". . . (OCGA § 13-2-2 (1)). If the writing appears on its face to be an incomplete contract and if the parol evidence offered is consistent with and not contradictory of the terms of the written instrument, then the parol evidence is admissible to complete the agreement between the parties. [Cit.] A party is entitled to prove "the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be complete and final statement of the whole of the transactions between them." (Cits.)' Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423, 424 (1) (211 SE2d 720) (1975)." Doyle v. Estes Heating &c., 173 Ga. App. 491, 493 (326 SE2d 846) (1985).
Since the parties intended to insert the dates at a later time and the lease shows on its face that it was incomplete, parol evidence was admissible to establish the term of the lease and complete the agreement. However, "[b]ecause the evidence was conflicting concerning the mutual intention of the parties, a material issue of fact remained for resolution by the [trier of fact]. See Chambliss v. Hall, 113 Ga. App. 96, 103 (147 SE2d 334) (1966). It follows that the trial court erred in granting [Clark's] motion for [summary judgment.]" Doyle, supra at 494 (3).
Judgment reversed. McMurray, P. J., concurs. Carley, J., concurs in judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267170/ | 174 Cal. App. 4th 781 (2009)
THE PEOPLE, Plaintiff and Appellant,
v.
SCOT B. GEROLD, Defendant and Respondent.
No. E045848.
Court of Appeals of California, Fourth District, Division Two.
June 3, 2009.
*783 Michael A. Ramos, District Attorney, Grover D. Merritt and Stephanie H. Zeitlin, Deputy District Attorneys, for Plaintiff and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Respondent.
*784 OPINION
MILLER, J.
The People charged defendant and respondent, Scot B. Gerold, by information with assault with a deadly weapon by force likely to produce great bodily injury and terrorist threats. Defendant pled not guilty by reason of insanity (NGI). The court found defendant guilty of the charged offenses after completion of the initial stage of the trial. Upon conclusion of the sanity phase, the court found defendant NGI. Defendant was committed to a state hospital for just over four years. Nearly five and one-half years after his release from confinement, defendant filed a petition pursuant to Penal Code section 851.8 to have his arrest records for the underlying offenses sealed and destroyed. The court granted the request.
On appeal, the People contend the court acted in excess of its jurisdiction in granting the petition because it was not brought within the statutory timeframe, i.e., within two years of the filing of the accusatory pleading. Likewise, the People maintain that defendant failed to sustain his burden of showing, and the court failed to find, good cause for not complying with that statutory deadline. Finally, the People argue that defendant is simply not the type of individual the Legislature envisioned Penal Code section 851.8 would apply to, i.e., while defendant was not "convicted" of the charged offenses, neither was he "acquitted" of the charges, the charges against him were not "dismissed," and defendant was not "factually innocent." We hold that the People forfeited the applicability of the statute of limitations by failing to raise the issue below. Nevertheless, we also hold that section 851.8 was inapplicable to defendant and, thus, reverse the court's order granting his petition to seal and destroy his arrest records.
FACTUAL AND PROCEDURAL HISTORY
On January 23, 1998, defendant woke up and became angry because he could not find a pair of his jeans. He thought someone within the residence had stolen them. After "raving" for five to 10 minutes, defendant picked up an eight- to nine-inch-long kitchen knife, threatened to kill his father, and moved towards his father moving the knife back and forth in slashing motions. Defendant's father, fearing for his safety, backed outside the home, after which defendant closed and locked the door. Defendant's mother called the authorities. Deputies arrived shortly thereafter and detained defendant.
On January 27, 1998, the People charged defendant by felony complaint with assault with a deadly weapon by force likely to produce great bodily *785 injury (count 1Pen. Code, § 245, subd. (a)(1))[1] and terrorist threats (count 2§ 422). On March 30, 1998, the court held defendant to answer for the charges following a preliminary hearing. The People filed the information on April 13, 1998. On June 10, 1998, the court held both phases of the trial, finding defendant guilty as charged after the first phase and NGI after the second. The court ordered defendant committed to Patton State Hospital and determined that his maximum term of confinement expired on September 22, 2002.
On May 13, 2002, the People filed a petition to extend defendant's period of confinement. On November 6 and 7, 2002, the People proceeded by way of a jury trial on the allegations in the petition. The jury found the allegations in the petition not true. The court thereafter released defendant.
On January 25, 2008,[2] defendant filed a petition to have his arrest records for the underlying offenses sealed and destroyed. On February 29, 2008, the court held a conference regarding the petition in chambers, off the record. On the record thereafter, the court engaged in a colloquy with both parties regarding the issue of whether a defendant who was found NGI is entitled to have arrest records expunged pursuant to section 851.8. The court continued the matter to permit the parties to brief the issue. Both parties filed supplemental briefs. At the hearing thereafter, the court indicated it had read the supplemental briefs and heard argument from defendant's counsel. The court stated, "I think this is a situation that the [L]egislature clearly didn't foresee, and I think we need to dispense a little justice here." The court, therefore, granted the petition.
The People appealed and filed a request that the order to seal and destroy defendant's arrest records be stayed pending the appeal. The trial court granted the stay request.
DISCUSSION
A. Statute of Limitations
The People contend that since defendant's petition to seal and destroy his arrest records was not filed within the statutory deadline of two years from the filing of the accusatory pleading, the court was barred from granting it. Similarly, the People maintain that since defendant failed to allege, and the *786 court failed to find, good cause in relieving him from compliance with that deadline, the court's order granting the petition must be reversed as an act in excess of its jurisdiction. Defendant responds that the People are estopped from raising the statute of limitations because they failed to raise it below. We hold that the People forfeited the applicability of the statute of limitations by failing to raise it at the hearing on the matter.
(1) Section 851.8, subdivision (c), provides in pertinent part that "[i]n any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made." If the court makes such a finding, the court shall order the appropriate law enforcement agency to seal the arrest records for three years from the date of the arrest and, thereafter, destroy such records. (§ 851.8, subds. (b), (c).) "[F]or accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the . . . filing of the accusatory pleading . . . ." (§ 851.8, subd. (l).) "Any time restrictions on filing for relief under this section may be waived upon a showing of good cause by the petitioner and in the absence of prejudice." (Ibid.) (2) The time limitation imposed in section 851.8, subdivision (l), applies to all petitions brought under section 851.8. (People v. Bermudez (1989) 215 Cal. App. 3d 1226, 1230, fn. 5 [264 Cal. Rptr. 60].)
The People filed the felony complaint on January 27, 1998, and the information on April 13, 1998. Defendant filed the petition to seal and destroy his arrest records on January 25, 2008. Even assuming the latter instrument was the effective accusatory pleading in this case, defendant failed to file his petition within the statutory deadline. Moreover, defendant made no showing of good cause; indeed, he made no showing whatsoever to account for his delay in filing the petition. Assuming arguendo that defendant's confinement to mental institutions between July 1998 and November 2002 would be deemed a per se showing of good cause for the delay in filing the petition during that period, defendant still failed to account for his delay in filing the petition in the nearly five and one-half years that elapsed since his release. Nevertheless, no mention of that delay or the statute of limitations was made in either parties' oral arguments or written submissions regarding the petition. Thus, defendant contends the People are estopped from asserting it now.
(3) We hold that the People have forfeited the issue by failing to raise it below: "Our Supreme Court has explained that `jurisdictional errors are of two types. "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of *787 authority over the subject matter or the parties." [Citation.]' [Citation.] The term `lack of jurisdiction' may also be applied when the court possesses jurisdiction over the subject matter and parties in the fundamental sense but `"has no `jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." [Citation.]' [Citation.] `When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and "thus vulnerable to direct or collateral attack at any time." [Citation.]' [Citation.] By contrast, when a court has fundamental jurisdiction to act but acts in excess of jurisdiction, its actions are merely voidable, `[t]hat is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by "principles of estoppel, disfavor of collateral attack or res judicata." [Citation.]' [Citation.] Whereas a lack of fundamental jurisdiction may be raised at any time, a challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted. [Citation.]" (People v. Ramirez (2008) 159 Cal. App. 4th 1412, 1422 [72 Cal. Rptr. 3d 340], italics omitted.)
(4) Here, as the text of the statute makes plain, the statute of limitations does not implicate fundamental jurisdiction because it does not affect the court's personal or subject matter jurisdiction. The court had jurisdiction over the parties and the petition in the sense that it had the power to relieve defendant from the statutory deadline upon a showing of good cause and the power then to address the merits of the petition. Indeed, in its opening brief, the People contend not that the court acted without fundamental jurisdiction, but that it acted in excess of jurisdiction. Thus, the statute of limitations is subject to forfeiture. (People v. Mower (2002) 28 Cal. 4th 457, 474, fn. 6 [122 Cal. Rptr. 2d 326, 49 P.3d 1067] [forfeiture is "the loss of a right through failure of timely assertion"].) Nevertheless, in its reply brief the People cite People v. Williams (1999) 21 Cal. 4th 335 [87 Cal. Rptr. 2d 412, 981 P.2d 42] (Williams), for the implied proposition that the court here acted without fundamental jurisdiction.
(5) Williams is distinguishable in that it narrowly decided that "if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time." (Williams, supra, 21 Cal.4th at p. 338.) The statute of limitations with regard to the initiation of the prosecution of a criminal act is a substantive, rather than a procedural right, which cannot be forfeited. (Id. at pp. 339-340.) "The statute of limitations, when applicable, completely bars the prosecution. To allow defendants to lose the protection of the limitation accidentally could mean that persons could languish in prison under convictions that could not have occurred had they merely thought of the statute of limitations in time." (Id. at p. 341.) Thus, strong public policy reasons favored finding a statute of limitations for the initiation of a criminal proceeding an issue of fundamental jurisdiction. Such policy reasons do not *788 exist to so construe the statutory deadline for filing a petition to expunge arrest records. Rather, the section 851.8, subdivision (l), timeframe is more akin to a filing deadline for which relief from default may regularly be granted.
B. Because Defendant Was Not "Factually Innocent" of the Underlying Crimes, He Is Not Entitled to Relief Pursuant to Section 851.8
The People contend that a defendant found NGI is not entitled to arrest record expungement pursuant to section 851.8. This is because, the People argue, section 851.8 necessitates that the defendant not have been convicted, that the matter be dismissed thereafter or that the defendant have been acquitted, and that the defendant be found factually innocent of the crime. Thus, since a defendant found NGI necessarily has been found to have actually committed the actus reus of the charged offenses and has neither been acquitted nor had the action dismissed, such a defendant has not met the requirements of section 851.8. Defendant contends that a defendant found NGI has, necessarily, not been convicted. Moreover, defendant essentially responds that a defendant found NGI has necessarily been found incapable of committing the crime because he was powerless to meet the essential mens rea element of the crime; thus, such a defendant was effectively factually innocent of the offense. We decline to address the broader issue of whether a defendant found NGI is categorically barred from relief pursuant to section 851.8 because we find that, regardless, defendant was not factually innocent of the underlying charges since reasonable cause exists to believe that defendant committed the offenses for which the arrest was made.
As noted above, section 851.8, subdivision (c), provides, in pertinent part, that "[i]n any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made." If the court makes such a finding, the court shall order the appropriate law enforcement agency to seal the arrest records for three years from the date of the arrest and, thereafter, destroy such records. (§ 851.8, subds. (b), (c).)
The parties below recognized the novelty of defendant's situation. The People noted that "[defendant] was found [NGI], so the question is whether that is factual innocence under the standard. It does not appear to be so. . . . I understand and appreciate the argument that he may have been not guilty of the crime because of his mental state. I understood this was a burglary *789 conviction;[3] [a] specific intent crime, [which] was negated by reason of his mental illness. However, the standard under . . . [¶] [section 851.8, subdivision (b)] for factual innocence is if it appears that there was no probable cause to believe that the crime was committed. And even though [defendant] may have been insane at the time of the commission of the offense, there certainly was probable cause to believe that the offense was committed." In analyzing the statute and applying it to the factual context of defendant's case, the court noted that "`there was no trial where an acquittal occurred.'" Defendant acknowledged the veracity of the court's notation; nevertheless, he argued that under section 851.8, subdivision (c), defendant was eligible for the sealing and destruction of his arrest records in that no conviction had occurred. The court responded that defendant was, in fact, convicted. Defendant replied that, in actuality, he was found NGI. The court responded, "[o]h, I see. Okay. I understand."
Defendant noted that had he been convicted, the procedure for "clearing his good name would be [pursuant to section 1203.4]"; however, because he was "`acquitted,'" only the procedures outlined in section 851.8 were applicable. Defendant contended that the court should determine that he was factually "innocent because he was found [NGI]." The court then observed that section 851.8, subdivision (c), applied only to cases that had been dismissed, querying counsel whether the instant action had been dismissed. Counsel responded that defendant had pled NGI: "I cannot say that is a dismissal." Counsel erroneously stipulated that there was no trial; rather, defendant had entered into a plea agreement. The court then noted that "the criminal case had to have been dismissed because it didn't proceed to trial."[4] Defendant agreed with the court's assessment. The court reiterated, "[l]ogically that's the case." The People responded, "[b]ut, still, I don't know if it's entered into the same thing as a dismissal, though." The court replied, "[y]ou know, this is interesting; when we came out of chambers, my inclination was to deny this motion, and now I'm considering otherwise." The court then continued the matter to permit the parties to brief the issue.
In its points and authorities in opposition to defendant's petition, the People contended that defendant failed to meet his burden of proving that he was factually innocent of the underlying charges, that there was reasonable cause to arrest defendant, and that section 851.8 provided no mechanism for expunging the records of those found NGI. In his supplemental brief, defendant asserts that "[a]fter an exhaustive search of cases dealing with *790 [section] 851.8, we have not come up with a single case dealing with [its] application to a person found [NGI] pursuant to [section] 1026. Not a single one." Defendant cited People v. McCann (2006) 141 Cal. App. 4th 347, 358 [45 Cal. Rptr. 3d 868] (McCann), for the proposition that "[e]ven if a defendant were `factually' guilty of . . . an offense," so long as he could not have been convicted of the crime, "relief must be granted under [section] 851.8." "[W]e ask for the relief under [section] 851.8 so that [defendant] can get a job without having to deal with all these issues." After hearing argument from defense counsel, the court granted the petition, stating that "I think this is a situation that the [L]egislature clearly didn't foresee, and I think we need to dispense a little justice here."
(6) "In any court hearing to determine the factual innocence of a party, the initial burden of proof shall rest with the petitioner to show that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made. If the court finds that this showing of no reasonable cause has been made by the petitioner, then the burden of proof shall shift to the respondent to show that a reasonable cause exists to believe that the petitioner committed the offense for which the arrest was made." (§ 851.8, subd. (b); see also People v. Laiwala (2006) 143 Cal. App. 4th 1065, 1068 [49 Cal. Rptr. 3d 639] (Laiwala).) "The present tense `exists' necessarily means that the existence of reasonable cause depends on the current evidence rather than simply the evidence that existed at the time that the arrest and prosecution occurred. `In the context of a defendant who seeks a finding of factual innocence notwithstanding probable cause to arrest, facts subsequently disclosed may establish the defendant's innocence.' (People v. Adair (2003) 29 Cal. 4th 895, 905, fn. 4 [129 Cal. Rptr. 2d 799, 62 P.3d 45].)" (Laiwala, supra, 143 Cal.App.4th at p. 1069, fn. 3.)
When reviewing a lower court's ruling concerning a petition for sealing and destroying arrest records, an appellate court "must apply an independent standard of review and consider the record de novo." (People v. Adair, supra, 29 Cal.4th at p. 905 (Adair).) "[T]he appellate court should defer to the trial court's factual findings to the extent they are supported by substantial evidence, [but] it must independently examine the record to determine whether the defendant has established `that no reasonable cause exists to believe' he or she committed the offense charged." (Id. at p. 897.) "`"`Reasonable cause'"' is a well-established legal standard, `"defined as that state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime."' [Citations.]" (Id. at p. 904.)
(7) This means defendant must establish "`as a prima facie matter not necessarily just that the [defendant] had a viable substantive defense to the *791 crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place.' [Citation.]" (Adair, supra, 29 Cal.4th at p. 905, fn. omitted.) "[T]he record must exonerate [the defendant], not merely raise a substantial question as to guilt." (Id. at p. 909.) "`Section 851.8 is for the benefit of those defendants who have not committed a crime. It permits those petitioners who can show that the state should never have subjected them to the compulsion of the criminal lawbecause no objective factors justified official actionto purge the official records of any reference to such action....'" (Id. at p. 905.)
(8) Here, defendant is not factually innocent of the charges against him. On the contrary, during the initial phase of the trial, the court determined that defendant had committed the acts constituting the crimes of which he was charged. Defendant has not sustained his burden of proving that he was factually innocent, i.e., that "no reasonable cause exists to believe that the arrestee committed the offense for which arrest was made." (§ 851.8, subd. (b).) Even from the current temporal perspective, i.e., with all the benefit of hindsight, we cannot say that an officer, knowing that defendant was legally insane when committing the underlying offenses, would not have had reasonable cause with which to arrest him. Nor could we say, in retrospect, that defendant should not have been subjected to the "`compulsion of the criminal lawbecause no objective factors justified official action.'" (Adair, supra, 29 Cal.4th at p. 905.) Here, every objective factor would support reasonable cause to arrest and compel defendant to face criminal process. There is no disagreement regarding whether defendant actually committed the acts of assaulting his father with a knife and verbally threatening to kill him. While defendant was determined not to have been sufficiently mentally competent to sustain punishment for his acts, that determination does not equate with factual innocence of the acts underlying the charges against him.
Defendant cites McCann, supra, 141 Cal.App.4th at page 358, for the proposition that a finding that a defendant was NGI is the functional equivalent of an acquittal, thus, entitling him to relief pursuant to section 851.8. Likewise, as he did below, defendant cites McCann for the additional proposition that factual innocence need only involve a determination that the defendant could not have been convicted for the offense, whether he actually committed the underlying act or not. Thus, defendant maintains that since he was not and could not have been convicted of the underlying offenses because the mens rea element of those crimes was negated by the finding that defendant was legally insane at the time he committed them, he is, necessarily, factually innocent of the charges and, therefore, entitled to expungement of his arrest records. We find McCann distinguishable from the present circumstances.
*792 In McCann, the defendant was found guilty by court trial of two felony counts of practicing medicine without a license. (McCann, supra, 141 Cal.App.4th at p. 351.) The appellate court reversed the convictions finding that the defendant could not have committed the offenses because "he had a valid license to practice medicine at all relevant times." (Ibid.) Thereafter, the defendant moved to have his arrest records expunged pursuant to section 851.8. (McCann, at p. 351.) The trial court determined that it could not find the defendant factually innocent of the charges despite the reversal; thus, it denied the defendant's petition. (Ibid.) On appeal, the court held that the defendant was entitled to seek relief pursuant to section 851.8 because "`an appellate ruling of legal insufficiency is functionally equivalent to an acquittal.'" (McCann, at p. 355.)
While McCann established a defendant's right to seek relief pursuant to section 851.8 when the defendant's conviction has been reversed for insufficiency of the evidence, it did not conclude that such a defendant would, necessarily, be entitled to such relief. (McCann, supra, 141 Cal.App.4th at p. 355.) Rather, a determination of the defendant's "factual innocence" would still be required. In McCann, the appellate court determined that the defendant was factually innocent because it had already determined he had not committed the charged offenses. (Id. at p. 358.) Here, defendant did not have his conviction overturned for insufficiency of the evidence. Moreover, even if a NGI finding could be deemed the functional equivalent of an acquittal, no determination of factual innocence was made. Indeed, as noted above, there is no contention that defendant did not actually commit the acts of which he stood accused. Thus, if we were to deem McCann properly analogized to the present circumstances, defendant would only be entitled to seek such relief, not be entitled to it. However, as discussed above, because defendant was not factually innocent of the charges, he is not entitled to such relief.
Furthermore, the People in McCann, assuming arguendo that the defendant was factually innocent of the charged offenses, contended that there was still reasonable cause to prosecute him for violating the misdemeanor lesser included offense of the felonies. (McCann, supra, 141 Cal.App.4th at p. 357.) Hence, it argued that the defendant was not factually innocent and, therefore, not entitled to relief pursuant to section 851.8. (McCann, at p. 357.) The appellate court noted, however, that even if the misdemeanor offenses could properly be considered lesser included offenses of the felony charges, prosecution would be barred because the statute of limitations on the misdemeanors had expired by the day the defendant was indicted. (Id. at pp. 357-358.) Thus, the court would have lacked fundamental jurisdiction to proceed against the defendant on the misdemeanor charges; hence, he could not have been properly convicted of those offenses. (Id. at p. 358 & fn. 5.) However, contrary to defendant's implicit contention, McCann did not rule that inability to obtain a conviction necessarily equates to factual innocence. Indeed, the *793 court did not even conclude that the misdemeanor offenses were properly construed lesser included offenses of the felonies charged against the defendant. Rather, it simply concluded that the defendant was factually innocent of the offenses with which he was charged. (Id. at p. 358.) Indeed, the court in Laiwala similarly concluded that "[a] factual innocence petition must be granted if the petitioner is `factually innocent of the charges for which the arrest was made.'" (Laiwala, supra, 143 Cal.App.4th at p. 1072.) Thus, at best, McCann is dictum for the narrow proposition that a defendant may be deemed factually innocent of a charge in which a court lacks fundamental jurisdiction over the offense, i.e., the defendant could not be convicted of the offense because of the expiration of the statute of limitations. We disagree that McCann can be construed broadly to convey the principle that any defense that would prohibit a defendant's conviction must equate with a determination of factual innocence for purposes of section 851.8. Factual innocence means "`not necessarily just that the [defendant] had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place.' [Citation.]" (Adair, supra. 29 Cal.4th at p. 905, fn. omitted.)
Finally, defendant cites Laiwala, supra, 143 Cal. App. 4th 1065, for the proposition that since defendant lacked the requisite mens rea to be found culpable of the charged offenses, he must be deemed factually innocent. In Laiwala, the defendant was convicted of grand theft of a trade secret. (Id. at p. 1067.) The appellate court reversed the conviction finding that there was "`insufficient evidence that information taken by [the defendant] qualified as a trade secret ....'" (Ibid., italics added.) The defendant filed a petition seeking a finding of factual innocence. (Ibid.) The superior court denied the petition. (Ibid.) The appellate court ruled that a defendant can establish "factual innocence by demonstrating the absence of reasonable cause to support a single element of the crime." (Id. at p. 1070.) Thus, since there was no evidence to support the contention that what the defendant had taken was a trade secret, the defendant was factually innocent of the crime with which he was charged. (Id. at p. 1072.) Quoting People v. Matthews (1992) 7 Cal. App. 4th 1052, 1056-1057 [9 Cal. Rptr. 2d 348], the court noted that "`[Some] legal defenses may be so related to the defendant's own conduct that the existence of the defense negates a requisite element of the offense or otherwise eliminates culpability, thereby revealing no reasonable cause to believe the arrestee committed an offense and establishing factual innocence, within the meaning of Penal Code section 851.8.' [Citation.]" (Laiwala, at p. 1072.) Hence, defendant contends that because he was found NGI, there is a lack of reasonable cause to support the requisite mens rea elements of the charged offenses, compelling a finding of factual innocence.
We find Laiwala distinguishable. First, while Laiwala ruled that lack of evidence on a single element supports a finding of factual innocence, that *794 court held that the defendant was entitled to relief pursuant to section 851.8 based on a lack of reasonable cause to arrest on an actus reus element of the charged offense, not a mens rea element. Second, defendant is not factually innocent in that there was, even when viewed retrospectively, reasonable cause to arrest him and compel him to face criminal process for the charged offenses.
DISPOSITION
The order granting defendant's petition to have his arrest records for the underlying offenses sealed and destroyed is reversed.
Hollenhorst, Acting P. J., and King, J., concurred.
NOTES
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Although the parties both reference this date in their briefs, there is nothing in the record signifying the filing date of the petition. We take judicial notice of the San Bernardino Superior Court register of actions, indicating defendant's petition was filed January 25, 2008. (Evid. Code, §§ 459, subd. (a), 452, subd. (g).)
[3] Both the parties and the court made erroneous references to the factual circumstances surrounding defendant's prosecution for the underlying offenses, including that defendant was charged with burglary, that the offenses occurred in 1992 or 1993, and that defendant pled NGI pursuant to a plea agreement.
[4] Again, as noted in footnote 3, ante, the court and parties mistakenly indicated defendant had pled NGI pursuant to a plea agreement and did not take the matter to trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267174/ | 174 Cal. App. 4th 1528 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
JUAN J. VALDEZ, Defendant and Appellant.
No. E045289.
Court of Appeals of California, Fourth District, Division Two.
June 19, 2009.
*1530 Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
A jury convicted defendant of inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)),[1] raping his spouse (§ 262, subd. (a)(1)), raping her with a foreign object (§ 289, subd. (a)(1)) and violating a protective order (§ 273.6, subd. (a)). After the trial court found that were it not prohibited by section 1203.065 from granting defendant probation because he was convicted of rape with a foreign object, it would have done so. The trial court sentenced defendant to prison for eight years. Defendant appeals, claiming the prohibition on granting probation to one convicted of rape with a foreign object, or in his case, of raping his wife with a foreign object, violates equal protection because there is no similar prohibition for his rape of his wife. We reject his contention and affirm.
The facts of this case are irrelevant to this appeal.
ISSUE AND DISCUSSION
At the time defendant committed his offenses, section 1203.065, subdivision (a) provided in pertinent part, "Notwithstanding any other law, probation shall not be granted to ... any person who is convicted of violating paragraph (2) of subdivision (a) of Section 261, Section 264.1, 266h, 266i, or 266j, subdivision (a) of Section 289, of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, or of violating subdivision (c) of Section 311.14."
*1531 There was no disallowance of probation in former section 1203.065 for a conviction of spousal rape under section 262, subdivision (a)(1). Defendant contends that this distinction between penetrating one's spouse with a penis, for which probation is available, and penetration with any other item, for which probation is not, violates the equal protection clause.
(1) "`The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.]" (People v. Hofsheier (2006) 37 Cal. 4th 1185, 1199 [39 Cal. Rptr. 3d 821, 129 P.3d 29] (Hofsheier).) In Hofsheier, the two acts at issue were intercourse and oral copulation, both with minors. (Id. at p. 1192.) The California Supreme Court held, "The only difference between the two offenses is the nature of the sexual act. Thus, persons convicted of oral copulation with minors and persons convicted of sexual intercourse with minors `are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.' [Citation.]" (Id. at p. 1200.) (2) Under the compulsion of Hofsheier, we conclude that one who rapes one's spouse using a penis is sufficiently similar to one who rapes one's spouse using a foreign object in order to fulfill this first prerequisite.
(3) Defendant asserts that the distinction in treatment of the two groups must bear a rational relationship to a legitimate state purpose. (Kasler v. Lockyer (2000) 23 Cal. 4th 472, 481, 482 [97 Cal. Rptr. 2d 334, 2 P.3d 581].) Such "`"`a statutory classification ... must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are "plausible reasons" for [the classification], "our inquiry is at an end."'"' [Citations.] [¶] ... `[T]hose attacking the rationality of the legislative classification have the burden "to negative every conceivable basis which might support it."' ... [W]e must undertake `"`"a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals"'"' [citation] by inquiring whether `"the statutory classifications are rationally related to the `realistically conceivable legislative purpose[s]' [citation]" ... "... that could not have been within the contemplation of the Legislature ...."' [Citation.]" (Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.)
The reasoning the People unsuccessfully advanced in Hofsheier for the distinction is such a rationale here, i.e., the fact that spousal rape can result in *1532 the conception and ultimate birth of a legitimate child of the marriage, while the act of rape with a foreign object cannot produce such a result. To prohibit the trial court from exercising its discretion to grant probation to the parent of a child thus conceived during marriage runs counterproductive to a number of legitimate societal goals.
In Hofsheier, the California Supreme Court rejected the possibility of pregnancy as a distinguishing feature, justifying a difference in treatment, because the People conceded that those who engage in sexual intercourse with minors also often engage in oral copulation, and as such, "[t]he effect of the father's mandatory registration on the mother and child does not depend on whether the registration is imposed for the act of sexual intercourse or the act of oral copulation." (Hofsheier, supra, 37 Cal.4th at p. 1205.) However, here, there is no concession by the People, nor a conclusion by this court, that a forcible act of penetration with a foreign object often accompanies forcible intercourse between husband and wife.
Indeed, the dissent in Hofsheier pointed out that "the Legislature expressly questioned whether extending the requirement [of mandatory lifelong registration as a sex offender] might have negative repercussions when voluntary intercourse between individuals in a relationship results in the birth of a child." (Hofsheier, supra, 37 Cal.4th at p. 1213 (dis. opn. of Baxter, J.).)
(4) While the Legislature may have written into section 1203.065 an allowance of probation only in those cases of spousal rape that result in the birth of a legitimate child of the marriage, "`[t]he equal protection clause is not an authorization for the courts to second-guess the Legislature on the best way to deal with aspects of a problem....' [Citation.]" (Jasperson v. Jessica's Nail Clinic (1989) 216 Cal. App. 3d 1099, 1110 [265 Cal. Rptr. 301].) "[T]he fact that ... other offenses could have been included that would have furthered the legislative purpose, does not undermine our conclusion that the classification adopted by the Legislature bears a fair relationship to a legitimate public purpose." (People v. Conley (2004) 116 Cal. App. 4th 566, 576 [10 Cal. Rptr. 3d 477].)
The People point to an additional reason why the distinction in the treatment of spousal rape and rape of a spouse with a foreign object bears a rational relationship to a legitimate state purpose. Although some acts of rape with a foreign object are accomplished with instruments smaller than a penis, others are not and, thus, the potential for greater violence and injury to the victim rests with that offense.
*1533 DISPOSITION
The judgment is affirmed.
McKinster, J., and Richli, J., concurred.
NOTES
[1] All further references are to the Penal Code unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267186/ | 174 Cal. App. 4th 540 (2009)
___ Cal.Rptr.3d ___
JEAN DENNIS, Plaintiff and Appellant,
v.
SCOTT W. SOUTHARD et al., Defendants and Respondents.
No. C058948.
Court of Appeals of California, Third District.
May 29, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*541 Hardy Law Group, Ian E. Silverberg and Del Hardy for Plaintiff and Appellant.
Schuering Zimmerman Scully Tweedy & Doyle, Robert H. Zimmerman and J. Hawken Flanagan for Defendants and Respondents.
*542 OPINION
ROBIE, J.
In the published portion of this opinion involving a jury trial on medical battery, we hold that the two form instructions on medical battery found in CACI Nos. 530A and 530B correctly state the intent requirement for medical battery.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Jean Dennis sued defendant Scott W. Southard (and his corporation of the same name) for medical malpractice and medical battery after she suffered complications following knee replacement surgery Dr. Southard performed on her right knee. Following the trial court's granting of Dr. Southard's motion for summary adjudication of the medical malpractice cause of action, the case went to trial on medical battery.
At trial, Dennis testified that in June 2004, Dr. Southard performed a successful left knee replacement surgery that she had conditioned on using a prosthesis other than one manufactured by Johnson & Johnson. Dr. Southard used a Biomed prosthesis, and the surgery was successful.
In October 2004, the hospital where Dr. Southard operated switched from using Biomed prostheses to Johnson & Johnson prostheses. That same month, Dr. Southard performed a right knee replacement surgery on Dennis using a Johnson & Johnson prosthesis. During the surgery, Dr. Southard inadvertently transected Dennis's medial collateral ligament.
The jury found for Dr. Southard.
Dennis appeals, contending the trial court erred in (1) granting summary adjudication of her medical malpractice cause of action; (2) failing to remove a juror for cause; (3) misinstructing the jury on the elements of medical battery; (4) excluding expert witness testimony on medical ethics; (5) excluding testimony and argument that transecting the ligament was "an item of damages related to the medical battery"; (6) denying her motion to amend the complaint; and (7) denying her motion for a directed verdict. Disagreeing with these contentions, we affirm the judgment.
DISCUSSION
I, II[*]
*543 III
The Court Did Not Err in Its Instruction on Medical Battery
There are two form instructions for medical battery: (1) CACI No. 530A, which is to be used when it is alleged the defendant performed a medical procedure without the plaintiff's consent;[1] and (2) CACI No. 530B, which is to be used when a plaintiff gave conditional consent to a medical procedure and when it is alleged that the defendant proceeded without the condition having been satisfied.[2]
Here, the court instructed pursuant to CACI No. 530B instead of CACI No. 530A, over Dennis's objection.[3] On appeal, Dennis contends this was *544 error, alleging the intent element "add[ed]" in CACI No. 530B is "misleading at best and incorrect at worst." She is mistaken.
(1) The intent requirement in CACI No. 530B is correct. It requires "inten[t] to perform the procedure with knowledge that the condition had not occurred." (CACI No. 530B.) Inclusion of intent and knowledge as elements of medical battery is consistent with well-established principles of civil battery. (See, e.g., Piedra v. Dugan (2004) 123 Cal. App. 4th 1483, 1498 [21 Cal. Rptr. 3d 36] [nonsuit for medical battery cause of action proper where the defendant "could not have intentionally deviated from the scope of the consent because he was unaware of any condition on that consent"].) Thus, while Dennis is correct that the intent does not need to be malicious, or need to be an intent to inflict actual damage, she is wrong in arguing that the only intent required is intent to perform the procedure.
(2) Moreover, the reason why CACI No. 530B has an explicit intent and knowledge requirement and CACI No. 530A does not is clear. The law presumes that "[w]hen the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present." (Piedra v. Dugan, supra, 123 Cal.App.4th at p. 1496.) That situation is covered by CACI No. 530A. On the other hand, in a case involving conditional consent, the requisite element of deliberate intent to deviate from the consent given cannot be presumed simply from the act itself. This is because if the intent element is not explicitly stated in the instruction, it would be possible for a jury (incorrectly) to find a doctor liable for medical battery even if it believed the doctor negligently forgot about the condition precedent.
As such, the court did not err in instructing the jury pursuant to CACI No. 530B regarding conditional consent with its explicit intent and knowledge requirement.
IV-VII[*]
*545 DISPOSITION
The judgment is affirmed. Dr. Southard is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
Sims, Acting P. J., and Butz, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, II, IV, V, VI, and VII of the Discussion.
[*] See footnote, ante, page 540.
[1] CACI No. 530A reads as follows:
"[Name of plaintiff] claims that [name of defendant] committed a medical battery. To establish this claim, [name of plaintiff] must prove all of the following:
"1. [That [name of defendant] performed a medical procedure without [name of plaintiff]'s consent; [or]]
"[That [name of plaintiff] consented to one medical procedure, but [name of defendant] performed a substantially different medical procedure;]
"2. That [name of plaintiff] was harmed; and
"3. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.
"A patient can consent to a medical procedure by words or conduct."
[2] CACI No. 530B reads as follows:
"[Name of plaintiff] claims that [name of defendant] committed a medical battery. To establish this claim, [name of plaintiff] must prove all of the following:
"1. That [name of plaintiff] consented to a medical procedure, but only on the condition that [describe what had to occur before consent would be given];
"2. That [name of defendant] proceeded without this condition having occurred;
"3. That [name of defendant] intended to perform the procedure with knowledge that the condition had not occurred;
"4. That [name of plaintiff] was harmed; and
"5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.
"A patient can consent to a medical procedure by words or conduct."
[3] The version of CACI No. 530B given by the court reads as follows:
"Jean Dennis claims that Scott W. Southard, M.D., committed a medical battery. To establish this claim, Jean Dennis must prove the following:
"[One,] [t]hat Jean Dennis gave informed consent to a medical procedure, but only on the condition that he not use a Johnson & Johnson knee replacement, and Scott W. Southard, M.D., proceeded without this condition having occurred.
"Two, that Scott W. Southard, M.D., intended to perform the procedure with knowledge that the condition had not occurred.
"Three, that Jean Dennis was harmed.
"And, four, that Scott W. Southard, M.D.'s, conduct was a substantial factor in causing Jean Dennis' harm.
"A patient can consent to a medical procedure by words or conduct."
[*] See footnote, ante, page 540. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267214/ | 171 Conn. 454 (1976)
STATE OF CONNECTICUT
v.
MITCHEL E. VAUGHN
Supreme Court of Connecticut.
Argued May 5, 1976.
Decision released August 24, 1976.
HOUSE, C. J., LOISELLE, BOGDANSKI, LONGO and BARBER, JS.
Robert M. Axelrod, with whom, on the brief, was Joseph E. Fallon, for the appellant (defendant).
William F. Gallagher, special assistant state's attorney, with whom, on the brief, was Arnold Markle, state's attorney, for the appellee (state).
*455 HOUSE, C. J.
The defendant was found guilty by a jury of the crimes of rape, deviate sexual intercourse, burglary and larceny. The fact that these crimes were committed as testified to by the victim is not contested by the defendant, but at the trial and on this appeal he has consistently denied that he was the perpetrator and at the trial he also offered evidence to support his alibi claim. Certain facts are of particular relevance in our consideration of the merits of the appeal: (a) The victim, a sixteen-year-old girl, was not able at any time to identify her assailant; (b) the only evidence linking the defendant to the crimes was a confession which the defendant gave to the investigating police and three items, neutral in themselves, found in the home of the defendanta flashlight, a small pocketknife and fourteen dollars in currency; and (c) prior to trial, upon representation by the state pursuant to the provisions of § 54-40 of the General Statutes that it appeared that the defendant was so insane or mentally defective that he was unable to understand the proceedings against him, or to assist in his defense, the defendant was examined by two psychiatrists. While the record does not contain the psychiatrists' reports, it does indicate that the state's attorney informed the trial court that the defendant "had a 54-40 and he passed."
Before the trial, the court heard and denied a motion by the defendant to suppress (1) the testimony of Detective William J. Mahon of the North Haven police department who questioned the defendant and obtained a confession from him, (2) the confession, and (3) the three items found in the defendant's home.
After the state had rested its case, the defendant sought to open his defense by offering the testimony *456 of a psychologist as to the weight and credibility to be accorded to the defendant's confession. After considering the defendant's offer of proof as to that testimony, the court sustained the state's objection to the testimony of the psychologist and excluded it from consideration by the jury. Those rulings and the court's finding of certain facts relative to those rulings are the bases of the assignments of error claimed and briefed by the defendant. We conclude that a decision on the merits of the error assigned to the exclusion of the testimony of the psychologist is dispositive of the merits of this appeal.
The court properly made a finding as a result of its hearings in the absence of the jury relative to the motion to suppress and to the defendant's offer of proof concerning the excluded testimony of the psychologist. As we have noted, the victim of the crimes was unable to identify the perpetrator. The finding discloses that the only evidence which directly linked the defendant to the crimes charged was his confession which was obtained by Detective Mahon. In the course of investigating the victim's report of the crimes, Detective Mahon went to the home of the defendant as a result of his knowledge of a previous investigation and arrest of the defendant for a similar offense the previous year. He was met outside the house by the defendant's father who brought out the defendant and told him to go with the officer for a police interview. At that time, the defendant was not an accused and went voluntarily with the officer for questioning. He was advised of his constitutional rights. Detective Mahon first inquired about various "Peeping Tom" incidents in the area of Larson Drive in North Haven and the defendant informed him that he was *457 responsible for them. They then left the police station and, with the defendant directing the way, went to Larson Drive where the defendant pointed out houses where he said he had peeped in the windows. While driving in the area, the officer pointed to the home of the victim and asked: "How about the pink house?" After proceeding further down the street, the officer stopped the car and continued to question the defendant. After about ten or fifteen minutes, at about noon, they returned to the police station, where the defendant was again informed of his constitutional rights and told that he could leave if he so desired, but he remained to answer questions posed mainly by Detective Mahon. The questioning continued for some time and the defendant, about 3:25 p.m., gave a signed statement admitting the attack on the victim. The statement contained a reference to a flashlight, a knife and some currency. The defendant was then taken back to his home where he and his father both signed a form consenting to a search of the house. During the search, the defendant turned over to Detective Mahon a flashlight, a small black-handled pocketknife, and a brown envelope containing some currency. After those three items were taken, the defendant was arrested and advised of the charges against him. During the trial, the articles and the defendant's written confession were admitted as exhibits over the objection of the defendant. Detective Mahon testified that the confession was obtained in the following manner: He would ask the defendant to relate the circumstances of the night in question, then repeat what he was told, paraphrasing what had been said, and ask the defendant if that was correct and then type the agreed-upon phrasing.
*458 The findings further reveal that at the trial the defendant testified that he never understood the meaning and contents of the statement that he signed for Detective Mahon and that he signed the consent to search form because he was scared. He also produced alibi witnesses who testified that the defendant was with them during the time the offenses were committed.
After the hearing on the motion to suppress the confession and the articles taken from the defendant's home, the court denied the motion, finding that the defendant had been duly warned of his constitutional rights, that the questioning of the defendant was not an "in-custody" interrogation, and that the confession was given and the articles turned over to the police freely and voluntarily.
Relative to his assignment of error addressed to the court's exclusion of the offered testimony of the psychologist concerning the confession, the defendant, in argument to the trial court, recognized the finality of the court's ruling that the confession had been admitted as an exhibit for the consideration of the jury and that that ruling was not subject to further contest in the proceedings. He made no further claims in that regard but claimed that the testimony of the psychologist was admissible as that of an expert as to the defendant's intellectual abilities to understand what he did and as to his ability to understand the document that he signed. The evidence was offered not on the question of the admissibility of the confession but, it having been admitted as an exhibit, to assist the jury in determining the weight and credibility to be given to the confession as admitted"to establish some knowledge of his emotional, intellectual and comprehension *459 abilities.... And the further purpose of his testimony is to demonstrate that he could not have, and was not then, and is not now capable of understanding the words in the statement that he signed .... Further, it is my hope that the witness will testify with regard to his functioning under stress situations."
The precise question raised by this assignment of errorwhether evidence as to the mental capacity of a confessor at the time of the giving of the confession is admissible to be weighed by the jury in determining what weight and credibility they will give to the confession which has been introduced in evidenceappears to be one of first impression in this jurisdiction, but it has been raised and answered affirmatively in many others.
In Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618, the United States Supreme Court ruled that the question of voluntariness of a confession need not be submitted to the jury. It went on, however, to discuss (pp. 485-86) the function of the jury in the light of the earlier case of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, which had held unconstitutional the New York procedure of submitting the voluntariness of a confession to the jury unless under no circumstances could the confession be deemed voluntary: "Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has been as free since Jackson as he was before to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing *460 upon its weight and voluntariness. In like measure, of course, juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief."
In prosecutions for sex offenses, the importance of aids to the evaluation of credibility has long been recognized. "It is a familiar point to courts and legal scholars that sex cases create a special need for an evaluation of credibility. The accusation is `easily to be made and harder to be defended,' the penalties are high, and often the charge incites sympathy for the prosecutrix and prejudice against the defendant. Secondly, this type of litigation is especially likely to involve pathological witnesses." Juviler, "Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach," 48 Cal. L. Rev. 648, 674; see 3 Wigmore, Evidence (3d Ed.) §§ 924a-934a; McCormick, Evidence (2d Ed.) § 45, p. 93 et seq. Clearly, where the most damaging evidence of all, a confession, is virtually the entire evidence against a defendant charged with a serious crime, such as rape, the special need and the same considerations should apply in weighing the credibility and weight to be given to the confession. See Driver, "Confessions and the Social Psychology of Coercion," 82 Harv. L. Rev. 42, for a discussion of "the psychological mechanisms at work during questioning." We have also held under other circumstances where the credibility of a witness in a murder case was under attack that "there can be little doubt that psychiatric testimony is admissible to impeach credibility. United States v. Hiss ... [88 F. Sup. 559, S.D. N.Y.]." Taborsky v. State, 142 Conn. 619, 629, 116 A.2d 433.
While the preliminary question of admissibility of a confession is for the court, the credibility and *461 weight to be accorded the confession is for the jury. State v. Traub, 150 Conn. 169, 187 A.2d 230, remanded for reconsideration on other grounds, 374 U.S. 493, 83 S. Ct. 1899, 10 L. Ed. 2d 1048, on remand, 151 Conn. 246, 196 A.2d 755, cert. denied, 377 U.S. 960, 84 S. Ct. 1637, 12 L. Ed. 2d 503; State v. Darwin, 155 Conn. 124, 230 A.2d 573, rev'd on other grounds, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630, on remand, 156 Conn. 661, 243 A.2d 82, on appeal after remand, 161 Conn. 413, 288 A.2d 422. We agree that the "weight of a confession is for the jury to determine. The confession should be carefully scrutinized in the light of all the attendant circumstances" and may include a consideration of the physical and mental condition of the confessor as a factor. 3 Wharton, Criminal Evidence (13th Ed.) § 693, p. 495, § 686, p. 477. This is especially so in rape or related assault cases where the principal witnesses are the defendant and the complainant and a decision as to whether the defendant committed the crime is largely dependent on questions of credibility which are peculiarly for determination by the trier of fact. State v. Rybczyk, 133 Conn. 598, 599, 53 A.2d 295; State v. Chuchelow, 131 Conn. 82, 83, 37 A.2d 689.
Other courts, when faced with the similar circumstances of a serious crime, a confession as the basic if not sole evidence of guilt, and a defendant of questionable mental condition, have held that expert testimony is admissible to impeach the credibility of the confession. State v. Faught, 254 Iowa 1124, 120 N.W.2d 426 (evidence of mental weakness admissible to determine weight of confession); People v. Joyce, 233 N.Y. 61, 134 N.E. 836 (where a confession to murder was the only evidence and the defendant claimed the confession was the result of *462 a lack of comprehension, that he had the mind of a child, and was easily influenced); Commonwealth v. Jones, 459 Pa. 62, 327 A.2d 10 (confession to murder admitted but psychiatric evidence allowed as to probative value); State v. Allen, 67 Wash. 2d 238, 406 P.2d 950; see also Vinzant v. State, 28 Ala. App. 220, 180 So. 736; People v. Boyington, 3 Cal. App. 2d 655, 39 P.2d 867; Ingles v. People, 92 Colo. 518, 22 P.2d 1109; State v. Stewart, 238 La. 1036, 117 So. 2d 583; State v. Berberick, 38 Mont. 423, 100 P. 209; 29 Am. Jur. 2d, Evidence, § 596; 23 C.J.S. 228, Criminal Law, § 828. In Commonwealth v. Jones, supra, 13, the Pennsylvania Supreme Court was also for the first time faced in the same context with the same question which is now before us and we are in agreement with its conclusion: "While the appellant in this case is not strictly challenging the voluntariness of his confession, he is trying, by his offer of proof, to have the confession viewed in the perspective of his alleged subnormal mental capacity, and so to question the weight that should be given to it. In effect, he is saying that the statement in the format presented by the Commonwealth was not truly his own. We see no reason why opinion testimony by a qualified psychiatrist that, because of his low intelligence, appellant was incapable of giving such a statement should not be admissible for that purpose, notwithstanding that he was not present when the confession was made and recorded."
We are not unmindful of the broad discretion which a trial court has in ruling on the relevancy of evidence and the exclusion of questions which would introduce issues collateral or foreign to the case or which would tend to distract attention which should be concentrated on vital issues of the *463 case. State v. Mahmood, 158 Conn. 536, 540, 265 A.2d 83; State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473. We must conclude, however, that in this instance the discretion of the trial court was improperly exercised when it excluded the defendant's offer of proof by an expert witness concerning the defendant's mental deficiencies and subnormal intelligence as they would affect the weight and credibility which the jury should accord to his confession, which was the most significant and damaging evidence against him.
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267219/ | 174 Cal. App. 4th 264 (2009)
___ Cal.Rptr.3d ___
YAMAHA MOTOR COMPANY, LTD., Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;
JACK R. CONNORS, a Minor, etc., et al., Real Parties in Interest.
No. G041255.
Court of Appeals of California, Fourth District, Division Three.
May 26, 2009.
*266 Jones Day, Thomas R. Malcolm, Frederick L. McKnight, Erik K. Swanholt, Brian M. Hoffstadt; Bowman & Brooke, Paul G. Cereghini, Robert K. Miller, Stephen J. Kelley and Renee S. Konigsberg for Petitioner.
O'Melveny & Myers, Thomas M. Riordan and Katherine A. Lindsey for Association of International Automobile Manufacturers, Inc., as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Engstrom, Lipscomb & Lack, Walter J. Lack, Gary A. Praglin, Gregory P. Waters and Richard P. Kinnan for Real Parties in Interest.
*267 OPINION
SILLS, P. J.
This court issued an OSC (order to show cause) in response to this petition for writ of mandate because it presents an issue of some public importance that has not yet been squarely faced by a California state court, in a published opinion, in this particular context: The question of whether a Japanese manufacturer can be served under California law simply by serving the Japanese manufacturer's American subsidiary. The trial court ruled that a Japanese manufacturer could indeed be validly served that way. The method just seemed too easy a way to get around the Hague Service Convention and we scheduled an OSC on the petition to give us the chance to study the issue.
On review, however, it turns out that, yes, it really is that easy.[1] And not only that, there is nothing this court, as a matter of California common law, can do about it. We are a court under authority, and there is a nonoverruled, nondistinguishable California Supreme Court case, Cosper v. Smith & Wesson Arms Co. (1959) 53 Cal. 2d 77 [346 P.2d 409], that makes service on the California representative of a foreign parent validthat is, valid as to the foreign parentunder California law. And not only that, but there is a 1988 federal United States Supreme Court case, Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. 694 (Schlunk), that says when service is valid under state law on the American subsidiary of a foreign manufacturer, there is no need to serve papers in accord with the Hague Service Convention. Accordingly, we have no choice but to deny the petition for writ of mandate.
I. BACKGROUND
The plaintiff was allegedly injured when he was out riding on a 2005 Yamaha Rhino on his 12th birthday. His complaint includes two defendants which we will call "Yamaha-Japan"[2] and "Yamaha-America."[3]
*268 Plaintiff served Yamaha-America and also sought to serve Yamaha-Japan by serving Yamaha-America through Yamaha-America's agent for service of process. His theory was (and is) that Yamaha-America is Yamaha-Japan's "general manager in this state."
Yamaha-Japan filed a motion to quash service, arguing that Yamaha-America is only a subsidiary of Yamaha-Japan, not Yamaha-Japan's general manager in California, and therefore service should have been made through the Hague Service Convention. (At the very least, serving Yamaha-Japan through the Hague Service Convention would have meant incurring the expense of translating the pleadings into Japanese. (See Honda Motor Co. v. Superior Court (1992) 10 Cal. App. 4th 1043, 1049 [12 Cal. Rptr. 2d 861] ["Petitioner correctly points out that the service is also flawed by the omission of a Japanese translation. Plaintiff admits that the Central Authority for Japan requires that documents served under the convention be accompanied by a Japanese translation."].))
Here are the undisputed facts about Yamaha-America's relationship to Yamaha-Japan: Yamaha-America is Yamaha-Japan's wholly owned domestic subsidiary in the United States. Yamaha-America's principal business is to act as the exclusive importer and distributor of Yamaha vehicles, including the Rhino in this case, manufactured by Yamaha-Japan. Yamaha-America provides the warranty and owner manuals for Yamaha vehicles. Yamaha-America conducts testing, including suitability testing, for Yamaha vehicles. Yamaha-America provides marketing for Yamaha vehicles and receives all customer complaints and accident reports for the United States involving Yamaha vehicles. Finally, Yamaha-Japan's 2007 annual report describes Yamaha-America as Yamaha-Japan's "Regional Headquarters for North America."
The trial court denied the motion, reasoning that Yamaha-America is Yamaha-Japan's general manager in this state. Yamaha-Japan then filed this petition for writ of mandate, and it is supported by a brief from the Association of International Automobile Manufacturers.
II. DISCUSSION
A. Federal Law Makes the Validity of the Service Dependent on State Law
Rarely do lower courts have a precedent from a higher court as close on the facts as the United States Supreme Court opinion in Schlunk to *269 the case before us. In Schlunk, a plaintiff sued both Volkswagen-America ("Volkswagen of America" or "VWoA" as described in the opinion) and Volkswagen-Germany ("Volkswagen Aktiengesellschaft" or "VWAG" as described in the opinion) in Illinois state court for defects in the automobile that contributed to the plaintiff's parents' deaths in an accident. More specifically, the plaintiff successfully served Volkswagen-America, got back an answer denying that Volkswagen-America had designed or assembled the car in question, so he then amended his complaint to add Volkswagen-Germany as a defendant. The plaintiff then "attempted" to serve the amended complaint on Volkswagen-Germany by serving Volkswagen-America as Volkswagen-Germany's "agent." (Schlunk, supra, 486 U.S. at pp. 696-697.)
Volkswagen-Germany made a special and limited appearance to quash service. The Illinois state trial court denied the motion on the ground that, under Illinois state law, the fact that Volkswagen-America and Volkswagen-Germany were so "closely related" that Volkswagen-America was Volkswagen-Germany's "agent for service of process as a matter of law," even though Volkswagen-Germany had not appointed Volkswagen-America as its agent. (Schlunk, supra, 486 U.S. at p. 697.) The Illinois intermediate appellate court agreed, holding that, under Illinois law, Volkswagen-America was Volkswagen-Germany's involuntary agent for service of process. It further held that serving Volkswagen-Germany by serving Volkswagen-America did not violate the Hague Service Convention. (486 U.S. at p. 697.) When the Illinois Supreme Court refused to take the case, Volkswagen-Germany petitioned the United States Supreme Court, and it granted certiorari to address the issue, which the federal high court noted had "given rise to disagreement among the lower courts." (Id. at pp. 697-698.)
(1) The federal Supreme Court framed the issue as whether "an attempt to serve process on a foreign corporation by serving its domestic subsidiary which, under state law, is the foreign corporation's involuntary agent for service of process" was "compatible with the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention)." The federal high court then agreed with the Illinois state courts and answered: Yes. (Schlunk, supra, 486 U.S. at pp. 696 [the issue], 707-708 [the answer].)
*270 The Hague Service Convention applies "where there is"and this is the precise language from the treaty"occasion to transmit a judicial or extrajudicial document for service abroad."[4]
Now, one might think that in any case where a foreign person had an agent for service of process in another country that there would still be "occasion to transmit" the complaintwhich is a "judicial document" to the foreign person in his, her or its home countryafter all, he, she or it is going to have to read the document there, so the convention should still apply.
No. The United States Supreme Court rejected that precise argument in Schlunk, reasoning that if service, under state law, did not necessarily require transmittal of the relevant documents, the Hague Service Convention simply was not implicated. Because, under Illinois law, there was no necessity to send any documents abroad to complete service (even though, as a practical matter, they would be sent anyway), the convention did not apply, and the service on Volkswagen-America as agent for Volkswagen-Germany was "proper."[5]
If California law were the same as Illinois law, we could end this opinion here. We have a United States Supreme Court case construing federal law, on all fours. But, of course, the two states do not have identical statutes and *271 common law construing those statutes, so we now turn to whether California law, like Illinois law in Schlunk, provides for proper service of "process on a foreign corporation by serving its domestic subsidiary which, under state law, is the foreign corporation's involuntary agent for service of process." (Schlunk, supra, 486 U.S. at p. 696.) As we shall see, the answer is yes.
B. California Law Allows Service on a Foreign Corporation by Serving Its Domestic Subsidiary
1. The Relevant Statutes
(2) The first of California's service of process statutes is section 413.10 of the Code of Civil Procedure, which expressly contemplates that the rules governing summonses "are subject to" the provisions of the Hague Service Convention.[6]
We pause for a moment to note that "subject to" does not mean "pursuant to the rules of." If the Legislature wanted all service on foreign nationals to be pursuant to the procedures of the Hague Service Convention, it could have said so. It didn't; it merely recognized that treaties trump conflicting state law. (U.S. Const., art. VI; e.g., Mitsubishi Materials Corp. v. Superior Court (2003) 113 Cal. App. 4th 55 [6 Cal. Rptr. 3d 159] [state law allowing former POW's to sue successors of Japanese companies who exploited them as slave labor in World War II conflicted with treaty that ended hostilities between the two countries].)
Code of Civil Procedure section 416.10 governs how to serve corporations. It says that service on a corporation may be made if "authorized by any provision in Section ... 2110 ... of the Corporations Code" or "Sections 6500 *272 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable."[7]
Corporations Code section 2110 says that delivery by hand of a copy of any process to the "general manager in this state" of a foreign corporation "shall constitute valid service on the corporation."[8]
We pause again to recognize a nonissue for what it is: Corporations Code section 6500 was repealed in 1975 (see Stats. 1975, ch. 682, § 6, p. 1516), while Corporations Code section 2110 was added in the same legislation that repealed Corporations Code section 6500 (see Stats. 1975, ch. 682, § 7, p. 1516), and which also amended section 416.10 of the Code of Civil Procedure to read as it reads today. The replacement of Corporations Code section 6500 with Corporations Code section 2110 was part of a wholesale recodification of the Corporations Code. However, these changes did not become effective until January 1, 1977. (Stats. 1975, ch. 682, § 7, pp. 1516, 1622.)
That is, under section 416.10 of the Code of Civil Procedure, as it stands today, a summons may be served on a corporation "by delivering a copy of the summons and the complaint" to "the person designated as agent for service of process as provided by ... Section[] 6500 ... as in effect on December 31, 1976."
Which is all by way of saying that an authoritative construction of Corporations Code former section 6500 by a 1959 decision of our state's *273 highest court is still binding on this intermediate appellate court. There is no basis by which we may tease out an intervening change in the statutory law. (Particularly when one realizes that the 1975 legislation was enacted in light of the 1969 Hague Service Convention. If, in 1975, the Legislature wanted to change the method of service provided for by Corporations Code former section 6500 as previously construed by California courts it had the perfect chance to do so; it didn't.)
2. The Relevant Supreme Court Decision
In Cosper v. Smith & Wesson Arms Co., supra, 53 Cal. 2d 77 (Cosper), a police officer whose revolver exploded on him sued the Massachusetts corporation that manufactured the firearm. The Massachusetts corporation, however, had no agents, salesmen, or other employees in California. (Id. at p. 80.) But it did have a contract with a California representative to promote, on a "`non-exclusive basis'" the sale of its products on the West Coast. Basically, he was a sporting goods salesman. (Ibid.) The Supreme Court held that service on this representative was sufficient to serve the Massachusetts corporation because the representative was the "`general manager in this State.'" (Id. at pp. 79, 83-84.)
(3) To be sure, the bulk of the Cosper decision is devoted to the due process minimum contacts problem on which first-year civil procedure professors usually spend too much time. (The court held that, yes, Smith & Wesson had done enough business in California that it would not be a denial of due process to have the firm sued in this state.) Even so, the court also clearly held that service on the sales representative was valid service on the corporation itself, reasoning that the representative had "ample regular contact" so that it was "`reasonably certain'" that the representative would apprise the manufacturer of the service. (Cosper, supra, 53 Cal.2d at p. 83.)[9]
*274 (4) Cosper applies a fortiori to this casethat is, the relationship between the manufacturer's representative and the manufacturer in Cosper was far less intimate, far less connected, and far less interrelated than the relationship between Yamaha-America and Yamaha-Japan in the case before us. If, in Cosper, a sporting goods oriented nonexclusive purveyor of Smith & Wesson guns on the West Coast was a "general manager in this State" under Corporations Code former section 6500, how much more so is Yamaha-America the "general manager in this State" here, where (unlike Cosper), Yamaha-America is the American face of the Japanese company: Here, Yamaha-America does have an exclusive arrangement to sell the manufacturer's products, provides warranty service, English owner manuals, does testing, marketing, and receives complaints about the manufacturer's products. Probable contact between the domestic representative and the foreign corporation leading to actual notification is far more present here than in Cosper. If it was reasonably certain that a relatively casual sporting goods representative would apprise the "foreign" manufacturer of service in Cosper, it is doubly reasonably certain Yamaha-America will apprise Yamaha-Japan of any service in California.
C. Service on Yamaha-America Was Good Enough to Serve Yamaha-Japan
(5) As an intermediate appellate court, we are bound by Cosper. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455-456 [20 Cal. Rptr. 321, 369 P.2d 937] [intermediate appellate courts have no jurisdiction to refuse to follow binding precedent of state supreme court].) Given that there has been no change in the relevant statutory structure governing service of a foreign corporation in California since Cosper (see pt. II.B.1 above), there is no basis to say Cosper has been abrogated by statute, and there is *275 certainly no basis to distinguish it factually (far from it, see pt. II.B.2 above). So we have to follow it.
General Motors Corp. v. Superior Court (1971) 15 Cal. App. 3d 81 [93 Cal. Rptr. 148], primarily relied on by Yamaha-Japan, is distinguishable. In General Motors Corp., the plaintiff attempted to sue GM (General Motors) by serving the customer relations manager for Pontiac, a GM division. The appellate court distinguished Cosper by noting that GM already had "designated an agent whose identity was easily ascertainable to accept service of process." (General Motors Corp., supra, 15 Cal.App.3d at p. 85.) To the degree that General Motors Corp. contains dicta suggesting Cosper only applies when a foreign corporation tries to "maintain a rather low silhouette" or has "sought to avoid its accountability in the State of California" (ibid.), that dicta actually favors application of Cosper here. As Smith & Wesson did in Cosper, but in contrast to GM in the General Motors Corp. case, Yamaha-Japan has not made it easy to be served directly by having an "easily ascertainable" designated agent for service of process in California.
Following our Supreme Court, we have no choice but to deny the writ seeking the vacation of the order denying the motion to quash.
D. The Supreme Court Is Welcome to Revisit Cosper.
The Cosper court's discussion of Corporations Code former section 6500 is abbreviated.[10] The high court never really grappled with the anomaly that a mere nonexclusive sales representative could not really be described as a general manager in this state. To be a manager, much less a general manager, implies a measure of formal control. Neither the sales representative in Cosper, nor Yamaha-America here, has any real control over their principalsthey simply did (or do) their master's bidding. (And, as we have noted, the leash is, if anything, tighter around Yamaha-America than it was around the sporting goods sales representative in Cosper.) The phrase "general manager in this state" implies a real presence in the state of a person who has some real control over the corporation being served. The ordinary person would think of the phrase "general manager in this state" as somebody or something more than just a satellite outpost or sales representative only bound to another entity by contract. But we respect stare decisis, so our comments cannot change the required result.
*276 III. DISPOSITION
The petition for writ of mandate is denied. Costs will be borne by each party.
Aronson, J., and Ikola, J., concurred.
NOTES
[1] Easy is not necessarily better. As Justice O'Connor pointed out in Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694 [100 L. Ed. 2d 722, 108 S. Ct. 2104], there are good reasons to do it the hard way: "Those who eschew [the Hague Service Convention's] procedures risk discovering that the forum's internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service. In addition, parties that comply with the Convention ultimately may find it easier to enforce their judgments abroad. See Westin, Enforcing Foreign Commercial Judgments and Arbitral Awards in the United States, West Germany, and England, Law & Policy Int'l Bus. 325, 340-341 (1987). For these reasons, we anticipate that parties may resort to the Convention voluntarily, even in cases that fall outside the scope of its mandatory application." (Id. at p. 706.)
[2] Petitioner Yamaha Motor Company, Ltd., specially appearing to quash service of process.
[3] Defendant Yamaha Motor Corporation USA. Another Yamaha entity, Yamaha Motor Manufacturing Corporation of America, is also a defendant.
[4] Article 1 of the treaty is short, and can be quoted in its entirety: "Article 1 [¶] The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad. [¶] This Convention shall not apply where the address of the person to be served with the document is not known." (Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 362; 1969 WL 97765 at p. 1.)
[5] Here is the relevant text from Schlunk:
"VWAG explains that, as a practical matter, VWoA was certain to transmit the complaint to Germany to notify VWAG of the litigation.... VWAG argues that, because of this notice requirement, every case involving service on a foreign national will present an `occasion to transmit a judicial ... document for service abroad' within the meaning of Article 1.... VWAG emphasizes that in this case, the Appellate Court upheld service only after determining that `the relationship between VWAG and VWoA is so close that it is certain that VWAG "was fully apprised of the pendency of the action" by delivery of the summons to VWoA.' ...
"We reject this argument. Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. Whatever internal, private communications take place between the agent and a foreign principal are beyond the concerns of this case. The only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service. And, contrary to VWAG's assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national. Applying this analysis, we conclude that this case does not present an occasion to transmit a judicial document for service abroad within the meaning of Article 1. Therefore the Hague Service Convention does not apply, and service was proper." (Schlunk, supra, 486 U.S. at pp. 707-708, citations omitted, italics added.)
[6] The statute provides:
"Except as otherwise provided by statute, a summons shall be served on a person:
"(a) Within this state, as provided in this chapter.
"(b) Outside this state but within the United States, as provided in this chapter or as prescribed by the law of the place where the person is served.
"(c) Outside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory. These rules are subject to the provisions of the Convention on the `Service Abroad of Judicial and Extrajudicial Documents' in Civil or Commercial Matters (Hague Service Convention)." (Code Civ. Proc., § 413.10.).
[7] Subdivisions (a) and (d) of the statute provide:
"A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods:
"(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable). [¶] ... [¶]
"(d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by that provision." (Code Civ. Proc., § 416.10.)
[8] The text of the statute is: "Delivery by hand of a copy of any process against a foreign corporation (a) to any officer of the corporation or its general manager in this state, or if the corporation is a bank to a cashier or an assistant cashier, (b) to any natural person designated by it as agent for the service of process, or (c), if the corporation has designated a corporate agent, to any person named in the latest certificate of the corporate agent filed pursuant to Section 1505 shall constitute valid service on the corporation." (Corp. Code, § 2110.)
[9] The Supreme Court's reasoning in Cosper on the service issue is set out in one long paragraph, which (minus citations) we can readily cram into this footnote: "The second consideration in testing the validity of service under section 6500 of the Corporations Code [the first consideration went to the due process concern of whether the corporation was really "`doing business in this State'" (Cosper, supra, 53 Cal.2d at p. 82)] is whether the person served is within the statutory designationhere `the general manager in this State' for Smith and Wesson. In this regard, it has been said that `every object of the service is obtained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made,' and by service on such an agent, `the requirement of the statute is answered.' [Citation.] Whether in any given case, the person served may properly be regarded as within the concept of the statute depends on the particular facts involved. [Citations.] Here, it reasonably appears that Lookabaugh as a manufacturer's representative actively engaged in promoting the sales of Smith and Wesson and earning commissions through such sales, would have ample regular contact with Smith and Wesson and would be of `sufficient character and rank to make it reasonably certain' that Smith and Wesson would be apprised of the service of process. Neither the fact that Lookabaugh's organization was designated as `manufacturer's representatives' nor the fact that such representatives promoted sales `on their own time and expense' is determinative here. Whether Smith and Wesson was operating `through an independent contract, agent, employee or in any other manner' [citations], the essential factor is that Lookabaugh in his selling and advertising activities was performing services for Smith and Wesson and providing it with the opportunity for `regular contact with its customers and a channel for a continuous flow of business into the state.' [Citation.] In short, the arrangement of Smith and Wesson with Lookabaugh appears, in the light of the president's affidavit, to have given Smith and Wesson substantially the business advantages that it would have enjoyed `if it conducted its business through its own offices or paid agents in the state' [citation]; and such arrangement was sufficient to constitute Lookabaugh `the general manager in this State' for purposes of service of process on Smith and Wesson. (Corp. Code, § 6500.)" (Cosper, supra, 53 Cal.2d at pp. 83-84, italics added.)
[10] We got the entire substantive discussion into one footnote, see footnote 9 above. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312922/ | Gary Feinerman, United States District Judge
Tobias Diggs, Marvon Hamberlin, and Joshua McClellan are charged under the Hobbs Act, 18 U.S.C. § 1951(a), for the robbery of a Razny Jewelers store in Hinsdale, Illinois on March 17, 2017. Doc. 1. While investigating the robbery, a Hinsdale detective obtained from a third party-without a warrant-more than a month's worth of Global Positioning System ("GPS") location data for a vehicle associated with Diggs. Doc. 56-1 at 2-5. Diggs moves to suppress the GPS evidence. Doc. 49. The motion is granted.
Background
Because there are no "disputed issues of material fact that will affect the outcome" of Diggs's motion, an evidentiary hearing is not required. United States v. Edgeworth , 889 F.3d 350, 353 (7th Cir. 2018) (internal quotation marks omitted). The undisputed facts, drawn primarily from police reports and search warrant applications, are as follows.
While investigating the Razny Jewelers robbery, Hinsdale detectives came to believe-based on witness statements, video surveillance, and an anonymous tip relayed by another law enforcement officer-that *650the getaway vehicle was a 2003 Lexus RX with Michigan license plate number DPA 8960. Doc. 50-1 at 4-5; Doc. 56-1 at 2-4. The Lexus was registered to Diggs's wife, Devinn Adams. Doc. 49 at 1; Doc. 50-1 at 5. Adams bought the car on credit from Headers Car Care in July 2016. Doc. 55-1 at 2. Her contract with Headers includes this provision: "If your vehicle has an electronic tracking device, you agree that we may use this device to find the vehicle." Id. at 4. Although Adams owned the Lexus, Diggs "regularly drove" it. Doc. 55 at 4.
On March 29, 2017, Hinsdale detectives issued an alert "on multiple databases" seeking information about the Lexus. Id. at 3. On April 4, 2017, a Headers employee told one of the detectives that the Lexus was equipped with a GPS tracking device serviced by Air Assault Asset Track GPS Systems. Doc. 49-1 at 3-4; Doc. 56-1 at 2-3. The Headers employee gave the detective her login credentials for Air Assault's website and authorized him to access "all the GPS records associated with the Devinn Adams/Lexus RX account." Doc. 56-1 at 3. The GPS records included historical data tracking the Lexus's "movement and global position." Ibid.
Without first obtaining a warrant, the detective downloaded a spreadsheet containing GPS data for the period from March 1, 2017 through April 4, 2017. Ibid. ; Doc. 49-1 at 6, 8, 10. The spreadsheet sets forth time-stamped entries giving the Lexus's approximate street address (usually at the block level, such as "5701-5799 S Campbell Ave, Chicago, IL, 60629") each time it was turned on, approximately every five minutes while it was being driven, and each time it was parked. Doc. 56-1 at 3-4; Doc. 49-1 at 8. According to the detective, "[g]reater detail" beyond those approximate street addresses "c[ould] be extracted from the map points" using "the software program that manages the GPS data," which allowed the detective to "narrow[ ]" each recorded location "to specific latitude and longitude way points." Doc. 56-1 at 3.
The GPS data reflect that the Lexus traveled to Hinsdale on the date of the robbery, March 17, 2017, and on each of the two previous days. Id. at 3. The data also reflect that the Lexus traveled to and from all three defendants' "family residence[s]" from March 15 through March 17. Id. at 4 (capitalization altered). The March 17 data show the Lexus driving from Diggs's address to McClellan's, then to Hamberlin's, then to Hinsdale, and then back to Hamberlin's. Id. at 3-5. The data place the Lexus on the same block as Razny Jewelers at the time of the robbery, and in the alleyway "directly behind" the store during the robbery. Id. at 5. Later on March 17, the Lexus was parked in the garage at Diggs's girlfriend Jessica Christian's mother's home, where it remained until the police seized it on April 4. Id. at 3; Doc. 49-1 at 4.
Discussion
Diggs argues that the Hinsdale police's warrantless acquisition of the Lexus's long-term historical GPS data was an unreasonable search in violation of the Fourth Amendment as interpreted by United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and Carpenter v. United States , --- U.S. ----, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). Doc. 49 at 1-4; Doc. 56 at 4-10. The government responds that acquiring the data was not a Fourth Amendment search because: (1) unlike in Jones , the police made no physical intrusion on the Lexus, Doc. 55 at 10-12; and (2) under the third-party doctrine, Diggs lacked a reasonable expectation of privacy in the data because he voluntarily provided it to the third party (Headers) from which the police obtained it, id. at 5-10. The government submits in *651the alternative that even if the Hinsdale police violated the Fourth Amendment, the good-faith exception to the exclusionary rule applies because the police adhered to binding appellate precedent in obtaining the data. Doc. 62 at 1-5.
I. Whether Law Enforcement's Acquisition of the GPS Data Violated the Fourth Amendment
The Fourth Amendment prohibits "unreasonable searches." U.S. Const. amend. IV. To determine whether that prohibition has been violated, the court must "ask[ ] two questions: first, has there been a search ..., and second, was it reasonable?" United States v. Correa , 908 F.3d 208, 217 (7th Cir. 2018) ; see also Carpenter , 138 S. Ct. at 2215 n.2 (cautioning against "conflat[ing] the threshold question whether a 'search' has occurred with the separate matter of whether the search was reasonable"). The parties dispute only the first question.
"The Supreme Court uses two analytical approaches to decide whether a search has occurred. One is the property-based or trespass approach. The other is based on expectations of privacy." Correa , 908 F.3d at 217 (citations omitted); see also United States v. Thompson , 811 F.3d 944, 948 (7th Cir. 2016) ("A search occurs either when the government physically intrudes without consent upon a constitutionally protected area in order to obtain information or when an expectation of privacy that society is prepared to consider reasonable is infringed.") (citation and internal quotation marks omitted). "The two approaches work together" in that " 'property concepts' are instructive in 'determining the presence or absence of [protected] privacy interests.' " Correa , 908 F.3d at 217 (quoting Byrd v. United States , --- U.S. ----, 138 S. Ct. 1518, 1526, 200 L.Ed.2d 805 (2018) ). Diggs invokes only the privacy-based approach, arguing that he had a reasonable expectation of privacy in his movements, as chronicled by a month's worth of GPS data tracking the vehicle he was driving. Doc. 49 at 3-4; Doc. 56 at 4-5. Under the principles set forth in Jones and Carpenter , Diggs is correct.
In Jones , the government attached a GPS tracking device to a target's vehicle and used it to monitor the vehicle's movements over a 28-day period. 565 U.S. 400, 403-04, 132 S.Ct. 945. The Supreme Court unanimously held that a search occurred, but split evenly as to why. The five-Justice majority held that the government conducted a search by "physically occup[ying] private property for the purpose of obtaining information." Id. at 404-05, 132 S.Ct. 945. In a concurrence joined by three other Justices, Justice Alito rejected the majority's "trespass-based theory," concluding instead that "the use of longer term GPS monitoring in investigations of most offenses" is a search because it "impinges on expectations of privacy" to a "degree ... that a reasonable person would not have anticipated." Id. at 419-21, 424, 430, 132 S.Ct. 945 (Alito, J., concurring in the judgment). Justice Sotomayor adopted both theories, joining the majority in holding that "[w]hen the Government physically invades personal property to gather information, a search occurs," while agreeing with Justice Alito that long-term GPS monitoring implicates privacy concerns by "enabl[ing] the Government to ascertain, more or less at will, [individuals'] political and religious beliefs, sexual habits, and so on." Id. at 414-16, 132 S.Ct. 945 (Sotomayor, J., concurring). Thus, as the Court recognized in Carpenter , although Jones was formally resolved under the property-based approach, "[a] majority of [the] Court [in Jones ] ... recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements." Carpenter , 138 S. Ct. at 2217 ;
*652see also United States v. Caira , 833 F.3d 803, 808 (7th Cir. 2016) ("Traditionally, a person had no reasonable expectation of privacy in his movements on public streets, so it would not be a 'search' if officers watched him. But two concurring opinions [in Jones ], signed by five Justices total, expressed the view that technology has changed the constitutional calculus by dramatically increasing the amount and precision of data that the government can easily collect.") (citation omitted).
The GPS data at issue here fits squarely within the scope of the reasonable expectation of privacy identified by the Jones concurrences and reaffirmed in Carpenter. The GPS data provide "a precise, comprehensive record of [Diggs's] public movements" over the course of a month. Jones , 565 U.S. at 415, 132 S.Ct. 945 (Sotomayor, J., concurring); see also id. at 430, 132 S.Ct. 945 (Alito, J., concurring in the judgment) ("We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark."). Moreover, "the retrospective quality of the data here" impinges even further on privacy concerns than did the live data in Jones because it "gives police access to a category of information otherwise unknowable" by enabling the police to "travel back in time to retrace [Diggs's] whereabouts, subject only to the retention polic[i]es" of Headers and Air Assault. Carpenter , 138 S. Ct. at 2218. Thus, while the law enforcement tactic employed in Jones -attaching a GPS tracking device to a vehicle-required the police to "know in advance [that] they want to follow a particular individual," the tactic employed here-accessing a historical database of GPS information-means that "[w]hoever the suspect turns out to be, he has effectively been tailed" for the entire period covered by the database. Ibid.
True enough, the facts in Jones differ slightly from the facts here, as the defendant in Jones "was the exclusive driver" (but perhaps not the owner) of the tracked vehicle, 565 U.S. at 404 n.2, 132 S.Ct. 945 (internal quotation marks omitted), while Diggs "regularly drove the Lexus" but did not own it and was not its only driver, Doc. 55 at 4; see Doc. 56-1 at 3 (noting that surveillance video indicates that Christian drove the Lexus on at least one occasion). But the government does not argue that the possibility that some of the GPS data here reflected other persons' movements reduces the robustness of the resulting record of Diggs's movements to the point where he lacks a reasonable expectation of privacy in that record as a whole. Any such argument is therefore forfeited. See United States v. Stanbridge , 813 F.3d 1032, 1038 (7th Cir. 2016) (holding that the government forfeited an argument against suppression by failing to make it in the district court); Nichols v. Mich. City Plant Planning Dep't , 755 F.3d 594, 600 (7th Cir. 2014) ("The non-moving party waives any arguments that were not raised in [a] response ...."); Alioto v. Town of Lisbon , 651 F.3d 715, 721 (7th Cir. 2011) ("We apply [the forfeiture] rule where a party fails to develop arguments related to a discrete issue ...."). In any event, given the duration and level of detail of the GPS data, the possibility that some of the data does not reflect Diggs's movements does not push the government's acquisition of the data back over the line at which it became a search. Cf. Carpenter , 138 S. Ct. at 2217 n.3 (holding that "accessing seven days of [cell-site location information] constitutes a Fourth Amendment search," and declining to decide whether there is some shorter period for which obtaining the data would not be a search).
Invoking the third-party doctrine, the government next argues that Diggs *653gave up any reasonable expectation of privacy in his physical movements as revealed by the GPS data because the Lexus's owner (Adams) voluntarily turned over the data to a third party (Headers), which in turn gave the data to the police. Doc. 55 at 5-10. The third-party doctrine arises from Smith v. Maryland , 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), where the government used a pen register to record outgoing phone numbers dialed on a landline, and United States v. Miller , 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), where the government subpoenaed the defendant's bank records. See Carpenter , 138 S. Ct. at 2216 (explaining the doctrine's origins). As the Court observed some forty years later in Carpenter , Smith and Miller "held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties[,] ... even if the information is revealed on the assumption that it will be used only for a limited purpose." Ibid. (internal quotation marks omitted). Carpenter explained, however, that Smith and Miller did not erect a bright-line rule: "The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. But the fact of diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely." Id. at 2219. Thus, even where an individual voluntarily provides information to a third party, courts must "consider[ ] the nature of the particular documents sought to determine whether there is a legitimate expectation of privacy concerning their contents." Ibid. (internal quotation marks omitted).
Carpenter defeats the government's third-party argument here. Carpenter held that obtaining historical cell-site location information ("CSLI")-time-stamped records of a cell phone's connection to a cell tower-from a third party (a wireless carrier) was a search because it intruded on the target's "legitimate expectation of privacy in the record of his physical movements as captured through CSLI." 138 S. Ct. at 2211-12, 2217. The Court rejected the government's characterization of its acquisition of historical CSLI as "a garden-variety request for information from a third-party witness," reasoning that "[t]here is a world of difference between the limited types of personal information addressed in Smith and Miller "-telephone numbers and bank records-"and the exhaustive chronicle of location information casually collected by wireless carriers today." Id. at 2216-19. Given the heightened privacy concerns at play, the Court "decline[d] to extend Smith and Miller to the collection of CSLI." Id. at 2219-20.
Applying the third-party doctrine to the GPS data here would require essentially the same extension of the doctrine that the Court rejected in Carpenter . Carpenter understood CSLI to present "many of the qualities of the GPS monitoring ... considered in Jones "-both are "detailed, encyclopedic, and effortlessly compiled"; both "provide[ ] an intimate window into a person's life"; and, in the context of historical information, both provide a "tracking capacity [that] runs against everyone" without any need for the police to "know in advance whether they want to follow a particular individual, or when." Id. at 2216-18. Indeed, at the time of the search in Carpenter , CSLI was still "less precise than GPS information." Id. at 2218-19. Accordingly, Carpenter compels the conclusion that, given the privacy concerns implicated by the "detailed and comprehensive record of [Diggs's] movements" captured by the Lexus's GPS tracker, "the fact that the [police] obtained the information from a third party does not overcome [Diggs's]
*654claim to Fourth Amendment protection." Id. at 2217, 2220.
The government next argues that Diggs relinquished any reasonable expectation of privacy in the GPS data when he abandoned the Lexus in someone else's garage. Doc. 55 at 12-14. That argument rests on a misunderstanding of the privacy interests at play. Obtaining the GPS data implicated Diggs's privacy interest in the historical record of his location-as revealed by the Lexus's movements-over the month before he allegedly abandoned the Lexus. See Carpenter , 138 S. Ct. at 2217 (characterizing the relevant privacy interest as "a legitimate expectation of privacy in the record of [the target's] physical movements as captured through CSLI"). The government's argument regarding Diggs's abandonment of the Lexus, by contrast, addresses only his privacy interest (or lack thereof) in the Lexus itself. Doc. 55 at 12-14.
That distinction is crucial. If Diggs lacked a Fourth Amendment interest in the Lexus on April 4, 2017, the police could have searched the vehicle without implicating his Fourth Amendment rights. See Byrd , 138 S. Ct. at 1530 ("[A] person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search ...."). But it would not follow that Diggs lacked a Fourth Amendment interest in the GPS data the Lexus transmitted to Air Assault before he abandoned the vehicle. Diggs's reasonable expectation of privacy in the GPS data arises from the story that data tells about his movements over the course of a month, not from any expectation of privacy in the vehicle's interior after he left it in someone else's garage. As Diggs observes, if a person who abandoned the physical object that created a set of data-but that did not itself hold the data-also abandoned his privacy interests in that data, then anyone who trades in his cell phone for a newer model would lose his privacy interests in the CSLI his wireless carrier had collected from the old device. Doc. 56 at 12-13. That is not how the Fourth Amendment works; rather, the reasonable expectation of privacy inquiry arises from the information that was searched. See Carpenter , 138 S. Ct. at 2219 ("[W]hen the Government accessed CSLI from the wireless carriers, it invaded Carpenter's reasonable expectation of privacy in the whole of his physical movements. ") (emphasis added); United States v. Alexander , 573 F.3d 465, 472 (7th Cir. 2009) ("A person cannot have a reasonable expectation of privacy in abandoned property .... To demonstrate the abandonment, the government must prove ... that the defendant relinquished his property interests in the item to be searched. ") (emphasis added) (internal quotation marks omitted).
Finally, the government says in a footnote that "[i]t is not clear that [Diggs] actually" "has sufficient standing with respect to the Lexus to bring a Fourth Amendment claim related to it." Doc. 55 at 5 n.3. Because the government takes no clear position, addresses the issue only in a footnote, and cites no authority for the proposition that a person who "regularly drove" the Lexus, id. at 4, has no reasonable expectation of privacy in his location as revealed by long-term historical GPS data reflecting the vehicle's movements simply because he "lacked a sufficient possessory interest in the Lexus," id. at 5 n.3, the issue is forfeited. See Evergreen Square of Cudahy v. Wis. Housing & Econ. Dev. Auth. , 848 F.3d 822, 829 (7th Cir. 2017) ("A party may waive an argument by presenting it only in an undeveloped footnote."); M.G. Skinner & Assocs. Ins. Agency v. Norman-Spencer Agency, Inc. , 845 F.3d 313, 321 (7th Cir. 2017) ("Perfunctory and undeveloped arguments *655are waived, as are arguments unsupported by legal authority.").
Even setting aside forfeiture, any challenge to Diggs's Fourth Amendment "standing" would fail on the merits. Fourth Amendment "standing" is merely a "shorthand for ... the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search," and thus is "not distinct from the merits and is more properly subsumed under substantive Fourth Amendment doctrine." Byrd , 138 S. Ct. at 1530 (internal quotation marks omitted). Because, as shown above, Diggs had a reasonable expectation of privacy in the GPS data, he had "a cognizable Fourth Amendment interest" in that data and accordingly may seek relief for law enforcement's intrusion on that interest. Ibid. Diggs need not also establish a property interest in the vehicle itself. See id. at 1526 ("Expectations of privacy protected by the Fourth Amendment ... need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.") (internal quotation marks omitted).
Accordingly, the government's warrantless acquisition of historical GPS data revealing Diggs's movements over the course of more than a month was a search. The next question is whether the search was reasonable. It was not. As the Court explained in Carpenter , "warrantless searches are typically unreasonable where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing. Thus, in the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." 138 S. Ct. at 2221 (alteration, citation, and internal quotation marks omitted) (holding that a warrantless search of CSLI records was unreasonable); see also United States v. Brewer , 915 F.3d 408, 413 (7th Cir. 2019) ("GPS vehicle monitoring generally requires a warrant ...."). The government does not argue that any exception to the warrant requirement applies here, thus forfeiting the point. See Stanbridge , 813 F.3d at 1038 ; Nichols , 755 F.3d at 600 ; Alioto , 651 F.3d at 721. The search accordingly violated the Fourth Amendment. See Carpenter , 138 S. Ct. at 2221.
II. Whether the Good-Faith Exception to the Exclusionary Rule Applies
The government next argues that the good-faith exception to the exclusionary rule applies to its search of the GPS data because an objectively reasonable officer could have conducted the search in reliance on pre- Carpenter "case law regarding the third-party doctrine." Doc. 62 at 1-5. The government invokes the version of the good-faith exception applied in Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), which held that "when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply." Id. at 249-50, 131 S.Ct. 2419. Diggs responds that the government has not identified any precedent that qualifies as binding appellate precedent under Davis. Doc. 63 at 9-13.
The Davis good-faith exception applies only "when 'binding appellate precedent specifically authorizes a particular police practice.' " United States v. Jenkins , 850 F.3d 912, 918 (7th Cir. 2017) (quoting Davis , 564 U.S. at 241, 131 S.Ct. 2419 ). The reasoning behind the exception is this: Because the exclusionary rule is a deterrence mechanism rather than "a personal constitutional right," there is nothing to deter-and thus no basis for suppression-when officers conducting a search "scrupulously adhere[ ] to governing law" that "is later overruled."
*656Davis , 564 U.S. at 232, 248-49, 131 S.Ct. 2419 (internal quotation marks omitted); see also id. at 241, 131 S.Ct. 2419 (noting that "well-trained officers will and should use [a] tool" specifically authorized by binding appellate precedent). As the Seventh Circuit has held, that reasoning does not "reach so far as to excuse mistaken efforts to extend controlling precedents." Jenkins , 850 F.3d at 920 (internal quotation marks omitted). Illustrating the point, the Seventh Circuit held in Jenkins that binding appellate precedent recognizing "a categorical rule that permitted the police to conduct a search of a person incident to a lawful arrest"-and even applying that rule to "the search of a vehicle's compartments and any containers therein" when "the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search"-did not specifically authorize a warrantless search of a cell phone found during a search of the defendant's vehicle conducted while he was standing at the front of an officer's squad car. Id. at 916, 918-20. Likewise, in United States v. Whitaker , 820 F.3d 849 (7th Cir. 2016), the Seventh Circuit held that Davis did not apply where, although "there was no recognized expectation of privacy in the common areas of a multi-unit apartment building" at the time of the search, "no appellate decision specifically authorize[d] the use of a super-sensitive instrument, a drug-detecting dog, by the police outside an apartment door to investigate the inside of the apartment without a warrant." Id. at 854-55 ; cf. United States v. Velazquez , 906 F.3d 554, 555-56, 560-61 (7th Cir. 2018) (holding that Davis applied where the police, acting with probable cause but without a warrant, brought a drug-sniffing dog onto the defendant's driveway to sniff a vehicle and then-controlling circuit precedent "permitted the warrantless search of a vehicle parked close to a house on the defendant's private driveway so long as there was probable cause to believe that the search would uncover contraband or evidence of a crime").
The government argues that binding appellate precedent authorized the search here because as of April 4, 2017, the date the police downloaded the GPS data, "a number of courts had held that defendants did not have a reasonable expectation of privacy in location information ... maintained by a third party," and the Seventh Circuit had held that the third-party doctrine survived Jones. Doc. 62 at 1-3. The government points to three appellate cases: the Seventh Circuit's 2016 decision in United States v. Caira , supra ; the Fourth Circuit's decision in United States v. Graham , 824 F.3d 421 (4th Cir. 2016) (en banc), abrogated by Carpenter , 138 S. Ct. 2206 ; and the Sixth Circuit's decision in Carpenter itself, United States v. Carpenter , 819 F.3d 880 (6th Cir. 2016), rev'd , 138 S. Ct. 2206.
In Caira , the Seventh Circuit characterized the third-party doctrine as "a bright-line application of the reasonable-expectation-of-privacy test," explaining that Smith and Miller "held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties[,] even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." 833 F.3d at 806 (alteration and internal quotation marks omitted). Given Caira 's understanding of Smith and Miller , a reasonable officer at the time of the search here might not have anticipated that the Supreme Court a year later in Carpenter would hold that permitting the warrantless collection of CSLI from a third party would represent not "a straightforward application of the third-party doctrine, but instead a significant *657extension of it to a distinct category of information." 138 S. Ct. at 2219 (emphasis added). Even so, Diggs argues that given Carpenter 's narrow view of the third-party doctrine's reach, the mere recitation of the doctrine in pre-Carpenter cases like Caira did not specifically authorize its application to GPS data. Doc. 63 at 9-13. Diggs is correct.
This court must take the Supreme Court at its word as to the third-party doctrine's pre- Carpenter reach. See Mathis v. United States , --- U.S. ----, 136 S. Ct. 2243, 2254, 195 L.Ed.2d 604 (2016) ("[A] good rule of thumb for reading [Supreme Court] decisions is that what they say and what they mean are one and the same ...."). The Supreme Court could have described what it was doing in Carpenter , not as declining to extend the third-party doctrine to a context not addressed in Smith and Miller , but as partially scaling back the once-categorical doctrine to account for "the seismic shifts in digital technology" that gave rise to widespread, long-term location tracking. 138 S. Ct. at 2219. Had it done so, the Davis good-faith exception might very well have applied here. See United States v. Gary , 790 F.3d 704, 709-10 (7th Cir. 2015) (holding that cases setting out a "categorical rule allowing the police to conduct a search of a person incident to a lawful arrest" amounted to binding appellate precedent specifically authorizing a warrantless search of a cell phone discovered on an arrestee's person, reasoning that "even the Riley Court recognized that its holding ... excepting cell phones from [the] categorical rule ... was a novel approach" and that Seventh Circuit precedent at the time of the search "had refused to differentiate between physical items and digital data in searches incident to arrest"). But instead, the Court said that the third-party doctrine was never broad enough to encompass technology-enabled long-term location tracking in the first place. See Carpenter , 138 S. Ct. at 2219 ; cf. Orin Kerr, Understanding the Supreme Court's Carpenter Decision , Lawfare (updated June 22, 2018, 4:56 PM), https://www.lawfareblog.com/understanding-supreme-courts-carpenter-decision ("The old understanding was that the third-party doctrine is a bright-line rule .... Part of the [Court's] thinking ... is an adoption of Carpenter's rhetoric in his brief that the third-party doctrine only 'diminishes' an expectation of privacy. That's not what the cases say; the cases say that the doctrine entirely eliminates an expectation of privacy.").
Although Carpenter post-dates the GPS search here, it is just as controlling as to what the third-party doctrine authorized at the time of the search as it is on the doctrine's scope going forward. In the qualified immunity context, lower courts are bound by Supreme Court decisions addressing what was or was not clearly established at some prior point in time. See Kisela v. Hughes , --- U.S. ----, 138 S. Ct. 1148, 1154, 200 L.Ed.2d 449 (2018) (explaining that the court of appeals erred in holding that a circuit decision defeated qualified immunity where the Supreme Court "ha[d] already instructed the Court of Appeals not to read [that] decision ... too broadly in deciding whether a new set of facts is governed by clearly established law"). So, too, for the Davis good-faith exception, which likewise turns on the state of the law at some point in the past. See Jenkins , 850 F.3d at 918-19 (examining a 2015 Seventh Circuit decision addressing the state of the law in 2009 to determine whether binding appellate precedent had authorized a search conducted in 2012). Carpenter thus teaches that general statements of the third-party doctrine uttered in pre- Carpenter decisions not only do not cover CSLI, but never did. And as noted above, what Carpenter said about the *658third-party doctrine as to CSLI applies with full force to GPS data. It follows that for the Davis good-faith exception to apply to the GPS search here, the government needs more than general statements of the third-party doctrine in a binding appellate decision issued before the search; rather, the government must point to binding appellate precedent applying the doctrine to long-term historical GPS data or its equivalent.
The government has identified no such binding appellate precedent. Caira applied the third-party doctrine to "records of the I.P. addresses [the defendant] used to log in to his Hotmail account," which revealed the location of his home and workplace. 833 F.3d at 808. In so holding, the Seventh Circuit distinguished the IP address records from the "longer term use of GPS technology" at issue in Jones , calling the defendant's attempt to equate IP addresses with GPS technology an "unhelpful exaggeration." Ibid. (internal quotation marks omitted). As the Seventh Circuit explained, the defendant's home and work IP addresses-in contrast to GPS technology, which "can monitor every single movement"-revealed "no information about how he got from home to work, how long he stayed at either place, ... where he was when he was not at home or work," or where he was "[o]n days when he did not log in." Ibid. (internal quotation marks omitted). Caira therefore did not specifically authorize the GPS search here.
The government does not argue that Caira 's description of the third-party doctrine as "a bright-line application of the reasonable-expectation-of-privacy test," id. at 806, was sufficient for Davis purposes to establish a categorical rule in the Seventh Circuit specifically authorizing the police to collect any type of information, including GPS data, voluntarily turned over to a third party. It thus forfeits the point. See Stanbridge , 813 F.3d at 1038 ; Nichols , 755 F.3d at 600 ; Alioto , 651 F.3d at 721. Even setting aside forfeiture, Caira 's broad characterization of the third-party doctrine did not say enough about its scope to specifically authorize every possible application. To the contrary, by distinguishing long-term GPS data from IP addresses, Caira implicitly recognized the possibility that the doctrine did not reach long-term GPS data. See 833 F.3d at 808. Indeed, Smith itself-which Caira quoted for the bright-line rule, id. at 806 -distinguished the pen register used there from a listening device with the observation that "pen registers do not acquire the contents of communications," thereby suggesting that the doctrine did not in fact apply categorically to all types of information shared with third parties. Smith , 442 U.S. at 741, 99 S.Ct. 2577. The Seventh Circuit's decision in United States v. Patrick , 842 F.3d 540 (7th Cir. 2016), confirms that whether the third-party doctrine reached GPS data remained unsettled at the time of the GPS search. Although the government conceded in Patrick that it conducted a search when it gathered CSLI with a cell-site simulator, the Seventh Circuit expressed uncertainty as to whether that concession was correct, suggesting that the doctrine might apply if cell-site simulators could be analogized to pen registers, but also that it might not apply if the better analogy were to GPS trackers. Id. at 543-44. Thus, as of April 4, 2017, Caira 's passing description of the third-party doctrine as a "bright-line" rule did not specifically authorize the warrantless acquisition of long-term historical GPS data.
That leaves the Fourth Circuit's decision in Graham and the Sixth Circuit's later-reversed decision in Carpenter. The Sixth Circuit held in Carpenter that the government did not conduct a Fourth Amendment search when it acquired CSLI from the defendants' wireless carriers, reasoning *659that the third-party doctrine "diminish[ed] the defendants' expectation of privacy" in their location information. 819 F.3d at 888-89. In so holding, the Sixth Circuit expressly distinguished GPS data, explaining that the CSLI at issue there was "far less precise" than GPS data and thus could not tell a similarly revealing story of the target's activities. Id. at 884, 889. Like Caira , then, Carpenter did not specifically authorize the GPS search here.
The Fourth Circuit in Graham expressed a more expansive view of the third-party doctrine, describing it as "[a] per se rule that it is unreasonable to expect privacy in information voluntarily disclosed to third parties" regardless of the amount or precision of the information shared. 824 F.3d at 436-37 ("If individuals lack any legitimate expectation of privacy in information they share with a third party, then sharing more non-private information with that third party cannot change the calculus."); see also id. at 426 n.3 (noting that CSLI is less precise than GPS tracking, but rejecting the notion that "the applicability of the Fourth Amendment hinges on the precision of CSLI"). So, if Graham counts as binding appellate precedent, its view of the third-party doctrine arguably authorized the Hinsdale police's GPS search at the time it was conducted in April 2017. The Seventh Circuit has not definitively resolved whether decisions from other circuits can be "binding appellate precedent" for purposes of the Davis good-faith exception. See United States v. Brown , 744 F.3d 474, 478 (7th Cir. 2014) (declining to decide "whether precedent from Circuit A could be deemed 'binding' (for the purpose of Davis ) when the search occurs in Circuit B, where the issue remains unresolved"); United States v. Martin , 712 F.3d 1080, 1082 (7th Cir. 2013) (expressing doubt that Davis "allow[s] police officers to rely on a diffuse notion of the weight of authority around the country" where "there was no binding appellate precedent" in the circuit where the search took place, but declining to "definitely resolve this point"). In this court's view, the answer is no.
It is axiomatic that decisions from one circuit, while deserving respectful consideration, are not binding on district courts in another circuit. See United States v. Glaser , 14 F.3d 1213, 1216 (7th Cir. 1994) ("Nothing the eighth circuit decides is 'binding' on district courts outside its territory. Opinions 'bind' only within a vertical hierarchy. A district court in Wisconsin must follow [the Seventh Circuit's] decisions, but it owes no more than respectful consideration to the views of other circuits."). No reason has been offered, and none is apparent, why that understanding of "binding" precedent should apply to district courts but not to law enforcement officers who operate in the same circuit. It follows that "binding appellate precedent" for purposes of Davis is precedent "governing the jurisdiction in which [the officers] are acting"-that is, Supreme Court decisions and that jurisdiction's circuit decisions. United States v. Barraza-Maldonado , 732 F.3d 865, 867-68 (8th Cir. 2013) (holding that the Davis good-faith exception applied where the officers conducted a search in the Ninth Circuit "in objectively reasonable reliance on binding Ninth Circuit precedent"); see also United States v. Lustig , 830 F.3d 1075, 1082-83 (9th Cir. 2016) (holding that decisions from outside the circuit where the police acted are not "binding appellate precedent" for Davis purposes); United States v. Aguiar , 737 F.3d 251, 261-62 (2d Cir. 2013) (holding that " 'binding precedent' refers to the precedent of this Circuit and the Supreme Court," and not to cases from other circuits).
*660In this respect, the Davis good-faith exception operates differently from the qualified immunity doctrine. Under Davis , the good-faith exception applies "when the police conduct a search in objectively reasonable reliance on binding appellate precedent" that "specifically authorizes a particular police practice." Davis , 564 U.S. at 241, 249-50, 131 S.Ct. 2419 ; see also Jenkins , 850 F.3d at 918 (same). Qualified immunity, by contrast, protects officers from damages liability under 42 U.S.C. § 1983 unless "it was objectively unreasonable for [them] to believe that [their conduct] was lawful"-that is, unless their conduct violated "clearly established" law. Williams v. Ind. State Police Dep't , 797 F.3d 468, 473 (7th Cir. 2015) (emphasis added); see also Mullenix v. Luna , --- U.S. ----, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) ("[E]xisting precedent must have placed the statutory or constitutional question beyond debate.") (internal quotation marks omitted). In the face of silence from the circuit in which an officer acted, it is entirely consistent to say that cases from other circuits authorizing a practice (1) suggest that the practice did not violate clearly established law, thereby entitling the officer to qualified immunity, but (2) do not constitute "binding appellate precedent [that] specifically authorizes" the practice, Davis , 564 U.S. at 241, 131 S.Ct. 2419 (emphasis omitted), and so do not support invocation of the good-faith exception.
Thus, even if the Fourth Circuit's decision in Graham and the Sixth Circuit's decision in Carpenter specifically authorized the warrantless acquisition of long-term historical GPS data from a third party, they were not binding appellate precedent in the Seventh Circuit. It follows that the Davis good-faith exception does not save the GPS search here. See Jenkins , 850 F.3d at 920.
Finally, even if all of the above-stated reasons for rejecting the government's Davis argument are wrong-that is, even if Carpenter 's expressed understanding of the third-party doctrine's pre- Carpenter scope could be set aside, even if Caira reached GPS tracking, and even if out-of-circuit authority were binding-the good-faith exception still would not apply. The reason is that neither Diggs nor Adams "voluntarily turn[ed] over" the GPS data to Headers, and the government has not identified any decision specifically authorizing law enforcement to gather information from a third party to which the information was not voluntarily provided. Carpenter , 138 S. Ct. at 2216 (quoting Smith , 442 U.S. at 744, 99 S.Ct. 2577 ); see also id. at 2220 (holding that the "voluntary exposure" rationale for the third-party doctrine does not "hold up when it comes to CSLI" because individuals have no meaningful choice as to whether to generate CSLI).
The government maintains that the GPS data was voluntarily provided to Headers because Adams's "contract with Headers alerted her to the potential presence of an electronic tracking device." Doc. 55 at 7-8. The contract states in pertinent part: "If your vehicle has an electronic tracking device, you agree that we may use this device to find the vehicle." Doc. 55-1 at 4. While acknowledging that this provision "indicate[s] that the information would be used only to locate the Lexus, not to determine its prior movements," the government contends that the third-party doctrine applies "even if the information is revealed on the assumption that it will be used only for a limited purpose." Doc. 55 at 7-8 (emphasis and internal quotation marks omitted). Yet by authorizing Headers to "use [the] device to find the vehicle," Doc. 55-1 at 4, Adams did not also give Headers permission to continuously track the vehicle, and thus did not voluntarily turn historical *661GPS information over to Headers for any purpose. Given that the provision appears in a contract for the sale of a vehicle on credit, the only plausible reading is that it permits Headers to activate the GPS to determine the vehicle's current location if, for example, the buyer defaults and Headers exercises its right to repossess or if the vehicle is reported stolen. See ibid. (Indiana choice-of-law provision); Vesuvius USA Corp. v. Am. Commercial Lines LLC , 910 F.3d 331, 333 (7th Cir. 2018) ("In Indiana, the general rules of contract interpretation are that, unless the terms of a contract are ambiguous, they will be given their plain and ordinary meaning.... [W]e must construe the contract as a whole and consider all provisions of the contract, not just the individual words, phrases, or paragraphs.") (alteration and internal quotation marks omitted). As the government recognizes by distinguishing between "locat[ing] the Lexus" and "determin[ing] its prior movements," Doc. 55 at 7, the continuous monitoring through which Headers in fact generated the GPS data had nothing to do with "finding" the vehicle in any ordinary sense of that word, and thus went beyond the kind of location monitoring that the contract authorized. See BMD Contractors, Inc. v. Fid. & Deposit Co. of Md. , 679 F.3d 643, 656 n.8 (7th Cir. 2012) (applying Indiana law and rejecting an "unnatural" reading of a contract).
It follows that Diggs did not "voluntarily assume the risk of turning over a comprehensive dossier of his physical movements," Carpenter , 138 S. Ct. at 2220 (alteration and internal quotation marks omitted), thus precluding reliance on the third-party doctrine even if pre- Carpenter decisions extended it to historical GPS location data. While binding appellate precedent held that the third-party doctrine reached information "revealed [to a third party] on the assumption that it will be used only for a limited purpose," id. at 2216 (quoting Miller , 425 U.S. at 443, 96 S.Ct. 1619 ), the government points to no decision holding that the doctrine also applies when a third party is authorized to collect only a limited amount of information but exceeds its authorization and collects much more.
The government invokes no other exception to the exclusionary rule, thus forfeiting any such argument. See Stanbridge , 813 F.3d at 1038 ; Nichols , 755 F.3d at 600 ; Alioto , 651 F.3d at 721. The GPS data is therefore suppressed. See United States v. Conrad , 673 F.3d 728, 732 (7th Cir. 2012) ("The Supreme Court has long recognized the need to exclude evidence obtained in violation of the Constitution's protections. Indeed, unless one of the various exceptions applies, exclusion will run not only to the unconstitutionally obtained evidence, but also to the fruits of that evidence-the so-called fruit of the poisonous tree.") (citation omitted).
Conclusion
Diggs's suppression motion is granted. The GPS data obtained by the Hinsdale police is suppressed. Further proceedings are necessary to determine whether the GPS data yielded any unlawful fruits and, if so, whether suppression of those fruits is warranted. Doc. 49 at 3 n.2 (Diggs contending that the government used the GPS data to support its successful applications for search warrants for DNA and social media records); Doc. 49-1 at 2-4 (the search warrant application for the collection of a saliva sample from Diggs for DNA testing). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3077751/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JAMES MURRAY, §
No. 08-12-00062-CR
Appellant, §
Appeal from the
v. §
384th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC#20110D03368)
§
OPINION
Appellant James Murray appeals his conviction of manslaughter, TEX.PENAL CODE ANN.
§ 19.04 (West 2011), and accident involving death or serious bodily injury, failure to stop, render
aid, or comply with § 550.023, TEX.TRANSP.CODE ANN. § 550.021 (a)(West Supp. 2013).
Appellant was indicted for the following: intoxicated manslaughter (Count I); accident involving
injury or death (Count II); and manslaughter (Count III). The State ultimately dismissed the
charge of intoxicated manslaughter before the case was submitted to the jury. The jury assessed
punishment at 10 years’ on Count II and 15 years’ on Count III, to be served concurrently. In
four issues, Murray contends that his trial counsel rendered constitutionally ineffective assistance
of counsel by failing to address prejudicial comments made by a veniremember during voir dire;
failing to make constitutional and evidentiary objections to the admission of certain expert
testimony and blood evidence; and failing to properly argue the issue of causation. For the
following reasons, we affirm.1
BACKGROUND
Factual History
On December 10, 2008 at about 2:20 a.m., Violet Menzer and two other passengers were
traveling north on U.S. Highway 54 in El Paso when the vehicle they were riding in ran out of
gas and stalled near the Transmountain exit ramp. Menzer exited the vehicle and helped
passengers Patricia Sanchez and another women push the car down the freeway off-ramp toward
the curb. Sanchez testified the hazard lights were engaged prior to the collision. As the three
women pushed the car forward, Appellant exited the freeway in his truck at a speed between 86
to 88 miles per hour and rear-ended Menzer’s vehicle. Forensic testing of accident data collected
by his truck indicated that Appellant made no effort to stop until one-half second before colliding
with the other car.
The impact severed Menzer’s right leg six inches above the knee, but did not kill her
instantly. Emergency personnel rendered aid to Menzer and transported her to William
Beaumont Army Medical Center in Northeast El Paso, where she later died. The results of an
autopsy performed by ex-El Paso County Medical Examiner Dr. Paul Shrode were not
introduced into evidence at trial, but the county’s testifying expert witness, interim medical
examiner Dr. Juan Contin,2 independently reviewed Dr. Shrode’s autopsy report and Menzer’s
emergency room records. Menzer’s emergency room records were admitted into evidence.
1
The State argues all four of Murray’s issues should be overruled due to inadequate briefing. We decline the
invitation. However, we do note Appellant’s five page statement of facts is devoid of any reference to the record as
required by TEX.R.APP.P. 38.1(g).
2
Dr. Shrode did not testify at trial. Dr. Contin admitted on cross-examination that the County of El Paso had fired
Shrode after discovering that he had falsified documents pertaining to his credentials. We also note that Shrode’s
name is spelled various ways in Appellant’s brief, the State’s brief, and the reporter’s record. In this opinion, we
will use the correct spelling of Dr. Shrode.
2
Dr. Contin noted that a crack pipe was found in Menzer’s vagina and that Menzer’s toxicology
analysis showed the presence of cocaine, cocaine metabolites, nicotine, caffeine, two sedatives, a
blood pressure medication, and atropine used for resuscitation. Dr. Contin testified that the
amount of cocaine in Menzer’s body could have led to confusion, and he also conceded on cross-
examination that the amount of atropine Menzer received at William Beaumont has reportedly
killed other patients. However, he denied that the atropine interacted with any of the other drugs
in her system, pointed out that she would not have been administered atropine but for the crash,
and ultimately concluded that Menzer died of hypovolemic shock due to bleeding from her
amputated leg, which sustained “massive” injury.
Appellant was also seriously injured during the collision. Police found Appellant
propped up against a pillar at a nearby strip mall minutes after the crash. An officer testified that
Appellant was belligerent and smelled of alcohol. He was also transported to William Beaumont
Army Medical Center by ambulance. At the hospital, Officer Danny Montano witnessed Major
Thomas Durhan, a registered nurse, draw Appellant’s blood for blood-alcohol concentration
(“BAC”) testing. Officer Montano then inserted the vial of blood into a BAC test kit, sealed the
kit, and placed the box in the evidence refrigerator on El Paso Police Department premises. The
refrigerator is located behind a magnetically-locked door, but numerous people have access to
the room and the refrigerator. Officer Luis Sarmiento later removed the sealed kid and mailed it
to the Texas Department of Public Safety for testing. Jim Thomas, laboratory analyst for the
Texas Department of Public Safety, unsealed the kit and tested the sample. Thomas testified that
the results indicated Appellant had a BAC of 0.16 percent the night of the crash. The BAC legal
limit for operating a motor vehicle in Texas is 0.08 percent. See TEX.PENAL CODE ANN.
§ 49.01(2)(B)(West 2011).
3
Voir Dire
During jury selection, Appellant’s trial counsel, questioned the venire about various
topics, including whether veniremembers had any interaction with the group Mothers Against
Drunk Driving (“MADD”). Several people answered affirmatively, including two
veniremembers who admitted to having made financial contributions to MADD. Defense
counsel then suggested that there are situations where an accident could have been unavoidable
even if the drunk driver involved had been sober, and asked the venire whether anyone “fel[t]
like, Well, I don’t care if it was unavoidable or not, if the guy is intoxicated or if he’s whatever,
I’m going to go ahead and find him guilty anyway. Does anybody feel that way?” Several
unidentified veniremembers replied that they could not understand how an intoxicated person
involved in an accident could not have been the cause of the accident. The transcript indicates
that another unidentified veniremember stated, “[y]ou shouldn’t be on the road if you have been
drinking.” At that point, veniremember #128 interjected:
VENIREMEMBER: I cannot be fair. That’s going to the
question before. I cannot be fair.
DEFENSE COUNSEL: Yes, you responded. Yes, sir?
VENIREMEMBER: #128, . . . I don’t believe that anyone who
drives does not understand that they are
intoxicated and therefore would have an
impairment of their judgment. And I think -
- and I have to say this because, Your
Honor, that I feel that this cavalier attitude
that we have about intoxication is the reason
why 36 people died on the roads in El Paso
over that last --
At this point, the trial judge interrupted the veniremember:
THE COURT: We appreciate your editorial on that but this
is a court. Let’s try to stick with the issues,
. . . that we are to address on this trial.
4
Defense counsel then continued questioning the venire, some of whom stated they would
have difficulty being fair to a defendant who was involved in an accident and intoxicated.
Veniremember #128 was not selected for the petit jury.
DISCUSSION
Appellant raises four separate ineffective assistance of counsel challenges to his
conviction. We address each issue in turn.
Standard of Review for Ineffective Assistance of Counsel
The United States and Texas Constitutions guarantee an accused the due process right to
reasonably effective assistance of counsel. See U.S. CONST. AMEND. VI; TEX.CONST. art. I,
§ 10; Strickland v. Washington, 466 U.S. 668, 683-86, 104 S. Ct. 2052, 2062-64, 80 L. Ed. 2d 674
(1984). Reversal for ineffective assistance of counsel is required where an appellant
demonstrates by a preponderance of the evidence that: (1) “counsel’s representation fell below
an objective standard of reasonableness;” and (2) the appellant suffered prejudice, i.e. that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 669, 104 S.Ct. at 2055-56. “The two prongs of
Strickland need not be analyzed in a particular order—the prejudice prong may be analyzed first
and the performance prong second.” Ex parte Martinez, 330 S.W.3d 891, 900 n.19
(Tex.Crim.App. 2011); see also Cox v. State, 389 S.W.3d 817, 819 (Tex.Crim.App. 2012), citing
Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70. “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied upon as having produced a just result.” Holland
v. State, 761 S.W.2d 307, 320 (Tex.Crim.App. 1988).
In evaluating the first prong of Strickland, we strongly presume that counsel is
5
competent, that his actions “fell within the wide range of reasonable professional assistance,”
Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999), and that his decisions “might be
considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The appellant
may overcome this presumption if he “prove[s], by a preponderance of the evidence, that there
is, in fact, no plausible professional reason for a specific act or omission.” Bone v. State, 77
S.W.3d 828, 836 (Tex.Crim.App. 2002). Effectiveness is judged by the record as a whole and
not by isolated errors. Scheanette v. State, 144 S.W.3d 503, 509 (Tex.Crim.App. 2004).
Evidence establishing counsel’s rationale or lack thereof for any actions must be firmly
founded in the record. Landers v. State, 110 S.W.3d 617, 622 (Tex.App.--Houston [14th Dist.]
2003, pet. ref’d). Ordinarily on direct appeal, the record is too underdeveloped to sustain the
serious charge of ineffective assistance absent examination of counsel at a motion for new trial
hearing. See Bone, 77 S.W.3d at 833; Freeman v. State, 125 S.W.3d 505, 506-07
(Tex.Crim.App. 2003). We will not impute incompetence onto counsel from a silent record
unless the challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005).
Prejudicial Comments by Venireman
In Issue One, Appellant contends that his trial counsel rendered constitutionally
ineffective assistance by (1) improperly explaining causation during voir dire, (2) failing to
control veniremember #128 from commenting on the community’s “cavalier attitude” leading to
36 drunk driving deaths in El Paso, and (3) failing to move for a mistrial once the comments
tainted the jury pool, or, alternatively, having the comments stricken from the record. We
disagree.
Appellant’s trial counsel broached the topic of causation with the jury and explained it as
6
follows:
Now let me -- let me ask you this -- and let’s say that you have a situation
where there’s an accident, okay? And that it’s proven that the driver of
the automobile is intoxicated above the legal limit. He’s driving
recklessly, racing or speeding or whatever, but the evidence shows that
this accident would have occurred even if there was no intoxication or no
reckless speeding, racing, whatever. In other words, it’s an unavoidable
accident. It’s going to occur no matter what.
. . .
Now, in other words, the law -- basically it boils down to -- and
what you hear with all this talk we have been doing and all this stuff we
have been doing, what we’re talking about is we’re talking about that the
intoxication or the recklessness or whatever would have to be the
proximate cause -- it would have to have inter incidents [sic] to the
causing of the accident.
Now, does anybody disagree with that? Does anybody feel like,
Well, I don’t care if it was unavoidable or not, if the guy is intoxicated or
if he’s whatever, I’m going to go ahead and find him guilty anyway. Does
anybody feel that way?
Appellant’s contention that counsel’s voir dire performance proves he was unprepared for
trial is not well-founded. Trial counsel adequately explained the concept to the jurors, not just in
his general comments, but also in one-on-one discussions with the individual panelists. “The fact
that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of
ineffective assistance.” Scheanette, 144 S.W.3d at 509. Trial counsel’s actions and explanations
were “objectively reasonable,” Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App. 2011), and
did not represent a departure from “prevailing professional norms.” Strickland, 466 U.S. at 688,
104 S.Ct. at 2065.
Appellant’s claims relating to veniremember #128’s comments are likewise without
merit. As the State notes in its brief, Appellant’s counsel may have had valid strategic reasons
why he did not object or move for a mistrial when veniremember #128 made his comments,
including a desire to build rapport with the jury, see Haagensen v. State, 346 S.W.3d 758, 766
7
(Tex.App.--Texarkana 2011, no pet.) or believing he had a favorable panel. See Johnson v.
State, No. 07-96-0059-CR, 1997 WL 175289, *4 (Tex.App.--Amarillo Apr. 9, 1997, no pet.)(not
designated for publication). We must not speculate on why counsel behaved the way he did;
instead, we only review affirmative evidence in the record that sheds light on counsel’s decision-
making processes so that we may assess competence. Landers, 110 S.W.3d at 622; Goodspeed,
187 S.W.3d at 392. Here, there is no evidence in the record showing why counsel chose not to
object. As such, Appellant cannot overcome the presumption that counsel’s failure to object and
strike the veniremember’s comment was anything but strategic. Issue One is overruled.
Failure to Raise Evidentiary and Constitutional Challenges
In his second and third issues, Appellant argues that trial counsel was ineffective because
he failed to preserve evidentiary error and assert Confrontation Clause challenges under
Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), to two pieces
of forensic evidence.
In Issue Two, Appellant contends that counsel should have objected under Bullcoming to
the admission of Dr. Juan Contin’s testimony because Dr. Contin relied heavily on an autopsy
report prepared and certified by ex-El Paso County Medical Examiner Dr. Paul Shrode.
Dr. Contin testified on cross-examination that he had read that El Paso County fired Dr. Shrode
after discovering that he falsified records.3 Appellant maintains that under Bullcoming, he had
the right to cross-examine Dr. Shrode on affirmative, testimonial representations made in the
autopsy report, particularly given that he called Dr. Shrode’s truthfulness into question at trial.
3
Dr. Shrode’s dimissal was a well-known and highly-publicized event in the El Paso community, causing a
“tsunami of public interest” and subsequent challenges to his qualifications in related cases before this Court. See,
e.g., In re D.J.R., 319 S.W.3d 759, 766 (Tex.App.--El Paso 2010, pet. denied). However, in reviewing this case, we
are constrained to considering only evidence contained in the reporter’s record and the clerk’s record presented
before us. Id. at 766 (“With limited exceptions not relevant here, an appellate court may not consider matters
outside the appellate record.”).
8
See Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2715 (holding that surrogate expert testimony
interpreting an unavailable forensic analyst’s report does not vitiate Sixth Amendment’s absolute
requirement that “analysts who write reports that the prosecution introduces must be made
available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the
veracity of Mother Teresa’”). Consequently, Appellant urges us to find that (1) counsel had a
duty under the norms of professional conduct to object to Dr. Contin’s testimony under
Bullcoming4 and (2) he rendered constitutionally ineffective assistance by failing to do so.
The State responds that failure to object to admissible evidence is not ineffective, see Ex
parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004), and that Dr. Contin’s testimony was
admissible under Bullcoming because the underlying autopsy report containing Dr. Shrode’s
testimonial certifications was not actually admitted into evidence. See Bullcoming, ___ U.S. at
___, 131 S.Ct. at 2722 (Sotomayor, J., concurring opin.)(no confrontation issue where “expert
witness was asked for his independent opinion about underlying testimonial reports that were not
themselves admitted into evidence”). We question whether all of Dr. Contin’s testimony fell
within the scope of permissible expert opinion, see Wood v. State, 299 S.W.3d 200, 213
(Tex.App.--Austin 2009, pet. ref’d)(independent expert’s disclosure of testimonial facts in
autopsy report violated Confrontation Clause), but decline to rule on the merits of Appellant’s
Bullcoming claims since that issue is not squarely before us. Instead, we hold that although
Appellant may have had a colorable Confrontation Clause claim, there is not enough evidence in
the record to rebut the presumption that counsel’s failure to assert that claim was strategic. See
Miles v. State, No. 01-11-00401-CR, 2012 WL 2357449, *3-*4 (Tex.App.--Houston [1st Dist.]
4
We note that Appellant has not provided any citation to caselaw, American Bar Association standards, or any other
sources suggesting that automatic objection under Bullcoming has become a professional norm for Strickland
purposes. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065 (listing sources that could be used to determine
“prevailing professional norms”).
9
June 21, 2012, no pet.)(memo op., not designated for publication). As the Court of Criminal
Appeals recently noted in a similar ineffective assistance of counsel case on direct appeal:
We do not know why counsel failed to raise a Confrontation Clause
objection because the record is silent on the matter. Perhaps there was no
good reason, and counsel’s conduct was deficient. Or perhaps the State
could (and with an objection would) have brought Murphy [the author of a
lab report] to the courtroom to testify, and counsel realized that cross-
examining Murphy would not benefit his client. . . . Consequently, we
conclude that the record fails to show deficient performance.
Menefield v. State, 363 S.W.3d 591, 593 (Tex.Crim.App. 2012).
Here, we likewise hold that Appellant has not met his evidentiary burden. The record in
this case is underdeveloped on direct appeal and provides us with no insight as to what motivated
counsel’s decisions. As such, the presumption of competence governs. Issue Two is overruled.
In Issue Three, Appellant contends that trial counsel also had a constitutional duty to
object to the admission of the laboratory report on his blood-alcohol concentration under
Bullcoming where the blood draw witness was unavailable for confrontation.5 Appellant further
argues that that counsel should have objected to the report and testimony on other evidentiary
grounds. The record completely belies Appellant’s argument. Counsel objected to the evidence
on both constitutional and evidentiary grounds. During a bench conference, trial counsel clearly
complained that the blood draw was inadmissible on confrontation grounds because even though
several people witnessed the procedure, the major who actually performed the draw had left the
military and was unavailable for cross-examination. The judge overruled counsel’s objection at
the bench conference, and overruled it again when counsel re-urged it for the record after the
sidebar. Even under Appellant’s proposed per se Bullcoming objection rule, which we decline to
5
In his Summary of the Argument, Appellant also contends that “[c]ounsel for defendant appellant failed to
preserve…Kelley…objections to the admissibility of the blood draw evidence.” However, Appellant provides no
citations to Kelley in the body of his brief, and the entirety of his argument focuses on evidentiary and Bullcoming
claims. To the extent Appellant raised Kelley claims, we find those arguments waived due to lack of adequate
briefing. See TEX.R.APP.P. 38.1(i).
10
adopt, counsel’s assistance would still be constitutionally effective. Counsel also objected to the
blood evidence on chain of custody grounds. As such, Appellant’s argument that counsel failed
to lodge objections to the blood evidence is factually inaccurate and without merit. Issue Three
is overruled.
Lack of Preparation and Improper Opinion Testimony
In Issue Four, Appellant reiterates his claim that his counsel rendered defective assistance
because his performance as a whole shows he was generally unprepared to argue the issue of
causation, and because he allowed the State to ask witnesses whether they believed Appellant
could have avoided the accident. We note that Appellant provided no citation to legal authority
in this section of his brief apart from references to the law of causation found in the Texas Penal
Code. Appellant also failed to identify which witnesses purportedly gave improper opinion
testimony and failed to cite portions of the record containing their testimony in his brief. “This
Court has no obligation to construct and compose [A]ppellant’s issues, facts, and arguments[.]”
Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008). Rather, Appellant has the
obligation under the Rules of Appellate Procedure to present a brief that contains “appropriate
citations to authorities and to the record.” TEX.R.APP.P. 38.1(i). Here, we find the portion of
Issue Four dealing with improper opinion evidence has been waived due to improper briefing.
See Foster v. City of El Paso, 396 S.W.3d 244, 258 (Tex.App.--El Paso 2013, no pet.).
As for Appellant’s first argument that his trial counsel “clearly showed a lack of
preparation and understanding of the law” in arguing the issue of causation, we find no
affirmative proof in the record to support that bare contention. A mere difference of opinion on
trial strategy and tactics is not enough to sustain an ineffective assistance of counsel action.
Scheanette, 144 S.W.3d at 509. We also find no evidence of outrageous errors in our
11
independent review of the record, and Appellant has failed to direct our attention to any. As
such, the presumption of competence applies, and Appellant has not satisfied his burden in
overcoming it. Issue Four is overruled.
We affirm the trial court’s judgment.
January 29, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
12 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2758006/ | Rel: 12/5/14
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1130604
____________________
Corner Stone Funeral Chapel, Inc.
v.
MVMG, LLC
Appeal from DeKalb Circuit Court
(CV-09-900101)
BRYAN, Justice.
Corner Stone Funeral Chapel, Inc. ("Corner Stone"),
appeals from a judgment ordering a receiver to transfer the
assets of a cemetery business to MVMG, LLC, a competitor of
Corner Stone's. We affirm.
1130604
Mountain View Memory Gardens & Mausoleum, Inc. ("the
corporation"), owned a cemetery in Rainsville known as
Mountain View Memory Gardens and Mausoleum ("the cemetery").
The corporation sold "preneed contracts" to people planning to
be interred at the cemetery or planning to have loved ones
interred there. A purchaser of a preneed contract pays for
funeral merchandise, funeral services, cemetery merchandise,
or cemetery services that will be provided upon a person's
death. § 27–17A–2(57), Ala. Code 1975. Preneed contracts in
Alabama are regulated by the Preneed Funeral and Cemetery Act,
§ 27-17A-1 et seq., Ala. Code 1975 ("the Preneed Act"), which
was enacted in 2002.
Jeanette Mince was the sole owner and officer of the
corporation, and she apparently ran the corporation and the
cemetery. Mince died in 2008, leaving the corporation to her
two daughters. However, her daughters were not interested in
operating the corporation, and they expressed an intention to
disclaim any interest in it. After Mince's death, the
corporation failed to renew its certificate permitting it to
sell preneed contracts under the Preneed Act. In 2009, the
Alabama Department of Insurance ("the Department")
2
1130604
investigated the corporation's records and discovered that the
corporation was in poor shape. The Department found that the
corporation had underfunded certain trust funds required to be
established by the Preneed Act, that the corporation was
insolvent, that the corporation had ceased doing business, and
that the cemetery had effectively been abandoned. The
Department found that the continued control of the cemetery by
the corporation would be hazardous to preneed-contract
purchasers and beneficiaries in particular and to the people
of Alabama in general.
Based on the Department's findings, Jim Ridling, in his
official capacity as the commissioner of the Department, filed
a complaint against the corporation, seeking preliminary and
permanent injunctions. Relying on provisions in the Preneed
Act, Ridling asked the trial court to enjoin the corporation
from conducting business or disposing of its assets. At the
time of the trial, those assets consisted of the cemetery, a
mausoleum at the cemetery, some property next to the cemetery,
a building and storage structure at the cemetery, and less
than $26,000 in cash. Ridling also asked the trial court to
appoint a receiver to take control of the corporation and
3
1130604
eventually to liquidate and dissolve the corporation, subject
to the trial court's supervision.1
In June 2009, the trial court entered a preliminary
injunction, essentially enjoining the corporation from
operating; the order also appointed Denise Azar, an employee
with the Department, as receiver for the corporation. The
trial court directed Azar to take possession of the
corporation's assets and to attempt to liquidate those assets,
subject to the trial court's approval. The trial court also
authorized Azar to enter into agreements for the management
and maintenance of the cemetery until the cemetery could be
sold or otherwise liquidated. Shortly after she was appointed
receiver, Azar arranged for Rainsville Funeral Home, Inc., a
local funeral business, to mow, trim, and clean the cemetery;
to locate grave spaces; to open and close graves for burials
at the cemetery; and to place markers and monuments during the
1
Ridling acted under § 27-17A-17(b), Ala. Code 1975, a
part of the Preneed Act. That section provides:
"The commissioner may apply for an order directing
the commissioner to liquidate a [preneed]
certificate holder ... when, in the commissioner's
opinion, the continued operation of the certificate
holder would be hazardous either to purchasers,
beneficiaries, or to the people of this state."
4
1130604
receivership period. Rainsville Funeral Home has performed
those services since sometime in 2009.
During the receivership period, the mausoleum located at
the cemetery continued to fall into disrepair. The roof was
rotten and leaking, and parts of the mausoleum's interior had
been badly damaged by leaking water, including the ceiling,
flooring, and furniture. Vandals had broken into the mausoleum
and further damaged it. Elsewhere in the cemetery, graves had
been driven over and there was some other evidence indicating
that the cemetery was in a generally run-down condition. In
response, individuals owning plots and vaults in the cemetery
formed the MVMG Mausoleum Association ("the Association")
during the receivership period to preserve the cemetery. The
Association collected donations from the community and, with
Azar's permission, made substantial repairs to the mausoleum.
The Association eventually intervened in the underlying case.
Azar unsuccessfully attempted to find a buyer for the
cemetery, and she eventually concluded that the cemetery was
unmarketable. Azar recommended that the cemetery and the
corporation's other assets be transferred to an entity that
would both operate the cemetery and honor, either in whole or
5
1130604
in part, the corporation's approximately 1,155 outstanding
preneed contracts. The extent of outstanding services and
merchandise purchased in those preneed contracts is unknown;
typically a preneed contract covers only a portion of the
services and merchandise available. Two entities presented
proposals to Azar seeking the transfer of the assets, of which
the cemetery is the main asset: Corner Stone and MVMG, LLC
("the LLC"); both of those entities were allowed to intervene
below.
The LLC was formed in 2011 by Keary Chandler, the owner
of Rainsville Funeral Home, which, as noted, provided
maintenance and services at the cemetery during the
receivership period. At times, the trial court treated the
LLC as synonymous with Rainsville Funeral Home and Chandler,
which appears to be a useful observation for purposes of this
Court's review. The differences between the two proposals was
fleshed out at trial and will be discussed in more detail
below. One primary difference is that Corner Stone, unlike
the LLC, agreed to provide, at no extra cost, markers and
monuments that had already been purchased in outstanding
preneed contracts. Azar recommended that the trial court
6
1130604
accept Corner Stone's proposal. Following an ore tenus trial
on the issue held in 2013, the trial court disagreed with Azar
and decided to accept the LLC's proposal. Thus, the trial
court entered a permanent injunction that, among other things,
ordered Azar to transfer the corporation's assets to the LLC.
The trial court's order did not completely dispose of the
case; the order noted that the trial court would schedule a
final hearing to resolve issues concerning any claims of
creditors against the corporation and any other pending
issues. Corner Stone subsequently moved the trial court to
certify its order transferring the assets to the LLC as a
final judgment under Rule 54(b), Ala. R. Civ. P. The trial
court certified the order as final under Rule 54(b), and
Corner Stone appealed.2
The parties disagree as to the proper standard of review.
The trial court received ore tenus evidence at trial. The LLC
2
Corner Stone filed an appellant's brief and reply brief,
and the LLC filed an appellee's brief. Ridling filed a brief
ostensibly as an appellee, but that brief urges this Court to
reverse the trial court's judgment. In substance, Ridling's
brief is an appellant's brief, but Ridling never filed a
notice of appeal, and Corner Stone's notice of appeal lists
only Corner Stone as an appellant. Thus, in fact there
appears to be only one appellant (Corner Stone) and one
appellee (the LLC).
7
1130604
argues that the ore tenus standard of review applies;
conversely, Corner Stone argues that the evidence before the
trial court was undisputed and that therefore our review is de
novo.
The ore tenus standard applies. Corner Stone's assertion
that the evidence is undisputed is contradicted by the record.
As noted, one difference between the two proposals is that
Corner Stone, unlike the LLC, agreed to provide, at no extra
cost, markers and monuments (collectively "markers") that had
already been purchased in outstanding preneed contracts.
William Dalton, Corner Stone's owner, estimated at trial that
assuming liability for the markers would cost Corner Stone
about $60,000. However, Chandler, the owner of the LLC and of
Rainsville Funeral Home, estimated that providing the markers
would cost Corner Stone "more like $150,000." Chandler also
questioned the economic feasibility of Corner Stone's
proposal; when asked about the LLC's proposal, Chandler
indicated that to "do otherwise," i.e., to provide the markers
as Corner Stone proposed, would be unwise and economically
unfeasible. However, Dalton obviously did not think that
Corner Stone's proposal was unfeasible. It is unclear how
8
1130604
many markers had already been paid for in the outstanding
preneed contracts. Both Dalton and Chandler could only
estimate the total cost of the markers –– however many there
are –– and they disagreed on the economic feasibility of
providing the markers at no cost to the preneed-contract
holders. Of course, evidence pertaining to the markers is
relevant in evaluating the two proposals. The evidence
regarding the markers was disputed, thus defeating Corner
Stone's argument that the ore tenus standard does not apply
because, it says, the evidence is undisputed.
"[A] judgment based on findings of fact based on [ore
tenus] testimony will be presumed correct and will not be
disturbed on appeal except for a plain and palpable error."
Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379 (Ala.
1996). Further, "[w]here the evidence is presented to the
trial court ore tenus, ... the trial court determines the
weight and credibility of the testimony." Wheeler v.
Marvin's, Inc., 593 So. 2d 61, 63 (Ala. 1991).
Further, in attempting to convince this Court to review
the judgment de novo, Corner Stone ignores the fact that the
trial court's decision involved a matter within its
9
1130604
discretion.3 At its heart, this appeal concerns the trial
court's handling of a receivership, which is an equitable
remedy. "A receiver is an impartial officer of the court" who
is "appointed to collect and preserve property and at the
direction of the court to dispose of it and its proceeds."
Ally Windsor Howell, Tilley's Alabama Equity § 31:1(a) (5th
ed. 2012). Generally, "[t]he court has the discretion in
receivership proceedings to do what is best for all
concerned." 65 Am. Jur. 2d Receivers § 135 (2011). This
Court has stated that a trial court may order the sale of
properties possessed by its receiver "when, in the exercise of
judicial discretion, such sale is deemed to the best interest
of those concerned." Darley v. Alabama Pub. Utils. Co., 236
Ala. 463, 465, 183 So. 447, 448 (1938). Although this case
concerns the transfer of assets instead of a sale (the
cemetery was determined to be unmarketable), the same general
principle regarding receiverships applies: the trial court has
the discretion to do what is in the best interest of those
3
In its initial brief, Corner Stone mentions in the
"facts" section that it argued to the trial court that the
court had exceeded its discretion in transferring the assets
to the LLC. That appears to be the only reference in Corner
Stone's briefs to the trial court's exercise of its
discretion.
10
1130604
concerned. See also Seiple v. Mitchell, 239 Ala. 533, 535,
195 So. 865, 865 (1940) (stating, regarding the compensation
given to the receiver by the court, that that was a matter
"primarily within the sound discretion of the court having the
custody and control of the receivership, having regard to all
the relevant circumstances"). Here, those concerned with the
fate of the cemetery include not only the preneed-contract
holders, but also the general public, especially the local
community. Note that § 27-17A-17(b), Ala. Code 1975, allows
the commissioner of the Department to seek liquidation of a
cemetery business when its continued operation would be
hazardous either to preneed-contract "purchasers [or]
beneficiaries, or to the people of this state."
In this case, the trial court was free to manage the
receivership within its discretion. Our review of the trial
court's judgment is limited to determining whether the trial
court exceeded that discretion.
"'A court exceeds its discretion when its ruling is
based on an erroneous conclusion of law or when it
has acted arbitrarily without employing
conscientious judgment, has exceeded the bounds of
reason in view of all circumstances, or has so far
ignored recognized principles of law or practice as
to cause substantial injustice.'"
11
1130604
Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of
Alabama, 991 So. 2d 701, 705 (Ala. 2008) (quoting Edwards v.
Allied Home Mortg. Capital Corp., 962 So. 2d 194, 213 (Ala.
2007)). The discretion afforded the trial court is only
strengthened by the ore tenus presumption in this case. Given
our deferential review, this is a straightforward appeal in
which the judgment is due to be affirmed.
Certainly there is evidence supporting both Corner
Stone's and the LLC's proposal. For instance, on the Corner
Stone side, Azar (the receiver) concluded that Corner Stone
had the better proposal, and she recommended that the trial
court accept it over the LLC's proposal. Azar based her
opinion on the fact that Corner Stone, unlike the LLC, agreed
to provide any markers that had already been purchased in
outstanding preneed contracts at no additional cost to the
preneed-contract holders. Azar concluded that this fact made
Corner Stone's proposal a better deal for the preneed-contract
holders, and that settled the issue for her. At trial Azar
testified that, besides the marker issue, there were no other
differences between the proposals. However, the evidence
12
1130604
indicates otherwise, and that fact may have undermined the
strength of Azar's opinion in the view of the trial court.
Chandler highlighted other differences between the
proposals, one of which involves the endowment-care trust fund
and the use of remaining funds held by the corporation –– less
than $26,000. The Preneed Act requires each cemetery business
to maintain an endowment-care trust fund to provide for the
endowment care of the cemetery it operates, i.e., the
maintenance and any repairs. § 27-17A-47 and § 27-17A-2(27),
Ala. Code 1975. Regarding the endowment-care trust fund, the
Preneed Act, at the relevant time, provided that "[t]he amount
of each bond shall be a minimum of ... $25,000." § 27-17A-47
(as it read before a 2014 amendment). Chandler testified
that, if the LLC were awarded the assets of the corporation,
the LLC would place $25,000 of the remaining funds immediately
into the endowment-care trust fund. Conversely, Dalton
testified that, if Corner Stone were awarded the assets,
Corner Stone would place $8,971.52 of the remaining funds into
the endowment-care trust fund and then deposit a minimum of
$5,000 per year until the balance reached $25,000.
13
1130604
Chandler's plan to fully fund the endowment-care trust
fund immediately was cited as a factor weighing in the LLC's
favor by Janice Gilbert, one of the Association members who
testified at trial. Gilbert holds a preneed contract, and her
late husband is buried in the cemetery. Gilbert testified
that she wants Chandler and the LLC to take control of the
cemetery. She testified that Chandler had taken care of her
husband's funeral; that she trusted Chandler's family
(Rainsville Funeral Home is family-run); and that Rainsville
Funeral Home is more conveniently located than Corner Stone's
funeral home, which is located in Ider.
Gilbert and others discussed the need for financial
stability in the future operation of the cemetery. Gilbert
noted that Mince, the corporation's previous owner, had
experienced financial difficulties and had had trouble
providing markers that had already been purchased in preneed
contracts. Regarding her own experiences, Gilbert testified
that she could not get the marker for her late husband's grave
site that they had purchased in a preneed contract and that
she eventually had to buy a cheaper one instead. Based on
Mince's track record, Gilbert was doubtful that Corner Stone
14
1130604
would be able to absorb the cost of providing the markers
purchased in the outstanding preneed contracts. As noted,
Chandler opined that Corner Stone's plan to provide the
markers at no cost to the preneed-contract holders was not
economically feasible. The trial court was free to find
Chandler's testimony more credible than Dalton's on this
issue. Deborah Thomas, the president of the Association,
testified about the substantial repairs the Association made
to the mausoleum after the corporation became insolvent and
the mausoleum was allowed to fall into disrepair. She said
that, before the Association made the repairs, the condition
of the mausoleum had become an embarrassment to the community.
See, e.g., Editorial, "Fixing a Disgrace," Times-Journal (Ft.
Payne), June 5, 2013 (describing the situation at the cemetery
as a "disgrace" and an "embarrassing problem"). Both she and
Hubert Tumlin, the treasurer of the Association, testified
that they did not want to go through such an ordeal again.
Concern in the community about future financial stability for
the cemetery was a key issue expressed at trial; the trial
court, in evaluating this concern, was free to place more
15
1130604
weight on evidence, such as Chandler's testimony, questioning
the economic feasibility of Corner Stone's proposal.
Other evidence supports the trial court's decision as
well. At the time of the trial, Chandler had approximately 17
years' experience operating the cemetery in Rainsville and
approximately 34 years' experience in the funeral-home
business. Dalton, although quite experienced, seems to have
less experience. At trial, he testified that Corner Stone
acquired its first cemetery about 4 or 5 years ago and had
since acquired 2 more cemeteries; he also stated that he had
served as a trustee and taken care of a couple of private
cemeteries for the last 10 to 12 years. Although Dalton did
not state how long he had been in the funeral-home business,
he did state that Corner Stone's funeral-home business had
existed for about 15 years. Chandler noted that his funeral
home is located closer than is Corner Stone's funeral home to
the cemetery (both Chandler's funeral home and the cemetery
are in Rainsville). Chandler already has experience working
at the cemetery. Pursuant to the agreement with Azar, during
the receivership period, which began in 2009, Chandler's
funeral home has been opening and closing graves and
16
1130604
maintaining the cemetery grounds. Chandler testified that he
plans to have someone live in the house at the cemetery,
which, he said, would deter vandalism (which has been a
problem) and make maintaining the cemetery easier. Corner
Stone did not make a similar offer. Chandler's experience in
the community, the location of his funeral home, his recent
dealings at the cemetery, and his plan to have someone live at
the cemetery are factors supporting the trial court's
decision. Although the LLC did not offer as much as Corner
Stone in providing the markers already purchased in
outstanding preneed contracts, Chandler did testify that the
LLC would provide markers to preneed-contract holders at
wholesale cost, diminishing the strength of the major selling
point for Corner Stone.
We cannot say that the trial court exceeded its
discretion in ordering the transfer of the corporation's
assets to the LLC. Thus, we affirm.
AFFIRMED.
Moore, C.J., and Parker, Shaw, Main, and Wise, JJ.,
concur.
Murdock, J., concurs specially.
Stuart and Bolin, JJ., dissent.
17
1130604
MURDOCK, Justice (concurring specially).
I agree with the main opinion. I write separately to
take further note of certain aspects of the evidence and the
issues in this case.
As the main opinion observes, the asserted superiority of
the offer of Corner Stone Funeral Chapel, Inc. ("Corner
Stone"), was based on Corner Stone's plan to absorb the cost
of all grave markers already purchased by holders of
outstanding preneed contracts. This plan was in turn based on
the ore tenus testimony of Corner Stone's owner, William
Dalton -- indeed, his opinion testimony -- that included an
"estimate" by him that only 30% of the preneed contracts
Corner Stone would assume as part of the assets of Mountain
View Gardens & Mausoleum, Inc., would include grave markers.
On the basis of this opinion and estimate, Dalton's testimony
was that Corner Stone could afford to provide the markers at
a cost of $60,000.
First, the trial court was free to observe Dalton in his
ore tenus testimony and to find him not to be a credible
witness. On this basis alone, I do not believe that we can
consider the evidence supporting Corner Stone's offer to be
18
1130604
"undisputed." The trial court thus could have found Corner
Stone's plan to pay for all markers to be unreliable, and, as
an appellate court, we are not in a position to second-guess
the trial court's assessment of Dalton's testimony in this
regard.
Aside from the possible credibility or weight concerns
the trial court might have applied to Dalton's testimony, the
main opinion notes that his testimony was directly disputed by
other ore tenus testimony. In addition to the evidence noted
in the main opinion, Keary Chandler, the owner of Rainsville
Funeral Home and of MVMG, LLC ("the LLC"), testified that the
number of markers that might have to be paid for was unknown
and variable. In fact, Chandler estimated that the cost of
the markers might be $150,000, as opposed to the $60,000
Dalton estimated. The trial court could have found the LLC's
approach to the issue of the markers, and, by implication, the
management of the contracts in general, to be more fiscally
sound, and Corner Stone's proposed approach not to be
credible. Janice Gilbert, a member of the MVMG Mausoleum
Association, also questioned whether Corner Stone could afford
to provide the markers it was promising to provide (suggesting
19
1130604
that the cost of the markers might have been what led the
prior owner into insolvency in the first place).
Given the ore tenus standard of review applicable in this
case, this Court can overturn the trial court's decision as to
which company would better serve the interests of the preneed-
contract holders in the long run only if it can determine as
a matter of law that the seemingly more favorable proposal by
Corner Stone was fiscally sound and based on reliable
estimates. The testimony in favor of Corner Stone as to these
questions was received by the trial court ore tenus and, thus,
was subject to credibility and weight determinations by the
judge and also was disputed by other ore tenus testimony. I
therefore believe that we must affirm the trial court's
judgment as to which company was likely to provide more
beneficial and dependable service to the preneed-contract
holders.
20
1130604
STUART, Justice (dissenting).
The majority opinion affirms the judgment of the DeKalb
Circuit Court declaring Mountain View Memory Gardens &
Mausoleum, Inc. ("the corporation"), to be insolvent and
ordering its liquidation and the transfer of its assets to
MVMG, LLC ("the LLC"), subject to certain conditions set forth
in the trial court's order. However, because the corporation
was certified by the Alabama Department of Insurance ("the
Department") as a seller of preneed contracts pursuant to the
Alabama Preneed Funeral and Cemetery Act, § 27-17A-1 et seq.,
Ala. Code 1975 ("the Preneed Act"), the trial court, in
liquidating the corporation, was required to maximize
financial value for those individuals holding outstanding
preneed contracts. It is undisputed that Corner Stone Funeral
Chapel, Inc. ("Corner Stone"), had submitted an offer to take
over the operations of the corporation that would provide more
financial value to those preneed-contract holders than the
offer submitted by the LLC; accordingly, the trial court
exceeded its discretion in transferring the corporation's
assets to the LLC. I must therefore dissent.
21
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In deciding whether the trial court should have accepted
the proposal of the LLC or the proposal of Corner Stone, it
must first be determined what criteria the trial court should
have employed in evaluating the competing proposals. The LLC
premises its argument on the assumption that the superior
proposal is the proposal "better calculated and more likely to
serve the interests of the stakeholders in [the cemetery]."
The LLC's brief, p. 9. Accordingly, it summarizes its
argument as follows:
"The evidence showed that Corner Stone's offer
provided less security and certainty for the future
maintenance of the Mountain View [Memory Gardens]
cemetery. The evidence further showed that Corner
Stone's offer to provide grave markers at no further
cost to holders of existing preneed contracts
calling for the same was ill conceived and not
economically feasible. There was introduced more
than sufficient evidence from which the trial court
rightly concluded that [the] LLC's offer was much
less likely than Corner Stone's to result in the
Mountain View [Memory Gardens] cemetery operation
again falling into economic ruin, disrepair, and
receivership, thus better serving the paramount
interest of the cemetery stakeholders."
The LLC's brief, pp. 9-10. Thus, it is apparent that the LLC
considers the "cemetery stakeholders" to be a broad group of
people, including those with friends and family already
interred or buried there and those people with plans to have
22
1130604
themselves –– or friends or family –– buried or interred there
at some point in the future, regardless of whether that burial
or internment is the subject of an existing preneed contract.
The LLC argues that these stakeholders will be better served
under its proposal because that proposal, the LLC claims, is
better for the long-term economic health and viability of the
cemetery.
In contrast, Corner Stone and Jim Ridling, the
commissioner of the Department, argue that the superior
proposal is the proposal that better serves a much more narrow
class of stakeholders –– those who have purchased or who stand
to benefit from outstanding preneed contracts sold by the
corporation before it became insolvent.4 They argue that the
legislature's purpose in enacting the Preneed Act is evident
from the language of the Act –– to provide a mechanism for
protecting the investments of those Alabamians who choose to
purchase preneed contracts. The various statutes constituting
the Preneed Act, such as § 27-17A-10, Ala. Code 1975
(requiring sellers of preneed contracts to be certified), §
4
Commissioner Ridling filed a brief on appeal; however,
he is not named as an appellee on the notice of appeal. See
supra note 2.
23
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27-17A-13, Ala. Code 1975 (requiring such sellers to place a
portion of the funds received from the sale of a preneed
contract into trust), and § 27-17A-15, Ala. Code 1975
(authorizing the Department to examine the business of such
sellers as often as is deemed necessary), Corner Stone and
Commissioner Ridling argue, are all designed with that purpose
in mind. I agree.
In a liquidation proceeding conducted pursuant to the
Preneed Act, it is not the duty of a court, when considering
multiple proposals to take over the operations of an insolvent
seller of preneed contracts, to decide simply which proposal
is better for a community or which proposal will result in a
"better" run cemetery according to some undefined criteria.
Rather, it is the duty of the court in such a situation to
take the action that will better achieve the purpose of the
Preneed Act –– to protect the financial interests of holders
and beneficiaries of preneed contracts. That this is the
purpose of the Preneed Act is manifested by the fact that it
is the Department that supervises the liquidation of any
certified seller of preneed contracts and that, pursuant to §
27-17A-17, Ala. Code 1975, it does so subject to § 27-32-1 et
24
1130604
seq., Ala. Code 1975, which chapter governs the
rehabilitation, reorganization, conservation, and liquidation
of an insolvent insurance business. Sections 27-32-37 through
27-32-41 of that chapter establish that, in the liquidation
process, policyholders are preferred creditors and receive
first priority during liquidation, subject to limited
exceptions not applicable here. In the context of this case
–– the liquidation of a certified seller of preneed contracts
–– those individuals who have purchased preneed contracts are
analogous to insurance policyholders inasmuch as they have
purchased a contract, or "policy," providing for a future
benefit. Accordingly, they are given preferred status, and
the object of the liquidation process is to make them whole
above any other interested party or claimant. For that
reason, a trial court overseeing the liquidation process of a
certified seller of preneed contracts should make its
decisions based on how to best preserve value for those
holders of preneed contracts. Protecting their investments
is, after all, the reason the Preneed Act was enacted, and the
relevant statutes should be "liberally construed" to achieve
that goal. § 27-32-2, Ala. Code 1975.
25
1130604
However, although the relevant statutes are unambiguous,
the majority opinion instead adopts the viewpoint that the
trial court is empowered to simply decide what "is in the best
interest of those concerned" and considers all "those
concerned" to include "the general public [and] especially the
local community." ___ So. 3d at ___. Although this broad
class of people no doubt includes citizens who are "concerned"
about the cemetery in the general sense that they take pride
in the success and appearance of their community, their level
of "concern" is insufficient from a legal perspective –– the
Preneed Act, read in conjunction with the statutes governing
insolvent insurance businesses, clearly indicates that the
only "concern" that matters in a liquidation proceeding of a
corporation such as the one here is the financial concern of
those who hold preneed contracts. The majority opinion
supports its rationale that the trial court was authorized to
consider community sentiment in making its decision by citing
§ 27-17A-17(b), Ala. Code 1975, which allows the commissioner
of the Department to seek liquidation of a certified seller of
preneed contracts when the seller's continued operation would
be hazardous to purchasers or beneficiaries of preneed
26
1130604
contracts, "or to the people of this state." However, § 27-
17A-17(b) only sets forth the circumstances in which
liquidation is authorized; it does not bear on how that
liquidation should be accomplished or what factors should
govern the liquidation process. Section 27-17A-17(a), Ala.
Code 1975, does address that issue and provides that such a
liquidation should be conducted under the supervision of the
commissioner of the Department "who shall have all powers with
respect thereto granted to the commissioner under Chapter 32
with respect to the liquidation of insurance companies." As
already explained supra, it is evident from § 27-32-1 et seq.
that policyholders, or preneed-contract holders in this
context, are a preferred class, and a trial court should make
its decisions during the liquidation process based on how to
best preserve value for that preferred class –– not based on
the desires of individuals who have no legally recognizable
interest in the proceedings.
In this case, it is undisputed that the proposal put
forth by Corner Stone promises more value to those holding
outstanding preneed contracts sold by the corporation than the
proposal submitted by the LLC. Denise Azar, the Department
27
1130604
employee responsible for the cemetery while it was under the
Department's control, stated as much in her testimony and
stated that, for that reason, the Department endorsed Corner
Stone's proposal. Corner Stone's owner, William Dalton, also
testified that Corner Stone's proposal was worth approximately
$60,000 more to those holders of preneed contracts than the
LLC's proposal. Even the LLC's sole member, Keary Chandler,
when asked, willingly agreed that Corner Stone's proposal
offered more benefits, and he in fact estimated those benefits
to be worth far more than $60,000:
"Q. Well, what would be your estimate that it would
cost him –– or cost you had you included that
in your offer –– to furnish these markers?
"A. I'd say more like $150,000.
"Q. Okay. So, in your judgment then, the offer
that he's made would benefit the contract
holders –– assuming he carries those contracts
out and does [what] he says he'll do –– would
be valued at $150,000 more than what yours
would be?
"A. Yes."
The greater value of Corner Stone's proposal being established
without dispute, it was due to be accepted. Any community
sentiment in favor of keeping Mountain View Memory Gardens
under the more "local" control of Rainsville Funeral Home,
28
1130604
which Chandler owns and operates, or any belief that
Rainsville Funeral Home was in some way entitled to Mountain
View Memory Gardens because it has been maintaining it under
contract with the receiver since this process began is
irrelevant.5 The object of the applicable statutes is to make
sure that those who purchased preneed contracts from the
corporation receive what they purchased, and it is undisputed
that Corner Stone's proposal is preferable in that regard.
We further note that although the record contains much
speculation and insinuation that it will be impossible for
Corner Stone to actually deliver what it promises in its
proposal, there is no credible evidence that would indicate
that. See Heisz v. Galt Indus., Inc., 93 So. 3d 918, 931
(Ala. 2012) (stating that "speculation is an insufficient
basis upon which to support a judgment"). The competent
5
It bears noting that the interests of those in the
Rainsville community desiring to keep Mountain View Memory
Gardens under local management are not necessarily aligned
with those holding preneed contracts purchased from the
corporation. That is, those Rainsville residents with future
cemetery business might prefer to take care of it in
Rainsville rather than make the approximately 17-mile drive to
Corner Stone's offices in Ider; however, the holder of a
preneed contract who stands to save $600 or more that he or
she would otherwise have to spend on a grave marker that had
already been paid for once would presumably be less hesitant
to make that drive.
29
1130604
evidence in the record indicates that Corner Stone has
successfully operated a funeral home since 1998 and has since
grown its business to include three cemeteries. Moreover,
Corner Stone has previously purchased a cemetery out of a
Department-supervised receivership in what Dalton described as
a "[v]ery similar situation," and its performance with regard
to that cemetery has apparently been of sufficient quality
that the Department, which examines, audits, and receives
annual reports from certificate holders, is recommending
Corner Stone to take over another insolvent cemetery and its
preneed contracts.
In fact, the trial court itself recognized the absence of
any evidence that would indicate Corner Stone could not
provide the benefits promised in its proposal, stating that
"no evidence is presented that Mr. Dalton, himself, couldn't
follow through. Now Ms. Mince couldn't follow through,
clearly, or we wouldn't be here. But what evidence is there
that Mr. Dalton can't follow through?" Once the speculation
is properly discarded, there is none. Indeed, it appears from
the record that Corner Stone could have the financial assets
of Wal-Mart Stores, Inc., and General Motors Company combined
30
1130604
–– the majority has not and cannot point to any evidence in
the record that would indicate otherwise. The only testimony
questioning Corner Stone's financial capability comes from a
competitor and an individual who admittedly favors that
competitor; however, that testimony has no factual basis and
is accordingly nothing more than speculation. Ex parte Nathan
Rodgers Constr., Inc., 1 So. 3d 46, 52 (Ala. 2008).
Unfortunately, the majority has now elevated that speculation
to the realm of competent evidence, notwithstanding this
Court's longstanding precedent indicating that speculation is
not evidence that can support a judgment. See, e.g., Heisz,
93 So. 3d at 931 (stating that "speculation is an insufficient
basis upon which to support a judgment").
Moreover, the fact that we are reviewing the trial
court's judgment under the ore tenus rule, as opposed to
reviewing it de novo, should have no effect on the ultimate
outcome. A judgment entered based on ore tenus testimony must
still be supported by credible evidence, Joseph v. MTS Inv.
Corp., 964 So. 2d 642, 646 (Ala. 2006), and statements that
reflect speculation and lack of personal knowledge do not
constitute credible evidence. Ex parte Professional Bus.
31
1130604
Owners Ass'n Workers' Comp. Fund, 867 So. 2d 1099, 1101-1102
(Ala. 2003). There is no evidence in the record indicating
that the proposal made by the LLC will provide more financial
benefits to the remaining preneed-contract holders than the
proposal made by Corner Stone, nor is there any evidence –– as
opposed to speculation –– in the record indicating that Corner
Stone lacks the capability to fulfill the terms of its
proposal. To the contrary, it is undisputed that the proposal
made by Corner Stone offers greater value to preneed-contract
holders, and those parties with some actual knowledge of
Corner Stone's finances –– Dalton and the Department –– are
satisfied that Corner Stone has the wherewithal to fulfill the
terms of its proposal. It is accordingly clear that the goals
and intents of the Preneed Act and relevant liquidation
statutes will be more fully realized by the acceptance of the
Corner Stone proposal. By affirming the judgment of the trial
court in favor of the LLC, this Court is not deferring to the
trial court's evaluation of the witnesses and evidence but is
instead yielding to speculation. Beck v. Beck, 142 So. 3d
685, 695 (Ala. Civ. App. 2013). Accordingly, I must dissent.
I would reverse the trial court's order and remand the cause
32
1130604
for the entry of a liquidation order directing the Department
to transfer the corporation's assets to Corner Stone.
Bolin, J., concurs.
33 | 01-03-2023 | 12-05-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1744160/ | 289 Wis. 2d 548 (2006)
710 N.W.2d 725
2006 WI App 31
STATE v. DOYLE.[]
No. 2004AP001578.
Court of Appeals of Wisconsin.
January 24, 2006.
Unpublished opinion. Affirmed.
NOTES
[] Petition to review filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267306/ | 999 F.Supp. 823 (1998)
Ruth Elaine MCCARTHY, Plaintiff,
v.
TEXAS INSTRUMENTS, INC., Defendant.
No. CIV.A. 97-1215-A.
United States District Court, E.D. Virginia, Alexandria Division.
April 7, 1998.
*824 Bernard E. Goodman, Nancy D. Greene, Gary & Goodman Ltd., Vienna, VA, for Plaintiff.
Willis J. Goldsmith, Thomas M. Beck, Sarah B McClure, Jones, Day, Reavis & Pogue, Washington, DC, for Defendant.
MEMORANDUM OPINION
ELLIS, District Judge.
This sex discrimination action, brought under both federal and state laws, presents the pressing question whether the Supreme Court of Virginia's recent decision in Doss v. Jamco, Inc., 492 S.E.2d 441 (1997), precludes a plaintiff from pursuing a common law employment discrimination action based on the Commonwealth's public policy against discrimination because of race, color, religion, national origin, sex, pregnancy, age, marital status, or disability.[1] The matter came before the Court on defendant's Motion for Summary Judgment on plaintiff's several state and federal discrimination claims, and on plaintiff's cross-Motion for Partial Summary Judgment on her federal retaliation claim. For the reasons stated from the bench, defendant's motion was granted and plaintiff's federal and state claims were dismissed. This memorandum opinion elaborates the reasons for the dismissal of plaintiff's common law wrongful termination claim.[2] As to that claim, Doss v. Jamco *825 teaches that such a cause of action is no longer available in Virginia in most circumstances.
I
Plaintiff Ruth Elaine McCarthy was employed from January 15, 1996, to April 5, 1996, as an Executive Marketing Assistant in the Government Solutions Business Unit of Texas Instruments Software ("TI"). Plaintiff worked directly for Lawrence Singer, whom she now alleges discriminated against her on the basis of her sex. Plaintiff's responsibilities included, inter alia, handling Singer's travel arrangements, maintaining his calendar, composing correspondence, assisting with Marketing Division presentations, and answering Singer's phone. Plaintiff's job also required her to report to work by 8:30 every morning.[3]
Plaintiff routinely arrived at work late. In her own deposition, she admits reporting at times after 9:00, after 9:30, after 10:00, and even after 10:30. Indeed, her own handwritten time sheets indicate that she arrived at work at 9:00 or later on twenty-one of the twenty-seven days for which she kept such records, and on nine of these days she came in after 9:30. TI policy allowed an employee to work such an alternate schedule ("flex time") only if that employee first established this schedule with his or her supervisor. Plaintiff never met with Singer to establish a flexible schedule. On February 15, 1996, Singer met with plaintiff to discuss her tardiness and to inform her that her arrival times were unacceptable. Plaintiff agreed to begin work every day thereafter at 8:30. Although plaintiff claims that she reported to work on time after that meeting, even the record evidence she cites for that assertion demonstrates that she was often late to work. Moreover, Singer and plaintiff's co-worker Nicole Nunn testified that plaintiff arrived to work late throughout her tenure at TI.
Plaintiff also represented to Singer in her interview and on her résumé that she was proficient in Microsoft Powerpoint, a software application used to create marketing presentations. Plaintiff has attached to her summary judgment pleadings a certificate *826 from Freddie Mac, her former employer, stating that she completed a course on "Designing Presentations with Powerpoint," and an affidavit from her former boss stating that the quality of her work was always acceptable. During plaintiff's tenure at TI, however, it became apparent to her colleagues and supervisor that she lacked such computer skillsor at least lacked the skills that were required to do the job as it needed to be done.[4] As a result, other members of plaintiff's team had to perform many of the computer tasks for which she was responsible.
Plaintiff's next area of performance deficiency concerns the travel arrangements she made for Singer. For example, for the first trip she scheduled, she neglected to reserve a car or hotel for Singer, so he was stranded in another city at midnight without a hotel room. In addition, on other occasions plaintiff made hotel reservations in the wrong cities and failed to upgrade Singer's airline seats. Singer testified that ninety percent of the travel arrangements plaintiff made required correction; plaintiff responds that she did not know Singer's travel preferences because Singer never explained his expectations, and that she was entitled to rely on his travel agent of five years for ensuring arrangements were made correctly. According to a memo Lynn Gilmore, TI's Human Resources manager, wrote to the file, Singer admitted that he had not sat down with plaintiff during her first weeks to establish what he expected of her in this regard.
Finally, plaintiff often failed to answer Singer's telephone, either because she was not in the office or because she let the call go to voice mail. Singer's clients complained to him about this.
Singer informed plaintiff during her first weeks working for him that he had problems with her tardiness, her inability to make proper travel arrangements, her difficulty drafting letters, and her lack of computer skills. On at least one of these occasions Singer included Lynn Gilmore in the meeting. TI asserts that these performance deficiencies were the sole impetus for plaintiff's termination[5] from its employ; plaintiff counters that her termination was a result of gender discrimination. The following incidents comprise the sexual harassment of which plaintiff complains:
(i) After a meeting with an advertising firm, Singer placed his hand on plaintiff's shoulder and said, "This is my first time with terms of endearment and your role as confidante." He then went on to tell plaintiff that his relationship with an employee of that advertising firm had almost ended his marriage.
(ii) When Singer was having his photograph taken, the photographer asked Singer to look down towards plaintiff or plaintiff's chair in order to remove glare from his glasses. Singer responded, "Well how about if I look at her legs?" When another person suggested he look at her feet, Singer made a comment about foot fetishes.
(iii) Singer responded in a "hostile" and "demeaning" manner to a question plaintiff asked about a slide presentation.
(iv) Singer employed a "shocking" tone when he told plaintiff and a co-worker how to make some slides.
(v) Singer suggested to plaintiff that as part of a presentation they either use the concept of a game show with "the pretty women behind this door" or somehow build on the concept of "Weight Watchers and fat women."
(vi) In reference to certain slides Nicole Nunn had produced on her laptop, Singer said to plaintiff, with his hand on her *827 shoulder, "See, that's what I need Elaine, I need it done just like that."
(vii) Singer sent plaintiff back to the office from a "kickoff" meeting to complete outstanding expense reports.
(viii) Singer cursed, though there is no testimony that the cursing was anything other than gender neutral.
Plaintiff admits that she never complained of any of this conduct at the time it occurred, and that she never reported any occurrences to any person, either within TI or outside the company, until after she was discharged.[6] She did, however, express discontent with her job. Thus, on February 21, 1996, Gilmore received a call from Chris Doxen at TRAK Associates, the employment firm that had placed plaintiff with TI. Doxen informed Gilmore that plaintiff had contacted TRAK, said that she was not happy at TI, and that she wanted to look for another position. Gilmore thus scheduled a meeting with plaintiff, at which plaintiff communicated the same sentiments to Gilmore that she had expressed to Doxen. Plaintiff specifically told Gilmore that she wanted to look for another position outside of TI, and Gilmore agreed to give her some time to do that. By March 7, plaintiff had yet to begin interviewing for other jobs. On March 8, she did not report to work. Thus on March 11 Singer informed Gilmore that he wanted plaintiff's end date to be March 15; Gilmore communicated this information to plaintiff the next day, March 12.
On March 13, plaintiff placed a phone call to Zoe Chapman, a TI Human Resources Manager in Dallas; plaintiff stated that she wanted to speak with an EEO officer. Plaintiff does not recall the content of this conversation, though her notes indicate that she left a message asking for a contact with whom she could speak about "harassment." Chapman specifically recalls plaintiff stating that she had certain complaints about her position, namely that she was being assigned work that was not part of her job description and that Singer was always "nagging" her about work issues. Chapman states that plaintiff said nothing about sexual harassment, even when asked what the "nagging" involved. Plaintiff also attempted to contact Dee Hunter, a TI EEO officer in Dallas. Hunter recalls receiving a message from plaintiffwhich did not explicitly mention harassment[7]and trying to call plaintiff back several times; plaintiff did not return Hunter's calls. Hunter then called Gilmore, and the two decided that plaintiff should contact Bill Brown, Diversity Manager for TI. Brown attempted to contact plaintiff once he learned of her calls to Dallas, but plaintiff did not return his calls either.
Because TI did not know the exact nature of plaintiff's complaints, instead of terminating her, it placed her on paid leave beginning March 15. A week later, TI received a letter from plaintiff's counsel stating that plaintiff had contacted him about potential sexual harassment and retaliation claims, though no allegations were being made at that time. Once TI learned of plaintiff's claims, it extended her paid leave. When TI asked plaintiff's counsel on April 3 whether plaintiff planned to make any allegations of sexual harassment, counsel did not respond. Accordingly, TI provided plaintiff with the end date of April 5, 1996, at which time she tendered her voluntary resignation.
II
Summary judgment, of course, is proper only when the record conclusively shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. This standard is satisfied when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's *828 case and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A "mere scintilla" of evidence, however, is not enough. For the nonmoving party to avoid summary judgment, the evidence, when viewed in the light most favorable to that party, must be sufficient for a reasonable jury to find in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In the instant circumstances, though the parties dispute certain significant facts, there are no genuine issues that affect resolution of the instant motions. That is, even taking the facts in the light most favorable to plaintiff, no reasonable jury could find in her favor, and thus TI's motion for summary judgment must be granted.
III
Disposition of the instant motion turns on the circumstances in which a plaintiff in Virginia may bring a common law cause of action for wrongful termination. In this regard, Virginia strictly adheres to the employment-at-will doctrine. See Stonega Coke & Coal Co. v. Louisville & N. R. Co., 106 Va. 223, 55 S.E. 551, 552 (1906). However, the Supreme Court of Virginia has recognized a narrow exception to that rule to allow for common law claims for wrongful terminations that violate the Commonwealth's public policy. See Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985). Such causes of action have come to be known as "Bowman claims."
In Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328, 331 (1994), the Supreme Court of Virginia held that a Bowman claim could be based on the public policy of Virginia as that policy is announced in the Virginia Human Rights Act ("VHRA"), Va.Code §§ 2.1-714 to -725. Specifically, the VHRA states that "[i]t is the policy of the Commonwealth of Virginia ... to safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability ...." Va. Code § 2.1-715. Though recognizing that the VHRA did not itself create any new cause of action, Lockhart held that the Act could provide the basis for a Bowman claim.
In 1995, in response to Lockhart, the General Assembly amended the VHRA. (The amendments, not surprisingly, were popularly dubbed the "Lockhart amendments.") These amendments added subsections (B) and (C) to § 2.1-725 to allow for a statutory cause of action for wrongful termination in limited circumstances. Specifically, the VHRA now permits a discharged employee to sue his or her employer if the employer employs between five and fourteen employees and if the termination was based on "race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, or [on] age if the employee is forty years or older." Va.Code § 2.1-725(B). Notably, however, the General Assembly also added the following language to § 2.1-725: "Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances." Va.Code § 2.1-725(D).[8]
The Supreme Court of Virginia was asked to explain the effect of the new subsection 725(D) on Bowman claims in Doss v. Jamco, Inc., 492 S.E.2d 441 (1997).[9]Doss held that the Lockhart amendments explicitly forbid reliance on the VHRA in prosecuting a Bowman claim. See 492 S.E.2d at 446-47. As the Supreme Court of Virginia put it,
in amending the Act by adding subsection D to Va.Code § 2.1-725 in 1995, the General Assembly plainly manifested its intention to alter the common law rule with respect to "[c]auses of action based upon the public policies reflected in [the Act]." (Emphasis added [in Doss]). And, just as plainly, the General Assembly altered the common law rule by providing that such *829 causes of action "shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances." (Emphasis added [in Doss]).
492 S.E.2d at 446. The question Doss did not explicitly answer, however, is what sources of law other than the VHRA, if any, a plaintiff can rely on in bringing a common law wrongful termination action in Virginia.[10]
Plaintiff here points to several laws that, she asserts, announce Virginia's public policy against gender discrimination and thus provide a basis for her Bowman claim.[11] The first source of law on which plaintiff relies is Title VII of the Civil Rights Act of 1964. This effort is facially unavailing, as Title VII, a federal statute, does not provide an expression of Virginia's public policy. A Bowman claim must find root in a state statute. See Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 465 S.E.2d 806, 809 (1996). For this reason, too, plaintiff's reliance on the Fourteenth Amendment to the United States Constitution as a basis for her Bowman action is misplaced.
Plaintiff next points to the Fairfax County Human Rights Act as a source of Virginia's public policy. Plaintiff's argument, though initially appealing, is ultimately unpersuasive. She contends that because counties in Virginia are subdivisions of the Commonwealth, see Kirkpatrick v. Board of Supervisors, 146 Va. 113, 136 S.E. 186, 190 (1926), and because under the Dillon Rule localities can exercise only those powers that are delegated to them by the Commonwealth, see Tabler v. Board of Supervisors, 221 Va. 200, 269 S.E.2d 358, 359 (1980), county ordinances are essentially state statutes enacted through a local governing body, and are thus expressions of the Commonwealth's public policy. See Glaser v. Titan Corp., At Law No. 159607 (Nineteenth Jud. Cir. July 16, 1997) (permitting Bowman claim to proceed on basis of a county ordinance). Notwithstanding the superficial logic of this argument, it does not satisfy the unambiguous requirement of Lawrence Chrysler Plymouth that a Bowman claim be based on a state statute. A county ordinance plainly is not a state statute; it is, instead, an enactment of a local governing body that derives its power from the state. A state statute, by contrast, is enacted by the General Assembly and has statewide effect.
Finally, plaintiff seeks to base her Bowman claim on the Virginia Constitution, which provides that "the right to be free from any governmental discrimination upon the basis of ... sex ... shall not be abridged." Va. Const. art. I, § 11. To be sure, the Virginia Constitution is not a statute. But to hold that the requirement of Lawrence Chrysler Plymouth precludes plaintiff's reliance on the state constitution as a basis for her wrongful termination claim would be to elevate form over substance. Unlike the case with local ordinances, there can be no doubt that the Virginia Constitution expresses, as Bowman and its progeny require, "the public policy ... underlying existing laws designed to protect the property rights, personal freedoms, health, safety, or welfare of the people in general." Miller v. SEVAMP, Inc., 234 Va. 462, 362 S.E.2d 915, 918 (1987).
However, the conclusion that a Bowman claim can be grounded on the Virginia Constitution does not end the analysis, for Doss prevents plaintiff's reliance on the specific policy against gender discrimination enunciated in the Virginia Constitution and, importantly, also enunciated in the VHRA.[12] The *830 Supreme Court of Virginia's reasoning in Doss leads inexorably to the conclusion that a plaintiff who brings a Bowman claim cannot rely on non-VHRA sources for the stated public policy of Virginia if that policy is articulated in the VHRA, even though it may be articulated elsewhere as well. This conclusion is supported by the holding in Doss that the common law rule was altered by the Lockhart amendments to the VHRA to limit the availability of common law claims for wrongful termination. The VHRA, as amended, provides that the sole remedies for claims brought pursuant to the policies reflected in it are those found in federal and state statutes, and not at common law. See Va.Code § 2.1-725(D). Thus, even though both the VHRA and the Virginia Constitution express the Commonwealth's policy against gender discrimination, any claim against an employer based on such discrimination must be brought under Title VII, the VHRA, or any other state statute that specifically provides for such a cause of action but not as a common law wrongful discharge claim.
As Doss explained, in amending the VHRA "the General Assembly plainly manifested its intention to alter the common law rule with respect to `[c]auses of action based upon the public polices reflected in [the Act].'" 492 S.E.2d at 446 (quoting VHRA; emphasis in original). Special attention must be paid to the use of the word reflected in the amendments to the VHRA. The General Assembly could have said that it was abrogating all common law causes of action that were based on the VHRA; but it did not. Instead, it barred all claims that were based on policies reflected in the VHRA. The emphasis is clearly on the policies (which happen to be found in the VHRA) rather than on the statute itself. Tellingly, the General Assembly did not limit only those causes of action that are based on policies reflected exclusively in the VHRA. Thus, the passage from Doss quoted above must be read as follows: "The General Assembly plainly manifested its intention to alter the common law rule with respect to causes of action based upon various public policies; a list of those policies is contained in the VHRA." Put succinctly, the legislature eliminated all Bowman actions that are based on any policy that happens to be reflected in the VHRA.
It is easy to understand, if not to agree with, the impetus behind the General Assembly's 1995 amendments to the VHRA. Although the Supreme Court of Virginia stated in Lockhart that it was relying on the "narrow exception" to the employment-at-will doctrine created in Bowman, see Lockhart, 439 S.E.2d at 330, in fact the holding of Lockhart greatly expanded the type of claims that Bowman would permit and thereby opened the floodgates for common law employment discrimination actions. Indeed, after Bowman, and certainly after Lockhart, it has become a common practice in Virginia to plead a common law wrongful termination claim along with federal Title VII claims. The 1995 amendments were enacted in direct response to this trend. The amendments' goal of halting this burgeoning practice is perhaps best evidenced by the statement in the new subsection 725(D) that causes of action for enforcing the policies expressed in the VHRA "shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances." Va. Code § 2.1-725(D). If plaintiffs were permitted to base Bowman claims on policies found in the VHRA merely because the same policies are also found in other statutes, then the Lockhart amendments would have little effect. Plaintiffs would still be able to bring such common law claims in direct contravention of the General Assembly's efforts, in enacting the amendments, to curb common law claims based on those policies.
Further evidence of the General Assembly's intent to have Title VII and other federal, state, and local statutory schemes provide the sole remedies for employment discrimination actions is found in the limited cause of action it did create through the Lockhart amendments. The VHRA now permits a discharged employee to sue his or her employer for employment discrimination, under the VHRA, if the employer has more than five but fewer than fifteen employees. See Va.Code § 2.1-725(B). Notably, Title VII *831 covers employers who have fifteen or more employees. See 42 U.S.C. § 2000e(b). Thus, the addition of subsections (B) and (C) to § 2.1-725 of the VHRA suggests that the Act is meant to supplement, but not duplicate, the remedies and causes of action already available under Title VII. In sum, the effect of Doss and the Lockhart amendments is to eliminate the availability of common law wrongful termination actions based on any public policy that is contained in the VHRA.
There are three factors that might counsel a contrary conclusion. The first is the suggestion in Doss that that decision left open the very question at issue here. The Supreme Court of Virginia stated, "we express no opinion concerning the public policy of Virginia as it might be articulated in sources other than the Virginia Human Rights Act." 492 S.E.2d at 443. This statement, however, is appropriately read to mean simply what it says, and no more: it is an observation that the issue certified by the United States District Court was a narrow one, and thus that the court's consideration of the matter was similarly limited in its scope. The Doss opinion does not foreclose application of the reasoning contained in it to a broader set of circumstances.
The second factor to be weighed is the decision in Bradick v. Grumman Data Systems Corp., 486 S.E.2d 545 (1997). In Bradick, the Supreme Court of Virginia allowed the plaintiff to state a Bowman claim based on the public policy against disability discrimination found both in the VHRA and in the Virginians with Disabilities Act ("VDA"). See 486 S.E.2d at 547. Although Bradick came down before Doss, it was decided after the enactment of the Lockhart amendments. Thus, one might argue that if those amendments were in fact meant to preclude all Bowman actions based on any public policy found in the VHRA, Bradick would have come out differently; that is, the Supreme Court of Virginia would have denied the plaintiff the right to rely on either the VHRA or the VDA as an expression of the Commonwealth's public policy against disability discrimination. This argument has two shortcomings. First, the question of the effect of the Lockhart amendments on Bowman claims was not addressed in Bradick. Thus, the case is accorded minimal weight in the instant analysis. Second, at least to the extent Bradick allowed the plaintiff to rely on the VHRA in asserting a common law cause of action, it has been overruled by Doss. Thus, its precedential value is uncertain. In short, though the result in Bradick is inconsistent with the conclusion reached here, this conclusion is mandated by a subsequent Supreme Court of Virginia decision, namely Doss.
The third, and perhaps strongest, contention in opposition to this conclusion is that the General Assembly amended only the VHRA; it did not enact a statute forbidding common law wrongful termination claims that draw on other public-policy statutes.[13] Thus, one might argue that, absent any such indication by the legislature, Bowman claims should be no more limited than Doss explicitly requires. This contention might have force as a policy argument. But, in light of the language of the Lockhart amendments and the reasoning of Doss, as discussed above, it cannot ultimately carry the day.
One final point merits mention. If, as concluded here, Doss necessarily means that a plaintiff can no longer bring a Bowman claim based on any public policy mentioned in the VHRAand that includes "race, color, religion, national origin, sex, pregnancy ..., age, marital status, [and] disability"then the presence of Bowman claims in state employment-law practice will be severely curtailed. Future discrimination claims based on the classifications noted above will have to be brought under the provisions set out in the VHRA (which covers only employers with five to fourteen employees), some other state statute (such as the VDA), or federal Title VII. In other words, the effect of the holding here is to cut back sharply, if not emasculate, the right of employees to bring employment discrimination claims under Virginia common law. Nonetheless, this result *832 is mandated by Doss. To the extent it is an undesirable result, that is a matter for the General Assembly to consider as part of any future amendments to the VHRA.
IV
Plaintiff fails to state a Bowman claim because Doss forecloses a plaintiff from basing a common law wrongful termination claim on any public policy that is reflected in the VHRA, even if that policy is also reflected in other statutes or in the state constitution. Accordingly, TI's motion for summary judgment must be granted, and Count III must be dismissed.
An appropriate Order has issued.
NOTES
[1] This question has not been conclusively resolved by either the Fourth Circuit or the Supreme Court of Virginia. Two Virginia Circuit Court cases have considered the issue and come to opposite conclusions. Compare Rodriguez v. Newport News Shipbuilding & Drydock Co., At Law No. 24072 (Seventh Jud. Cir. Feb. 5, 1998) (answering question in the negative) with Hygh v. Geneva Enters., Inc., At Law No. 163326 (Nineteenth Jud. Cir. Dec. 29, 1997) (answering question in the affirmative). The question presented is also currently under advisement in a separate action in this District. See Williamson v. Virginia First Sav. Bank, No. 3:98-038 (E.D.Va. Mar. 30, 1998) (hearing on defendants' motion to dismiss). Finally, the Fourth Circuit has addressed the issue without analysis in an unpublished opinion. See Early v. Aerospace Corp., 139 F.3d 888 (4th Cir.1998) (holding that in Virginia common law causes of action for wrongful discharge in violation of public policy have been abrogated).
[2] For an explanation of the reasoning underlying the rulings on the federal claims, reference is made to the transcript of the February 13, 1998, hearing on the summary judgment motions. Briefly, plaintiff's quid pro quo claim was dismissed because she was not subject to objectively unwelcome sexual harassment, see Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), and because any sexual advances that were made were not tied to a job benefit or detriment, see Spencer v. General Elec. Co., 894 F.2d 651, 658 (4th Cir.1990). Plaintiff's hostile environment claim was dismissed because the allegedly harassing conduct was neither severe nor pervasive, see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), and because any harassing conduct by plaintiff's supervisor could not be imputed to the employer defendant, see Andrade v. Mayfair Mgmt., Inc., 88 F.3d 258, 261 (4th Cir.1996). Moreover, even if plaintiff had been able to make out a prima facie case on either of these theories, her federal discrimination claims would have been dismissed because defendant offered legitimate, nondiscriminatory reasons for terminating plaintiff (assuming she was terminated), and these reasons were not pretextual. See White v. Rice, 46 F.3d 1130 (4th Cir.1995). Finally, plaintiff's retaliation claim was dismissed both because there was no causal nexus between her protected activity and any adverse employment action taken by defendant, see Munday v. Waste Management of N. Amer., 126 F.3d 239, 242 (4th Cir.1997), cert. denied ___ U.S. ___, 118 S.Ct. 1053, 140 L.Ed.2d 116 (1998), and because defendant had legitimate, nondiscriminatory reasons for terminating plaintiff (assuming she was terminated) that were not pretextual, see Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir.1997).
[3] Plaintiff's attempt to make a genuine issue of material fact regarding her starting time is unavailing. Eight-thirty is the time indicated on the Request for Personnel form that lists an opening for the position as Singer's assistant, and plaintiff admits that, at least after February 15, she and Singer agreed that she would start at 8:30. (Singer in fact testifies that he asked plaintiff to arrive every morning at 8:00, and that she had originally agreed to that schedule.) Plaintiff counters that she was assured when she was hired that she would be able to work flexible hours; however, even in her deposition plaintiff could not point to any statement of a TI official to this effect, but only to her own statement in her interview that she is a single parent and needed flexible hours. Next, plaintiff asserts that TI has no established starting time for its employees. While this may be true, this does not create a genuine issue because whether or not there is a general policy for all employees, it is undisputed (i) that plaintiff agreed, in a meeting with Singer six weeks into her employment, and possibly in earlier meetings, to report at either 8:00 or 8:30, (ii) that the posting for the job opening stated that the employee would be required to begin at 8:30, and (iii) that when plaintiff was working for TI on a temporary basis before her position became permanent, she was required to begin at 8:30.
[4] There may be a factual dispute as to whether or not plaintiff was "qualified" or trained to use Powerpoint: her résumé and the Freddie Mac certificate suggest that she was. Nonetheless, TI employees uniformly felt that she could not do the job as well as TI required, no matter what her prior skills were.
[5] There is conflicting evidence in the record concerning whether plaintiff was terminated or whether she voluntarily resigned. At the summary judgment stage, of course, the evidence must be viewed in the light most favorable to the nonmovant, in this case, plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the Court assumes, without deciding, that plaintiff was terminated from her position at TI.
[6] There is one exception to this statement: plaintiff did report the photo incident to Gilmore, the HR manager, but not until two weeks after it happened, and even then plaintiff stated that she did not feel the incident constituted harassment.
[7] Although TI places much emphasis on the fact that plaintiff never mentioned harassment in her calls to Chapman and Hunter, it seems a reasonable inference, when a Virginia employee calls the Dallas Human Resources department and asks to speak to an EEO officer, that the employee has in mind some sort of discrimination complaint.
[8] Language similar to that contained in the new subsection (D) existed in the VHRA prior to the Lockhart amendments as well. See Va.Code § 2.1-725 (1987) (amended 1995).
[9] Doss came to the Supreme Court of Virginia by way of certification from the United States District Court for the Western District of Virginia. See Rule 5:42, Rules of S.Ct. Va.
[10] Indeed, the opinion expressly left this question open: "Therefore, we express no opinion concerning the public policy of Virginia as it might be articulated in sources other than the Virginia Human Rights Act." 492 S.E.2d at 443.
[11] It is worth noting that plaintiff's original complaint cited the VHRA as a source for Virginia's public policy against gender discrimination. Given the holding in Doss, it is understandable that this reference does not appear in the second amended complaint.
[12] In her summary judgment papers, but not in her second amended complaint, plaintiff also adverts to numerous state statutes embodying the public policy against sex discrimination. She claims these provide an alternative basis for her Bowman claim. See, e.g., Va.Code § 2.1-374 (proscribing gender discrimination in government contracting); Va.Code § 36-96.1 (prohibiting gender discrimination in housing). Yet, these statutes, even if they had been pled, would be unavailing to plaintiff for the same reasons that the Virginia Constitution is, as discussed below.
[13] Arguably, the new subsection 725(D) is such an enactment; however, that subsection does not explicitly state that Bowman claims are no longer available in the employment discrimination realm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267357/ | 52 Cal.App.4th 1450 (1997)
THE PEOPLE, Plaintiff and Respondent,
v.
VENTRICE LAJUAN LASTER et al., Defendants and Appellants.
Docket No. E016226.
Court of Appeals of California, Fourth District, Division Two.
February 26, 1997.
*1454 COUNSEL
Charles R. Khoury, Jr., and John M. Bishop, under appointments by the Court of Appeal, for Defendants and Appellants.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle B. Davis and Robert B. Shaw, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.][]
OPINION
RICHLI, J.
Defendants Ventrice (Vince) Lajuan Laster and Frederick Hayes (collectively defendants) were convicted on four counts of deliberate *1455 and premeditated attempted murder arising out of a drive-by shooting. Defendant Laster admittedly drove the car. Defendant Hayes admittedly was the passenger; the prosecution claimed Hayes was also the shooter. Defendants, however, claimed the shooting was the unplanned and unforeseen act of one of two mysterious passengers in the back seat. The prosecution accordingly argued that, even if neither defendant was the shooter, they were both liable for attempted murder on an aiding and abetting theory.
In this appeal, defendants contend that:
1. The jury instructions erroneously permitted the jury to find defendants guilty of attempted murder on the theory that it was a natural and probable consequence of the offense of discharging a firearm from a motor vehicle (Pen. Code, § 12034, subd. (d)), even though, on the facts of this case, the attempted murder and the discharge of a firearm consisted of the same act.
2. Aiding and abetting requires specific intent, and the trial court erred by failing to instruct accordingly.
3. The jury instruction on permitting the discharge of a firearm from a vehicle (Pen. Code, § 12034, subd. (b)) conflicted with the jury instruction on aiding and abetting.
4. Penal Code section 12034, subdivision (b), which defines the offense of permitting the discharge of a firearm from a vehicle, is unconstitutionally vague.
5. The jury instruction on permitting the discharge of a firearm from a vehicle (Pen. Code, § 12034, subd. (b)) was excessively vague.
6. The target offenses of discharging a firearm from a motor vehicle (Pen. Code, § 12034, subd. (d)) and permitting the discharge of a firearm from a vehicle (Pen. Code, § 12034, subd. (b)) are specific intent crimes, and the trial court erred by failing to instruct accordingly.
7. The trial court should have specified the mental state required to be guilty of permitting the discharge of a firearm from a motor vehicle (Pen. Code, § 12034, subd. (b)) by giving CALJIC No. 3.31.5 (1992 rev.) (5th ed. pocket pt.).
8. A defendant who aids and abets an attempted murder is not subject to the increased penalty for willful, deliberate, and premeditated attempted *1456 murder (Pen. Code, § 664, subd. (a)) unless he or she personally deliberated and premeditated, and the trial court erred by failing to instruct accordingly.
9. The trial court erroneously failed to instruct that defendants could not be convicted of deliberate and premeditated attempted murder on an aiding and abetting theory unless the necessary mental state on the part of the perpetrator was a natural and probable consequence of the offense defendants intended to aid and abet.
10. The trial court erroneously failed to instruct on second degree attempted murder.
11. The trial court erroneously failed to instruct on attempted voluntary manslaughter.
12. The trial court erred by instructing the jury that it had to agree on whether defendants were guilty of attempted murder before it could consider lesser offenses ("Kurtzman error").
13. The jury instruction on the race enhancements (Pen. Code, § 422.75, subd. (c)) failed to define "in concert."
14. The jury instruction on the race enhancements (Pen. Code, § 422.75, subd. (c)) failed to require that a bias motivation have been a "cause in fact" of the crime.
15. The trial court erred by adding race enhancements (Pen. Code, § 422.75, subd. (c)) to indeterminate life terms.
We find no prejudicial error, and we will affirm.
I
FACTUAL BACKGROUND
On July 5, 1994, about 3 p.m., Venus Blankenship stopped at an ARCO station on University Avenue in Riverside to get gas. She was accompanied by her cousin Nominick Hayes and her two children.
Venus, with her children, went inside to pay; Nominick got out to pump the gas. There were four Hispanic males in a nearby car. One of them got out, came up to Nominick and said, "What the fuck you looking at[,] homes?" Nominick said, "What you talking about, man?" The man asked, "Are you one of them 1200?" Nominick took this to be a reference to the 1200 Block Crips. He answered, "No, I am not even from there."
*1457 A second Hispanic male came up, asked Nominick where he was from, then announced, "This is Tiny Dukes." A third Hispanic male rode into the gas station on a bicycle. He asked, "What the fuck you say to my homeboy?" Nominick replied, "I didn't say nothing. What you talking about?" Venus, who had been standing at the store entrance watching the confrontation, said, "I don't think he said anything. We will just leave."
At that point, the third man hit Nominick on the back of the head with a 40-ounce beer bottle. Nominick started running. The first man threw a bottle at Nominick which hit him in the leg. All three men started chasing him. Nominick ran to a construction site, where one of the workers called police.
Meanwhile, Venus drove to the courthouse, where she called her mother. She said some gang members had hit Nominick in the head with a bottle, and he had run off. She "may have" said they were Mexican. Venus also called the police. They told her Nominick was on the other phone, and gave her directions to the construction site. She drove back to look for Nominick, but she couldn't find him. About 5:30 p.m., she went to her mother's house.
Venus's mother, Francetta Hayes, lived on Hemlock Street in Moreno Valley, with Venus's sisters, Cherie Mays and Darlena Mays. Defendant Laster was Cherie's fiance. Venus's cousin, defendant Frederick Hayes, was staying at the house on Hemlock while visiting from Detroit.
Around 5 or 6 p.m., before Venus got home, Cherie let defendants take her maroon car to go look for Nominick. Around 5:50 or 6 p.m., they returned to the house. Two other people were with them. Venus's mother went out to the car and talked to defendants. Defendants left for about 10 minutes, then came back alone.
Virginia Duenas was at Sixth and Franklin, along the east side of Longfellow Elementary School. She heard screeching tires; then she saw Cherie's maroon car. It was swerving and turning "crazy like." There were three or four Black males in it. Duenas took down the license plate number.
About 6:55 p.m., the maroon car was on Eucalyptus Avenue, along the west side of Longfellow Elementary School, next to the basketball courts. There were about 30 people in the basketball area. One was Black; the rest were Hispanic. Perhaps two of them were dressed like "gang bangers," with "saggy pants." Ten of them were children.
The basketball area was surrounded by a fence; a gate in the fence opened directly onto a crosswalk at Seventh and Eucalyptus. There was a stop sign *1458 on the south side of the crosswalk. The maroon car stopped in the middle of the crosswalk. Witnesses saw four Black men inside. One of the men fired about 20 shots, in 2 bursts, through the gate and into the basketball area.
According to Richard Guzman, who was playing basketbal, the shots came from the front passenger window; he could see the flashes. Seven-year-old Albert Gonzalez also testified that the shots were fired from the front passenger window.
The gunfire struck four people. Two-year-old Anna Gonzalez, Albert's sister, was hit in the head. Joseph Romero was shot in the abdomen. Arturo Marquez was shot in the back, and Augustine Cervantes Sanchez was shot in the leg.
About 7:30 or 8 p.m., Nominick called the house on Hemlock. He said he was at Laster's mother's house. Defendants took Venus's car and went to pick him up.
Police traced the license number Virginia Duenas had taken down to the house on Hemlock. Around 10 p.m., Riverside Police Detective Ron Sanfilippo and other officers went there. The maroon car was outside. At about the same time, Hayes and Nominick walked up. The police questioned them briefly. Hayes denied having gone to Riverside.
Sanfilippo went in and told Cherie her car had been used in a shooting in Riverside earlier that day. She told him that around 5:30 p.m., she had lent the car to Vince and Fred. At first, she claimed she didn't know their last names or where they lived. Laster, however, walked into the room; Sanfilippo asked him his name, and he said he was Vince. Cherie then admitted he was her boyfriend.
Sanfilippo also interviewed Venus. She told him about the attack on Nominick. She said that afterward, she spoke to Hayes on the phone and told him some Mexican males had hit Nominick over the head with a bottle at a gas station.
Sanfilippo took both defendants back to the station. They waived their Miranda rights and agreed to be interviewed.
Hayes said he been out to Lake Perris with some friends. When he got back, he heard that some Mexicans had attacked Nominick in Riverside. He and Laster then took Cherie's car to go into Riverside. Laster was driving; Hayes was in the front passenger seat. On the way, they stopped at a grocery *1459 store and picked up two other Black males. These were introduced to Hayes as "homie or home boy or something." Hayes thought Laster knew them, but wasn't sure if he knew their names. Hayes gave Sanfilippo a description of them. The two men got into the backseat. They all then went to Riverside to look for Nominick.
Hayes admitted that before they got to Riverside, he knew there was a gun in the car. At first he said they went somewhere to get a gun; then he changed his story, and said one of the two men got into the car with the gun.
They ended up by Longfellow Elementary School. Hayes saw Mexicans standing around on the school grounds. The car stopped in the middle of the crosswalk, and one of the men in back began shooting. Hayes was taken by surprise. He claimed he didn't know what happened afterward to the two men or to the gun.
Hayes explained that he lied at first because "I was in the car and I know I was in the car." Sanfilippo admitted that Hayes "was pretty upset that a two-year-old girl got shot." Hayes told him, "I know what I did. I messed up. God is, you know, real, and I messed up."
When Laster was first interviewed, he denied everything. After the officers had spoken to Nominick, however, they reinterviewed Laster. This time, he admitted that he was driving the maroon car; Hayes was in the front passenger seat. They had gone to Riverside to look for Nominick. They had picked up two other Black males, one in Moreno Valley, and one in Riverside. Laster indicated that he knew who they were, but he wasn't going to give up their names. He referred to one as a "friend I know for a long time." He said one was nicknamed "Skee"; he claimed he didn't know the other one's name. The two men rode in the backseat. One of them did the shooting. Afterwards, he dropped the two men off. Laster, too, claimed he didn't know what happened to the gun.
Police found nineteen .22-caliber shell casings scattered around the rear seat area of the maroon car. A criminalist testified that they were probably fired from a semiautomatic weapon, which would have ejected shells to the right and backward. There were no usable fingerprints on the shell casings.
Both defendants testified at trial. Hayes testified that he and Laster had spent the afternoon at Lake Perris with some friends. About 5:30 p.m., they got back to the house on Hemlock. There he heard that some Mexicans had hit Nominick in the head with a bottle at an ARCO station in Riverside, and no one knew where he was.
*1460 About 5:40 p.m., Hayes and Laster took Cherie's car to go look for Nominick. Laster was driving; Hayes was in the front passenger seat. First, they went to an area of apartment buildings and grocery stores in Moreno Valley. Laster got out of the car and went out of Hayes's sight. Three to five minutes later, he came back with "two gentlemen" who got into the back seat of the car. Hayes didn't know them; they weren't introduced to him. One of them had a long black gun stuck in his pants.
They drove into Riverside, then drove around looking for Nominick for about 10 minutes. Nobody in the car said anything. As they neared the crosswalk at the school, someone in the back said, "Stop." Laster stopped the car at the stop sign. The "gentlemen" in the back seat were "talking amongst themselves." Hayes admitted telling police that someone in the car said, "There's the Mexicans." "There's those eses.[[1]] They're the ones that got your cousin." At trial, however, he could only remember that they said "something about eses." At that point, the man behind Hayes began firing out the back window. Hayes ducked, then turned around and saw the man firing. Laster drove away; as he did, the man was still firing. Laster said, "You guys shouldn't have done that."
They drove back to the house on Hemlock. Hayes got out; Laster and the two men left. Later, Laster returned alone. Hayes didn't tell anyone in the house what had happened.
Laster testified that when he and Hayes got home from Lake Perris, Francetta Hayes told him Nominick had been hit in the back of the head with a bottle by "some guys" at an ARCO station in Riverside. No one told him they were Hispanic; that Tiny Dukes were involved; or that they had accused Nominick of being a 1200 Block Crip.
Laster and Hayes took Cherie's car to go looking for Nominick, along with two other men whom Laster described as "some friends of mine[] that I've known for about three or four hours out of my whole life." He had met them the day before, at a shopping center. He remembered telling Sanfilippo one was named "Skeet" or "Fleet." He explained that he took them along because "I was afraid ... of going up there with just me and Frederick Hayes." He picked them up at the shopping center. He admitted telling Sanfilippo he picked one of them up in Riverside, but he claimed that was a lie. He never saw that they had a gun.
They drove around Riverside looking for Nominick. There was no discussion in the car. At the school, Laster made a legal stop at the stop sign. He *1461 denied that anyone told him to stop. He also denied hearing the men in back talking about "eses." Then he heard shots. At first, he didn't know where they were coming from. He looked all around; when he looked behind him, he saw "the guy in the right rear shooting." He yelled, "what the [fuck] are you doing?", then took off. Nobody in the car spoke. He went straight back to Hemlock, dropped Hayes off, then took the two men back to where he had picked them up and returned to Hemlock.
Laster claimed he lied to Sanfilippo initially because he was afraid; Sanfilippo told him he was going to spend the rest of his life in the penitentiary.
II
PROCEDURAL BACKGROUND
On July 8, 1994, a felony complaint was filed against defendants. After they were held to answer, an information was filed charging them with four counts of attempted murder. (Pen. Code, §§ 187, 664.) In connection with each count, it was alleged that: (1) defendants committed the offenses because of the victim's race, color, religion, nationality, country of origin, or ancestry, and while acting in concert with another person (former Pen. Code, § 422.75, subd. (b); now Pen. Code, § 422.75, subd. (c)) (hereafter race enhancements); (2) defendant Hayes intentionally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) (hereafter great bodily injury enhancements); (3) defendant Hayes personally used a firearm (Pen. Code, § 12022.5, subd. (a)) (hereafter personal firearm use enhancements); and (4) defendant Laster was vicariously armed with a firearm (Pen. Code, § 12022, subd. (d)) (hereafter vicarious arming enhancements).
After a jury trial, defendants were found guilty on all four counts; the jury found that the attempted murders were willful, deliberate, and premeditated. The jury found true the race enhancements against both defendants, and the vicarious arming enhancements against Laster; it was unable to reach a verdict on the great bodily injury enhancements and personal firearm use enhancements against Hayes.
On May 5, 1995, Laster was sentenced to four consecutive indeterminate life terms, with the possibility of parole, plus three years (the midterm) on each of the race enhancements, plus two years (the midterm) on each of the vicarious arming enhancements, for a total determinate term of twenty years, to be served consecutively.
Also on May 5, 1995, Hayes was sentenced to four consecutive indeterminate life terms, with the possibility of parole, plus three years on each of *1462 the race enhancements, for a total determinate term of twelve years, to be served consecutively. The trial court struck the great bodily injury and personal firearm use enhancements on which the jury had been unable to agree.
III
THE AIDING AND ABETTING INSTRUCTIONS
Defendants raise numerous contentions relating to the jury instructions on aiding and abetting. We therefore discuss here some of the legal and factual background of these contentions.
(1) "[A]n aider and abettor is a person who, `acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 259 [58 Cal. Rptr.2d 827, 926 P.2d 1013], quoting People v. Beeman (1984) 35 Cal.3d 547, 561 [199 Cal. Rptr. 60, 674 P.2d 1318]; accord, People v. Cooper (1991) 53 Cal.3d 1158, 1164 [282 Cal. Rptr. 450, 811 P.2d 742].)
"`[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.... [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which ... must be found by the jury.' [Citation.] Thus, ... a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the `natural and probable consequence' of the target crime." (People v. Prettyman, supra, 14 Cal.4th at p. 261, quoting People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5 [221 Cal. Rptr. 592, 710 P.2d 392].)
When this case was tried, it was unclear whether the jury had to be instructed on the elements of the crime the defendant intended to aid and abet (sometimes called the "target," "predicate," or "underlying" offense), in *1463 addition to the elements of the charged crime. (Compare People v. Solis (1993) 20 Cal. App.4th 264, 269-276 [25 Cal. Rptr.2d 184] [trial court is not required to instruct the jury on the elements of an uncharged target offense], cert. den. (1994) 513 U.S. 843 [115 S.Ct. 133, 130 L.Ed.2d 75] with People v. Mouton (1993) 15 Cal. App.4th 1313, 1318-1320 [19 Cal. Rptr.2d 423] [trial court erred by failing to instruct the jury sua sponte on the elements of uncharged target offenses]; see People v. Prettyman, supra, 14 Cal.4th at pp. 264-270 [adopting Mouton rule that jury must be instructed on elements of target offense; disapproving Solis].)
In this case, the prosecution, to be on the safe side, chose to rely on certain specified target offenses, and requested jury instructions on the elements of these target offenses. However, again to be on the safe side, it selected target offenses with the fewest possible elements, so that they would be the easiest to prove: (1) discharging a firearm from a vehicle (Pen. Code, § 12034, subd. (d)), and (2) permitting the discharge of a firearm from a motor vehicle (Pen. Code, § 12034, subd. (b)). The prosecution then took the position that defendants had knowingly and intentionally aided and abetted the commission of one or the other, or both, of these target offenses; that it was reasonably foreseeable that, as a consequence, the perpetrator would commit attempted murder, and hence that defendants were guilty of attempted murder.
The following contentions spring from this background.
A. Aiding and Abetting Liability Where the Target Offense Consists of the Same Act as the Actual Offense.
(2) Defendants contend that the instructions erroneously permitted the jury to find that the actual offense of attempted murder was a natural and probable consequence of the target offense of discharging a firearm from a motor vehicle. They argue that, on the facts of this case, the attempted murder and the discharge of the firearm were the same act (distinguished only by the perpetrator's state of mind), so that one cannot be the "consequence" of the other. They conclude that they were deprived of a jury determination on whether they had the necessary mental state to be guilty of attempted murder.
We must reject this argument, because we cannot see (and defendants do not suggest) why the fact that the target offense and the offense ultimately committed by the perpetrator consisted of the same act lessened defendants' culpability.
We readily concede that most often, where the target offense differs from the crime actually committed so that it is necessary to instruct on the *1464 "natural and probable consequences" rule, the target offense and the actual offense consist of different acts. (E.g., People v. Bishop (1996) 44 Cal. App.4th 220, 228-235 [51 Cal. Rptr.2d 629] [defendant convicted of murder as a natural and probable consequence of burglary and robbery which he aided and abetted].) Accordingly, the usual formulation of the "natural and probable consequences" test looks to whether the actual offense is a "consequence" of the target offense. (E.g., People v. Prettyman, supra, 14 Cal.4th at p. 261 ["[A] defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet ..., but also for any other crime that is the `natural and probable consequence' of the target crime."].)
Defendants, for their part, also concede that in some cases, the target offense and the actual offense may consist of the same act by the perpetrator; for example, where the aider and abettor intends to facilitate an assault with a deadly weapon, but the perpetrator commits a murder. (See, e.g., People v. Francisco (1994) 22 Cal. App.4th 1180, 1189-1191 [27 Cal. Rptr.2d 695]; see also People v. Bunyard (1988) 45 Cal.3d 1189, 1231-1232 [249 Cal. Rptr. 71, 756 P.2d 795].) They argue, however, that even in such a case, "... a further physical act, the killing of the victim, must be proved. It is this subsequent event, the victim being struck by the gunfire so as to cause his death, that permits the inference that the victim's murder was a foreseeable consequence of the shooting...." Here, where the target offense is discharging a firearm from a vehicle, and the actual offense committed by the perpetrator is attempted murder, the target offense and the actual offense are distinguished solely by the perpetrator's state of mind.[2]
We fail to see, however, why the aider and abettor should be any less culpable in this situation. If anything, he should be more culpable. Rather than intentionally facilitating one criminal act which resulted in the charged criminal act (e.g., a robbery which resulted in an attempted murder), he has intentionally facilitated the charged criminal act itself (e.g., an assault which was in fact an attempted murder).
We believe defendants have misinterpreted the usual formulation of the "natural and probable consequences" test. They assume that the perpetrator must actually commit the criminal act which the aider and abettor intentionally aids and encourages. We believe that, to the contrary, the aider and *1465 abettor may be liable where he intentionally aids and encourages one criminal act, but the perpetrator actually commits some other, more serious, criminal act. Thus, the real question is not whether the actual offense was a consequence of the target offense; it is whether the charged crime was a consequence of the aider and abettor's facilitation of the target offense.
Some formulations of the "natural and probable consequences" test support our interpretation. For example, in People v. Croy, supra, 41 Cal.3d 1, the Supreme Court stated: "It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator." (Id., at p. 12, fn. 5, italics added.)
Our interpretation is also consistent with the historical development of the "natural and probable consequences" test. It originated in the "legal fiction" that one intends the natural and probable consequences of his own acts. (People v. Garewal (1985) 173 Cal. App.3d 285, 301 [218 Cal. Rptr. 690]; see also People v. Oliver (1989) 210 Cal. App.3d 138, 151 [258 Cal. Rptr. 138]; People v. Wade (1945) 71 Cal. App.2d 646, 652 [163 P.2d 59].) Thus, proof of the aider and abettor's intent to commit the actual offense is excused if the actual offense was a natural and probable consequence of his acts of aiding and abetting.[3]
Defendants claim the vice of the jury instruction in this case was that "[t]he attempted murder could only have been the shooting, rendering the question of foreseeability superfluous its answer a foregone conclusion under the court's charge." We disagree. Assuming the jury found that defendants knowingly and intentionally aided and abetted the discharge of a firearm from a vehicle, it still had to determine whether attempted murder was a natural and probable consequence. This required it to consider whether it was reasonably foreseeable that the perpetrator harbored an intent to kill. The fact that the target offense and the actual offense consist of the same act does not necessarily render the actual offense foreseeable. For example, if the perpetrator had told defendants he only had a BB gun, and he intended to *1466 fire it into the air just to frighten people at the school, the jury could well have found that defendants could not foresee the commission of attempted murder.
We conclude that it was appropriate to instruct the jury on the "natural and probable consequences" rule.
B. Failure to Instruct on Aiding and Abetting as a Specific Intent Crime.[*]
.... .... .... .... .... .... .... .
C. Jury Instructions on the Target Offenses.
1. Conflict With the Aiding and Abetting Instructions.[*]
.... .... .... .... .... .... .... .
2. Whether "Permit" (Pen. Code, § 12034, Subd. (b)) Is Unconstitutionally Vague.
(3a) Defendants contend that the use of "permit" in Penal Code section 12034, subdivision (b) renders it void for vagueness.
(4) "To satisfy the constitutional command, a statute must meet two basic requirements: (1) The statute must be sufficiently definite to provide adequate notice of the conduct proscribed; and (2) the statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. [Citations.]" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106-1107 [40 Cal. Rptr.2d 402, 892 P.2d 1145].) "`"[I]t cannot be held void for uncertainty if any reasonable and practical construction can be given to its language."'" (Id., at p. 1107, quoting Walker v. Superior Court (1988) 47 Cal.3d 112, 143 [253 Cal. Rptr. 1, 763 P.2d 852], cert. den. (1989) 491 U.S. 905 [109 S.Ct. 3186, 105 L.Ed.2d 695].)
Recently, in People v. Heitzman (1994) 9 Cal.4th 189 [37 Cal. Rptr.2d 236, 886 P.2d 1229], the Supreme Court rejected a void-for-vagueness challenge to Penal Code section 368, subdivision (a), which makes it a crime for "[a]ny person" to "permit[]" an elder or a dependent adult to suffer under circumstances likely to produce great bodily harm or death. The defendant's liability was predicated on "her failure to act, i.e., her failure to prevent the infliction of abuse on her father." (9 Cal.4th at p. 197, italics omitted.) The *1467 court recognized that "when an individual's criminal liability is based on the failure to act, it is well established that he or she must first be under an existing legal duty to take positive action. [Citations.]" (Id., at pp. 197-198.) "A legal duty to act is often imposed by the express provisions of a criminal statute itself." (Id., at p. 198.) "When a criminal statute does not set forth a legal duty to act by its express terms, liability for a failure to act must be premised on the existence of a duty found elsewhere." (Ibid.)
The court held that Penal Code section 368, subdivision (a), if construed literally so as to impose criminal liability for failure to act on "[a]ny person," would be excessively vague. (People v. Heitzman, supra, 9 Cal.4th at pp. 193, 200, 205, 209.) Thus, it construed it instead as imposing such liability only on those who, under existing tort principles, had a duty to control the conduct of the person who caused the elder or dependent adult to suffer. (Id., at pp. 194, 212-214.) As so construed, the statute was not unconstitutionally vague. (Id., at p. 214.)
(3b) Defendants do not specify what in particular they believe is vague about Penal Code section 12034, subdivision (b). The statute itself defines the class of persons who have a duty to act: drivers and owners of vehicles. It therefore imposes a legal duty on such drivers and owners to prevent the discharge of firearms from their vehicles. Obviously, a driver or owner can be held criminally liable for affirmatively assenting to, or authorizing the discharge; but he or she can also be held criminally liable for failing to prevent the discharge (provided, of course, he or she had the power or ability to prevent it). Finally, the statute imposes criminal liability only where the driver or owner "knowingly" permits the discharge. Thus, it is not vague with respect to the necessary mental state.
We conclude that Penal Code section 12034, subdivision (b), as so construed, is not unconstitutionally vague.
3. The Adequacy of the Jury Instruction on Permitting the Discharge of a Firearm From a Vehicle.[*]
.... .... .... .... .... .... .... .
4. Failure to Instruct on the Target Offenses as Specific Intent Crimes.
(5a) Defendants contend that both target offenses were specific intent crimes, and the trial court erred by failing to instruct accordingly.
*1468 (6) "`When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intent is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some future act or achieve some additional consequence, the crime is deemed to be one of specific intent.'" (People v. Davis (1995) 10 Cal.4th 463, 519, fn. 15 [41 Cal. Rptr.2d 826, 896 P.2d 119], cert. den. (1996) ___ U.S. ___ [116 S.Ct. 932, 133 L.Ed.2d 859], quoting People v. Hood (1969) 1 Cal.3d 444, 456-457 [82 Cal. Rptr. 618, 462 P.2d 370].)
Except in those rare circumstances where strict criminal liability may be imposed, even a general intent crime ordinarily requires scienter, i.e., guilty knowledge of the facts which make the act a crime. (See generally, Pen. Code, § 20; People v. Simon (1995) 9 Cal.4th 493, 519-522 [37 Cal. Rptr.2d 278, 886 P.2d 1271]; People v. Telfer (1991) 233 Cal. App.3d 1194, 1198-1204 [284 Cal. Rptr. 913]; People v. Lopez (1986) 188 Cal. App.3d 592, 597-600 [233 Cal. Rptr. 207].) A knowledge requirement, however, is distinct from a specific intent requirement. (People v. Cleaves (1991) 229 Cal. App.3d 367, 380 [280 Cal. Rptr. 146]; People v. Lopez, supra, 188 Cal. App.3d at pp. 596-597; People v. Calban (1976) 65 Cal. App.3d 578, 584 [135 Cal. Rptr. 441].)
(5b) The offense of discharging a firearm from a motor vehicle (Pen. Code, § 12034, subd. (d)) is committed by doing the proscribed act; there is no statutory requirement that the defendant intend to bring about any particular result. It is manifestly a general intent crime.
The offense of permitting another to discharge a firearm from a vehicle (Pen. Code, § 12034, subd. (b)) likewise is committed merely by doing the proscribed act. This follows from the statute's use of the term "knowingly." While the defendant must know someone else is discharging a firearm from a vehicle, there is no requirement that the defendant must intend the discharge.
Defendants argue that "permitting" the discharge implies intending the discharge. However, one may knowingly assist another to commit a crime, yet lack a specific intent that the crime be committed (People v. Beeman, supra, 35 Cal.3d at pp. 558-559); a fortiori, one may knowingly permit another to discharge a firearm, yet lack a specific intent that the firearm be discharged. Defendants also rely on cases holding that a "use" of a firearm does not include a negligent or involuntary use. (People v. Chambers (1972) 7 Cal.3d 666, 672-674 [102 Cal. Rptr. 776, 498 P.2d 1024] [firearm use *1469 enhancement under Pen. Code, § 12022.5]; People v. Southack (1952) 39 Cal.2d 578, 591-592 [248 P.2d 12] [eligibility for probation under Pen. Code, § 1203].) Here, however, the requirement that the defendant "knowingly" permit the discharge of the firearm equally excludes a negligent or involuntary "permission."
Defendants alternatively contend that, if permitting the discharge of a firearm from a vehicle is not a specific intent crime, the trial court should have specified the required mental state by giving CALJIC No. 3.31.5 (1992 rev.) (5th ed. pocket pt.). Defendant Hayes initially requested this instruction; later, however, both defendants agreed, on the record, that it was unnecessary. Accordingly, any error was invited. (People v. Johnson (1993) 6 Cal.4th 1, 49 [23 Cal. Rptr.2d 593, 859 P.2d 673], cert. den. (1994) 513 U.S. 844 [115 S.Ct. 133, 130 L.Ed.2d 76]; People v. Cooper (1991) 53 Cal.3d 771, 830-831 [281 Cal. Rptr. 90, 809 P.2d 865].)
In any event, we do not believe the trial court erred. CALJIC No. 3.31.5 gives a court two options; it may specify the mental state required for each crime, or it may simply instruct that: "The mental state[s] required [is] [are] included in the definition[s] of the crime[s] set forth elsewhere in these instructions." Here, the separate instruction defining the crime included the requirement that the defendant act "knowingly." There was no need to restate this in CALJIC No. 3.31.5.
D. Instructions on Willful, Deliberate, and Premeditated Murder (Pen. Code, § 664, subd. (a)).
1. Applicability to an Aider and Abettor.
(7a) Defendants contend that one who aids and abets an attempted murder is not subject to the increased penalty for willful, deliberate, and premeditated attempted murder (Pen. Code, § 664, subd. (a)) unless he or she personally deliberated and premeditated; and that the trial court erred by failing to instruct accordingly.
Penal Code section 664 provides that: "Every person who attempts to commit any crime ... is punishable ... as follows: [¶] (a) If the offense so attempted is punishable by imprisonment in the state prison, the person guilty of that attempt is punishable by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense so attempted; provided, however, that if the crime attempted is *1470 willful, deliberate, and premeditated murder, ... the person guilty of that attempt shall be punishable by imprisonment in the state prison for life with the possibility of parole; provided, further, that if the crime attempted is any other one in which the maximum sentence is life imprisonment or death the person guilty of the attempt shall be punishable by imprisonment in the state prison for a term of five, seven, or nine years." (Italics added.)
Recently, in People v. Bright (1996) 12 Cal.4th 652 [49 Cal. Rptr.2d 732, 909 P.2d 1354], cert. den. ___ U.S. ___ [116 S.Ct. 2527, 135 L.Ed.2d 1051], the Supreme Court held that "the provision in [Penal Code] section 664, subdivision (a), imposing a greater punishment for an attempt to commit a murder that is `willful, deliberate, and premeditated' does not create a greater degree of attempted murder but, rather, constitutes a penalty provision...." (Id., at p. 656; see also 12 Cal.4th at pp. 665-669.)
Defendants rely on a series of Supreme Court cases which held that an aider and abettor could not be vicariously subject to particular penalty provisions. First, in People v. Walker (1976) 18 Cal.3d 232 [133 Cal. Rptr. 520, 555 P.2d 306], the Supreme Court held that a defendant is not subject to a firearm use enhancement (former Pen. Code, § 12022.5)[6] unless he or she personally used the firearm; aiding and abetting the use of a firearm was not enough. (18 Cal.3d at pp. 240-242.) It stated: "Generally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act. Such a direction is found in section 31 which fixes responsibility on an aider and abettor for a crime personally committed by a confederate. But the statute which defines aiders and abettors as principals in the commission of a criminal offense does not also purport to impose additional derivative punishment grounded on an accomplice's personal conduct, as those statutes which provide for such increased punishment `"do not define a crime or offense but relate to the penalty to be imposed under certain circumstances."' [Citations.] Hence the rules which make an accused derivatively liable for a crime which he does not personally commit, do not at the same time impose a derivatively increased punishment by reason of the manner in which a confederate commits the crime." (People v. Walker, supra, 18 Cal.3d at pp. 241-242, quoting People v. Strickland (1974) 11 Cal.3d 946, 961 [114 Cal. Rptr. 632, 523 P.2d 672], quoting People v. Provencher (1973) 33 Cal. App.3d 546, 550 [108 Cal. Rptr. 792].)
*1471 "As section 12022.5 does not expressly direct its application to particular persons or classes of persons we must otherwise determine the legislative intent." (People v. Walker, supra, 18 Cal.3d at p. 240.) "We have heretofore construed section 12022 and other sections enhancing criminal penalties for being armed ... as limited in their application only to those persons convicted of felonies who were personally armed [citation], and certainly we cannot now discern in the foregoing legislative history of section 12022.5 any intent to apply that section differently." (Id., at p. 241.)
Finally, the court stated that: "Our conclusion ... is also compelled by the established policy `to construe a penal statute as favorably to the defendant as its language and the circumstances of its application reasonably permit; ... the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.'" (People v. Walker, supra, 18 Cal.3d at p. 242, quoting Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].)
Later, the Supreme Court held that the enhancement for a prior conviction of a felony "in which the defendant uses a firearm" (former Pen. Code, §§ 667, 1192.7, subd. (c)(8)),[7] applied only if the prior felony required personal firearm use. (People v. Piper, supra, 42 Cal.3d 471, 476-477.) Again, it treated the question as a matter of statutory interpretation. (Ibid.) It concluded that: "Since Walker, the Legislature has been quite explicit when it intends an enhancement provision to apply to a defendant even though he himself does not commit the proscribed act.... [¶] Subdivision (c)(8), of course, contains no similar language indicating that it was intended to apply even when the defendant himself did not personally use a firearm. Accordingly, the principle of interpretation applied in Walker supports the conclusion that the subdivision should be construed to apply only to defendants who personally use a firearm in the commission of a felony." (Id., at p. 477.)
Thus, there is no absolute rule against vicarious or derivative application of an enhancement or other penalty provision. At most, there is a presumption against it. The issue remains one of statutory interpretation, however, and, if there is a sufficient indication of legislative intent, an enhancement may be construed as applying vicariously to an aider and abettor. For *1472 example, in People v. Manners (1986) 180 Cal. App.3d 826 [225 Cal. Rptr. 798], the defendant had been convicted on an aiding and abetting theory of lewd and lascivious acts with a child (Pen. Code, § 288). The trial court denied probation, finding the defendant ineligible under the statutory provision for a person who occupies a position of special trust, and commits an act of substantial sexual misconduct. (Former Pen. Code, § 1203.066, subds. (a)(9), (b).)[8] (180 Cal. App.3d at p. 828.) On appeal, the defendant argued that this provision did not apply to an aider and abettor who had not personally committed the act of substantial misconduct. (Id., at p. 829.)
The Court of Appeal disagreed. It began by noting that "[a]n appropriate analogy exists in the law of penalty enhancement." (People v. Manners, supra, 180 Cal. App.3d at p. 830.) It therefore cited and discussed Walker. In examining the legislative history of former Penal Code section 1203.066, however, it found that the Legislature's main concern was "the harm to the victim, not the defendant's status...." (Id., at p. 833.) "Given the Legislature's concern over the harm caused by the sexual abuse of children, it appears section 1203.066, subdivision (a)(9), must logically apply to aiders and abettors, as well as to perpetrators. The culpability of a person such as defendant who, in essence, condones such abusive behavior and then attempts to hide it, thereby compounding the psychological harm to the child, must be as great as that of the perpetrator." (Ibid.)
(8) "`[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.' [Citation.] In determining that intent, we first examine the words of the respective statutes: `If there is no ambiguity in the language of the statute, "then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs." [Citation.] "Where the statute is clear, courts will not `interpret away clear language in favor of an ambiguity that does not exist.' [Citation.]"' [Citation.]" (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal. Rptr.2d 77, 906 P.2d 1232], cert. den. (1996) ___ U.S. ___ [117 S.Ct. 104, 136 L.Ed.2d 57], quoting People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal. Rptr.2d 903, 893 P.2d 1224], and Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 [36 Cal. Rptr.2d 563, 885 P.2d 976], respectively.)
(7b) Penal Code section 664, subdivision (a) brings within its scope "[e]very person who attempts to commit any crime...." This phrase *1473 necessarily encompasses those who aid and abet an attempt; otherwise, an aider and abettor could not be punished for attempt at all. It then imposes three different measures of punishment on "the person guilty of that attempt," depending on the nature of "the crime attempted":
1. If "the crime attempted" is willful, deliberate, and premeditated murder, "the person guilty of that attempt" is subject to life imprisonment.
2. If "the crime attempted" is any other one in which the maximum sentence is life imprisonment or death, "the person guilty of the attempt" is subject to imprisonment for a term of five, seven, or nine years.
3. If "the offense so attempted" is any other one punishable by imprisonment, "the person guilty of that attempt" is subject to imprisonment for half the term applicable to the completed offense.
Again, these terms necessarily encompass an aider and abettor. Whenever an aider and abettor is convicted of attempt, there is "a crime attempted," even though he or she did not personally attempt the crime. Moreover, under the derivative liability principles of Penal Code section 31, the aider and abettor is a "person guilty of that attempt."
Any other construction would be absurd; if the "willful, deliberate, and premeditated murder" clause could be construed as excluding aiders and abettors, the other clauses of Penal Code section 664, subdivision (a) would have to be construed identically, meaning, again, that an aider and abettor could not be punished for attempt at all.
We conclude that an aider and abettor can be subject to life imprisonment for willful, deliberate, and premeditated murder even if he or she did not personally deliberate or premeditate.
2. Failure to Instruct That the Perpetrator's Mental State Must Be a Natural and Probable Consequence of the Target Offense.[*]
.... .... .... .... .... .... .... .
IV-VII[*]
.... .... .... .... .... .... .... .
*1474 VIII
DISPOSITION
The judgment is affirmed.
Hollenhorst, Acting P.J., McDaniel, J.,[**] concurred.
Petitions for a rehearing were denied March 18, 1997, and March 27, 1997, and appellants' petition for review by the Supreme Court was denied June 18, 1997.
NOTES
[] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication with the exception of parts III.B, III.C.1, III.C.3, III.D.2, IV, V, VI, and VII.
[1] Detective Hector Heredia testified that "ese" was a "street term "used to greet a Hispanic person. He translated it as "dude." In the transcript, it is consistently misspelled as "esse"; we will substitute the correct spelling.
[2] It could be argued that discharging a weapon from a vehicle and attempted murder are distinguished by a "further physical act" the presence of a victim. However, while true in this case, this is not necessarily true. One can imagine a case in which the perpetrator commits attempted murder by shooting, with intent to kill, at a tree which he thinks is a person. Thus, we choose to rest our opinion on broader grounds.
[3] Defendants understandably rely on People v. Rogers (1985) 172 Cal. App.3d 502 [217 Cal. Rptr. 809], in which the court, in a footnote, opined: "[I]f the test of aiding and abetting were to include the natural and probable consequences of the act of aid rather that the acts (offenses) aided, the intent requirement of Beeman would be emasculated." (Id., at p. 515, fn. 18.) The truth of this proposition is not self-evident. Moreover, it was dictum, unnecessary to the court's decision. We therefore respectfully disagree.
[6] The enhancement applied to: "`Any person who uses a firearm in the commission or attempted commission of a robbery, assault with a deadly weapon, murder, assault with intent to commit murder, rape, burglary, or kidnapping, upon conviction of such crime....'" (People v. Walker, supra, 18 Cal.3d at p. 236, fn. 1, quoting former Pen. Code, § 12022.5.)
[7] The enhancement applied to "`[a]ny person convicted of'" "`any ... felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant uses a firearm.'" (People v. Equarte (1986) 42 Cal.3d 456, 461, fns. 4 and 5 [229 Cal. Rptr. 116, 722 P.2d 890], quoting former Pen. Code, §§ 667 and 1192.7, subd. (c)(8), respectively; see People v. Piper (1986) 42 Cal.3d 471, 473, fn. 1 [229 Cal. Rptr. 125, 722 P.2d 899], citing Equarte.)
[8] The probation ineligibility provision applied to "`[a] person who occupies a position of special trust and commits an act of substantial sexual conduct.'" "Substantial sexual conduct" was defined as "`penetration of the vagina or rectum by the penis of the offender or by any foreign object, oral copulation, or masturbation, of either the victim or the offender.'" (People v. Manners, supra, 180 Cal. App.3d at p. 829, fn. 2, quoting former Pen. Code, § 1203.066, subds. (a)(9), (b).)
[*] See footnote, ante, page 1450.
[**] Retired Associate Justice of the Court of Appeal, Fourth District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267360/ | 999 F.Supp. 394 (1998)
Pernell WILSON, Plaintiff,
v.
Sally B. JOHNSON, et al., Defendants.
No. 95-CV-857S.
United States District Court, W.D. New York.
February 17, 1998.
*395 Pernell Wilson, Comstock, NY, pro se.
Mary C. Baumgarten, Asst. Atty. Gen., Buffalo, NY, for Defendants.
ORDER
SKRETNY, District Judge.
Whereas this Court, by its Order dated March 15, 1996, referred the above-captioned case to Magistrate Judge Heckman pursuant to 28 U.S.C. § 636(b)(1)(A) and (B);
Whereas Defendants, through counsel, made a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56;
*396 Whereas Magistrate Judge Heckman filed a Report and Recommendation on September 12, 1997, copies of which were mailed to the Plaintiff and counsel for the Defendants by the Clerk of the Court on September 12, 1997, recommending that the Defendants' motion for summary judgment be granted;
Whereas, on September 19, 1997, Plaintiff filed a motion for a court order to "go into property to get his legal work";
Whereas, by order filed on October 22, 1997, this Court referred Plaintiff's September 19, 1997 motion to Magistrate Judge Heckman, and specified that any objections to Magistrate Judge Heckman's September 12, 1997, Report and Recommendation were to be stayed until 10 days following receipt of Magistrate Judge Heckman's decision resolving Plaintiff's September 19, 1997 motion;
Whereas, on January 23, 1998, Magistrate Judge Heckman issued an order denying Plaintiff's motion for a court order to "go into property to get his legal work";
Whereas, no objections to Magistrate Judge Heckman's Report and Recommendation have been received; and
Whereas, after careful review of the Report and Recommendation, as well as the pleadings and materials submitted by the parties,
IT HEREBY IS ORDERED, this Court hereby accepts the Report and Recommendation, and Defendants' motion for summary judgment is GRANTED.
FURTHER, that Plaintiff's complaint is DISMISSED.
SO ORDERED.
REPORT AND RECOMMENDATION
HECKMAN, United States Magistrate Judge.
This matter was referred to the undersigned by the Hon. William M. Skretny, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendants have moved for summary judgment.[1] For the reasons that follow, it is recommended that defendants' motion be granted.
BACKGROUND
On October 4, 1995, plaintiff filed his complaint in this action. He alleges that defendant Sally B. Johnson, Superintendent of the Orleans Correctional Facility maintained by the New York State Department of Corrections ("DOCS"), and defendant Karen Crowley, a DOCS correction counselor, violated his constitutional rights when they assigned him to work in the mess hall of the Orleans facility. He seeks $100,000.00 in compensatory damages.
The following facts are not disputed. On May 5, 1995, plaintiff was transferred to the Orleans facility. He was examined by medical staff on reception. No acute physical problems were observed (Item 21, Ex. A., pp. 4, 37). On May 23, 1995, plaintiff met with the Program Committee at the Orleans facility for a job placement interview. As a result of the interview, plaintiff was assigned to the mess hall, subject to medical clearance (see Crowley Aff., ¶¶ 5-6 (Item 18); Sinha Aff., ¶¶ 6-7 (Item 21); Defendants' Statement of Undisputed Facts, ¶¶ 6-9 (Item 19)).
On May 26, 1995, plaintiff was examined by medical staff. No acute problems were noted, and plaintiff was not taking any medications. However, he was not given medical clearance for his mess hall assignment because he had previously tested positive for tuberculosis (see Item 18, ¶ 8 & Ex. A; Item 21, ¶ 8 & Ex. A, pp. 37, 177-78, 195, 213). On May 30, 1995, plaintiff again met with the Program Committee and was advised that *397 additional lab work was needed for medical clearance (Item 18, ¶ 8; Item 19, ¶¶ 13-14).
On June 2, 1995, plaintiff complained to medical staff that he wanted to change his bunk assignment from the top bunk to the lower bunk because he fell out of bed (Item 21, Ex. A, p. 36). He was examined by Dr. Sinha on June 9, 1995. Dr. Sinha found "no medical justification" for reassigning plaintiff to the lower bunk (id.). On June 11, 1995, plaintiff wrote a letter to "N.Y.S. Department of Health Director" in which he stated that he had difficulty getting into the top bunk because of a "leg & hip problem" resulting from his involvement in an automobile accident "about two years" prior to his incarceration. He stated that he informed the doctor about his problem, but the doctor told him that there was nothing wrong with him and that he did not need a lower bunk. He stated that if the problem continued he would "drop a law suit on" the Orleans facility (Item 21, Ex. B).
On June 13, 1995, Deputy Superintendent R.J. Kirby notified plaintiff that his June 11, 1995 letter had been forwarded to Dr. Sinha (id.). On June 20, 1995, Dr. Sinha sent Mr. Kirby a memorandum in which he explained that plaintiff came to see him on June 9 upon referral from nurse's sick call. Dr. Sinha did not find any evidence to substantiate plaintiff's claim that he fell out of the top bunk (id.).
Meanwhile, on June 18, 1995, plaintiff wrote a letter to defendant Crowley, who at the time was the correction counselor assigned to the Program Committee. Plaintiff requested that he be assigned to the afternoon/evening shift in the mess hall, rather than the morning/afternoon shift, because he had a problem getting up in the morning (Item 18, Ex. B). He reiterated this request in a letter dated June 20, 1995 (id.). On June 21, 1995, Ms. Crowley notified plaintiff that he would be assigned to the afternoon/evening shift in the mess hall upon medical clearance (id.).
Plaintiff was examined by Dr. Sinha on June 19, 1995, and was cleared for food service work without restrictions (Item 21, Ex. A, p. 36; Item 18, Ex. D). He began work in the mess hall on June 26, 1995 (Item 19, ¶ 26).
Plaintiff's medical records show that he was seen at the Orleans facility health services unit on June 20, 1995 for instruction on proper hand washing technique (Item 21, Ex. A, p. 35), on June 26, 1995 for cold symptoms (id.), and on July 13, 1995 for cold symptoms (id., p. 34). On July 13, 1995 plaintiff also requested a complete physical and an appointment with the facility's psychologist, stating that he was "under stress" (id.). He did not attend sick call scheduled for June 21, June 23, July 7 and July 10, 1995 (id., pp. 34-35).
On July 19, 1995, plaintiff was seen by a nurse at the health services unit. He complained about back pain and continuing cold symptoms from working in the mess hall, as well as a history of back problems (id., p. 33). The nurse contacted the mess hall to advise that plaintiff was to be relieved of duty for the remainder of his shift, and placed on light duty for the next few days (id.).
On July 21, 1995, plaintiff was examined by Dr. Sinha. Plaintiff requested a general check-up. No medical complaints were noted, and the results of the examination were within normal limits (id.).
On August 6, 1995, plaintiff was taken to the emergency room at the Orleans facility. He stated that he had fallen while working in the mess hall and complained of lower right back pain. On examination he had full range of motion, appropriate flexion, extension and rotation, with no warmth, swelling or discoloration. He was given an analgesic and an ice pack, and was advised to report to sick call for follow-up treatment as necessary (id., p. 32). He failed to show for sick call on August 7, August 8 and August 18, 1995 (id., pp. 31-32).
On August 6, 1995, plaintiff wrote to defendant Crowley requesting call-out for a Program Committee meeting. He stated that he was having problems in the mess hall, and requested reassignment to a porter job (Item 18, Ex. E). On August 20, 1995, plaintiff was reassigned to custodial maintenance (id.).
On September 5, 1995, plaintiff was brought to the medical unit by wheelchair. *398 He complained of pain in his left calf resulting from an injury suffered in a basketball game the night before. On examination he had full range of motion with no swelling or discoloration. He was able to bear weight. He was given a knee brace and an ankle brace, and was advised to apply an ice pack as needed. He did not attend sick call scheduled for September 15 and September 25, 1995 (id., p. 31).
Plaintiff was transferred from the Orleans facility to the Oneida Correctional Facility in October, 1995, and was examined by Oneida facility medical staff on October 27, 1995 (id., pp. 4, 31). The "Reception Nursing Assessment" form indicated that plaintiff had complained of mid-back pain off and on for the past six months, but was not under any medical care or taking any medications (id., pp. 4, 30).
Plaintiff's ambulatory health records show that no further complaints of back pain were noted until February 23, 1996, when he requested reassignment to a lower bunk because of back pain (id., p. 26). On February 28, 1996, the facility physician ordered an x-ray of plaintiff's spine (id.). On March 5, 1996, an x-ray was taken at the Mohawk Correctional Facility. The radiologist noted curvature of the lumbar spine, and "[e]ssentially unremarkable examination of the thoracic spine" (id., p. 130).
DISCUSSION
I. Summary Judgment.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir.1995), and must give extra latitude to a pro se plaintiff. McDonald v. Doe, 650 F.Supp. 858, 861 (S.D.N.Y.1986). Once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed.R.Civ.P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994); Higgins v. Artuz, 1997 WL 466505, at *3 (S.D.N.Y. August 14, 1997).
In this case, defendants move for summary judgment on the following grounds:
1. The pleadings, affidavits and exhibits submitted on the record fail as a matter of law to demonstrate a violation of plaintiff's eighth amendment right to be free from cruel and unusual punishment;
2. The record fails to demonstrate that defendants Johnson and Crowley were personally involved in the alleged constitutional violation;
3. Defendants are entitled to qualified immunity.
Each of these grounds is discussed in turn below.
II. Eighth Amendment.
The eighth amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. (citing Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), and Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The eighth amendment's prohibition against cruel and unusual punishment includes an inmate's right to be free from conditions of confinement that impose "an excessive risk to [the] inmate['s] health or safety ...." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Hathaway v. Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied sub nom. Foote v. Hathaway, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995).
*399 In order to establish that this right has been violated, the inmate must satisfy a two-part test. The first part of the test is objective, and requires the inmate to show that he is incarcerated under conditions posing a substantial risk of serious harm. Farmer v. Brennan, supra, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)).
It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.
Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).
The second prong of the test is subjective and requires the inmate to show that the official had a "sufficiently culpable state of mind." Id. 511 U.S. at 834 (quoting Wilson v. Seiter, supra, 501 U.S. at 297). The inmate must establish that the official acted or failed to act with deliberate indifference to the inmate's health or safety:
[A] prison official does not act in a deliberately indifferent manner unless that official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."
Hathaway v. Coughlin, supra, 37 F.3d at 66 (quoting Farmer v. Brennan, supra 511 U.S. at 837). Mere negligence or inadvertence on the part of the official does not violate the constitution. Cole v. Scully, 1995 WL 231250 at *4 (S.D.N.Y. April 18, 1995)("Negligence is not sufficient, for examplethe plaintiff must show conduct that is `repugnant to the conscience' or `incompatible with the evolving standards of decency that mark the progress of a maturing society'")(quoting Estelle v. Gamble, supra, 429 U.S. at 102).
In this case, it is clear from the record before the court that plaintiff cannot meet either prong of the test for establishing an eighth amendment violation. Objectively, there is nothing in plaintiff's medical records to show that his back problem was serious enough to prevent him from performing the tasks required of a mess hall worker. The evidence shows that plaintiff was seen by medical staff at the Orleans facility several times prior to beginning work in the mess hall on June 23, 1995. In early June plaintiff complained to the medical staff and to the state Department of Health about his bunk assignment, and mentioned his "leg & hip problem" stemming from an auto accident several years prior. However, he did not complain about his job assignment at that time. Upon physical examination, Dr. Sinha found no medical justification for assigning plaintiff to a lower bunk.
Plaintiff did not mention anything about back pain until July 19. He was given a full physical examination by Dr. Sinha on July 21, and the results were within normal limits. He failed to show for sick call on July 24. He was also examined on August 6, and demonstrated full range of motion, appropriate flexion, extension and rotation, and no swelling or discoloration. He did not show for sick call on August 7, August 8, or August 18. He was next examined on September 5 after he was injured playing basketball. He did not show for sick call on September 15 and 25.
Considered as a whole, this evidence is inconsistent with the theory that assigning plaintiff to work in the mess hall exposed him unwillingly to a risk "so grave that it violates contemporary standards of decency ...." Helling v. McKinney, supra, 509 U.S. at 35. Indeed, there is evidence in the record suggesting that plaintiff was not only willing but anxious to begin his assignment. Based on this proof, plaintiff cannot establish that his work assignment placed him at significant risk of serious harm. He has therefore failed to meet the objective prong of the Farmer v. Brennan test.
As to the subjective prong, there is nothing in the medical evidence to suggest that defendants Johnson or Crowley knew that plaintiff had a serious back problem and deliberately disregarded it. Plaintiff's ambulatory health record shows that in September of 1994, while he was at the Attica Correctional *400 Facility, he was given a bed board for his back (Item 21, Ex. A. pp. 46, 194). However, as discussed above, plaintiff's records do not reveal any further evidence of back problems prior to May of 1995, when he was assigned to the mess hall by the Program Committee, or June of 1995, when he began working in the mess hall. The fact that plaintiff was issued a bed board in September of 1994, standing alone, is simply insufficient to raise the inference that mess hall work presented a substantial risk of serious harm.
Accordingly, upon extensive review of the pleadings, affidavits and exhibits in the record, I find that there are no triable issues of fact as to whether defendants subjected plaintiff to excessive risk of harm by assigning him to work in the mess hall. Defendants are therefore entitled to summary judgment dismissing plaintiff's eighth amendment claim as a matter of law.
III. Personal Involvement.
In order to state a claim for relief under § 1983 against a particular defendant, a plaintiff must show that defendant's personal involvement in the purported unlawful conduct. Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978).
A defendant may be personally involved in a constitutional violation within the meaning of 42 U.S.C. § 1983 in several ways. The defendant may have directly participated in the infraction .... A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong .... A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue .... Lastly, a supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event.
Williams v. Smith, supra, 781 F.2d at 323-24 (citing cases).
In this case, as the discussion above demonstrates, there is no evidence in the record to show that defendants engaged any unconstitutional conduct, either directly or in a supervisory capacity. There is no proof from which it could be inferred that assigning plaintiff to the mess hall would be likely to aggravate a serious back condition. Instead, the evidence shows that plaintiff agreed to his assignment and wrote letters to Ms. Crowley requesting clarification of his work hours. It was not until July 19, 1995 that plaintiff even mentioned back pain to medical staff. He was treated at that time and was temporarily excused from work that could aggravate his condition. It was not until August 6, 1995 that plaintiff wrote to Ms. Crowley about his problems in the mess hall. Even then, he did not mention his back problem. After a Program Committee meeting, he was reassigned to custodial work.
There is no evidence in the record to suggest defendant Johnson was advised about any health risk connected to plaintiff's job assignment, or that Johnson was advised and failed to take any action. Likewise, there is no evidence to suggest that the facility had a policy of exposing inmates to excessive health or safety risks, that Johnson knew about such a policy and allowed it to continue, or that Johnson was grossly negligent in managing Crowley or any other subordinate.
In the absence of any proof of unconstitutional conduct on the part of defendants Johnson and Crowley in either a direct or supervisory capacity, defendants are entitled to summary judgment dismissing the complaint on the ground of lack of personal involvement.
IV. Qualified Immunity.
Defendants also move for summary judgment on the ground of qualified immunity. State officials performing discretionary functions in the course of their duties are immune from liability for money damages in suits alleging constitutional violations "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 *401 (1982)(quoted in Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir.1990)). Even when such rights are clearly established, qualified immunity will protect a government official "if it was objectively reasonable for [the official] to believe that his [or her] acts did not violate those rights." Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987); Russell, supra, 910 F.2d at 78; Gittens v. LeFevre, 891 F.2d 38, 42 (2d Cir.1989). "The objective reasonableness test is metand the defendant is entitled to immunityif `officers of reasonable competence could disagree' on the legality of the defendant's actions." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995)(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Thus, a defendant is entitled to summary judgment on qualified immunity grounds where the court determines as a matter of law that it was objectively reasonable for the defendant to believe that his or her conduct or actions did not violate an established federally protected right. Lennon, supra, 66 F.3d at 420. "In other words, if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Id.
In this case, the record clearly demonstrates that it was objectively reasonable for defendants to conclude that assigning plaintiff to work in the mess hall did not violate plaintiff's right to be free from cruel and unusual punishment. As discussed above, there is no evidence to suggest that, at any time during the course of the events complained of, plaintiff had a serious medical condition that would be exacerbated by mess hall work. In light of this record, no reasonable trier of fact could conclude that the actions taken by defendants Crowley and Johnson were objectively unreasonable under the circumstances. Accordingly, defendants are entitled to summary judgment on qualified immunity grounds.
CONCLUSION
For the foregoing reasons, it is recommended that defendants' motion for summary judgment (Item 15) be granted, and the case dismissed.
September 11, 1997.
SO ORDERED.
NOTES
[1] Defendants filed their summary judgment motion on January 27, 1997. On February 12, 1997, this court issued an order granting plaintiff's request for additional time to respond to defendants' motion. On March 31, 1997, plaintiff filed a "Notice of Motion with Affidavit for Summary Judgment Pursuant to Fed.R.Civ.P. (56) Cross Move" (Items 28,29), a "Pro Se Memorandum of Law Cross Move on Defendants Motion to Dismiss" (Item 30), and a "Summary Judgment Motion to Responses" (Item 31). The information contained in these filings pertains to the issues raised by defendants in their summary judgment motion, and will be considered by the court as plaintiff's response to defendants' motion. There is nothing contained in Items 28-31 to suggest that plaintiff seeks or is entitled to summary judgment in his favor. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267373/ | 999 F.Supp. 261 (1998)
PEERLESS INSURANCE COMPANY, Plaintiff,
v.
Braulio DISLA, William Kosbob, William Kosbob, as Father and next best Friend of Mathew Kosbob, a Minor Child, Washington Alvarez, Maria C. deAlvarez, Anthony Bellocchio, Anne McNamara, Jarrell Crawford, Michael Ponticello, Salvatore Ponticello, Clara Ponticello, City of Stamford, Jerry C. Pia, Mark Katz, Marc D. Peyser, Pat Broom, Eileen M. Ianazzi, Robert E. King, Jill Beaudry, Dannell P. Malloy, James Sarafino, Michael Nast, Lynda Hautala, and Theodore Boccuzzi, Defendants.
No. 3:97CV00904 (GLG).
United States District Court, D. Connecticut.
March 23, 1998.
*262 Daniel A. Benjamin, Benjamin & Gold, Stamford, CT, for William Kosbob.
Dominick J. Rutigliano, Law Offices of Daniel D. Portanova, Bridgeport, CT, for Washington Alvarez, Maria C. Dealvarez.
James V. Minor, City of Stamford, Office of Legal Affairs, Stamford, CT, for City of Stamford, Jerry C. Pia, Mark Katz, Marc D. Peyser, Pat Broom, Eileen M. Ianazzi, Robert E. King, Jill Beaudry, Dannell P. Malloy, James Sarafino, Michael Nast, Lynda Hautala, Theodore Boccuzzi.
Memorandum Decision
GOETTEL, District Judge.
In this declaratory judgment action, Peerless Insurance Company seeks a declaration of its duty to defend defendant Braulio Disla, its insured, in a state-court action brought by William Kosbob, as Father and Next Best Friend of Mathew Kosbob, for personal injuries suffered by Mathew. Peerless contends that all claims asserted in the underlying lawsuit are specifically excluded from coverage and, therefore, Peerless has no duty to defend Disla or to indemnify him if a judgment is rendered against him. Peerless has filed a motion for summary judgment, to which defendant Kosbob has responded, asking this court to exercise its discretion and dismiss the declaratory judgment action because of the pendency of the state court proceedings. For the reasons set forth below, we deny Kosbob's motion to dismiss and grant the motion for summary judgment of Peerless.
Background
The underlying state-court lawsuit arises out of a tragic incident in which Mathew Kosbob was viciously beaten by four youths in a school parking lot in Stamford, Connecticut, on July 28, 1995. Mathew sustained serious head trauma, paralysis, and loss of bodily functions. He reportedly remains totally bed-ridden in a near vegetative state. The four assailants were all under the age of twenty-one at the time of the attack and were under the influence of alcohol, which they had allegedly purchased from the Cove Road Grocery Store earlier that evening.
In the state court action, Kosbob has sued twenty-two defendants. The claims asserted against defendant Disla are in his capacity as a permittee and backer of a liquor permit granted by the State of Connecticut Department of Liquor Control to sell alcoholic beverages at Cove Road Grocery in Stamford, Connecticut. The complaint alleges that, between 6:00 p.m. and 9:30 p.m. on July 28, 1995, Disla, or his agents or employees, sold to the four under-age assailants, significant quantities of alcoholic beverages, which they consumed. The complaint alleges that a significant contributing cause of the attack on Mathew Kosbob was the negligence of Disla in selling intoxicating beverages to persons under the age of twenty-one, which was also in violation of Conn.Gen.Stat. § 30-86.
Discussion
I. Motion to Dismiss of Defendant Kosbob
Before delving into the merits of the summary judgment motion, we address defendant Kosbob's motion to dismiss, in which he asks us to decline jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, because of the pendency of the earlier filed state court action. Kosbob relies on the decisions of Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), and Wilton v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), in which the Supreme Court addressed the discretion afforded a district court to stay a declaratory judgment action pending the determination of parallel state court proceedings. In Wilton, the Supreme *263 Court reaffirmed its holding in Brillhart that a district court has broad discretion to determine whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites. 515 U.S. at 282. Although neither Brillhart nor Wilton set forth an exclusive list of factors governing the district court's exercise of that discretion, both decisions instruct that a district court should examine the scope of the pending state court proceedings and whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding. Id. at 283; Brillhart, 316 U.S. at 495.
Unlike the facts in Wilton, in this case the insurer is not a party to the state court proceedings. The state suit involves the liability of multiple parties for the personal injuries sustained by Mathew Kosbob; it does not involve the insurance coverage issue presented in this declaratory judgment action. This is not a situation where the insurance coverage issue would better be decided in the state court action; it is not even an issue in that proceeding. Therefore, we decline to exercise our discretion to stay or dismiss these proceedings. See Richmond, Fredericksburg & Potomac R.R. Co. v. Aetna Cas. & Sur. Co., No. 3:96CV1054(AHN), 1996 WL 684413 (D.Conn. Nov.7, 1996).
II. The Motion for Summary Judgment of Peerless
At all times relevant to the underlying complaint, Peerless provided commercial liability coverage to Braulio Disla d/b/a Cove Road Grocery Store under policy BOP 9000651. It did not, however, provide liquor liability or Dram Shop insurance coverage to Disla. Policy BOP 9000651 contained a specific exclusion for
c. "Bodily injury" or "property damage" for which any insured may be held liable by reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages.
This exclusion applies only if you are in business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages.
It is undisputed that Cove Road Grocery Store sold alcoholic beverages. Defendant Kosbob, however, asserts that Disla was not in the business of selling alcoholic beverages; rather he was in the business of selling groceries.
An insurer's duty to defend is determined by the allegations of the underlying complaint. The duty of the insurer to defend or indemnify is based upon whether the complaint states facts which appear to bring the claimed injury within the coverage of the policy. On the other hand, if the complaint alleges a liability which the policy does not cover, the insurer is not required to defend. Smedley Co. v. Employers Mut. Liability Ins. Co., 143 Conn. 510, 516-17, 123 A.2d 755 (1956); General Accident Group v. Gagliardi, 593 F.Supp. 1080, 1088 (D.Conn.1984), aff'd, 767 F.2d 907 (2d Cir.1985). It is the function of the court to construe the provisions of the insurance contract and, if no material facts are at issue, the question of whether coverage exists is a question of law that is appropriately decided on a motion for summary judgment. Jurrius v. Maccabees Mut. Life Ins. Co., 587 F.Supp. 1301, 1305 (D.Conn.1984).
In this case, the court finds that the language of the exclusion is clear and unambiguous. The Peerless policy does not provide coverage for bodily injury claims for which its insured may be liable by reason of his causing or contributing to the intoxication of any person or by reason of his selling liquor to persons under the age of twenty-one. This is precisely what is alleged in the underlying complaint that Disla is liable by reason of his selling alcoholic beverages to the individuals who attacked plaintiff and who were under the age of twenty-one. See Penn-America Ins. Co. v. LTJ Corp., XXXXXXXXX S, 1996 WL 465744 (Conn.Super. July 23, 1996).
*264 The only issue raised by Kosbob's opposition to the motion for summary judgment is whether Disla was "in the business of" selling alcoholic beverages. Certainly, the sale of alcoholic beverages was part of Disla's grocery business, for he had gone to the trouble and expense of obtaining a liquor permit. Moreover, Kosbob has sued Disla "as the permittee and backer of a liquor permit granted by the State of Connecticut Department of Liquor Control to sell alcoholic beverages at Cove Road Grocery." There is nothing in the language of the policy exclusion that requires the sale of liquor to be the insured's primary business. We find that Disla was in the business of selling alcoholic beverages and, therefore, the exclusion applies.
Conclusion
Accordingly, the court finds that there is no genuine issue of material fact and that Peerless has no duty to defend Disla in the state court action brought by William Kosbob and has no obligation to indemnify Disla if he is found liable in that suit. The court GRANTS the motion of Peerless for summary judgment [Doc. # 16]. The court DENIES the motion of defendant Kosbob to dismiss [Doc. # 20].
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386020/ | 75 S.E.2d 312 (1953)
237 N.C. 318
HANDLEY MOTOR CO., Inc.
v.
WOOD et al.
No. 98.
Supreme Court of North Carolina.
March 18, 1953.
*315 Gardner, Connor & Lee, Wilson, for plaintiff, appellant.
Carr & Gibbons, Wilson, for defendant, appellee.
PARKER, Justice.
All the evidence shows that all the transactions as to the sale of the new Ford automobile described in the complaint between the plaintiff and James P. Junghans, Jr., and the delivery of it by the plaintiff to Junghans took place in the District of Columbia. Therefore, the sale in its substantive features is governed by the laws of the District of Columbia, and such laws on the doctrine of comity in the forum will be enforced in North Carolina, unless contrary to the public policy of this State. Price v. Goodman, 226 N.C. 223, 37 S.E.2d 592; 11 Am.Jur., Conflict of Laws, Sec. 140.
The District of Columbia in 1937 adopted the Uniform Sales Act. D.C.Code 1940, Secs. 28-1101 to 28-1608. Sec. 18 of the Uniform Sales Act, which is Sec. 28-1202 of the D.C.Code 1940, is as follows: "Property in specific goods passes when parties so intend. (1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case."
*316 In Daine v. Price, D.C.Mun.App.1949, 63 A.2d 767, 768, the Court said: "In the case of a so-called cash transaction in which the passage of title depends upon payment, a check is generally considered conditional payment only and does not operate to effect payment unless the check is itself paid." The District of Columbia Court cites in support of its statement "Standard Inv. Co. v. Town of Snow Hill, N.C., 4 Cir., 78 F.2d 33; see also Publicker Commercial Alcohol Co. v. Harger, 129 Conn. 655, 31 A.2d 27." In the Town of Snow Hill case [78 F.2d 36], Parker, Circuit Judge, speaking for the Court said: "The rule that a check of a debtor is merely conditional payment applies to obligations arising out of immediate transactions, as well as to payment of antecedent debts; and, where there is a sale for cash on delivery, and payment is made by check of the buyer, such check constitutes only conditional payment. Until the check is itself paid, the title, as between the parties, passes only conditionally; and, upon dishonor of the check, the seller may rescind the transaction and reclaim that with which he has parted", citing many authorities in support.
All the evidence in this case tends to show that the sale of this car to Junghans was a cash sale, and that Junghans gave for the purchase price a worthless cheque. If a jury should so find from the evidence then under the laws of the District of Columbia no title to the car passed to Junghans, but the plaintiff retained the legal title.
Such law will be enforced in the courts of North Carolina, because such is the law of this State. Parker v. First-Citizens Bank & Trust Co., 229 N.C. 527, 50 S.E.2d 304, which cites many authorities to support its ruling. See also Davidson v. Diamond Furniture Co., 176 N.C. 569, 97 S.E. 480.
Title like a stream cannot rise higher than its source. The general rule is that a seller of personal property without title cannot transfer a better title than he has, unless some principle of estoppel comes into operation, where the owner by some direct and unequivocal act has clothed the seller with the indicia of ownership. It is also the general rule that the fact that the owner has entrusted someone with the mere possession and control of personal property is not sufficient to estop the real owner from asserting his title against a person who has dealt with the one in possession on the faith of his apparent ownership or authority to sell. It is also well settled that when the owner of personal property in any form clothes another with the apparent title of power of disposition, and third parties are thereby induced to deal with him, they shall be protected. 46 Am.Jur., Sales, Sec. 458 and Sec. 460; Cowdrey v. Vandenburgh, 101 U.S. 572, 25 L.Ed. 923; Asheville Supply & Foundry Co. v. Machin, 150 N.C. 738, 64 S.E. 887; American National Bank v. Dew, 175 N.C. 79, 94 S.E. 708; American Exchange National Bank v. Winder, 198 N.C. 18, 150 S.E. 489; Atlantic Discount Corp. v. Young, 224 N.C. 89, 29 S.E.2d 29; Parker v. Trust Co., supra.
While Mrs. Cross testified that the plaintiff gave Junghans no records or papers of any kind, and Junghans testified the plaintiff gave him a receipt that he paid $1,875.50 for the car and a ten day temporary registration card, there is no evidence that Goldberg ever saw such a receipt and temporary registration card, and they were not introduced in evidence. There is no evidence, if the plaintiff gave Junghans such papers, Goldberg was induced thereby to buy the car from Junghans relying upon such papers; Lee Motors, Mozes Autos and the defendants knew nothing about any such papers according to the evidence. There is no evidence to estop the plaintiff from asserting its legal title. Further, the defendants have not pleaded an estoppel, as they are required to do to be available to them as a defense. Laughinghouse v. Great Nat. Ins. Co., 200 N.C. 434, 157 S.E. 131; Keen v. Parker, 217 N.C. 378, 8 S.E. 2d 209; Aldridge Motors v. Alexander, 217 N.C. 750, 9 S.E.2d 469. "The lex fori also governs the rules of pleading." 11 Am.Jur., Conflict of Laws, p. 502; Central Vermont R. Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433.
*317 If the jury found as all the evidence tends to show that the plaintiff's sale to Junghans was a cash sale, and Junghans paid for the car with a worthless cheque, the title is still in the plaintiff, and as there is no evidence nor defense in the answer that the plaintiff is estopped to assert its title, then under those circumstances it is an elementary general rule, which is incorporated in the Uniform Sales Act, Sec. 23, that no one can transfer a better title than he has, and, with certain well-known exceptions, an innocent purchaser for value from one without title does not acquire title as against the true owner. 46 Am.Jur., Sales, Sec. 458; Vold, Sales, pp. 174-176; Williston on Sales, Rev.Ed., Vol. 2, Sections 346a and 346b.
Williston, ibid., Sec. 346a, says: "Sometimes after a bargain for a cash sale the buyer gives in payment of the price a worthless check, and it has been held that such a false check is no payment; and that not only does no title pass to the fraudulent buyer, but that the seller may assert his title against an innocent purchaser from the buyer," citing many cases in support of such statement. Williston criticizes such decisions as unsound, but says ibid., p. 346, "it must be admitted that so far as the cases on worthless checks are involved the author's analysis is not supported by the weight of authority."
Void, ibid., p. 174, says: "Payment by check is without special agreement commonly regarded as only conditional payment until cashed. Following this analysis it is held by the great weight of American authority that delivering the goods to the buyer and taking his check for the price is not a waiver of the condition of payment in cash but that the property passes when the check is cashed. If, then, the check is dishonored on presentation, as for instance where it was forged or where the drawer had no funds, it is held that the goods still belong to the seller unless the seller is shown to have accepted the check in absolute payment, and that he can recover them from subsequent purchasers from the buyer even when they are purchasers in good faith for value without notice." In support of the statement "he can recover them from subsequent purchasers from the buyer even when they are purchasers in good faith for value without notice." Vold cites: Barksdale v. Banks, 206 Ala. 569, 90 So. 913; Clark v. Hamilton Diamond Co., 209 Cal. 1, 284 P. 915; Johnson v. Iankovetz, 57 Or. 24, 28, 102 P. 799, 110 P. 398, 29 L.R.A., N.S., 709; Young v. Harris-Cortner Co., 152 Tenn. 15, 268 S.W. 125, 54 A.L.R. 516, Rehearing Denied, 152 Tenn. 34, 268 S.W. 1120; John S. Hale & Co., v. Beley Cotton Co., 154 Tenn. 689, 290 S.W. 994.
In Young v. Harris-Cortner Co., supra [152 Tenn. 15, 268 S.W. 127], the Court said: "We feel safe in saying that, as a matter of custom and convenience, most of the cash transactions of the country are paid with checks. A farmer brings his cotton, tobacco, or wheat to town for sale and sells same, and, as a general rule, is paid by check, although all of such sales are treated as cash transactions. If, in such a case, the purchaser can immediately resell to an innocent party and convey good title, it would follow that vendors would refuse to accept checks and would require the actual money, which would result in great inconvenience and risk to merchants engaged in buying such produce since it would require them to keep on hand large sums of actual cash. This would result in revolutionizing the custom of merchants in such matters."
"It is a general, well-established principle that no one can transfer a better title than he has. No person can by his sale"in 135 N.E. the preceding word "sale" is left out "transfer to another the right of ownership in a thing in which he has not the right of property, except in the case of cash, bank bills, checks, and notes payable to bearer, or transferable by delivery in the ordinary course of business to a person taking the same bona fide and paying value for it. [Citing authorities.] The purchaser of property wrongfully taken by his vendor from the true owner can obtain no more perfect title to the property purchased than the vendor himself possessed, and an innocent purchaser without notice of a wrongful taking can acquire no better title to property than his vendor had. 24 R.C.L. *318 374." Drain v. La Grange State Bank, 1922, 303 Ill. 330, 135, N.E. 780, 782.
Our General Assembly has added another exception to the general rule by exempting therefrom Warehouse Receipts. G.S. § 27-51.
"It is an elementary principle of the common law as to sales that one cannot transfer title to property in which he has no title or interest." Coolidge v. Old Colony Trust Co., 1927, 259 Mass. 515, 156 N.E. 701, 703; Hooper v. Britt, 1951, 35 Ala.App. 612, 51 So.2d 547.
Dobbins v. Martin Buick Co., 1950, 216 Ark. 861, 227 S.W.2d 620, 623, follows the general rule. The Martin Buick Company of Cookeville, Tennessee, brought this action of replevin to recover an automobile to which it claimed title. Title was also claimed by Dobbins. One Atkinson on 5 February 1948 purported to purchase this car from the Buick Company at its place of business in Tennessee, and fraudulently gave a cheque on a nonexistent account in a Georgia bank in payment for the car. Atkinson, at once, took possession of the car, and the Buick Company gave Atkinson an invoice identifying the car and stating the price $1,825. Nothing in the invoice indicated that the price had been paid. No bill of sale was issued to Atkinson, it being the Buick Company's purpose to execute a bill of sale only after the cheque had cleared. The cheque was worthless. Atkinson immediately brought the car to Arkansas, and secured on 9 February 1948 an Arkansas State license and a certificate of registration. Shortly thereafter Atkinson sold the car to the Baker Automobile Company, automobile dealers at Searcy, Arkansas, who bought it in good faith and for value in reliance upon the invoice and the Arkansas certificate of registration bearing Atkinson's name. The Baker Automobile Company in turn sold the car to Dobbins, who was likewise an innocent purchaser. Those facts were established by stipulation of the parties. It was held that the law of Tennessee governed as to the purported sale of the car, and that under the Tennessee law the title remained in the defrauded seller. Dobbins contended that the Martin Buick Company was estopped to deny that the Baker Automobile Company and subsequently himself acquired good title to the car by the bona fide purchase from Atkin son. It was held that whether such an estoppel is to be applied against the Martin Buick Company is to be determined by the law of Arkansas. The Court concluded as follows: "That under the law of Arkansas Martin [Buick Company] did not vest Atkinson with such indicia of title to the car as to estop Martin [Buick Company] from setting up his own valid title against an innocent purchaser of Atkinson's non-existent title."
Our authorities which we have been able to find, while not on all fours, seem to support the general rule. In Jones v. Zollicoffer, 4 N.C. 645 at page 660, the Court said: "When a bill, therefore, is filed by one who has the legal title, but who comes into equity because he cannot be completely relieved at law, it is no defense for the defendant to plead that he is an innocent purchaser for a valuable consideration without notice, because the complainant is not seeking to disarm him at law, the defendant at best having but a wooden sword, incapable of protecting him against the assault of a legal claimant."
In Lance v. Butler, 135 N.C. 419, 47 S.E. 488, it was held that where one who was an agent for the sale of goods for another allowed them to be mixed with his stock of goods and then gave a mortgage on the entire stock, the mortgagee obtained no better title than the mortgagor had. See also American Exchange National Bank v. Winder, supra.
There is no plea of estoppel in the answer, nor evidence to support such plea, if it had been made. Therefore, if the jury finds from the evidence that the transaction between the plaintiff and Junghans was a cash sale and that Junghans paid the purchase price for the car with a worthless cheque, then no title passed to Junghans and the legal title remained in the plaintiff. In that event these interesting questions arise on the pleadings and the evidence, which are not before us for decision: First, are the defendants innocent purchasers for value and without notice, and if so, is that a defense against the plaintiff's legal title, *319 according to the laws of the State of Pennsylvania, where the defendants made their contract with Mozes Autos and received delivery of the car; Second, if the defendants are innocent purchasers for value and without notice, and that is not under the laws of the State of Pennsylvania a defense against plaintiff's legal title, or if the defendants are not innocent purchasers for value and without notice, were Goldberg, Lee Motors and Mozes Autos, or either of them innocent purchasers for value and without notice of this car, and if so, is it a defense against the plaintiff's legal title in the states or state where such sales, or any one such sale, was executed; Third, if the defendants can prevail in any of these contentions, is it against the lex fori to enforce such a defense against plaintiff's legal title to the car? According to Junghans' testimony the executed sale of the car by him to Goldberg occurred in the District of Columbia, according to Goldberg's testimony in Maryland. The defendants allege in their answer that they are innocent purchasers for value and without notice. The burden is upon them to establish such defense. Inferences can be drawn from the evidence that neither defendants, nor Goldberg, nor Lee Motors, nor Mozes Autos are bona fide purchasers for value and without notice, therefore, a peremptory instruction that the defendants or Goldberg or Lee Motors or Mozes Autos were bona fide purchasers for value and without notice under the evidence in this case would be error. Price v. Goodman, supra; 11 Am.Jur., Conflict of Laws, Sec. 140; Morris v. Tate, 230 N.C. 29, 51 S.E.2d 892.
The issues submitted to the jury are not determinative of the controversy between the parties and the judgment signed is erroneously entered. Merchants' Nat. Bank v. Carolina Broom Co., 188 N.C. 508, 125 S.E. 12; Braswell v. Johnston, 108 N.C. 150, 12 S.E. 911. For the reasons stated above the Court's peremptory instruction to the jury on the first issue was error, and the plaintiff's assignment of Error No. 6 to such charge is sustained.
Under the facts of this case G.S. §§ 44-38.1, 47-20 and 47-23 have no application.
It is not necessary to consider the other assignments of error as to the admission of evidence, for they may not arise when the case is tried again.
The defendant Wood testified he received the car on January 8, and sold it January 10. The replevin bond is not in the record, but in the stipulation it is stated "defendants' replevin bond need not be printed as a part of the record on case on appeal." In paragraph 6 of the defendant's answer it is stated: "It is admitted that the defendants are in possession of said automobile and that they refuse to turn it over to the plaintiff."
There must be a new trial, and it is so ordered.
New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386033/ | 87 Ga. App. 671 (1953)
75 S.E.2d 350
McGOWAN
v.
CAMP.
34174.
Court of Appeals of Georgia.
Decided February 28, 1953.
*672 Erwin, Nix, Birchmore & Epting, for plaintiff in error.
A. M. Kelly, Milner & Stephens, contra.
SUTTON, C. J.
One riding by invitation and gratuitously in another's automobile cannot recover for injury caused by the other's negligence in operating the automobile unless it amounts to gross negligence. Our Code defines gross negligence in these terms: "Slight diligence is that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances . . the absence of such care is termed gross negligence." Code, § 105-203. Ordinary negligence, gross negligence, and contributory negligence are questions of fact and not of law and are, as a rule, to be determined by a jury.
It appears from the evidence that Mrs. McGowan, wife of the defendant, and Mrs. Camp, wife of the plaintiff, together with their children, were traveling in the defendant's automobile from Monroe, Georgia, to Hinesville, Georgia, Mrs. Camp being a guest in the car. The children were restless and irritable, and were on the back seat part of the time and on the front seat part of the time. Mrs. Camp and Mrs. McGowan had, at different times, been correcting their children, and Mrs. McGowan had several times, while driving, looked back to where her son was on the back seat in correcting him. Before the accident happened, Mrs. Camp had taken her four-year-old son in her lap on the front seat, and Mrs. McGowan had placed her four-year-old son by her side on the front seat. Some disturbance was taking place between these two children when Mrs. McGowan, in endeavoring to correct her son, took her right hand off of the steering wheel and took her eyes off of the road and looked down by her side to see her son's leg, so as to strike his leg with her hand in correcting him. The automobile was running from 45 to 50 miles per hour at that time, and it ran off of the right-hand side of the road, causing Mrs. McGowan to lose control of the car; and it then went back across the road and ran off of the road on the left-hand side, turned over three times and was wrecked, which resulted in serious injuries to Mrs. Camp. Mrs. McGowan testified that she did not *673 think it could have been over two seconds that she took her eyes off of the road and looked down to strike her son's leg. But, with the car running at 50 miles per hour, it would have traveled approximately 150 feet in two seconds. In other words, there was an automobile running at 50 miles per hour and traveling approximately 150 feet without the driver seeing where it was going, and during that time it ran out of the road and was wrecked as above stated, thereby causing the serious injuries to the plaintiff's wife. It is not even questioned that this conduct of the defendant's wife was responsible for the wreck and the injuries to the plaintiff's wife. In these circumstances, could not a jury properly say that Mrs. McGowan was guilty of gross negligence? We think so.
This case is distinguishable from Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256), where the defendant scraped another car in passing and in the emergency and excitement incident thereto glanced back at the other car and lost control of her own car; and from Tucker v. Andrews, 51 Ga. App. 841 (181 S. E. 673), where a milk bottle was turned over by a child on the back seat of an automobile, and the defendant, in response to the exclamation of the child, obeyed a sudden impulse and looked back. In the present case, it appears that the children had been misbehaving for some time, and that the defendant deliberately took her hand off of the wheel and looked down at the leg of her son so as to spank him on the leg. This was an intentional and deliberate act on her part, as distinguished from the sudden and involuntary acts of the defendants in the two cases just referred to.
It was said in Jordan v. Lee, 51 Ga. App. 99 (3) (179 S. E. 739): "It has been held that where one driving an automobile is so inattentive as to look to the side and not keep a constant lookout ahead, when there is an object in his path which is clearly visible that he might run into, a jury would be authorized to find that he was guilty of gross negligence." In Pitcher v. Curtis, 43 Ga. App. 622, 624 (159 S. E. 783), which was based on gross negligence, the petition alleged, among other things, that the driver "carelessly and negligently turned her head and eyes away from the direction in which she was traveling and looked to her left rear towards the filling station, and while in *674 this careless and negligent inattention, suddenly and with great violence collided with another automobile which was proceeding slowly in the same direction in which the defendant's car was traveling." The petition in that case was dismissed on general demurrer, and this court reversed that judgment and said: "The present case is distinguished from the case of Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256), in which it appeared that in an emergency and under the sudden excitement attendant upon scraping another car, and in view of an admonition which was then uttered by the plaintiff, the defendant obeyed the promptings of a natural and humane instinct by momentarily glancing back at the other car, and in doing so lost control of her own vehicle and thus caused it to run off an embankment"; and also stated: "A slight difference in facts may work a very material difference in the legal result, and this is especially true in tort cases. When it is considered that the automobile in this case was running at a speed of 66 feet per second [45 miles per hour], the importance of looking constantly ahead and the seriousness of a failure to do so will immediately appear."
It was a question for the jury to determine whether the defendant was guilty of gross negligence, and they did so by finding a verdict in favor of the plaintiff and against the defendant. Their verdict was approved by the trial judge, who, along with the jury, heard all of the evidence in the case. The evidence makes substantially the same case as was made by the petition, which was not demurred to. It is a well-settled principle of law that, after a verdict is found, the evidence is construed most favorably to the prevailing party, for every presumption and inference is in favor of the verdict. This is not one of those plain and indisputable cases where the court should attempt to solve the question as a matter of law.
This case was considered by the court as a whole.
Judgment affirmed. Gardner, P. J., Townsend and Carlisle, JJ., concur. Felton and Worrill, JJ., dissent.
WORRILL, J., dissenting. I dissent from the majority opinion and judgment of affirmance for the reasons hereinafter stated. I recognize the general rule that questions of negligence, diligence, cause and proximate cause, and also of gross negligence *675 and slight diligence are ordinarily questions for the jury, and that such questions will not be decided by this court on appeal except in plain, palpable, and indisputable cases. However, I think that this is such a plain and indisputable case. That the plaintiff's wife rode in the defendant's automobile as a guest within the meaning of our law, and that, as such, the plaintiff must show gross negligence on the part of the defendant's wife (the driver of the automobile) before he can recover for the injuries to his wife, is recognized by both the plaintiff and the defendant. See Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297). Conversely, such being the facts and the law, the defendant's wife was bound to exercise only slight diligence with respect to the plaintiff's wife. Slight diligence is defined as "that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances. . . The absence of such care is termed gross negligence." Code, § 105-203. The facts in this case show simply that the defendant's wife, while driving her automobile along a straight paved highway in clear weather at a speed of 45 or 50 miles per hour, momentarily took her eyes from the road in order to slap her small son on the leg for misbehavior; that at the most she looked away from the road for two seconds, during which time the car traveled perhaps 150 feet, and that she ran off the paved portion of the road to the right, and in attempting to get the automobile back onto the road she lost control and ran off the road to the left, the automobile turning over three times and injuring the plaintiff's wife. The only act of negligence complained of which immediately preceded the injury, and which could have had any casual connection with it, was the defendant's wife's action in momentarily taking her eyes from the road while driving at 50 miles per hour.
In Tucker v. Andrews, 51 Ga. App. 841, 845 (181 S. E. 673), on motion for rehearing, Judge MacIntyre, in further defining the term "gross negligence," said, quoting from Shaw v. Moore, 104 Vt. 529 (162 Atl. 373): "`Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an *676 aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But, it falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.'" And further, in quoting from Anderson v. Olson, (Vt.) 169 Atl. 781, Judge MacIntyre said: "`Automobile driver's mere error in judgment, momentary inattention, or loss of presence of mind, does not indicate such indifference to duty owed guests or forgetfulness of latter's safety as to authorize guest's recovery for the resulting injuries on the ground of gross negligence . . . There must be something more than an error in judgment, momentary inattention, or loss of presence of mind, in circumstances such as these, in order that there may be indicated an indifference to the duty owed to a guest or an utter forgetfulness of his safety.'"
In Capers v. Martin, 54 Ga. App. 555 (188 S. E. 465), it was held that there is an exception to the general rule that it is for the jury to say whether the driver of an automobile is grossly negligent in failing to keep a constant lookout ahead, where the driver in looking aside or away from the road does so in response to some sudden, natural, human impulse or emergency, with only momentary or very brief turning of the head backward or aside. This exception seems to have been recognized and applied in Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256), where the defendant, in passing an automobile on the highway, scraped fenders, and upon being admonished by the plaintiff from the rear seat to "look out" turned her head, and while it *677 was so turned ran the automobile off the road into a ditch, injuring the plaintiff; and in Tucker v. Andrews, supra, where the defendant was driving her automobile at not less than 25 miles per hour with the plaintiff on the front seat and her two children on the back seat when, after passing over a bridge, she was informed by one of the children that a bottle of milk on the floor in the rear had turned over, she looked back for 3 or 4 seconds and the automobile collided with a telegraph pole on the side of the road, injuring the plaintiff. In all three of these cases this court held in effect that the mere turning of the head and eyes from the road, particularly where done in response to a natural human impulse or emergency, was not gross negligence, so as to authorize, on that ground alone, a finding that the defendant was grossly negligent.
I think that the facts of this case place it squarely within the stated exception; that the defendant's wife's action in taking her eyes from the road to punish her child whose actions manifestly were annoying her and hindering her safe handling of the automobile, and where no danger of collision was shown, was a natural human impulse or reaction to the conduct of her child, a mere error in judgment or momentary inattention on her part; that there was no act or omission respecting a legal duty on her part of an "aggravated character"; and that as a matter of law she was not guilty of the want of even scant care or guilty of an utter forgetfulness of her legal obligations to the plaintiff's wife; in short, that she was, as a matter of law, not shown to have been guilty of gross negligence proximately causing the injuries to the plaintiff's wife. Under these circumstances, the evidence did not authorize the verdict and the trial court erred in overruling the motion for a new trial.
This is not to say that the petition did not allege a cause of action. That question is not properly before this court upon the consideration of the general grounds of the motion for new trial. Mayor &c. of Griffin v. Johnson, 84 Ga. 279 (6) (10 S. E. 719); Twilley v. Twilley, 195 Ga. 291 (1) (24 S. E. 2d, 41); Gunn v. Johnson & Co., 29 Ga. App. 610 (1) (116 S. E. 921). However, it is a far cry from the driver's diverting her attention from the road long enough to give her child a spanking (as alleged in the petition) to a mere glance away from the road *678 of not more than two seconds to fix in her mind the location of her child's leg so as to administer a slap, which slap was never in fact administered (as was shown by the evidence). The plaintiff did not prove his case as laid in the petition.
Felton, J., concurs in the foregoing dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386039/ | 75 S.E.2d 129 (1953)
237 N.C. 336
GREENE
v.
MITCHELL COUNTY BOARD OF EDUCATION et al.
No. 239.
Supreme Court of North Carolina.
March 18, 1953.
*130 W. E. Anglin, Burlington, for plaintiff appellee.
Atty. Gen. Harry McMullan, Asst. Atty. Gen. Claude L. Love, and Charles G. Powell, Jr., and Gerald F. White, of Staff, Raleigh, for defendant appellant.
BARNHILL, Justice.
Ch. 1059, Session Laws 1951 (codified as General Statutes Ch. 143, art. 31, supplement of 1951) provides for the payment of damages for personal injuries sustained by any person "as a result of a negligent act of a State employee while acting within the scope of his employment and without contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted." Recovery by any one claimant is limited to $8,000, including medical and other expenses. G.S. § 143-291.
The Industrial Commission is vested with jurisdiction to hear claims arising under the Act, and its findings of fact are conclusive if there is any competent evidence to support them. G.S. § 143-293.
*131 While defendants in their application for a review by the full Commission of the award made by the hearing commissioner assigned certain errors on the part of the hearing commissioner, they neither excepted to nor assigned error in the award made by the full Commission. Neither did they except to the award entered. They were content to give written notice of their appeal to the Superior Court.
At the hearing in the court below they, through counsel, moved to remand for "(1) A specific hearing (sic) as to the specific acts of negligence complained of; (2) a finding as to where Norma Lee Greene, deceased, was standing at the time of the bus' departure, and how long she had been standing there, and (3) whether she was in a position to have been seen by the driver of the bus." They likewise moved for judgment of nonsuit and excepted to the refusal of the court to interrupt the hearing and send for the court reporter so that they might, at that time, enter exceptions to specific findings of fact and conclusions of law of the Industrial Commission. They likewise moved the court to strike the Commission's finding of fact No. 9. The appeal to this Court is based on the exceptions to the rulings of the court below made on these motions entered at the hearing.
Since the appeal of the defendants from the Industrial Commission to the Superior Court was unsupported by any exception, it amounted to nothing more than a general exception to the decision and award of the Commission. It was insufficient to challenge the sufficiency of the evidence to support the findings of fact of the Commission or any one of them. It carried up for review in the Superior Court the single question whether the facts found by the Commission support the decision and award. Parsons v. Swift & Co., 234 N.C. 580, 68 S.E.2d 296; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488; In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421.
The facts found by the Commission are fully supported by the evidence and are therefore, under the terms of the statute, binding on us. G.S. § 143-293.They sustain the conclusion of the Commission that the death of plaintiff's intestate was proximately caused by the negligence of an employee of defendants, State agencies, in the course of his employment, and the award was within the limit prescribed by statute. G.S. § 143-291.
We have repeatedly held that the presence of children on or near a highway is a warning signal to a motorist. He must recognize that children have less capacity to shun danger than adults; are more prone to act on impulse, regardless of the attendant peril; and are lacking in full appreciation of danger which would be quite apparent to a mature person. When, therefore, he sees, or by the exercise of due care should see, that children are on the highway, he must immediately bring his vehicle under control and, in the exercise of ordinary care, proceed in such manner and at such speed as is reasonably calculated to enable him to avoid striking such child or children. Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343; Edwards v. Cross, 233 N.C. 354, 64 S.E.2d 6; Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602; Smith v. Miller, 209 N.C. 170, 183 S.E. 370; Moore v. Powell, 205 N.C. 636, 172 S.E. 327.
This duty to exercise a high degree of caution in order to meet the standard of care required of a motorist, Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L. R. 999, when he sees or by the exercise of ordinary care should see children on a highway applies with peculiar emphasis to the operator of a school bus transporting children to their homes after school. His passengers are in his care and he knows that many of them must cross the road after they alight from the bus. It is his duty to see that those who do alight are in places of safety before he again puts his vehicle in motion.
The rules adopted by the N. C. Board of Education governing public school transportation as they relate to the operation of school buses expressly provide that the driver of a school bus must "supervise the activities of children discharged from the *132 bus until they have crossed the highway in safety or are otherwise out of danger" and "shall not start the school bus until pupils are seen to be out of danger." Rules, Regulations and Laws Governing Public School Transportation in North Carolina, p. 19, G.S. § 115-19.
Here five children got off the bus at the same time and place. Three of them had to cross over to the left side of the road to get to their homes. Ordinarily the bus remained stationary until they had reached the path or road which led to their homes. On this occasion the bus driver "pulled out" as soon as the last child had alighted. "The little girl's brother hadn't started more than a step or two in front of the bus, and he pulled off. We didn't have a chance to go. I didn't make more than one step until he pulled out." He "drove away in a hasty manner while simultaneously closing the bus door." Just as soon as the bus moved off, the deceased was found near the center of the road, mortally injured. No other vehicle had passed.
Certainly this and the other evidence in the record will supportindeed compels the inference that the bus collided with the little girl and inflicted the injury which caused her death. It is apparent it "sideswiped" her as it moved off.
It is equally clear that the unfortunate occurrence was proximately caused by the negligence of the bus driver. If he had merely taken time to glance to his left he could have ascertained that the little girl had not crossed the road. He says he did look but did not see her. If so, this put him on notice that she was still somewhere about his bus, out of his sight. Yet he made no effort to ascertain her whereabouts before he put his bus in motion. Such lack of due care toward a child of tender age under the circumstances leaves defendants in poor position to contest the issue of negligence.
So far as this record discloses, there was no testimony of any conduct on the part of deceased which evidenced any want of due care on her part. Hence we need not discuss or decide whether a child of her age could by her conduct bar her right of recovery.
The motion to strike paragraph 9 of the findings of fact is without merit. It is true this paragraph incorporates a conclusion of law with findings of fact. Yet the facts therein found as well as the conclusion of law are essential to a final determination of the rights of the parties and we find ourselves in full accord with the contents thereof. The findings of fact therein contained are supported by the evidence and the conclusion is a correct statement of the law.
Likewise the motion to remand for further findings is untenable. The Commission found all the essential facts. While it did not find just where the child was standing when she was struck by the bus or just what part of the bus struck her or whether she was in a position to be seen by the bus driver, these are, on this record, mere minor details which have no substantial bearing on the issues of fact the Commission was required to answer. Negligence here does not rest on the fact the bus driver, by the exercise of ordinary care, could have seen the child in a position of peril in time to stop and avoid colliding with her. It lies in the fact that he, having discharged the children from the bus, failed to exercise proper care to ascertain that they and each of them "had crossed the highway in safety" or were "otherwise out of danger." Hence the cases cited and relied on by defendants are not in point.
If the defendants desired to enter exceptions to the findings of fact made by the Commission, they should have been filed prior to the hearing in the Superior Court. Whether the judge should interrupt the hearing and call in the court reporter, at that late date, "so that specific exceptions could be taken to specific findings of fact and conclusions of law of the Industrial Commission" rested in his sound discretion. Therefore, the denial of the motion of defendants cannot be held for prejudicial error. Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869.
For the reasons stated the judgment entered in the court below is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386047/ | 75 S.E.2d 732 (1953)
237 N.C. 667
HOWLE
v.
TWIN STATES EXPRESS, Inc.
No. 527.
Supreme Court of North Carolina.
May 6, 1953.
*735 James P. Mozingo, III, Darlington, S. C., Bell, Horn, Bradley & Gebhardt, Charlotte, for plaintiff-appellant.
Helms & Mulliss, Fred B. Helms, Wm. H. Bobbitt, Jr., Charlotte, for defendant-appellee.
WINBORNE, Justice.
The question presented: Can the North Carolina courts be ousted of jurisdiction of this transitory cause of action between plaintiff, a resident of Tennessee, and defendant, a North Carolina corporation, by an order of the Court of Common Pleas of Florence, South Carolina, entered under the circumstances shown therein, granting to plaintiff the right to take a voluntary nonsuit in an action formerly brought on same cause of action, and then pending in said court, with right to renew the action in Florence County, but without right to bring the action in another county? Careful consideration of all phases of the question lead this Court to negative answer.
A nonresident has full right to bring an action in our courts. See Mc-Donald v. MacArthur Bros. Co., 154 N.C. 122, 69 S.E. 832, and cases cited. Also Howard v. Howard, 200 N.C. 574, 158 S.E. 101; Steele v. Western Union Telegraph Co., 206 N.C. 220, 173 S.E. 583; Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562; Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523.
In the McDonald case, supra [154 N.C. 122, 69 S.E. 833], Clark, C. J., writing for the Court, had this to say: "Indeed, Const. U.S. art. 4, § 2, provides: `The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.' The right to obtain justice by an action in the state courts is one of these privileges. Cooley Const.Law (7th Ed.) 37. In Corfield v. Coryell, 4 Wash. C.C. [371] 380, Fed.Cas.No.3,230, cited by Judge Cooley, among such privileges and immunities is recited the right `to institute and maintain actions of every kind in the courts of the state.'"
In the Alberts case, supra [217 N.C. 443, 8 S.E.2d 524], Clarkson, J., wrote that "Although plaintiff is a nonresident and the action transitory, the doors of the courts of this state are open to her to determine her rights", citing Howard v. Howard, *736 supra; Steele v. Telegraph Co., supra; Ingle v. Cassady, supra.
And in the Cassady case, supra [208 N.C. 497, 181 S.E. 563], the Court said that "if * * * under the lex loci, a transitory cause of action accrues, it may be prosecuted in another jurisdiction, unless forbidden by public policy or the lex fori", citing Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82.
Actions are transitory when the transactions on which they are based might take place anywhere, and are local when they could not occur except in some particular place. The distinction being in the nature of the subject of the injury, and not in the means used or the place at which the cause of action arises. Black's Law Dictionary; Brady v. Brady, 161 N.C. 324, 77 S.E. 235, 44 L.R.A.,N.S., 279; see also Blevens v. Kitchen Lumber Co., 207 N.C. 144, 176 S.E. 262; Bunting v. Henderson, 220 N.C. 194, 16 S.E.2d 836.
Indeed, it is a general rule of law that in actions for personal injury resulting from an accident occurring in another State the laws of the State in which the accident took place governs as to all matters pertaining to the substance of the cause of action, that is, lex loci, while matters relating to procedure are governed by the laws of the State wherein the action is brought, that is, lex fori. See Wise v. Hollowell, supra, and cases cited; also Steele v. Telegraph Co., supra; Ingle v. Cassady, supra; Russ v. Atlantic Coast Line R. Co., 220 N.C. 715, 18 S.E.2d 130; Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126.
Moreover, in North Carolina, "For the purpose of suing and being sued the principal place of business of a domestic corporation is its residence." G.S. § 1-79; Roberson v. Greenleaf Johnson Lumber Co., 153 N.C. 120, 68 S.E. 1064; Eastern Cotton Oil Co. v. New Bern Oil & Fertilizer Co., 204 N.C. 362, 168 S.E. 411; Branch Banking & Trust Co. v. Finch, 232 N.C. 485, 61 S.E.2d 377.
And the words "principal place of business", as so used in the statute, G.S. § 1-79, are regarded as synonymous with the words "principal office" as used in the statute G.S. § 55-2 requiring the location of the principal office in this State to be set forth in the certificate of incorporation by which the corporation is formed. Roberson v. Greenleaf Johnson Lumber Co., supra.
In the light of these principles, and the provisions of the cited statutes, it is seen that the cause of action involved in the present action arose in the State of South Carolina, and is transitory in character, it might have happened anywhere. And even though plaintiff is a nonresident of the State of North Carolina, nothing else appearing, the doors of the courts of this State are open to him to sue the defendant on this transitory cause of action in the county in which defendant's place of business is located, that is, Mecklenburg County.
And in this action the laws of the State of South Carolina govern as to all matters pertaining to the substance of the cause of action, that is, lex loci governs, but matters relating to procedure are governed by the laws of the State of North Carolina wherein the action is brought, that is, lex fori governs.
But this right of plaintiff to sue in North Carolina is challenged by the plea in abatement filed by defendant,based on the order of May 19, 1951, entered in the action brought by plaintiff in the Court of Common Pleas of Florence County and State of South Carolina.
What then is the effect of the order of May 19, 1951? It pertains to procedure, rather than to the substance of the cause of action.
Under the Code Laws of South Carolina, 1952, pertaining to venue the pertinent statute, section 10-303, provides in material part that "the action shall be tried in the county in which the defendant resides at the time of the commencement of the action * * * subject * * * to the power of the court to change the place of trial in certain cases as provided by law." And while the Supreme Court of South Carolina holds that "the right of a resident defendant to a trial in the county of his residence assured him under Section 422 of the Code of Civil Procedure (1932)", *737 now Section 10-303 of the Code Laws of South Carolina, 1952, "is a substantial right", Dunbar v. Evins, 198 S.C. 146, 17 S.E.2d 37, 40, it is not made a constituent part of any given cause of action. Manifestly the statute pertains to the remedy and procedure, and not to the substance of the cause of action.
And in passing it may be of interest to note that in South Carolina an action against a motor vehicle carrier, licensed under Article 3 of Title 58, may be brought in any county through which the motor carrier operates.
Both plaintiff and defendant Ira E. Brown were residents of Florence County, South Carolina, and defendant Twin States Express, a corporation was engaged in the business of transportation of goods via trucks, and doing business in said county, as admitted by the pleadings, at the time plaintiff commenced the action in the court of Common Pleas of that county.
Thus it would seem that Florence County was a proper venue for the action instituted by plaintiff, and at least defendant Brown had substantial right under the statute to a trial therein.
But when the order of May 19, 1951, permitting plaintiff to take a voluntary nonsuit with limited prejudice, that is, with the right to renew the action "in this jurisdiction", Florence County, is read in connection with the statute section 10-303, and the charge, as contained in the affidavit to which the court refers, that plaintiff desired a dismissal of the case in Florence County so as to start the action anew in Darlington County, it is clear that in the clause "without the right to bring an action in another county", the words "another county" were intended to mean another county in South Carolina. The intent is made clear in this sentence: "If a nonsuit is granted without prejudice and plaintiff brought a new action in a neighboring county it would certainly appear the purpose of the motion was for a change of venue". Indeed, a court may not render a judgment which transcends the territorial limits of its authority. 31 Am.Jur. 70, Judgments, § 407; In Re DeFord, 226 N.C. 189, 37 S.E.2d 516; Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798.
Hence it will not be assumed that the South Carolina court intended to extend its order beyond the territorial limits of the State.
"Ordinarily a judgment of nonsuit is not a decision on the merits and is not a bar to a second action for the same cause. Nor will such judgment support a plea of res judicata." 17 Am.Jur. 96, subject Dismissal and Discontinuance, § 79.
Indeed, in Starling v. Selma Cotton Mills, 168 N.C. 229, 84 S.E. 388, 389, L.R.A. 1915D, 850, the Supreme Court of North Carolina, in opinion by Clark, C. J., declared that "the fact that a nonsuit had been formerly taken is not res judicata", citing cases. See also Cooper v. Crisco, 201 N.C. 739, 161 S.E. 310.
True, it appears that in South Carolina there is no statute or court rule governing the question as to when a plaintiff may take a voluntary nonsuit or dismiss or discontinue his action. "The question is controlled wholly by the common law as announced or modified by the decisions of the Court." Parnell v. Powell, 191 S.C. 159, 3 S.E.2d 801.
In the Parnell case, supra, the Court said: "It is well settled that the plaintiff does not possess the unquestioned right at all times and under all circumstances to voluntarily terminate his action, without prejudice to the bringing of a new action by taking a voluntary nonsuit. His right to do so frequently depends upon the effect that it will have upon the defendant's rights. * * If the discontinuance or dismissal before trial will not result in legal prejudice to the defendant, a plaintiff ordinarily has a right to discontinue any action commenced by him. * * * In such a case, through the control which the Court exercises over its order, there is discretion to refuse the discontinuance, but where nothing appears to show prejudice or violation of the rights or interests of the adverse party, the plaintiff may be granted a voluntary nonsuit, conditioned upon such terms and conditions as may be proper to protect the defendant. * * * In our opinion, the Court should *738 exercise its discretion in passing upon such motions, whether made prior to the commencement of the trial or after the trial has been entered upon."
To like effect is the case of Romanus v. Biggs, 217 S.C. 77, 59 S.E.2d 645.
But, on the other hand, the decisions of the Supreme Court of South Carolina are to the effect that a voluntary dismissal or nonsuit brings about the same situation or result as if no suit had been brought. Allen v. Atlanta & Charlotte Air Line R. Co., 216 S.C. 188, 57 S.E.2d 249, 23 A.L.R. 2d 657; Allen v. Southern R. Co., 218 S.C. 291, 62 S.E.2d 507; Kay v. Meadors, 1950, 216 S.C. 483, 58 S.E.2d 893; Moore v. Southern Coatings & Chemical Co., 1952, 221 S.C. 522, 71 S.E.2d 311.
In the second Allen case, supra [218 S.C. 291, 62 S.E.2d 510], it is said that "Manifestly, not only does a voluntary nonsuit terminate the case as a procedural matter; it also wipes the slate clean of all rulings made in the course of the trial resulting in the nonsuit."
And in Kay v. Meadors, supra [216 S.C 483, 58 S.E.2d 895], Stukes, J., wrote for the Court: "These authorities hold the obvious. Nonsuit was the end of respondent's former action and with it went the attachment. But it was not an adjudication of the rights of either party and the resulting situation was the same as if there had been no former action or attachment, so far as the right to sue again and attach again is concerned. We know of no statute or other rule of law, and none has been cited, whereby voluntary nonsuit in attachment proceedings operates as res judicata, which is the substance of appellant's contention. `It is fundamental that a voluntary dismissal or nonsuit brings about the same situation or result as if no suit had been brought'", citing Allen v. Southern R. Co., supra. And the Court, referring to Munn v. Munn, 146 S.C. 290, 143 S.E. 879, said: "A first warrant of attachment was vacated and a second was attached in part upon the ground that vacation of the first made the matter res judicata. The contention was rejected, which must be the result here."
Moreover, in the Moore case, supra [221 S.C. 522, 71 S.E.2d 312], in a Per Curiam opinion, the South Carolina Court held: "Having concluded that voluntary nonsuit was properly within the discretion of the trial court and it having been granted, the situation is as if no action had been brought, which is the general rule, and assignments of intermediate errors will ordinarily not be considered on appeal", citing Annotation 11 A.L.R.2d 1407, the Allen cases supra and Kay v. Meador, supra.
But be that as it may, the order in question, as we interpret it, was not intended to have, nor does it have the force and effect of precluding plaintiff from prosecuting the present action in this State. Hence the judgment from which the appeal is taken is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386051/ | 194 Va. 794 (1953)
WILLIE H. BRADSHAW, ET AL.
v.
ETHEL M. BANGLEY, ET AL.
Record No. 4069.
Supreme Court of Virginia.
April 20, 1953.
Godwin & Godwin, Tiffany & Tiffany, for appellants.
Woodward & Ferguson, for appellees.
Present, All the Justices.
1. A last will may consist of several testamentary papers of different dates. Revocation by implication is not favored and an earlier will is ordinarily displaced by a later testamentary instrument only in so far as it is clearly irreconcilable with it.
2. Where a will has been executed, the reasonable presumption is that the testator intended to dispose of his entire estate. Partial intestacy is a result not favored by the law.
3. In the instant case the court below erred in refusing to admit to probate a holographic will made in 1936, on the ground that it was inconsistent with and revoked by another such will of testator made in 1942, which had been admitted to probate. On the dates of the two testamentary papers and at his death testator owned various parcels of land individually and other parcels jointly with his wife. The 1936 paper gave his wife a fee simple estate in all that he owned; the 1942 paper reduced this estate to a life estate, gave the remainder over in the jointly owned property to his heirs, but failed to dispose of the remainder over in his individually owned property. The Court held that effect should be given the provisions of both instruments, and that when this was done, the wife took the individually owned property in fee simple, which estate descended to her heirs, the appellants.
Appeal from a decree of the Circuit Court of the city of Suffolk. Hon. John K. Hutton, judge presiding. The opinion states the case.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
This case comes to us upon an agreed statement of facts. Two questions are presented for our determination. The first is whether the lower court erred in refusing to probate a paper writing dated April 7, 1936, as a part of the will of the late J. N. Alexander, on the ground that it is wholly inconsistent with the provisions of another paper writing dated May 7, 1942, which had already been admitted to probate as the true last will and testament of the deceased. The second question is whether the court erred in its interpretation and construction of the paper writing of May 7, 1942.
J. N. Alexander, a resident of the City of Suffolk, Virginia, died April 18, 1943, leaving surviving him his wife, Virgie E. Alexander. Mrs. Alexander died May 5, 1950. No children were born of their marriage.
Appellants are the brothers and sisters of Mrs. Alexander and her sole heirs at law. Appellees are the nieces and nephews of J. N. Alexander and his sole heirs at law.
The stipulation of facts shows that testator and his wife had engaged in a number of real estate transactions. At the time of his death, J. N. Alexander was seized and possessed of certain real property, which may be briefly described as follows: Lot 15 in Block H and Lot 7 in Block K, respectively acquired in 1917 and 1919. At the same time, J. N. Alexander and Virgie E. Alexander were jointly seized and possessed of a parcel of land consisting of parts of Lots 11, 12 and 13 in Block H, acquired in 1924, and a lot on Grace Street, in the City of Suffolk, acquired on September 20, 1937. Another lot, 14 in Block H, had been conveyed to J. N. Alexander on January 5, 1916. On May 16, 1939, Alexander and his wife conveyed the same to Robert L. Modlin, and on February 4, 1941, Modlin reconveyed this lot to J. N. Alexander and Virgie E. Alexander. After the death of J. N. Alexander, his heirs at law conveyed "all of their right, title and interest in Lots 11, 12 and 13 in Block H" to Mrs. Alexander by deed, dated June 11, 1946. On November 4, 1946, Mrs. Alexander conveyed this property to R. E. Smith.
Thus, it will be seen that on April 7, 1936, the date of the first paper writing, J. N. Alexander was individually seized of three parcels of land, Lots 14 and 15 in Block H and Lot 7 in Block K. He and his wife then jointly owned the parcel consisting of *796 parts of Lots 11, 12 and 13 in Block H. On May 7, 1942, the date of the second paper writing, and on April 18, 1943, the date of his death, J. N. Alexander individually owned Lots 7 and 15, and he and his wife owned jointly two parcels, Lot 14 and the Grace Street lot.
J. N. Alexander made and executed at separate dates two wills. Both wills were wholly in the handwriting of the testator. That of April 7, 1936, hereinafter referred to as his first will, reads as follows:
"(This is my Will) "To Whom it May Concern:
"In case of my death I want my wife, Virgie E. Alexander, to have all money lots of land and every thing that I have in my name as her own. That she shall have full possession of every thing at my death."
"This April 7th, 1936."
"Sign J. N. ALEXANDER."
The second, dated May 7, 1942, hereinafter referred to as his second will, reads as follows:
"May 7th, 1942"
"In case of my death I want my wife, Virgie Alexander to have full right to"
everything her lifetime to do as she thinks best for herself, so long as she lives At her death every that that Deeded to J. N. & Virgie Alexander be sold and 1/2 go to her brothers and sisters, the other half to my nieces nephews.
J. N. ALEXANDER.""
On April 26, 1943, eight days after the death of Alexander, the second will was admitted to probate in the Clerk's Office of the Circuit Court of the City of Suffolk. No appeal was taken from the probate. On December 14, 1950, seven months after the death of Virgie E. Alexander, the first will was offered for probate in the Clerk's Office of the said Court, as a part of the last will and testament of the testator. Probate was refused by the clerk on the ground that the will dated May 7, 1942, had already beey duly proved and probated. An appeal was taken to the Circuit Court of the City of Suffolk by appellants, the brothers and sisters of Mrs. Alexander. By consent of all parties "a jury was waived and all matters of law and fact of the issues, whether or not said paper writing, (the first will) in whole or in part, is the true last will and testament of J. N. *797 Alexander, deceased, and the determination of all rights thereunder were submitted to the Court for its determination and judgment."
On January 29, 1952, the trial court entered a final decree refusing to admit the will of April 7, 1936, to probate. It held that the second will was the true last will and testament of the testator, under which "Virgie E. Alexander took an estate for life only in testator's property set forth in said statement of facts, and that said will is wholly inconsistent with the provisions of said writing executed on April 7, 1936, and was intended by the testator to revoke the same."
The decree further recited: "The Court being further of the opinion that the real estate devised to be sold under the last will and testament of J. N. Alexander, deceased, dated May 7, 1942, included only that real estate which was conveyed jointly to J. N. Alexander and Virgie E. Alexander; that J. N. Alexander died intestate as to all real estate conveyed solely to J. N. Alexander and that the proceeds from the sale of said jointly owned real estate should be divided equally between the heirs of J. N. Alexander and Virgie E. Alexander, the Court doth so adjudge and decree."
Appellants contend that there was no revocation of the first will in any manner prescribed by statute or otherwise; that the two wills are only partly inconsistent; and that they should be read together to prevent intestacy of any part of J. N. Alexander's estate.
Appellees say that the decree of the trial court is inconsistent on its face because of an "inadvertent judicial error" of the court, in that, after holding that "Virgie E. Alexander took an estate for life only in testator's property set forth in the said statement of facts," under the will of May 7, 1942, the court proceeded further to hold that testator "died intestate as to all real estate conveyed solely to J. N. Alexander." They contend that "If J. N. Alexander devised all of his property to Virgie Alexander for life, then he could not have died intestate as to any part thereof." They further say that: "The Court could not possibly have found that J. N. Alexander died intestate as to any part of his property; if so, the second will would not have been wholly inconsistent with the terms of the first will, which the Court found to be precisely the case."
Appellees overlook the fact that testator made no disposition *798 of the remainder in his individually owned property. Whether the language of the court be "inadvertent" or not, we think it correctly construed the second will, standing alone, as bringing about a partial intestacy of the estate of J. N. Alexander. We agree with appellees, however, that under such a construction the second will is not wholly inconsistent with the first will, and the court fell into error in holding that it was.
We will first consider the question of revocation of wills.
Code of Virginia, 1950, | 64-59 provides as follows:
"No will or codicil or any part thereof, shall be revoked, unless under the preceding section, or by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling or destroying the same, or the signature thereto, with the intent to revoke."
In Moyers Gregory, 175 Va. 230, 233, 7 S.E.2d 881, we said:
"The statute, Code, section 5233 (now | 64-59) provides the manner by which wills may be revoked. This must be followed in order that the revocation may be valid just as the provisions of the statute, Code, section 5229 (now | 64-51), must be complied with in order that a will may be valid."
In In Re Will of Bentley, 175 Va. 456, 461, 9 S.E.2d 308, Mr. Justice Eggleston, citing considerable authority, pointed out that "a man's last will may consist of different testamentary papers of different dates and that it is not indispensable that they should be probated at the same time." In accord therewith is Gordon Whitlock, 92 Va. 723, 727, 24 S.E. 342, where the following statement is quoted from Schultz Schultz, 10 Gratt. 358, 373: "A man's last will must not of necessity be confined to one testamentary paper. It may consist of several different testamentary papers, of different dates, and executed and attested at different times."
The general rule is summed up in 57 Am. Jur., Wills, | 466, page 326, where this is said:
"Ordinarily, a will does not revoke a former will unless it purports to do so, or makes a disposition of the testator's property so inconsistent with that made in the former will that the two instruments cannot stand together." *799
Further, we find in | 474, page 332:
"The general rule is that two or more instruments, each purporting to be a will, may be admitted to probate if they are not so inconsistent or repugnant that they cannot stand together as constituting the will of the testator, and the date of execution of the respective instruments is ascertainable. While a revocation by implication may be either complete or partial, the rule is to give effect to both the earlier and later wills so far as possible, and to hold that the earlier will was entirely revoked by a later inconsistent will only where it appears that the testator so intended or the wills are so plainly inconsistent as to be incapable of standing together."
Also, in | 476, page 333, the subject is continued:
"Generally speaking, the courts do not favor revocation by implication, and incline to such a construction as will give effect as far as possible to both instruments, rather than sacrifice the earlier will by declaring a total revocation by implication. Unless the two instruments are so inconsistent as to be incapable of standing together in any of their parts, the earlier one is deemed to be revoked only to the extent necessary to give the later one effect, and both instruments are to be admitted to probate as constituting together the last will and testament of the decedent."
"Where two instruments are probated jointly as constituting one will, they are construed so as to give effect as far as possible to both, sacrificing the earlier so far only as it is clearly irreconcilable with the later instrument. In general, a will does not entirely revoke a prior one if it bequeaths different property or fails to dispose of substantial interests of the testator which are covered by the prior instrument."
The subject is summed up with the following statement, 57 Am. Jur., Wills, | 543, page 375:
"The execution of the later will does not necessarily import the revocation of the earlier one, and it is incumbent upon the contestant asserting the revocation to prove the contents of the later will, and to show either that it contained express words of revocation or that there was an implied revocation because its provisions were so inconsistent with those of the former will that they could not exist together."
In 68 C.J., Wills, | 491, page 803, we find:
"The weight of authority supports the rule that a later will *800 is not necessarily a revocation of a prior will unless by it the prior will is in terms revoked and canceled, or by the later will a disposition is made of all the testator's property, or it is so inconsistent with the former will that the two cannot stand together." Among the cases cited in support of this statement is
Gordon Whitlock, supra.
"When a later testamentary instrument does not revoke a former testamentary instrument they are to be construed together as one." 69 C.J., Wills, | 1163, page 120.
The will of May 7, 1942, contains no clause revoking the former will of April 7, 1936, expressly or by implication. Nor is there anything on the face of it to indicate that it was intended to stand alone, and be in complete substitution for the first. On the other hand, it shows that the welfare of his wife was the paramount desire of the testator. In the first sentence he gave to her the "full right to everything her lifetime to do as she thinks best for herself, * * *." This language clearly shows that he intended to give her the absolute power of disposal of all the property he possessed, if she thought "best for herself." Then, in the second sentence, he made a limitation over only as to the property he jointly owned, omitting any such limitation as to his individually owned property in which his wife failed to exercise the power of disposal during her life. The two paper writings read together show that the testator was desirous of making a complete testamentary disposition of his entire property. The effect of the writing of May 7, 1942, read alone is to leave the testator intestate as to the remainder over in his individually owned estate, -- a result not favored by the law. If he had not desired that the first will operate together with the later testamentary paper to dispose of his entire estate, he could have destroyed it.
In Virginia, we have consistently followed the rule that where a will has been executed, the reasonable and natural presumption is that the testator intended to dispose of his entire estate. Gallagher, et al. Rowan's Adm'r., et al., 86 Va. 823, 827, 11 S.E. 121.
"When a man makes a will, the presumption, in the absence of evidence to the contrary, is that he intended thereby to dispose of his whole estate. Accordingly, where two modes of interpretation are possible, that is preferred which will prevent *801 either total or partial intestacy." Honaker Starks, 114 Va. 37, 39, 75 S.E. 741.
"We start with the legal presumption that the testator intended to dispose of his entire estate. There is a strong presumption against partial intestacy, * * * and the courts have for a long time inclined very decidedly against adopting any construction of wills which leaves the testator intestate as to a part of his estate, unless that result is absolutely unescapable." Coffman's Adm'r. Coffman, 131 Va. 456, 466, 109 S.E. 454.
"The only reason anyone can have for making a will is to change the devolution of his property from that prescribed by the statutes of descent and distributions. Hence there is a strong presumption that the testator intended to dispose of his entire estate, and the courts are decidedly adverse to adopting any construction of a will which leaves a testator intestate as to any portion of his estate, unless compelled to do so." McCabe Cary's Ex'r.,
135 Va. 428, 433, 116 S.E. 485. M. E. Church Brotherton, 178 Va. 155, 159, 16 S.E.2d 363; Neblett Smith, 142 Va. 840, 847, 128 S.E. 247.
"Partial intestacy is looked upon with disfavor. Wills are written for the purpose of disposing of property." Neblett Smith, supra, at page 847.
"An intestacy is a dernier result in the construction of wills, and the abhorrence of the courts to intestacy under a will has been likened to the abhorrence of nature to a vacuum." 57 Am. Jur., | 1158, page 755.
In the absence of statute there is a presumption that one who makes a will intends "to dispose of his entire estate and not to die intestate as to the whole or any part thereof, and where a will is fairly open to more than one construction, a construction resulting in an intestacy as to any part of the estate will not be adopted if by any reasonable construction it can be avoided." 69 C.J., Wills, | 1147, page 91.
The construction of the first will gives us no trouble. By it testator devises and bequeaths to Mrs. Alexander a fee simple estate in all of his real property and an absolute estate in all his personalty. In ordinary and common acceptation, the word "everything" means: "All; all that pertains to the subject under consideration." Webster's New International Dictionary, Second Edition.
In the second will testator again uses the word "everything." *802 First, he gives his wife an estate for her life in all of his property, with full power of disposal without limitation in remainder over. In the next sentence, he provides that the remainder over in the property conveyed to him and his wife shall go at her death to their respectively named kindred. Nowhere does he mention the remainder over in his individually owned property. Obviously, he wanted his kindred to have only the remainder over in his share of his jointly owned property, and his wife's kindred to have the remainder in her share of such property.
The two wills deal with the same quantity of property, that is, all of the property of the testator. They are inconsistent only in the quality of the estate bequeathed and devised. The testator obviously knew that unless he disposed of his property by will, his heirs at law would succeed to a portion of it. That he originally desired to exclude them from any portion is manifest in the express provisions of the first will. The second instrument expressed his desire that they share therein only so far as his jointly owned property was concerned. The intention of the testator, we think, in view of the circumstances, is fairly plain and necessarily implies that he meant only to give his heirs at law an interest in his share of the jointly owned property. We find nothing inconsistent in law or fact with that intention, and it should be effectuated by construing the two wills as a whole.
There is no merit in the contention of appellants that the language of the second will: "At her death every that that Deeded to J. N. & Virgie Alexander be sold * * *," meant that all real estate which was conveyed by deed to J. N. and Virgie Alexander, jointly or severally, should be sold. It is generally recognized that the character "&" is equivalent to the word "and." The circumstances of the real estate transactions in which Alexander and his wife engaged indicate that he knew the difference between property individually owned and that jointly owned, and refute any logical reason for changing the word "and" to "or." To justify the construction claimed by appellants, the phrase would have to be changed to read, to "J. N. Alexander or Virgie Alexander." If testator had intended to direct that all real estate, individually or jointly, conveyed to him should be sold, he would have referred to such property as "all of the property deeded to me."
For the reasons stated, we conclude that the trial court erred *803 in refusing to admit the first will to probate as a part of testator's true last will and testament.
We find that the first will gave Mrs. Alexander a fee simple estate in all that the testator owned, and that the second will reduced that estate to one for life, but failed to dispose of the remainder over in his individually owned property, hence that remainder passed to her by virtue of the first will. Giving effect to the provisions of both instruments, Virgie E. Alexander took all of the individually owned estate of her husband, absolutely and in fee simple, together with an estate for her life in his share of the real property jointly owned, with the remainder in his share of the jointly owned property to his nieces and nephews. Under the facts of this case, the one-half share of Mrs. Alexander in the jointly owned real estate descended according to our statute of descent and distribution to her heirs at law. Her husband could not, of course, dispose of her estate by his will.
Since it appears that further proceedings are necessary to be taken in this cause, it is remanded to the trial court for such further action as may be necessary and proper, in accordance with the views herein expressed.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386056/ | 87 Ga. App. 789 (1953)
75 S.E.2d 336
TRUSCO FINANCE COMPANY
v.
CHILDS.
34394.
Court of Appeals of Georgia.
Decided March 14, 1953.
*790 O. J. Tolnas, McClure & Ramsay, for plaintiff in error.
Frank C. Gross, Ollie Mae Stowe, contra.
FELTON, J.
The question for determination is whether the recorded title-retention contract constituted constructive notice to a third person that the title to the automobile remained in the seller's assignee. It is contended by the defendant in error that such did not constitute constructive notice to third persons because the recorded contract contained a motor number different *791 from the motor number of the automobile purchased by the defendant in error. We cannot say as a matter of law that such was insufficient to constitute constructive notice. In Nichols v. Hampton, 46 Ga. 253, the question was the sufficiency of description as to third persons of the property covered by the following instrument: "$200. By the first day of February next, I promise to pay Margaret J. Hampton, or bearer, two hundred dollars for value received in a bay mare and buggy, Margaret J. Hampton holding a lien on said horse and buggy until it is paid for." The Supreme Court there said: "True, the description will apply to any bay mare, but there is another description added, to wit: the bay mare sold by the plaintiff to Johnson." In Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879 (48 S. E. 333), the recorded conditional bill of sale relied on to constitute constructive notice read: "I have this day purchased of the A. S. Thomas Furniture Company 1 dresser, 1 bed, 1 w. stand. . ." The Supreme Court held that the instrument was sufficient notice, the description being sufficient to put third persons on notice. Both of these cases hold that one is not restricted to the mere physical description of the property recited in the instrument recorded, but may look to a recital in the instrument that the property was that property purchased by the vendee from the vendor on a certain day as a further means of identifying the property.
The incorrect motor number did not vitiate the contract. The doctrine of falsa demonstration non nocet "mere false description does not make an instrument inoperative" applies. Farkas v. Duncan, 94 Ga. 27 (20 S. E. 267). In addition to the motor number, the title-retention contract contained the following description of the automobile: Class: Used; Make & Type: fourdoor Ford Custom; Year Model: 1950; Model: Custom; Serial Number: 827525. Regardless of whether the above description alone is sufficient to constitute constructive notice, under the rulings in Nichols v. Hampton, and Thomas Furniture Co. v. T. & C. Furniture Co., both supra, there is "additional description" in the recorded title-retention contract which, coupled with the above description, affords a key to the identity of the property and which could authorize a jury to find that the contract as recorded constituted constructive notice, i.e., "The *792 undersigned [Paul Whitehead], herein called `Purchaser', has this 26 day of December, 1951, purchased and acknowledged delivery from Myers Motor Company, herein called Seller, the following motor vehicle, to wit." This "additional description" identifies the automobile as the one purchased from Myers Motor Company by Paul Whitehead on December 26, 1951, and distinguishes that particular automobile from all other 1950 four-door custom Ford automobiles. See Paradies & Rich v. Warren Co., 53 Ga. App. 457 (1) (186 S. E. 438). It is a question for a jury as to whether a person of ordinary business prudence would have discovered, from pursuing such lines of inquiry as the data given in the title-retention contract would naturally suggest to his mind, that the title to the automobile remained in the plaintiff in error. (Pinson-Brunson Co. v. Bank of Danielsville, 40 Ga. App. 793, 796, 151 S. E. 549), considering such facts as whether Paul Whitehead bought only one 1950 four-door custom Ford on December 26, 1951; whether the serial number on the automobile in question corresponded with the serial number set out in the recorded title-retention contract; that the automobile was bought directly from Whitehead, etc. Hicks v. Walker Brothers Co., 31 Ga. App. 395 (2) (120 S. E. 694).
While the opinion in Morris & Eckels Co. v. Fulton National Bank, 208 Ga. 222 (65 S. E. 2d, 815), does not show it, the record in such case discloses that not only did the mortgage there fail to state the location of the mortgaged property, but it did not show from whom the property was bought, as did the title-retention contract in the instant case.
Any rulings appearing in Shearer v. Housch, 32 Ga. App. 663 (124 S. E. 356), and Master Loan Service v. Maddox, 68 Ga. App. 429 (23 S. E. 2d, 179), contrary to what has been here ruled must of necessity yield to the Supreme Court decisions cited herein.
The court erred in sustaining the general demurrer to the petition and in dismissing the action.
Judgment reversed. Sutton, C. J., and Worrill, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1868015/ | 956 So.2d 1288 (2007)
Terrell SMITH, Appellant,
v.
STATE of Florida, Appellee.
No. 4D06-1136.
District Court of Appeal of Florida, Fourth District.
June 6, 2007.
*1289 Tara A. Finnigan of Tara A. Finnigan, P.A., West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
STEVENSON, C.J.
Terrell Smith was tried by jury and convicted of possession of cocaine with intent to sell. In this appeal, Smith raises a myriad of issues. We find merit in only one of Smith's claims, the inadequacy of the Faretta[1] hearing conducted by the trial court, and reverse on this ground.
Prior to trial, Smith made an unequivocal demand to represent himself, thus triggering an obligation on the part of the trial court to conduct a Faretta inquiry. See Wilson v. State, 724 So.2d 144, 145 (Fla. 1st DCA 1998). Before a defendant will be permitted to represent himself, "he must `knowingly and intelligently' forgo his constitutional right to counsel." Reddick v. State, 937 So.2d 1279, 1283 (Fla. 4th DCA 2006). Under Faretta, "[t]he test is not whether the defendant is competent to represent himself adequately, but whether he is competent to make the decision to represent himself." Wilson, 724 So.2d at 145; see also Butler v. State, 767 So.2d 534, 539 (Fla. 4th DCA 2000). Ideally, a trial court should conduct a formal Faretta inquiry and, consistent with Florida Rule of Criminal Procedure 3.111(d)(2), make "a thorough inquiry . . . into both the accused's comprehension of th[e] offer [of assistance of counsel] and the accused's capacity to make a knowing and intelligent waiver" and "advise the defendant of the disadvantages and dangers of self-representation." See also Butler, 767 So.2d at 539. To that end, our supreme court has published a model colloquy wherein the judge is to (1) inquire concerning the defendant's age, education, *1290 his ability to read and write, any mental or physical conditions, and whether anyone has threatened him concerning the decision to proceed without counsel; (2) advise the defendant that a lawyer can assist him in calling witnesses and presenting evidence, advise him regarding whether he should testify, is familiar with the rules of evidence, can ensure accurate jury instructions are given, and preserve errors for appeal; and (3) warn the defendant he will not receive special treatment and will be limited by the resources available to him while in custody. See In re Amendment to Fla. R.Crim. P. 3.111(d)(2)-(3), 719 So.2d 873, 876-77 (Fla.1998).
We recognize that a trial judge is not required to follow the letter of the model colloquy; rather, "`[t]he ultimate test is not the trial court's express advice, but . . . the defendant's understanding'" of his rights and the consequences of his choice. Butler, 767 So.2d at 539 (quoting Rogers v. Singletary, 698 So.2d 1178, 1181 (Fla.1996)); see also Wheeler v. State, 839 So.2d 770, 772 (Fla. 4th DCA 2003). The limited inquiry engaged in by the trial judge in this case is insufficient to demonstrate that Smith understood his rights and the consequences of his decision to proceed pro se. All in all, the judge's inquiry was limited to asking Smith about his experience with the criminal justice system, whether Smith believed he was capable of representing himself, whether he would be ready for trial on the scheduled date, and whether he would "behave like a gentleman." Smith's responses demonstrate that, while he has been involved with the criminal justice system since he was a juvenile, he had had only one jury trial, wherein he was represented by counsel and found not guilty. Nothing in the exchange between Smith and the court indicated Smith had any real understanding of what he was up against in making the decision to proceed pro se. This fact makes the instant case distinguishable from cases like Waterhouse v. State, 596 So.2d 1008 (Fla.1992), Baggett v. State, 687 So.2d 934 (Fla. 4th DCA 1997), and Turner v. State, 901 So.2d 233 (Fla. 5th DCA 2005). We therefore reverse Smith's conviction and remand for a new trial. See Wilson, 724 So.2d at 146 (holding harmless error analysis does not apply where Faretta inquiry fails to ensure waiver of counsel was knowing and intelligent).
Reversed and Remanded.
POLEN and TAYLOR, JJ., concur.
NOTES
[1] Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386079/ | 223 S.C. 298 (1953)
75 S.E.2d 605
PURDY
v.
MOISE ET AL.
16734
Supreme Court of South Carolina.
April 14, 1953.
Messrs. C.M. Edmunds and Lee & Moise, of Sumter, for Appellants.
*299 Messrs. Nash & Wilson and M.M. Weinberg, of Sumter, for Respondent.
April 14, 1953.
TAYLOR, Justice.
On July 11, 1949, the city of Sumter, South Carolina, adopted a zoning ordinance which was in full force and effect in 1952 when respondent applied for a permit to construct a "tourist court" or "motor court" on certain property affected by the following regulations as set forth in the ordinance:
"II (A) Use Regulations: In the residence district no buildings, or land shall be used and no building shall be hereafter *300 erected or structurally altered, unless otherwise provided in this ordinance, except for the following uses:
"(1) One-family dwellings, two-family dwellings, multiple dwellings.
"(2) Boarding houses, lodging houses, hotels not involving the conduct of any business other than for the sole convenience of the guests thereof.
"(3) Schools, institutions of an educational or philanthropic nature, public buildings.
"(4) Churches, convents.
"(5) Hospitals, clinics.
"(6) Museums, art galleries, libraries, parks, playgrounds not conducted for profit."
Hearings were duly held on the above application resulting in its refusal by the Zoning Board. Respondent then appealed to the city council which affirmed the findings of the Zoning Board. Respondent applied for and obtained from the Honorable J. Frank Eatmon, Judge of the Third Judicial Circuit, a writ of certiorari requiring appellants to produce the record before him at his Chambers in Kingstree, South Carolina. Thereafter, in his order dated August 30, 1952, Judge Eatmon reversed the ruling of the city council and Zoning Board and ordered the City of Sumter to issue the permit applied for. Due notice of intention to appeal to this Court followed.
On September 9, 1952, respondent served on appellants notice of a motion before Judge Eatmon to require the City of Sumter to file bond with the Clerk of Court for Sumter County in an amount not less than $27,500.00. September 12, 1952, the Building Inspector of the City of Sumter, pursuant to the provisions of Section 787, Code of 1942, filed with the Clerk of Court for Sumter County the permit applied for to abide the judgment of this Court.
On September 16, 1952, Judge Eatmon issued an order enjoining the appellants from interfering with the construction of said building and requiring them to issue the permit *301 applied for, unless within five days from the date of said order the appellants should file bond with the Clerk of Court for Sumter County in the amount of $15,000.00 with good and sufficient surety, which bond should be conditioned to pay such costs as the respondent might sustain by reason of the appeal to this Court from the order of August 30, 1952, and also to pay any damages on account of loss in the event that said order should be sustained by this Court. Due notice of intention to appeal from this order was served on the respondent.
Upon due notice the appellants moved before the Honorable D. Gordon Baker, Chief Justice of the Supreme Court of South Carolina, for an order of supersedeas staying the order of Judge Eatmon of August 30, 1952, and also the order of Judge Eatmon of September 16, 1952. Chief Justice Baker refused the motion for a supersedeas, holding that appellants could issue the permit as ordered without losing and without waiving any of their rights in the pending appeal.
Appellants now come to this Court upon exceptions which according to their brief present the following questions:
"1. Does the Respondent have the right to erect a tourist court or motor court in a residential zone under the Zoning Ordinance of the City of Sumter which permits the erection of hotels, multiple dwellings, lodging houses and boarding houses in said zones?
"2. Is there any evidence properly before the Court that the Zoning Board and City Council of the City of Sumter acted unreasonably, arbitrarily or capriciously in refusing an application for a variance from the terms of the Zoning Ordinance?
"3. Did the Trial Judge have the legal power and authority to issue his Order of September 16, 1952:
"(a) Requiring the filing of a bond in the amount of $15,000.00 or the issuance of the permit applied for;
"(b) Fixing the Respondent's damages at $15,000.00 or more;
*302 "(c) Enjoining the Appellants from interfering with Respondent?"
In determining the first question, we are confronted with a dearth of decisions on the subject by reason of the fact that "motor courts" or "tourist courts" are relatively modern terms not found in the law dictionaries but used to denominate such institutions or places of business herein described and exist by reason of the demand by the transient public, who utilize the automobile principally as a means of transportation and therefore have need for convenient, temporary lodging. We have, however, as our guide the well founded principle of law that statutes or ordinances in derogation of natural rights of persons over their property are to be strictly construed as they are in derogation of the common law right to use private property so as to realize its highest utility and should not be impliedly extended to cases not clearly within their scope and purpose. Powell v. Greenwood County, 189 S.C. 463, 1 S.E. (2d) 624; Babb v. Rose, 156 Kan. 587, 134 P. (2d) 655; Luedke v. Carlson, S.D., 41 N.W. (2d) 552; Modern Builders v. Building Inspector of City of Tulsa, Okl. Sup., 168 P. (2d) 883; Monument Garage Corp. v. Levy, 266 N.Y. 339, 194 N.E. 848; Landay v. Zoning Board of Baltimore, 173 Md. 460, 196 A. 293, 114 A.L.R. 984. It follows that the terms limiting the use of the property must be liberally construed for the benefit of the property owner.
The proposed structure in the instant case consists of twenty or more units, all contiguous, with the center unit being of two stories, having a lobby, registration desk, and safe for the keeping of valuables, all rooms to be furnished with furniture, baths, lights, linens and maid service and to be utilized to accommodate transient guests for compensation.
In Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657, Justice Rose refers to the old rule that "an inn is a house where a traveller is furnished with everything which he has occasion for while on his way" but points out that this definition is not an exact one in that inns are no longer *303 required to serve wine or spirituous liquors or provide accommodations for the traveler's horse and later refers to an inn as "a place open for accommodations of a transient nature." And in People v. Gold, Sp. Sess., 6 N.Y.S. (2d) 264, 265, 267, we find the following language: "Thus the distinguishing characteristic of a hotel is the transitory nature of [the business]. This distinction is recognized in Bouvier's Law Dictionary." And in the recent case of Edwards v. City of Los Angeles, 48 Cal. App. (2d) 62, 119 P. (2d) 370, 373, citing Lignot v. Jaekle, 72 N.J. Eq. 233, 65 A. 221, the following language was used: "Structures placed side by side, or one in the rear of another, or in a circle or semi-circle, and frequently called inns or courts, do not lose their identity as hotels, rooming houses or apartments merely by bestowing upon them a different appellation, if in fact they are used to lodge the public." This principle of law is further recognized in Fay v. Improvement Co., 93 Cal. 253, 26 P. 1099, 28 P. 943, 16 L.R.A. 188, in a suit involving loss of guest's baggage by fire, the defendant pleaded that the law of innkeepers did not apply since the grounds were for the exclusive use of guests and enclosed by a fence with a locked gate. The Court held that the test was whether or not defendant held itself out to furnish accommodations for transients. And in Crockett v. Troyk, Tex. Civ. App., 78 S.W. (2d) 1012, 1014, which was an action by an occupant of a tourist cabin against the owner thereof for injuries sustained through a gas explosion allegedly caused through the negligent use of a defective connection to a gas heater, we find the following:
"An innkeeper is not an insurer of his guest's personal safety, but his liability does extend to injuries received by the guest from being placed in an unsafe room, because such a matter is peculiarly within the knowledge, control, and power of the innkeeper. It is also settled, both at common law and by the decisions in this country, that, where a guest has proved use by an innkeeper of unsafe and defective gas fixtures and appliances, in consequence of which gas has *304 escaped, causing injury to the guest, he has established a prima facie case of negligence against the innkeeper."
"An `inn' or `hotel' has been properly defined as a public house of entertainment for all who choose to visit it. It is this publicly holding a place out as one where all transient persons, who may choose to come, will be received as guests for compensation, that is made the principal distinction between a hotel and a boarding house, in many well-considered decisions, * * *." Holstein et ux. v. Phillips & Sims, 146 N.C. 366, 59 S.E. 1037, 1039, 14 L.R.A., N.S., 475. For further reference see Zoning, 58 Am. Jur., Secs. 62-63 and annotations thereunder.
It is argued by appellants that under the generally accepted meaning of the words "tourist court" and "motor court" one could not have under consideration a hotel. The generally accepted meaning of words used in statutes or ordinances are to be accepted unless such words have a well recognized meaning in law; if so, they are presumed to have been used in that sense, Coakley v. Tidewater Construction Corp., 194 S.C. 284, 9 S.E. (2d) 724; Powers v. Fidelity & Deposit Co. of Maryland, 180 S.C. 501, 186 S.E. 523. The word hotel does have a well recognized meaning in law which under its terms are such as to encompass that of "tourist court" or "motor court". The services rendered to the public may be of wide variances but such variances are in the method or quality rather than the character of such services.
The foregoing is in conformity with a later construction of this ordinance by the same "Zoning Board" or Board of Adjustment as it is officially known. The record discloses that by authority of the same ordinance under consideration here, the Board of Adjustment issued on September 4, 1952, its permit for the construction of a "motor-court hotel" in another part of the city which was similarly zoned as the property heretofore referred to. The Board therefore construed the ordinance as giving it power to grant permits for the erection and operation of such places *305 of business and this construction of its own ordinance, the enforcement of which it is charged with, should be given some consideration and not overruled without cogent reason therefor. Read Phosphate Co. v. S.C. Tax Commission, 169 S.C. 314, 168 S.E. 722.
We are of the opinion that respondent has the right to erect a "tourist court" or "motor court" on the property in question under the ordinance heretofore referred to. Hence the order of the Circuit Court as it relates thereto dated August 30, 1952, is affirmed.
It is unnecessary to pass upon the other questions presented by the exceptions since the permit has already been issued and no bond has been filed pursuant to the order of September 16, 1952.
FISHBURNE, STUKES, and OXNER, J.J., concur.
BAKER, C.J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386086/ | 75 S.E.2d 921 (1953)
237 N.C. 730
BLAKE
v.
GREAT ATLANTIC & PACIFIC TEA CO.
No. 669.
Supreme Court of North Carolina.
May 20, 1953.
*922 Frank McNeill and McLean & Stacy, Lumberton, for plaintiff-appellant.
Varser, McIntyre & Henry, Lumberton, for defendant-appellee.
BARNHILL, Justice.
That the plaintiff was an invitee of the defendant at the time he suffered his injuries is not debatable. Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408.
So far, however, this Court has not held that water alone, unmixed with oil or grease or other slippery substance, on a floor over which an invitee may be expected to pass, creates a hazard against which the proprietor must guard. Counsel do not call our attention to any decision from any other jurisdiction to that effect. See, however, S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Jutras v. Amoskeag Mfg. Co., 84 N.H. 171, 147 A. 753; Shumaker v. Charada Inv. Co., 183 Wash. 521, 49 P.2d 44; Kraus v. Wolf, 253 N.Y. 300, 171 N.E. 63; and Bridgford v. Stewart Dry Goods Co., 191 Ky. 557, 231 S.W. 22.
Be that as it may, we are of the opinion plaintiff's own account of the mishap which caused the injuries for which he seeks recovery clearly discloses a failure on his part to exercise ordinary care for his own safety which, in any event, bars his right of recovery.
He testified that the loaded truck was too heavy to push. He had to pull it. Necessarily this placed considerable pressure on his feet. Yet he undertook to back into the warehouse and pull the truck over the doorsill without looking where he was going or giving any attention whatsoever to the condition of the floor where he would be compelled to place his feet in order to apply the additional pressure required to propel the truck across the obstruction created by the doorsill. On his own testimony he might as well have blindfolded himself before entering the building. In practical effect that is what he did. These facts, to which plaintiff himself testified, will not permit any reasonable inference other than that he failed to exercise ordinary care for his own safety. Porter v. Niven, 221 N.C. 220, 19 S.E.2d 864; Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740; Lee v. Carolina Upholstery Co., 227 N.C. 88, 40 S.E.2d 688; Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 61 S.E.2d 904. A plaintiff will not be permitted to recover for injuries resulting from a hazard he helped to create. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337.
In Porter v. Niven, supra, where judgment of nonsuit was affirmed, the facts are sufficiently similar to render the decision therein pertinent here. In that case, Denny J., speaking for the Court, says:
*923 "In the instant case, apparently, the plaintiff pushed the screen door open with one of the milk cans which he was carrying, and simply took it for granted that there was no obstruction in the passage-way, and failed to make any observation as to whether or not there was an obstruction in the passage-way, when by his own testimony he could have seen the churn if he had looked."
The judgment entered in the court below is Affirmed.
JOHNSON, Justice (dissenting).
It seems to me the majority opinion weighs this plaintiff's conduct too heavily against him.
The plaintiff was experienced in the business of trucking and delivering freight. For some twelve years he had been hauling foodstuffs for the Statesville Flour Mills. The A & P store in Southern Pines was one of its customers of long standing. He was thoroughly familiar with the platform and the back door of the store and with the floor inside the door where the injury occurred. He had been making deliveries at this store for some ten years. Always before the floor had been in a safe condition. Customarily there had been sawdust or sand on the floor. On the day of the injury, the plaintiff backed up to the loading platform behind the store and let down the "tail gate" about even with the platform and proceeded to unload in the usual manner by taking the two-wheel upright hand truck off the platform and pushing it onto the body of the motor truck and loading it. The natural movement then was to back the hand truck off the motor truck body onto and across the platform and through the door. The platform was only five feet wide. Thus, to have tried to turn around on such narrow space would have been an awkward movement. Besides, the loaded truck had to be taken over the door-stop. As to this, the plaintiff testified: "I had to back in the door, couldn't push the truck in; I backed in the door, pushed it open with my back and backed in. * * * The door was partly open. I had to push it open to go in."
This was but a shorthand explanation of the method usually followed by experienced truckers in getting a loaded hand truck over an obstruction like a door-stop. The procedure is to pull the truck, rather than push it, over the obstruction. It is a crisscross movementfirst one wheel is pulled up and over, and then the other.
It is readily inferable from the whole of the plaintiff's testimony that this was the usual method which he had followed through the years in unloading at the defendant's store.
The rule is firmly established with us that nonsuit on the ground of contributory negligence may be allowed only when plaintiff's own evidence establishes contributory negligence so clearly that no other reasonable inference is deducible therefrom. Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121. If more than one inference may reasonably be drawn from the evidence, the question of contributory negligence must be submitted to the jury. Bundy v. Powell, supra; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637. The plaintiff is entitled to the benefit of the rule that the evidence must be considered in the light most favorable to him. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25. And he is entitled to every reasonable inference and intendment which may logically and reasonably be drawn from the evidence in support of his claim. James v. Atlantic & East Carolina R. Co., 236 N.C. 290, 72 S.E.2d 682; Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R. 2d 881.
Judging the plaintiff's conduct by the rule of the reasonably prudent man, I do not see how it can be said that the only reasonable inference to be drawn therefrom is that he negligently contributed to his injury. It seems to me that the other inference is clearly deducible, and this makes it a case for the jury.
Clearly the testimony made out a prima facie case of actionable negligence against the defendant. As to this, the plaintiff testified: *924 "The water on the floor caused me to slip down; it was slick. Two men helped me up. The (defendant's) Assistant Manager said * * *: `Boys I told you to clean that water up.'" See Bowden v. S. H. Kress & Co., 198 N.C. 559, 152 S.E. 625; Parker v. Great Atlantic & Pacific Tea Co., 201 N.C. 691, 161 S.E. 209; Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E.2d 199; Harris v. Montgomery Ward Co., 230 N.C. 485, 53 S.E.2d 536; Lee v. H. L. Green & Co., 236 N.C. 83, 72 S.E.2d 33.
My vote is to reverse.
ERVIN and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
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