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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
KENTHY LEE FLETCHER, §
No. 08-13-00043-CR
Appellant, §
Appeal from the
v. §
County Criminal Court No. 1
THE STATE OF TEXAS, §
of Tarrant County, Texas
Appellee. §
(TC#1221731)
§
JUDGMENT
The Court has considered this cause on the record and concludes the judgment of
conviction should be modified to reflect Appellant’s plea of true to the enhancement paragraph
alleged in the indictment. We therefore affirm the judgment of the trial court as modified. This
decision shall be certified below for observance.
IT IS SO ORDERED THIS 30TH DAY OF SEPTEMBER, 2014.
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating
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10-16-2015
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421 A.2d 535 (1980)
In re ADVISORY OPINION TO THE GOVERNOR.
Supreme Court of Rhode Island.
October 9, 1980.
Dennis J. Roberts II, Atty. Gen., Alyssa L. Talanker, Sp. Asst. Atty. Gen., Barbara Hurst, John A. MacFadyen III, Asst. Public Defenders, Harris L. Berson, Providence, amici curiae.
To His Excellency J. Joseph Garrahy Governor of the State of Rhode Island and Providence Plantations
In fulfillment of their constitutional obligation to advise you on questions of law which relate to your official duties as the head of a coordinate branch of government, Advisory Opinion to the Governor, R.I., 394 A.2d 1355 (1978), the undersigned forward this communication to you as a reply to your inquiry in which you ask whether an individual who has been sentenced to serve two consecutive life sentences may apply for parole after ten years' imprisonment or whether such a person must serve ten years on each sentence before seeking parole.
A proper response to the issue you posed necessitates a brief recitation of the emergence of consecutive sentences and parole in Rhode Island. Recently, in State v. Upham, R.I., 415 A.2d 1029 (1980), the court pointed out that although the right to impose consecutive sentences was well recognized at common law, the General Assembly had as early as 1857 expressly authorized the imposition of such sentences with the enactment of a statute that is now cited as G.L. 1956 (1969 Reenactment) § 12-19-5. In Upham, the court also pointed out that the consecutive-sentence statute preceded the establishment of the parole board by more than half a century. The parole board came into existence with the passage of P.L. 1915, ch. 1186. Section 3 of ch. 1186 authorized the parole of a person serving a single sentence when the person had served "one-half of the term for which he was sentenced." In 1915 a prisoner serving more than one sentence could seek parole when he had "served a term equal to one-half of the aggregate time which he shall be liable to serve under his several sentences * * *" unless he had been sentenced to serve consecutive sentences, in which event the prisoner was eligible whenever he had served a term equal to "one-half of the maximum term he was required to serve." A prisoner serving a life sentence could be paroled after completing twenty years of the life sentence, provided all of the members of the parole board voted in the affirmative.
Today, updated portions of sec. 3 to which we have just referred can be found in G.L. 1956 (1969 Reenactment) §§ 13-8-9, 13-8-10 (1979 Cum. Supp.), and 13-8-13 (1979 Cum. Supp.). (The pertinent portions of these sections are set forth in an appendix to this opinion.) In essence, the person serving a single sentence is now eligible for parole when one-third of the sentence has been served, § 13-8-9. Whereas in 1915 the determinative fraction for a prisoner serving a concurrent or consecutive sentence *536 was one-half, here in the 1980s the fraction has been reduced to one-third, § 13-8-10. The eligibility time for a prisoner serving a life sentence has also been reduced so that now such a prisoner can seek parole after having been imprisoned for ten years.
Your Excellency has informed us that on a prior occasion the Department of Corrections has been advised that because of the language of § 13-8-13 and its reference to consecutive sentences, a prisoner serving consecutive life sentences would be eligible for parole once he had served ten years of the initial sentence. We disagree.
The advice given the Department of Corrections was based upon language added to § 13-8-13 by the General Assembly at its January 1970 session. The Senate Journals for the 1970 session indicate that on March 5, 1970, Senate bill S-473 was introduced and referred to the Senate Judiciary Committee. The bill that would have amended § 13-8-13 was entitled "An Act Permitting Inmates Under a Life Sentence to Be Eligible for Parole in Ten Years" and carried with it an explanation prepared by the Legislative Council. The explanation reads, "The act permits inmates under a life sentence to be paroled after ten (10) years." The bill emerged from the Judiciary Committee on April 23, 1970, as S-473 Substitute "A." The substitute, which was entitled "An Act Permitting an Inmate Under a Life Sentence or Lengthy Sentence to be Eligible for Parole in Ten Years," made its way through the requisite legislative channels and became law on April 30, 1970. The amended version of § 13-8-13 can be found in P.L. 1970, ch. 120.
It is obvious that the Legislature, in enacting the amended version of S-473, accepted the premise that if an individual could seek parole after serving ten years of a life sentence, the same opportunity should be afforded other prisoners who were serving lengthy terms,[1] but in our opinion, the General Assembly, because of S-473's constant reference to convicts who are "under a life sentence," never intended that a prisoner who was serving consecutive life sentences would come within the reach of S-473 Substitute "A." (Emphasis added.)
In appropriate circumstances, consecutive life sentences serve the valid legislative purpose of protecting the public. Bangert v. State, Minn., 282 N.W.2d 540, 546 (1979). In construing a statute in which parole eligibility of a prisoner serving a life sentence required thirty years' service, the Tennessee court reached "the conclusion that [two] consecutive life sentences entail sixty full years of actual confinement." Any other conclusion, the court observed, would completely nullify consecutive life sentences. Howell v. State, 569 S.W.2d 428, 434 (Tenn. 1978). Similar sentiments have been expressed by other courts that have considered the problem of parole eligibility for prisoners with multiple life sentences. State v. McNally, 26 Conn. Super. Ct. 174, 176, 216 A.2d 446, 447 (1965); State v. Maxey, 42 N.J. 62, 69, 198 A.2d 768, 772-73 (1964).
We see nothing in the language of the 1970 amendment which would require us to conclude that an individual who has been found guilty of committing two murders should receive the benefit of the same parole eligibility as an individual who has committed only one murder. The General Assembly has expressly authorized the imposition of consecutive life sentences, and in our opinion, it has not taken any action that would justify a belief that its 1970 largess nullified the rationale of consecutive life sentences.
Thus it is that we answer your inquiry by advising Your Excellency that, in our opinion, an individual who has been sentenced to serve two or more consecutive life sentences must serve ten years on each sentence before seeking parole.
Thomas F. Kelleher
Joseph R. Weisberger
Florence K. Murray
*537 I transmit this advise in response to Your Excellency's inquiry of January 30, 1980, in which you asked our opinion of
"whether or not an individual who is sentenced to two (2) or more consecutive terms of imprisonment for life must serve not less than ten (10) years for parole eligibility, or whether such an individual must serve not less than ten (10) years on each term of life imprisonment for parole eligibility."
In my opinion the Legislature has provided an answer to this question in G.L. 1956 (1969 Reenactment) § 13-8-13, as amended by P.L. 1970, ch. 120. I believe the statute mandates that a person sentenced to life imprisonment, whether under a single life sentence, concurrent life sentences, or consecutive life sentences, is eligible for release on parole after serving not less than ten years' imprisonment.
I have read the language and history of the statutory scheme as a whole and have assigned to the words the Legislature chose their plain and ordinary meaning, and I conclude that the Legislature intended to adopt a comprehensive plan for determining the parole eligibility of every person sentenced to imprisonment in Rhode Island. In my view § 13-8-13 needs no judicial construction at all. The words of the section convey a plain, unambiguous meaning. The Legislature intended the section to apply to all prisoners subject to sentences of imprisonment which will exhaust their lives.
The title of § 13-8-13 declares that the section applies to the "[p]arole of life prisoners," and the opening phrase of the section further bespeaks the legislative intent that the section control "[i]n case of a prisoner sentenced to imprisonment for life." I understand this language to require that § 13-8-13 be referred to in cases of all life prisoners, regardless of how many life sentences they must serve or whether they must serve them concurrently or consecutively. Nothing in the language of the statute supports the conclusion that a prisoner sentenced to serve two or more consecutive sentences of life imprisonment must serve ten years on each sentence before becoming eligible for consideration for parole. Ante at 536.
I have no reservations about the constitutionality of the imposition of consecutive life sentences. See State v. Upham, R.I., 415 A.2d 1029 (1980). Nor can I quarrel with the assertion that "consecutive life sentences serve the valid legislative purpose of protecting the public." Ante at 536. However, I cannot understand how the constitutionality of and the purpose underlying consecutive life sentences are completely vitiated by the establishment of a minimum term for the eligibility of life prisoners for parole.
The provisions of § 13-8-13 in no way impinge upon the power of a sentencing justice to require a defendant convicted of multiple crimes punishable by life imprisonment to serve his life sentences consecutively. Recognizing the function of consecutive life sentences in protecting the public from dangerous criminals, the Legislature vested sentencing justices with the discretion to impose consecutive sentences. General Laws 1956 (1969 Reenactment) § 12-19-5. The sentencing justice who exercises this discretion in circumstances in which he deems it necessary accomplishes the goal of protecting the public primarily because of the obvious effect his decision has in increasing the term that a defendant must serve but, more importantly in my view, because he intimates by his decision that he believes that the defendant poses a great danger to the community and that the defendant has little chance of ever becoming rehabilitated. In the case of a prisoner sentenced to consecutive life sentences the latter effect of the sentencing justice's decision is paramount because the sentencing justice cannot increase the term that the defendant must serve; he can only express his firm conviction that the defendant before him is incorrigible. The import of his decision rings clear to the defendant, the public, and the parole board.
Section 13-8-13, on the other hand, has no bearing on the sentencing justice's determination of the proper and fitting punishment *538 for a convicted defendant. Instead § 13-8-13 becomes operative after punishment has been imposed, thereby serving as a mechanism by which experts in penology can monitor and evaluate the progress of the prisoner to determine the appropriate manner in which he will serve his sentence. The Legislature has entrusted to the parole board the decision about whether a prisoner should remain behind bars or should serve his sentence while at large in the community and under the supervision of parole authorities.
As I understand it, the parole system in effect in our state is supposed to facilitate the rehabilitation of persons convicted of crimes by offering prisoners some hope of release from confinement and by releasing the offender from prison in the hope that he will become assimilated into the mainstream of society even as he serves the remainder of his sentence.[1a] Moreover, a by-product of this system is a reduction of the violence within our prison system.[2] To guide the parole board's decision of when a prisoner may be ready to serve his sentence without the prison walls and to limit the board's discretion to an extent, the Legislature has enacted statutes to set the minimum time that all prisoners must serve before they can become eligible for release on parole. The Legislature in its wisdom has determined that no prisoner should serve more than ten years before the parole board can review his case to determine whether he is ready for parole. To allow a sentencing justice at the time he imposes punishment to manipulate the statutes to effect a decision that the Legislature clearly intended to take place at a later time and to be made by different authority vests the sentencing justice with a power that the Legislature has not explicitly granted and is, in my view, contrary to the goals of the parole system.
Finally I note that both the New Jersey and the Tennessee Supreme Courts construed statutory language that provided for parole eligibility after a prisoner had served a minimum term following a sentence of a term of life. See N.J. Stat. Ann. § 30:4-123:11 (1939); Tenn. Code Ann. § 40-3613 (1975). The majority of the New Jersey Supreme Court and a unanimous Tennessee Supreme Court construed their Legislatures' use of the article "a" to mean that the statutes applied only when a single life sentence had been imposed. State v. Maxey, 42 N.J. 62, 71, 198 A.2d 768, 774 (1964); Howell v. State, 569 S.W.2d 428, 431 (Tenn. 1978). But see State v. Maxey, 42 N.J. 62, 77, 198 A.2d 768, 778 (1964) (Weintraub, C.J., dissenting). Having rendered the statutes in question inapplicable, both courts went on to determine, on their own accord and in the absence of legislative guidance, that a prisoner sentenced to multiple life sentences must serve as many minimum terms as number of sentences before he could be eligible for parole. And a Connecticut Superior Court concluded without discussion that a defendant sentenced to more than one life sentence must serve the identical number of minimum terms on each sentence to qualify for parole consideration. State v. McNally, 26 Conn. Super. Ct. 174, 216 A.2d 446 (1965). At any rate, the controlling statute in Connecticut invests the sentencing justice with the power to determine the minimum term that a life prisoner must serve before he can be considered eligible for parole. Conn. Gen. Stat. § 54-125 (1958). The Rhode Island statute in question here, § 13-8-13, clearly does not speak in terms of numbers of sentences but rather in terms of the duration of imprisonment. Moreover, § 13-8-13 does not empower the sentencing justice in Rhode Island to set a minimum term for parole eligibility at the time of sentencing. Furthermore, I am not persuaded by these *539 opinions since nowhere in these opinions do the courts reflect upon the effect that their decisions to cumulate the time that must be served to qualify for parole according to the number of sentences imposed would have on the parole system.
For the foregoing reasons I reiterate my opinion that a prisoner in Rhode Island sentenced to consecutive life sentences must serve not less than ten years of a prison sentence before becoming eligible for consideration for parole regardless of the number of sentences imposed.
Joseph A. Bevilacqua
Chief Justice
DORIS, J., did not participate.
Appendix A
"13-8-9. Issuance of parole. The parole board in the case of any prisoner whose sentence is subject to its control, unless such prisoner be sentenced to imprisonment for life, * * * may by an affirmative vote of a majority of the members of the board, issue to such prisoner a permit to be at liberty upon parole, whenever such prisoner has served not less than one-third (1/3) of the term for which he was sentenced. Such permit shall entitle the prisoner to whom it is issued to be at liberty during the remainder of his term of sentence upon such terms and conditions as the board may prescribe."
"13-8-10. Prisoners subject to more than one sentence. (a) If such prisoner be confined upon more than one (1) sentence, such permit may be issued whenever he has served a term equal to one-third (1/3) of the aggregate time which he shall be liable to serve under his several sentences, unless he has been sentenced to serve two (2) or more terms concurrently, in which case such permit shall be issued when he has served a term equal to one-third (1/3) of the maximum term he was required to serve."
"13-8-13. Parole of life prisoners and prisoners with lengthy sentences. In case of a prisoner sentenced to imprisonment for life, such permit may be issued at any time after such prisoner has served not less than ten (10) years imprisonment provided, however, in case of a prisoner serving a sentence or sentences of a length making him ineligible for a permit in less than ten (10) years pursuant to § 13-8-9 and § 13-8-10, such permit may be issued at any time after such prisoner has served not less than ten (10) years imprisonment, and provided further that the aforesaid permit shall be issued only by a unanimous vote of all the attending members of the board, providing that not less than four members are present, and whenever after the issue of such permit such prisoner shall be pardoned, then the control of the board over such prisoner shall cease and determine * * *."
Appendix B
Crime Potential Punishment
Arson 5 years to life § 11-4-1
(1979 Cum. Supp.)
Assault with a dangerous 10 years to life § 11-5-4
weapon in a dwelling house
Burglary 5 years to life § 11-8-1
Delivery of a narcotic by a up to life § 21-28-4.01(A)
person not a drug addict
Distribution of a narcotic to up to life § 21-28-4.07(A)
a minor
Kidnapping with intent to 5 years to life § 11-26-2
extort
Sexual assault 1st degree 10 years to life § 11-37-3
(1979 Cum. Supp.)
Robbery 5 years to life § 11-39-1
Treason life § 11-43-1
NOTES
[1] Appendix B provides a list of the permissible range of punishments that can be imposed after conviction in any court of several categories of crimes. Obviously, it did not make sense that a prisoner who was serving two consecutive thirty-year sentences for robbery and rape would have to serve at least twenty years before being eligible for parole while a prisoner serving a life sentence could seek parole after spending ten years at the Adult Correctional Institutions.
[1a] According to Professor Tromanhauser "[i]f a man is held within the degrading, dehumanizing, all-corrupting atmosphere of our nation's prisoners any longer than is absolutely necessary, that man is being greatly damaged and so is the society." Tromanhauser, Parole, in Justice, Punishment, Treatment at 463 (Orland, ed. 1973). See also Alschuler, Sentencing Reform and Parole Guidelines, 51 Colo.L.Rev. 237, 237 (1980).
[2] Glasser, Comments on Determinate Sentencing, 23 Crime & Delinquency 207-08 (1977).
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167 Cal. App. 4th 156 (2008)
CRAIG WOOD, as Trustee, etc., Plaintiff and Respondent,
v.
EDDIE B. JAMISON, Defendant and Appellant.
No. B196898.
Court of Appeals of California, Second District, Division Six.
September 30, 2008.
*158 J. J. Little & Associates and James J. Little for Defendant and Appellant.
Steinmeyer Roth, William B. Steinmeyer and Thomas M. Roth for Plaintiff and Respondent.
OPINION
GILBERT, P. J.
An attorney represents an elderly client and does not disclose his conflict of interest and its consequences. As this case demonstrates, the attorney brings financial harm to his client, institutional harm to his profession, and catastrophic harm to himself.
Eddie B. Jamison, a licensed attorney, appeals a judgment for damages, attorney fees and costs based on legal malpractice, breach of fiduciary duty and financial abuse of an elder, entered after a court trial. We affirm.
FACTS
Donald and Merle Peterson had been married for 55 years. A few months prior to the incidents leading to this lawsuit, the Petersons' only child died and Donald Peterson moved into an Alzheimer's facility.
Shortly after her son's death and her husband's move to the Alzheimer's facility, Merle Peterson (Peterson), then 78 years old, met Patrick McComb. McComb told Peterson he was her nephew. In fact, he was not related to her. Over the next few weeks, McComb convinced Peterson to transfer approximately $174,000 to him in a series of transactions. McComb also convinced Peterson, in her capacity as trustee of the Peterson trust, to obtain a $250,000 loan secured by her primary residence. McComb told Peterson that the money would be invested in a nightclub joint venture.
Jamison was representing McComb in the joint venture. He also performed legal services for Peterson. The services included meeting with Peterson and McComb in his office to discuss financing of the nightclub; locating the lender for Peterson's loan; advising Peterson about various lenders; selecting the lender; gathering documents necessary to close the loan; completing the loan application; transmitting documents under cover of his letterhead; communicating with the lender and title company; reviewing loan documents; and attending the loan escrow closing with Peterson.
*159 The loan escrow closed in October 2002. Investment Management Company (Investment) was the lender. The loan bore interest at an annual percentage rate of 18.41 percent. Jamison received a $4,000 referral fee from Investment from the loan proceeds. Jamison received an additional $10,000 from the loan proceeds as repayment of a loan he had made to McComb. The entire net proceeds of the loan were distributed directly to McComb.
Jamison did not inform Peterson, or any other party to the loan transaction, that he was not acting as her attorney. Jamison did not disclose the $4,000 referral fee or the $10,000 loan repayment to Peterson. He did not provide Peterson with conflict disclosures or waivers. Nor did he refer Peterson to independent counsel.
Jamison was aware that Peterson was elderly, and that her husband was incompetent. Jamison did not advise Peterson of the risks of the nightclub investment or that the loan terms were inappropriate for her. He did not refer her to an accountant or financial advisor.
Peterson could not afford the loan and defaulted on the first payment. Investment initiated foreclosure proceedings.
Peterson died in November 2002. In May 2003, Craig Wood, as successor trustee of the Peterson trust and executor of her estate, brought this action against McComb, Jamison, Investment, Ira Boren as owner of Investment, and others. McComb did not answer the complaint or otherwise appear.
The trial court stayed Investment's foreclosure proceedings pending the outcome of the case. Wood and Investment settled the foreclosure case prior to trial. Investment reconveyed the mortgage in exchange for a payment of $118,322.23, representing interest on the loan. The trial court approved the settlement as entered in good faith.
The matter proceeded to a court trial against Jamison. The trial court found Jamison committed malpractice, breached his fiduciary duty to Peterson and committed financial abuse of an elder as provided in Welfare and Institutions Code section 15610.30, subdivision (a).[1] The court awarded damages against Jamison in the amount of $122,322.23, consisting of the $118,322.23 Wood paid to Investment and the $4,000 finder's fee Jamison received from Investment. The trial court also awarded attorney fees pursuant to section 15657.5, subdivision (a).
*160 DISCUSSION
I
Jamison contends the trial court erred in denying his motion for a new trial based on newly discovered evidence.
The alleged newly discovered evidence is a document that purports to reflect the bargain between McComb and Peterson for the formation of the nightclub. Jamison refers to the document as the "Key Club Agreement." A paragraph of the agreement provides, in part: "Waivers Merle agrees that Eddie Jamison is solely Patrick's Attorney and that Merle will have this agreement reviewed by Independent Counsel before the loan closing in order to protect her interests. Merle agrees that if she hires Eddie Jamison to organize her estate, that Eddie Jamison would still first and foremost be Patrick's Attorney and that Patrick's interest comes first. Merle agrees to let Patrick have a third party Attorney review her retainer agreement with Eddie Jamison in the event she hires Eddie [Jamison] to organize her estate. Merle acknowledges that Eddie Jamison is representing Patrick's interest only pertaining to this Venture and that Merle will have this agreement reviewed by a third party Attorney before the loan signing that should happen in the next two weeks. Patrick agrees to waive any conflict of interest that arises in the future if Merle hires Eddie Jamison to organize her estate. Both parties agree that each of them have performed an independent investigation of all matters which are subject to this agreement or will have been considered to have chosen not to if not done before the loan closing. Each party represents that they have made an informed consent decision on every point contained within this agreement...."
The agreement was purportedly signed by McComb and Peterson with Jeff Hoffman as a witness.
Jamison claims he received a copy of the agreement in the mail, approximately seven months after the close of trial, from an anonymous source. In support of the motion, Jamison submitted an affidavit from Jeff Hoffman declaring that McComb and Peterson signed the document in his office when they came to inquire about a loan on September 17, 2002. Jamison also submitted an affidavit by a questioned document expert who declared that, in her opinion, the signatures appear to be genuine.
In opposition, Wood challenged Jamison's attempt to authenticate the document. Wood also submitted an affidavit from his legal malpractice expert, who testified at trial, declaring the agreement would not have changed his opinion that Jamison committed malpractice and breached his fiduciary duty.
*161 The trial court denied the motion, stating that the agreement is not material to the case.
(1) The trial court may grant a new trial on the basis of newly discovered evidence where the moving party shows the evidence is newly discovered, reasonable diligence has been exercised in its discovery, and the evidence is material to the moving party's case. (Code Civ. Proc., § 657, subd. 4; Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal. App. 4th 1152, 1161 [79 Cal. Rptr. 2d 641].) Here the trial court found the evidence was not material. In the context of a motion for a new trial, "material" means likely to produce a different result. (Sherman, supra, at p. 1161.)
Jamison cites Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at page 1160, for the proposition that we must make an independent determination whether an error in denying a motion for new trial was prejudicial. But Sherman involved a jury trial. In this case, trial was by the court. There is always some conjecture in determining whether newly discovered evidence was likely to produce a different result where the case was tried to a jury. No one can say with certainty what the jury might have thought about the evidence. But where, as here, the same trial court to which the case was tried determines the new evidence was unlikely to have made a difference, there is no conjecture. We simply have no basis for contradicting the trial court.
Indeed, the document came from an unknown source. There is no evidence as to the circumstances of its making. There is no showing Peterson had any legal advice about the complex matter of conflict of interest. Most importantly, Jamison's subsequent actions appear to belie the words of the agreement that Jamison does not represent Peterson. The evidence is anything but compelling.
This case is not like Furia v. Helm (2003) 111 Cal. App. 4th 945 [4 Cal. Rptr. 3d 357]. Furia was an appeal from a judgment after the trial court sustained the defendant's demurrer without leave to amend. The court determined the complaint did not allege the defendant was the attorney for the plaintiff. (Id. at pp. 952-953.) Here Wood alleged and proved that Jamison acted as Peterson's attorney.
II
Jamison contends a new trial is required because of irregularity in the trial proceedings and attorney misconduct.
At trial, Wood's counsel asked him whether he was able to locate documents showing McComb's intent to repay Peterson. Wood answered, "No." After trial, Jamison discovered two checks from McComb to Peterson, totaling $27,900.
*162 Wood points out that the checks Jamison discovered after trial were available to Jamison through pretrial discovery. Jamison, however, did not undertake such discovery.
(2) A new trial may be granted for "[i]rregularity in the proceedings ... by which either party was prevented from having a fair trial." (Code Civ. Proc., § 657, subd. 1.) The trial court's determination on a motion for a new trial will not be disturbed on appeal absent a showing of a manifest and unmistakable abuse of discretion. (Christie v. City of El Centro (2006) 135 Cal. App. 4th 767, 781 [37 Cal. Rptr. 3d 718].)
Here Jamison does not contest that he could have discovered pretrial the checks necessary to impeach Wood's testimony. Jamison argues, however, that his failure to discover the checks until after the trial is irrelevant because his motion is based on irregularity, and not newly discovered evidence.
But the time to present evidence is at trial. Jamison had a full and fair opportunity to discover the checks and to present them at trial. He fails to explain why he did not take advantage of the opportunity. Under the circumstances, the trial court could reasonably conclude that any irregularity did not prevent Jamison from having a fair trial. The court did not abuse its discretion in denying his motion for a new trial.
III
Jamison contends the finding of malpractice is not supported by substantial evidence.
"In viewing the evidence, we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.] The trier of fact is not required to believe even uncontradicted testimony. [Citation.]" (Rodney F. v. Karen M. (1998) 61 Cal. App. 4th 233, 241 [71 Cal. Rptr. 2d 399].)
Jamison argues the opinion of Wood's malpractice expert was based on facts from a deposition that was not admitted into evidence. He claims the only evidence of an attorney-client relationship between Jamison and Peterson was contained in the deposition of Ira Boren, the owner of Investment. He asserts the deposition was only lodged with the court. Jamison points out that an expert's opinion may not be based on an assumption of facts not in evidence. (Citing Powell v. Kleinman (2007) 151 Cal. App. 4th 112, 123 [59 Cal. Rptr. 3d 618].)
*163 But there is ample evidence other than Boren's deposition that Jamison acted as Peterson's attorney. Wood testified Jamison told him, "I'm attorney Eddie Jamison. I've done work for your aunt. Represented her in a business transaction." That alone is sufficient to support the finding of an attorney-client relationship. Moreover, even without such a statement, the work Jamison performed to obtain Peterson's loan is sufficient to support a finding that an attorney-client relationship existed. The parties stipulated that Jamison performed most of those acts. Jamison's reliance on the "Key Club Agreement" is misplaced. The agreement is not in evidence, and, as we explained, it would not compel a different finding even if it had been admitted.
(3) The evidence of malpractice and breach of fiduciary duty is overwhelming. Jamison failed to advise Peterson of a conflict of interest; failed to advise Peterson the investment was not appropriate for her, or at least to refer her to an independent investment advisor; and obtained an undisclosed profit from the transaction.
IV
Jamison contends the acts of malpractice found by the trial court were not the proximate cause of Peterson's damages.
Jamison's contention is based on the trial court's finding that the terms of the trust did not allow Peterson to enter into the refinancing transaction. Without citation to authority, Jamison asserts that Peterson's inability to encumber the trust property was a defense to foreclosure. Jamison believes the $118,322.23 Wood expended to settle the foreclosure action was a voluntary payment for which he is not liable.
(4) But the lender has a defense under Probate Code section 18100.[2] That section protects third persons who deal with a trustee in good faith from claims the trustee has exceeded his or her powers under the trust.
Moreover, assuming Wood had a defense to foreclosure, Jamison cites no authority that Peterson, her estate or the trust would not be personally liable on the note, should the trust deed be declared void. If there is any legal *164 theory under which Peterson could obtain $250,000 from a lender and escape all liability for repayment, Jamison fails to mention it.
(5) In a transactional malpractice case, a plaintiff must show that, but for the malpractice, it is more likely than not, the plaintiff would have obtained a more favorable result. (Viner v. Sweet (2004) 117 Cal. App. 4th 1218, 1224 [12 Cal. Rptr. 3d 533].) Here the trial court found that had Jamison properly advised Peterson, it is more likely than not, the loan transaction would not have occurred. The trial court also found that Jamison's conduct forced Wood to protect Peterson's assets by defending the foreclosure proceedings. Contrary to Jamison's assertion, the money Wood paid to settle with the lender was not a voluntary payment.
V
Finally, Jamison contends the evidence was insufficient to support an award of costs and attorney fees for violation of the Elder Abuse Act. (§ 15600 et seq.)
Section 15610.30 provides in part: "(a) `Financial abuse' of an elder or dependent adult occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both. [¶] (b) A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith. [¶] (1) A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative. [¶] (2) For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity's authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1)."
(6) Section 15657.5, subdivision (a), provides for an award of costs and reasonable attorney fees to the prevailing plaintiff where the defendant has been found liable for financial elder abuse.
Here the trial court found: Jamison committed financial elder abuse when he took the undisclosed finder's fee; McComb committed financial elder *165 abuse when he took the $174,000 from the Petersons' bank account and the $250,000 loan proceeds; and that Jamison knowingly aided and abetted McComb's abusive scheme to take the $250,000.
Jamison argues there is no evidence that he knowingly assisted McComb in taking the $250,000 loan proceeds. But Jamison knew what the loan proceeds would be used for. Any attorney would know it was an inappropriate use of Peterson's funds.
In addition, Jamison took a $4,000 finder's fee. Jamison argues that the finder's fee was paid to him by the lender and was not Peterson's property. But the fee was paid through the loan proceeds. The loan proceeds were Peterson's property.
The judgment is affirmed. Costs are awarded to respondent.
Yegan, J., and Coffee, J., concurred.
NOTES
[1] All statutory references are to the Welfare and Institutions Code unless stated otherwise.
[2] Probate Code section 18100 provides: "With respect to a third person dealing with a trustee or assisting a trustee in the conduct of a transaction, if the third person acts in good faith and for a valuable consideration and without actual knowledge that the trustee is exceeding the trustee's powers or improperly exercising them: [¶] (a) The third person is not bound to inquire whether the trustee has power to act or is properly exercising a power and may assume without inquiry the existence of a trust power and its proper exercise. [¶] (b) The third person is fully protected in dealing with or assisting the trustee just as if the trustee has and is properly exercising the power the trustee purports to exercise."
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279 Pa. Super. 421 (1980)
421 A.2d 271
COMMONWEALTH of Pennsylvania,
v.
Isadore H. BELLIS, Appellant.
Superior Court of Pennsylvania.
Argued September 12, 1979.
Filed July 11, 1980.
Petition for Allowance of Appeal Granted March 13, 1981.
*422 John Rogers Carroll, Philadelphia, for appellant.
Bernard L. Siegel, Deputy District Attorney, Philadelphia, for Commonwealth, appellee.
Before SPAETH, HESTER and WATKINS, JJ.
WATKINS, Judge:
This appeal comes to us from the Court of Common Pleas, Criminal Division, and involves the defendant-appellant's appeal from his convictions of the common law crimes of misfeasance, malfeasance, and nonfeasance in office. Defendant had been charged with conspiracy, extortion and the common law crimes. He was acquitted of the conspiracy and extortion charges. Defendant was tried first in the Municipal Court of Philadelphia County and then appealed his conviction for a de novo trial before the Court of Common Pleas of Philadelphia County. He was tried before a jury and convicted of the common law crimes on March 4, 1977. On September 28, 1977, defendant was sentenced to a term in prison of two (2) to seven (7) years and fined $9,000 plus the costs of prosecution. He now appeals his conviction of the common law crimes.
*423 At defendant's trial it was established that the defendant was an elected member of the City Council of Philadelphia and its majority leader. It was also established that one John Betts was an architect who was interested in obtaining contracts for design work for buildings at the Philadelphia International Airport. At this time one Joseph Daly was an assistant to the Treasurer of Philadelphia Democratic City Committee. Bellis was a member of the Democratic Party, the majority political party in Philadelphia.
In May, 1971, Betts was invited to lunch by Bellis at the Locust Club in Philadelphia. Bellis had told Betts that he wanted Betts "to meet some people from downtown" which Betts understood to mean that he was to meet some people from the Democratic City Committee. This meeting was initiated by Bellis according to Betts' testimony. Bellis also invited Daly to the same lunch. At this time Bellis knew Daly, knew of his position in the Democratic Party, and had known him "long before he had anything to do with anybody at City Committee". At the time of the lunch meeting Daly "was aware that Betts was involved in planning of an airport structure at the International Airport . . . through. . . the grapevine."
During the lunch meeting Bellis left the table. At that point Daly and Betts began discussing Betts' work at the airport. They discussed the amount of the budget for the contract, Betts' fee, and how the work was proceeding. The fee was not to exceed $180,000. Daly then told Betts that it was "customary for architects to give 5% of their fee to the Democratic City Committee". Betts immediately agreed to do this. No details of the pay-off were discussed at that time, Bellis returned to the table, and no further discussion of the contracts took place at that time.
In June of 1971, Betts received a design contract for $5,000. On or about June 28, 1971, Bellis called Betts and requested Betts to give "them some money at this time". Bellis told Betts that he should give "us" $4,000. On June 29, 1971, Betts went to the Philmont Country Club were he gave Bellis an envelope containing $4,000 in cash. Bellis *424 placed the envelope into his pocket. In October of 1971, Betts received the final contract with the City for an additional fee of $175,000.
On July 26, 1972 Bellis phoned Betts and requested an additional $5,000 "contribution" and on July 27, 1972 Betts gave an envelope containing $5,000 to Bellis at the Stouffer Restaurant in downtown Philadelphia bringing the total amount given to Bellis by Betts to $9,000. The cash payments of $9,000 made to Bellis amounted to 5% of the $180,000 engineering design contract fee.
On April 2, 1975, Bellis and Betts had a conversation during which Betts told Bellis that Betts had been informed that there was no record of Betts' giving a donation to the Democratic City Committee. Bellis told Betts that the money had been "spread around the party". It was also established that the Philadelphia City Council had the "final say" as to what was to be approved for capital improvements at the airport.
Defendant's first argument on appeal is that his convictions of the common law crimes should be reversed because of the existence of specific statutory crimes which deal with the conduct of which the defendant was charged. As authority for this proposition the defendant cites former 18 P.S. § 5104 which provides that:
"In all cases where a remedy is provided or duty enjoined, or any thing directed to be done by the penal provisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect."[1]
Thus, if the defendant's actions amount to violations of statutory criminal enactments his convictions of the common law charges of misfeasance, malfeasance, and nonfeasance in office cannot be sustained.
*425 Misfeasance in office is "either the breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive". Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792 (1942). Malfeasance in office has also been defined as the "breach of a positive statutory duty or the performance of a discretionary act with an improper or corrupt motive." McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). Thus, it is clear that the terms malfeasance in office and misfeasance in office are often used to describe the same conduct or at best two different modes of committing the same offense. Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (1975). We will, therefore, use the terms interchangeably.
In Commonwealth v. Dolny, supra, we held that a defendant may be convicted of malfeasance and nonfeasance in office although he is acquitted of bribery and conspiracy because the crime of bribery does not proscribe the same conduct as the common law offenses of misfeasance, malfeasance and nonfeasance in office. We held that the reason for this was because a conviction of bribery may only be sustained where the evidence establishes that the offender accepted or agreed to accept a monetary payment for his action. The common law offenses of which defendant was convicted require only that the actor have an "improper or corrupt motive". This analysis is applicable to the instant case which involved a statutory charge of extortion rather than bribery because the charge of extortion (former 18 P.S. § 4318), as is the case of the crime of bribery, required that the actor receive, take, or agree to receive a "fee or reward" for his conduct which "fee or reward" was not established by law. Thus, it would appear at the outset that the distinction between the statutory crimes of bribery and extortion, on the one hand, and the common law crimes of misfeasance, malfeasance and nonfeasance in office, on the other hand, is the fact that the former (statutory offenses) require, as an element of the offense, that the defendant improperly received or agreed to receive some monetary payment or other "reward" in return for his conduct while in the latter *426 (common law crimes) all that is required is that the actor be motivated by an "improper" or "corrupt" motive.
However, in the case of Commonwealth v. Bellis, 484 Pa. 486, 399 A.2d 397 (1979), the Supreme Court reversed the defendant's conviction of the offenses of malfeasance, misfeasance, and nonfeasance in office, citing former 18 P.S. § 5104 (of the former penal code, 1939 Penal Code, Act of June 24, 1939, P.L. 872, Sec. 1104). In that case the defendant was convicted of bribery and the common law crimes. The Supreme Court reversed the convictions on the common law crimes but affirmed the bribery conviction. The Commonwealth attempts to distinguish that case from the instant case by pointing out that in our case the defendant was found not guilty of extortion (which we have found to be analogous to the crime of bribery for our purposes here as discussed above) and guilty of the common law crimes. This, the Commonwealth argues, strongly indicates that no statutory remedy did in fact exist which was co-extensive with the common law crimes. A close analysis of that opinion, however, reveals no such rationale advanced therein. The Court in that case merely held that since a statutory penalty existed for defendant's misconduct Section 5104 precluded conviction for the common law offenses. The Court stated in its opinion:
"Appellant's fourth contention is that he is not guilty of malfeasance on the grounds that his aforementioned misconduct could only be punished under Section 4667 (the bribery statute) and not under the common law. We agree with this contention."
The Court then went on to cite Section 5104, discussed that section's application to the case of Commonwealth v. Peoples, supra, and reversed defendant's conviction of malfeasance, misfeasance, and nonfeasance in office. In so doing, the court stated that: "A statutory penalty (Section 4667) exists for appellant's misconduct; therefore, pursuant to Section 5104, appellant cannot be punished for his misconduct based in a violation of the common law (malfeasance)." Commonwealth v. Bellis, supra. We interpret this holding *427 to mean that if the defendant could have been convicted of the statutory offense, consistent with the facts adduced during the trial of the case, then he could not also be convicted of the common law offenses. Whether or not he was in fact convicted of the statutory offenses does not matter. In the instant case the facts adduced at the trial were sufficient to enable a jury to convict the defendant of extortion. The evidence reveals that the defendant did in fact personally receive $9,000 in improper cash payments from Betts. The fact that no record of the Democratic City Committee having received this money exists, and that defendant took his wife on a trip to Europe soon after receiving the first $4,000 payment on July 1, 1971, coupled with the fact that it was the defendant, himself who received the payment was certainly sufficient evidence to permit the jury to find that defendant had, in fact, improperly received the money. Therefore, because a statutory offense and not under the common law according to the holding of Commonwealth v. Bellis, supra. For that reason we reverse defendant's conviction for malfeasance, misfeasance and nonfeasance in office.[2]
Judgments of sentence reversed; defendant discharged.
SPAETH, J., files a concurring opinion.
SPAETH, Judge, concurring:
I agree that appellant must be discharged, but as my reasons differ from the majority's I submit this separate opinion.
Following appellant's conviction in Municipal Court of misbehavior in office and his appeal to the lower court for a trial de novo, the Commonwealth filed an information consisting of two counts. The first count charged appellant with misbehavior in office in connection with the $4,000 payment he received from John Betts on June 29, 1971; the *428 second count charged the same offense in connection with the $5,000 payment appellant received from Betts on July 27, 1972. The Commonwealth subsequently filed a bill of particulars informing appellant that he was charged with these offenses because he 1) breached the "[d]uties imposed upon public officials under the Philadelphia Home Rule Charter, Title 351, Pennsylvania Code § 1.1-100 et seq.," specifically those duties set forth in section 10.10-100; 2) "deliberately conveyed the impression to John Betts that he, the defendant, could influence the awarding of a contract regarding the International Terminal at the Philadelphia International Airport"; 3) "deliberately gave the impression to John Betts that he, John Betts, was making a political contribution on two occasions"; and 4) "gave John Betts reason to believe the Joseph Daly was acting as defendant's agent at a meeting at the Locust Club where political contributions were discussed between Joseph Daly and John Betts."[1]
The majority outlines the salient points of the Commonwealth's proof. Viewing that proof in the light most favorable to the Commonwealth, and giving the Commonwealth the benefit of all inferences reasonably arising therefrom, Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980); Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979), I believe the jury was entitled to find that the Commonwealth had proved the allegations set forth in the bill of particulars. The question remains, however, whether that proof constituted proof of misbehavior in office.
*429 In Commonwealth v. Steinberg, 240 Pa.Super. 139, 149-50, 362 A.2d 379, 385 (1976), this court discussed the nature and elements of the offense of misbehavior in office, as follows:
The offense of malfeasance, misfeasance or nonfeasance in office, more commonly called misbehavior in office, is a common law misdemeanor. Commonwealth v. Evans, 190 Pa.Super. 179, 154 A.2d 57 (1959), aff'd mem., 399 Pa. 387, 160 A.2d 407, cert. denied, 364 U.S. 899, 81 S. Ct. 233, 5 L. Ed. 2d 193 (1960); Commonwealth v. Mecleary, 147 Pa. Super. 9, 23 A.2d 224 (1941). The offense has been carefully defined by the courts of this Commonwealth and by legal scholars. 1 N. Kessler, The Law of Criminal Procedure in Pennsylvania 177 (1961); 2 id. 504; R. Perkins, Criminal Law 482-90 (2d ed. 1969). It has been reiterated that "[t]he offense occurs when there is a breach of a positive statutory duty or the performance by a public official of a discretionary act with an improper or corrupt motive. Com. v. Peoples, 345 Pa. 576, 579, 28 A.2d 792 [(1942)]; McNair's Petition, 324 Pa. 48, 55, 187 A. 498 [(1936)]." Commonwealth v. Evans, supra, 190 Pa.Super. at 225, 154 A.2d at 82. Where the performance of a discretionary duty with an improper or corrupt motive is the issue, the courts have clarified the concepts and defined the terms as follows: "A discretionary duty must be exercised with reason as opposed to caprice or arbitrary action; the term discretion `"imports the exercise of judgment, wisdom, and skill, as contradistinguished from unthinking folly, heady violence, and rash injustice."' Commonwealth v. Brownmiller, . . . . 141 Pa.Super. 107, 120, 14 A.2d 907, 913 [(1940)]. In its penal sense misbehavior in office does not encompass mere errors in judgment or departures from sound discretion, but an official must perform those official duties which require the exercise of a sound discretion to the interest of the Commonwealth and not capriciously, arbitrarily, and with a willful and corrupt design. Com. v. Brownmiller, supra . . . . The willful and corrupt motive need not arise from personal benefit." Commonwealth v. Evans, supra, 190 Pa. Super. at 225-26, 154 A.2d at 82 (1959). Accord, Commonwealth *430 v. Schwartz, 210 Pa.Super. 360, 233 A.2d 904 (1967), aff'd mem., 432 Pa. 522, 248 A.2d 506 (1968) (divided court), cert. denied, 398 U.S. 957, 90 S. Ct. 2161, 26 L. Ed. 2d 541 (1970).
The Commonwealth argues that appellant performed a discretionary act with an improper or corrupt motive when he "used his position as a powerful City official" to cause Betts "to question whether or not [his contract with the city] might depend on payment of the sums [requested by appellant]." Commonwealth Brief at 11-12. This argument, however, overlooks the distinction set forth in Commonwealth v. Blatstein, 231 Pa.Super. 306, 317-319, 332 A.2d 510, 515 (1974), between "misconduct of one while in office" and misconduct "in the exercise of the duties of [] office."
In Blatstein, the coordinator of a committee established by the City of Philadelphia to expedite the planning and construction of a new sports stadium was convicted of bribery and misbehavior in office. This court affirmed the bribery conviction, but reversed the conviction of misbehavior in office because the Commonwealth had failed to prove more than the defendant's solicitation of a bribe:
In order to show misconduct in office, it is not sufficient to show that Blatstein solicited or even accepted a bribe. The Commonwealth must demonstrate that Blatstein followed the course of conduct which the bribe sought to secure. As Professor Perkins has said:
"The corrupt receipt of a bribe by an officer, for example, is criminal misconduct of one while in office, but such a recipient is clearly not acting in the exercise of the duties of his office, nor is this wrongful act under color of his office, and bribery has always been recognized as a separate offense. In fact, if an officer corruptly receives a bribe and then corruptly does what he has been bribed to do, he is guilty of both bribery and misconduct in office." (Emphasis added.) R. Perkins, Criminal Law 482 (1969).
Since proof of solicitation of a bribe does not necessarily entail proof of misconduct in office, the Commonwealth *431 had to show that Blatstein acted upon his offer to Sherry in advising the committee. In failing to do so, which the Commonwealth virtually admitted at trial, it failed to prove that Blatstein was guilty of misconduct in office. The Commonwealth having failed in its proof of this necessary, additional element, the lower court erred when it dismissed appellant's motion in arrest of judgment on the indictment charging malfeasance, misfeasance and nonfeasance in office.
231 Pa.Super. at 317-318, 332 A.2d at 515.
Blatstein controls the present case. While the Commonwealth's evidence may have been sufficient to prove that appellant either extorted money from Betts or accepted a bribe,[2] the Commonwealth presented no evidence that appellant committed any act in his position as councilman, or under color of office, in connection with the payments he received from Betts.[3] Indeed, what evidence there was was to the contrary. Betts testified that he never asked appellant to intervene on his behalf with regard to his airport contract; that appellant never volunteered to intervene; that to his knowledge appellant did not intervene; and that he dealt exclusively with representatives of the Aviation Division of the City of Philadelphia's Department of Commerce *432 concerning his contract. William Burns, the Director of Aviation during 1970 and 1971, testified that Betts was hired by the city on the basis of his proven abilities and the recommendation of the airlines that would be leasing space at the terminal; that neither he nor his department was required to consult with city council, or any member thereof, with respect to Bett's hiring; that he in fact did not consult with any councilman or any democratic politician regarding Bett's hiring; that neither appellant nor any other politician ever spoke with him about the hiring; and that the Mayor of Philadelphia appointed the Director of Commerce, Burns's superior. Austin Brough, the Director of Aviation at the time of appellant's trial, testified that in 1971 he was Assistant Director of Aviation, and confirmed Burns's account regarding Betts's hiring. He also testified that while city council was ultimately responsible for the approval of funds for capital improvements at the airport, it was not otherwise involved directly in the expenditure of the funds allocated.
The Commonwealth's proof, therefore, was sufficient to convict appellant of misbehavior in office only if it showed appellant's breach of a positive statutory duty.[4] The Commonwealth argues that the evidence satisfied this requirement by showing appellant's breach of section 10-100 of the Philadelphia Home Rule Charter, which provides:
Councilman Not to Engage in Certain Activities; Penalties.
As provided by statute, no councilman shall solicit, benefit by or be interested directly or indirectly in any contract for the purchase of property of any kind to be paid for from the City Treasury, nor shall he be interested directly or indirectly in any contract for the erection of any structure, or for the supplying of any services to be paid for out of the City Treasury, nor shall he solicit or *433 recommend the appointment of any person to any position in the civil service, nor shall be interfere with the performance of the duties of the members of the Philadelphia Police, or of any other employees in any department, board or commission of the City.
According to the Commonwealth, when appellant received a total of $9,000 from Betts, he acquired an interest in Betts's contract with the City of Philadelphia in violation of this provision. This argument presents several nice statutory construction problems as to the scope of section 10-100's prohibitions.[5] However, even if we assume for present purposes appellant's violation of this provision when he requested and accepted the payments from Betts, appellant's conviction of misbehavior in office was still improper.
As the majority notes, 18 P.S. § 5104 (1963)[6] provides:
In all cases where a remedy is provided or duty enjoined, or any thing directed to be done by the penal provisions of any act of assembly, the directions of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect.
It is settled that section 5104 prohibits the indictment of a person for a common law offense where the legislature has made the alleged misconduct a statutory criminal offense. Commonwealth v. Bellis, 484 Pa. 486, 399 A.2d 397 (1979) (plurality opinion); Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792 (1942); Commonwealth v. Bruno, supra; Commonwealth v. Ackerman, 176 Pa.Super. 80, 106 A.2d 886 (1954), cert. denied, 348 U.S. 951, 75 S. Ct. 438, 99 L. Ed. 743 *434 (1955). See also Commonwealth v. Bausewine, 354 Pa. 35, 46 A.2d 491 (1946); cf. Commonwealth v. Brown, 346 Pa. 192, 29 A.2d 793 (1943); Commonwealth v. Brown, 269 Pa.Super. 150, 409 A.2d 108 (1979); Commonwealth v. Buzak, 197 Pa.Super. 514, 179 A.2d 248 (1962); Commonwealth v. Litman, 187 Pa.Super. 537, 144 A.2d 592 (1958) (policy of the law does not permit prosecutions under general provisions of a penal code when applicable special provisions are available). The Commonwealth does not contest the fact that section 10-100 is a penal provision having the dignity of a statute passed by the General Assembly.[7] It therefore follows that if the Commonwealth wished to prosecute appellant for violating this provision, it was required to charge him with that violation, and not with the common law offense of misbehavior in office. Because it did not charge appellant with violating section 10-100, he may not be held for violating that provision, even though the proof at trial may have been sufficient for the jury to have convicted appellant of that offense had he been properly charged with it. Commonwealth v. Peoples, supra; Commonwealth v. Bruno, supra.
For these reasons I concur in the result reached by the majority.[8]
NOTES
[1] This section was repealed by the Act of December 6, 1972, 18 Pa.C.S.A. § 105.
[2] The Act of December 6, 1972, No. 334, Section I, (18 Pa.C.S.A. § 107(b), effective June 6, 1973), abolished common law crimes by providing that: "No conduct constitutes a crime unless it is a crime under this title or another statute of the Commonwealth."
[1] The Commonwealth was restricted at trial to proving that appellant was guilty of misbehavior in office because of the acts thus set forth in the bill of particulars, and not because of other acts. Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Russell, 261 Pa.Super. 151, 395 A.2d 1365 (1978); Commonwealth v. Bartman, 240 Pa.Super. 495, 367 A.2d 1121 (1976).
It may be noted that although the bill of particulars also alleged that appellant was guilty of misbehavior in office because he breached the duties set forth "in the Pennsylvania Crimes Code of 1939, specifically that portion dealing with Extortion, 18 P.S. § 4318," and set forth in section 10.10-107(3) of the Philadelphia Home Rule Charter, the Commonwealth abandoned these claims at trial.
[2] It is, of course, unnecessary to decide whether the evidence was sufficient to establish these crimes since appellant was acquitted in Municipal Court of extortion and was not charged with bribery.
[3] An act under color of office is defined as
"a pretense of official right to do an act, made by one who has no such right; the use of official authority as a pretext or cover for the commission of some corrupt or vicious act; an act wrongfully done by an officer under the pretended authority of his office."
Commonwealth v. Bruno, 203 Pa.Super. 541, 560, 201 A.2d 434, allocatur refused, 203 Pa.Super. xxxiii (1964), cert. denied, 379 U.S. 965, 85 S. Ct. 656, 13 L. Ed. 2d 558 (1965), quoting Commonwealth v. Channing, 55 Pa.Super. 510, 516 (1914).
Although the Commonwealth correctly asserts that its proof was sufficient to show that appellant used his office in acquiring payments from Betts in the sense that Betts would not have paid appellant had appellant not been a councilman, there was no proof that appellant pretended to an official right to the payments, or used his official authority as a pretext or cover to secure the payments, or otherwise acted under pretended authority of his office.
[4] Many of our cases assume, without explicitly stating, that in order for an official to be convicted of misbehavior in office because of a breach of a positive statutory duty, the breach must be wilful. It is clear, however, that proof of a negligent breach is insufficient. See Commonwealth v. Hubbs (No. 2), 137 Pa.Super. 244, 8 A.2d 618 (1939); Commonwealth v. Brown, 116 Pa.Super. 1, 175 A. 748 (1934); R. Perkins, Criminal Law, Ch. 5, § 3(D)-Misconduct in Office (1957).
[5] The Commonwealth cites no authority for its assertion that a councilman becomes "interested" in a contract within the meaning of section 10-100 when he illegally extorts or bribes a person who contracts with the city. But see generally Commonwealth v. Bruno, supra. Nor has the Commonwealth explained the significance, if any, of the introductory phrase "[a]s provided by statute . . . .," nor the provision's inconsistent use of the terms "solicit," "benefit by," and "interested in."
[6] Repealed by the Act of Dec. 6, 1972, P.L. 1482, No. 334, § 5.
[7] Under section 10-109 of the Philadelphia Home Rule Charter a person who violates section 10-100 may be fined $300, imprisoned 90 days, and removed from office. Thus, section 10-100 is a penal provision, see generally Lower Merion Tp. v. Schenk, 247 Pa.Super. 494, 372 A.2d 934 (1977), and because its enactment was authorized under the Act of April 21, 1949, P.L. 665, § 17, 53 P.S. § 13131 (1957), and article IX, section 2 of the Pennsylvania Constitution, it has the force of criminal legislation passed by the General Assembly. Commonwealth v. Cabell, 199 Pa.Super. 513, 185 A.2d 611 (1962).
[8] It should be emphasized that my conclusion that appellant cannot be convicted of misbehavior in office on the basis of his violation of a statutory offense proceeds from a different rationale than the one found in the majority opinion. The majority cites the plurality opinion in Commonwealth v. Bellis, supra, for the proposition that because appellant could have been convicted of a statutory offense, he could not be convicted of a common law offense. Majority op. at 426-427. Thus, the majority seems to hold that in a case where the Commonwealth's proof establishes both a statutory and a common law offense, a jury may not convict on the common law offense. I do not believe this to be the holding of Bellis. I read Bellis to hold no more than what is set forth in this concurring opinion, i.e., when the Commonwealth's proof establishes nothing more than the breach of a penal statute, the accused may not be convicted of a common law offense that proscribes the same conduct. Where, however, the common law offense proscribes conduct different from the conduct proscribed in the penal statute, the accused may, upon sufficient evidence, be convicted of either or both offenses. See Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (1975).
In the present case, the common law offense of misbehavior in office based upon appellant's violation of section 10-100 of the Philadelphia Home Rule Charter proscribed the same conduct that was proscribed by section 10-100. A difference in the conduct proscribed by statute and common law would have occurred only if section 10-100 was violated by a negligent, non-wilful act. See generally Commonwealth v. Fahey, 156 Pa.Super. 254, 40 A.2d 167 (1944). Although section 10-100 does not explicitly require the element of scienter for there to be a violation, I believe the provision should be construed as implicitly requiring this element. See generally Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980) (SPAETH, J., concurring).
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167 Cal. App. 4th 118 (2008)
CINDY PEREZ, Plaintiff and Appellant,
v.
CITY OF LOS ANGELES et al., Defendants and Appellants.
No. B199810.
Court of Appeals of California, Second District, Division Six.
September 29, 2008.
*120 Diane Marchant for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Gregory P. Orland, Deputy City Attorney, for Defendants and Appellants.
OPINION
YEGAN, J.
Following a hearing before a police board of rights (Board), Cindy Perez (appellant) was terminated as a Los Angeles Police Officer. The Board found her guilty on five counts of misconduct. Appellant filed a petition for a writ of administrative mandate seeking reinstatement. The trial court ordered the issuance of a writ of mandate compelling the chief of police and the City of Los Angeles (respondents) to set aside the Board's guilty finding on count 5 of the complaint. It denied the petition as to the other counts and remanded the matter to the Board for reconsideration of the appropriate penalty. Both parties appeal.
Appellant contends that the trial court erroneously refused to suppress the evidence supporting count 2. Respondents contend that the trial court erroneously suppressed the evidence supporting count 5. We affirm.
The Complaint
The five-count complaint against appellant charged her with the following misconduct: count 1pointing a loaded firearm at Officer Elizabeth King; count 2pointing a loaded firearm at Sergeant Andrew Chase; count 3inappropriately conducting "gun retention training [and] employing improper techniques"; count 4attempting to dissuade Officer King "from reporting that [appellant had] employed improper techniques while training her"; count 5conducting "an inappropriate training exercise when [appellant] returned a knife to an arrestee's pocket and subsequently directed Officer [Adam] Kownacki to search the arrestee."
*121 Facts[1]
On December 28, 2003, appellant was working with and training Officer King, a recent graduate of the police academy. Appellant believed that King had allowed a suspect to get too close to her. Thereafter, she pulled out her loaded firearm and pointed it at King's "head and neck area." The barrel of the firearm was approximately two to three feet away from King's neck. The firearm was cocked and appellant's finger was on the trigger. Appellant said: "[T]his is how fast a suspect can come up on you and pull a gun out and shoot you." (Count 1.)
Immediately after the above incident, appellant reholstered her weapon and said that she was "going to do weapon retention training." Appellant grabbed King's firearm and tried to remove it from the holster. King slapped her hand on top of appellant's hand, turned around, and touched appellant's elbow. This was the technique that King had been taught at the police academy. Appellant said: "[T]hat's not how it's done. Let me show you." At appellant's direction, King tried to remove appellant's firearm from the holster. Appellant "smacked [King's] hand and stepped on [her] right foot and elbowed [her in the] stomach . . . ." (Count 3.)
After the weapon retention training, appellant told King, "[O]h, and this doesn't go anywhere. Don't tell anyone." (Count 4.)
Lieutenant Lydia Diaz discussed the above incidents with King. She then ordered appellant to come to the station. When appellant arrived, Diaz and Sergeant Andrew Chase interrogated her inside an office. Diaz asked appellant how she had pointed her firearm at King. Appellant said, "I did this," and she pulled out her loaded firearm and pointed it at Chase "[b]etween [his] lower stomach and [his] chin." Chase was approximately three and one-half to four feet away from appellant. In no uncertain terms, Diaz told appellant to reholster her weapon. Appellant did so. (Count 2.)
On December 31, 2003, appellant searched a handcuffed and intoxicated arrestee at the police station. She found a knife, which she surreptitiously returned to the arrestee's pocket. Appellant then directed her partner, Officer Kownacki, to search the arrestee. She wanted to know if Kownacki "could find it [the knife]." He found the knife inside "a front pocket on [the arrestee's] chest." While being interrogated at the station by Diaz and Chase, appellant disclosed the knife incident. But for the interrogation respondents *122 would never have learned of the incident. Kownacki did not know that appellant had previously found the knife. (Count 5.)
Suppression of Physical Misconduct During an Investigation
Appellant's appeal concerns only count 2 of the complaint: pointing her loaded firearm at Sergeant Chase during the interrogation. Appellant contends that the trial court should have suppressed the evidence supporting this count because her conduct was in response to questioning that violated the Public Safety Officers Procedural Bill of Rights Act (POBRA). (Gov. Code, § 3300 et seq.)[2] As we shall explain, the acronym POBRA is not a magic word which makes physical misconduct disappear.
(1) POBRA "provides procedural guarantees to public safety officers under investigation. [Citation.]" (City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal. App. 4th 1506, 1512 [67 Cal. Rptr. 2d 775].) If a public safety officer is interrogated in violation of these procedural guarantees, the trial court has discretion to "render appropriate injunctive or other extraordinary relief to remedy the violation...." (§ 3309.5, subd. (d)(1); see also City of Los Angeles v. Superior Court (Labio), supra, 57 Cal.App.4th at p. 1516; Hanna v. City of Los Angeles (1989) 212 Cal. App. 3d 363, 371-375 [260 Cal. Rptr. 782].) "We may intervene only if there has been an abuse of discretion. [Citation.]" (City of Los Angeles v. Superior Court (Labio), supra, 57 Cal.App.4th at p. 1516.)[3]
*123 The trial court refused to exclude evidence of appellant's act of pointing her loaded firearm at Sergeant Chase during the interrogation. The court reasoned: "Although this action occurred during an interrogation which was conducted in a questionable manner, the remedy of suppression protects statements, not actions, and is [in]appropriate here because of the serious nature of the misconduct."
We review the trial court's POBRA ruling for abuse of discretion. (Williams v. City of Los Angeles (1988) 47 Cal. 3d 195, 204 [252 Cal. Rptr. 817, 763 P.2d 480]; City of Los Angeles v. Superior Court (Labio), supra, 57 Cal.App.4th at p. 1516.) "`"[D]iscretion may not be exercised whimsically and, accordingly, reversal is appropriate `where no reasonable basis for the action is shown.' [Citation.]" [Citations.]' [Citation.]" (Williams v. City of Los Angeles, supra, 47 Cal.3d at p. 204.)
The trial court did not abuse its discretion. The exclusion of statements made by appellant provided adequate deterrence of improper interrogation. "[W]e see no appropriate deterrent value in precluding use of [evidence of appellant's physical misconduct], as that ban could not provide any additional incentive to police departments" to comply with POBRA. (Williams v. City of Los Angeles, supra, 47 Cal.3d at p. 204.) Neither Diaz nor Chase could have foreseen that appellant would point her loaded firearm at Chase. Appellant was asked a question which called for a verbal response. She was not asked to demonstrate with the use of a loaded firearm. By deliberately pointing her loaded firearm at Chase, appellant subjected him to a risk of great bodily injury or death. This was an independent act of physical misconduct. No police officer should be shielded from discipline for such life-threatening misconduct.
*124 Fruit of the Poisonous Tree
Respondents' cross-appeal concerns only count 5 of the complaint: appellant conducted "an inappropriate training exercise when [she] returned a knife to an arrestee's pocket and subsequently directed Officer Kownacki to search the arrestee." At the administrative hearing, appellant and Kownacki were called as witnesses by the Department and testified about this incident. Their testimony was the basis for the Board's guilty finding on count 5. The trial court ordered the count stricken because "there is no evidence in the record that Respondents received the information which supports this count from anyone other than [appellant] during her interrogation."
The trial court did not abuse its discretion and was not precluded from applying a "fruit of the poisonous tree" analysis as the appropriate remedy. (See, e.g., Wong Sun v. United States (1963) 371 U.S. 471 [9 L. Ed. 2d 441, 83 S. Ct. 407].) Section 3309.5, subdivision (d)(1) is broadly written and gives the trial court the flexibility to provide appropriate relief. Respondents conceded below that the exclusion of statements made by appellant during her interrogation was an appropriate remedy for the Department's failure to comply with POBRA. (See fn. 3, ante.) Thus, a reasonable basis existed for suppressing the product of those statements: appellant's and Kownacki's testimony concerning the knife incident. That incident came to light only because of appellant's statements. The deterrent effect of excluding her statements would have been defeated if the Department had been permitted to prove count 5 through appellant's and Kownacki's testimony at the administrative hearing.
Conclusion
(2) Appellant's training methods, however well intended, cannot be condoned. She violated two of the four cardinal rules of firearm safety: "Never allow the muzzle of your firearm to point toward anything you do not intend to destroy. Keep your finger off the trigger until your sights are aligned with the target and you have made the conscious mental decision to shoot." (Summary of California Gun Laws & Basic Safety Rules, CRPA Foundation (2006) pp. 20-21.) The Los Angeles Police Department firearms safety manual is to the same effect although phrased slightly differently. "Never" means never and there are no exceptions to these rules. It is a legitimate law enforcement training technique to demonstrate how quickly a suspect can assault a peace officer with a firearm. Such a demonstration should be accomplished with something other than a loaded firearm. And, of course, it is never appropriate for a peace officer to point a loaded firearm at a fellow peace officer conducting a misconduct investigation, not even to demonstrate what happened.
*125 The judgment is affirmed. The parties shall bear their own costs on appeal.
Gilbert, P. J., and Perren J., concurred.
NOTES
[1] We summarily recite the relevant facts as credited by the Board. We do observe, however, that appellant denied ever removing her firearm from her holster in connection with training Officer King. She admitted drawing her firearm from its holster at her interrogation but denied pointing it at Sergeant Chase.
[2] All further statutory references are to the Government Code.
[3] Respondents contend that POBRA does not apply to appellant's interrogation. They rely on section 3303, subdivision (i), which provides that the POBRA safeguards do "not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer . . . ." (See Steinart v. City of Covina (2006) 146 Cal. App. 4th 458 [53 Cal. Rptr. 3d 1].)
Respondents are precluded from contesting the applicability of the POBRA safeguards. Both before the Board and in the trial court, they conceded that the POBRA safeguards applied and had been violated. "`A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.' [Citation.]" (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal. App. 4th 666, 676 [69 Cal. Rptr. 3d 888]; see also Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal. App. 3d 886, 894 [236 Cal. Rptr. 794] ["It is axiomatic that judicial review is precluded unless the issue was first presented at the administrative level."].)
At the beginning of the administrative hearing, the Los Angeles Police Department (Department) advocate stated: "The Department definitely concedes that the defense has a standing, compelling and colorable argument that the Government Code was not complied with in this particular case, and for that reason the Department is going to proceed in this matter without using the statements made by [appellant] during that interview." "We agree their [Diaz's and Chase's] investigation wasn't handled properly in conformance with the Government Code." The advocate told the Board that the Department would adhere to City of Los Angeles v. Superior Court (Labio), supra, 57 Cal. App. 4th 1506 (statements taken in violation of POBRA cannot be used in the case-in-chief but can be used for impeachment).
Based on the advocate's representations and its own research, the Board suppressed statements made by appellant during the interrogation. However, pursuant to Labio, it allowed the statements to be used to impeach her testimony at the administrative hearing.
In the trial court respondents noted that, at the administrative hearing, the Department had "acknowledged" that the interrogation of appellant "was improper, in violation of Government Code section 3303." Respondents stated that "the Department [had] conceded the proper remedy for this violation be exclusion of statements made during that interrogation . . . ."
In their appellate brief respondents recognize that they assumed below that the POBRA safeguards had been violated: "The parties and the Board of Rights . . . from the outset of the proceedings . . . assumed the POBRA was violated." "Subsequently, at the administrative writ proceedings, the parties and the court again mechanically presumed that the Diaz/Chase meeting was an `illegal interrogation.'"
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167 Cal. App. 4th 1166 (2008)
THE PEOPLE, Plaintiff and Appellant,
v.
MICHAEL JOHN BERGIN, Defendant and Respondent.
No. B200999.
Court of Appeals of California, Second District, Division Eight.
October 27, 2008.
*1167 Steve Cooley, District Attorney, Patrick D. Moran, Phyllis Asayama and Cassandra Hart-Franklin, Deputy District Attorneys, for Plaintiff and Appellant.
Doherty & Catlow, John Doherty and Paul Sowa for Defendant and Respondent.
*1168 OPINION
COOPER, P. J.
SUMMARY
The People appeal from an order requiring Michael John Bergin, as a condition of probation, to pay restitution to victim Jennifer Armstrong in the amount of $36,900.39 for medical expenses. The People contend the restitution amount should have been $138,667.03 (the amount billed by Armstrong's medical providers) rather than $36,900.39 (the amount the medical providers accepted from Armstrong's insurer as full payment for their services, plus the deductible paid by Armstrong). Finding no merit in the People's contention, we affirm the restitution order.
FACTUAL AND PROCEDURAL BACKGROUND
Bergin was charged in a felony complaint with violations of the Vehicle Code in connection with an incident that occurred on July 16, 2004. Bergin was turning left at the corner of Fountain Avenue and Crescent Heights Boulevard in Los Angeles, and his car struck pedestrian Jennifer Armstrong. Armstrong suffered injuries, including a fractured left knee requiring two surgeries. On March 10, 2005, Bergin entered a plea of nolo contendere to a charge of driving with a blood alcohol level of 0.08 percent or more and causing injury to another person. (Veh. Code, § 23153, subd. (b).) He was convicted and placed on formal probation for 36 months. Conditions of probation included making restitution to Armstrong.
Twenty-two months later, on January 8, 2007, Armstrong filed a brief requesting restitution in the amount of $150,667.03, a sum which included $138,667.03 for medical expenses. Meanwhile, during the time between Bergin's plea in 2005 and the restitution hearings in 2007, Armstrong brought a civil action against Bergin. She obtained a judgment in the sum of $91,262.02. Of that amount, $36,744.24 was for medical expenses. (The jury awarded $129,269.53 in economic damages for medical expenses, and the trial court reduced the amount to $36,744.24. The reduction was in accordance with Hanif v. Housing Authority (1988) 200 Cal. App. 3d 635, 640 [246 Cal. Rptr. 192] (Hanif) [an injured plaintiff may not recover from the tortfeasor more than the actual amount she paid, or for which she incurred liability, for medical services].)
*1169 A restitution hearing was held on February 9, 2007, at which the trial court expressed its tentative intention to "follow the civil judgment," but gave the parties an opportunity to brief the point. After hearing arguments at two further hearings, the trial court issued an order requiring Bergin to pay restitution in the sum of $36,900.39 for medical expenses. While recognizing it could disregard the civil court judgment, the court observed: "Why shouldn't I follow it so that we can have consistent decisions, consistent verdicts? This case realistically we should have had a restitution hearing two years ago. [¶] ... [¶] So part of the problem is that everybody sat on their rights waiting on the civil court to take action [and] when that outcome wasn't satisfactory[,] [i]t's coming back here. That doesn't seem to me to be a good solution either. So that's why it seems to mewe want Ms. Armstrong to be whole, and it seems to me she should be made whole from the standpoint of economic losses if I make the order that I'm going to make. I don't see how she would not be 100 percent compensated."
The People filed a timely appeal from the trial court's order.
DISCUSSION
The People contend the trial court should have set restitution in the amount billed by Armstrong's medical providers. According to the People, the plain language of the restitution statute, as interpreted in People v. Birkett (1999) 21 Cal. 4th 226 [87 Cal. Rptr. 2d 205, 980 P.2d 912] (Birkett) and further explained in People v. Hove (1999) 76 Cal. App. 4th 1266 [91 Cal. Rptr. 2d 128] (Hove), precludes the court from ordering "less than full restitution merely because the victim's insurer has adjusted downward the medical costs it would pay." But the People's argument assumes the very point at issue: whether the court ordered "less than full restitution" when it ordered Bergin to pay Armstrong the amount her insurers actually paid for medical expenses, rather than the amount "actually incurred by Armstrong's medical providers." We conclude the trial court fully complied with the statute's mandate to "order full restitution" of Armstrong's "economic loss as a result of [Bergin's] conduct...." (Pen. Code, § 1202.4, subd. (f).)
(1) Penal Code section 1202.4 contains an express statement of the Legislature's intent: "that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from *1170 any defendant convicted of that crime."[1] (§ 1202.4, subd. (a)(1).) The restitution order "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct...." (§ 1202.4, subd. (f)(3).) Only a victim is entitled to restitution; the victim's insurer cannot obtain restitution from a criminal defendant. (Birkett, supra, 21 Cal.4th at p. 229 [insurers do not become direct victims by reimbursing crime losses under the terms of their policies; victim has the right to restitution based on the full amount of her losses "without regard to full or partial recoupments from other sources"].)
In our view, the only question presented by this case is whether Armstrong "incur[red] any economic loss" for medical expenses beyond the $36,900.39 the trial court ordered Bergin to pay her. If she did, then the trial court abused its discretion in failing to comply with the statutory mandate to fully reimburse her for economic losses. But we can detect no basis for concluding that Armstrong incurred any other economic loss beyond that identified in the trial court's order. The People say Bergin must pay restitution in the amount "actually incurred by Armstrong's medical providers," but of course the statute says nothing of the sort. Indeed, Armstrong's medical providers agreed with Blue Cross to accept the amounts Blue Cross paid on Armstrong's behalf; neither Armstrong nor her insurer expended more than the trial court ordered to be paid to Armstrong as restitution.[2]
The People nonetheless insist that the trial court was required to order restitution in the amount billed by Armstrong's medical providers, even though neither Armstrong nor her insurers paid that amount. The People rely on Hove, supra, 76 Cal. App. 4th 1266, where the court upheld a restitution order requiring the defendant to pay the victim "the full amount of the losses caused by his crime," even though the victim had no actual economic losses, because all his medical expenses were paid by Medi-Cal or Medicare benefits. (Id. at p. 1272.) Further, the trial court "used the claims billed amount ($286,565.92) rather than the total amounts which had actually been paid by the date of the computer run ($89,054.34)." (Id. at p. 1274.)
Hove does not assist the People. First, Hove is merely an application of the principle stated in Birkett: "the immediate victim of the probationer's crime *1171 was entitled to receive restitution `directly' from the probationer for the full amount of the loss caused by the probationer's criminal conduct," and "such reparation should go entirely to the individual or entity the offender had directly wronged, regardless of that victim's reimbursement from other sources." (Birkett, supra, 21 Cal.4th at pp. 245, 246, italics omitted.) Second, the trial court had good reasons for ordering restitution in the amount of the "claims billed," rather than the amount actually paid by Medi-Cal or Medicare as of the date of the computer report presented to the trial court. The victim in Hove was totally incapacitated and in a vegetative state as a result of the defendant's crime, and would always require long-term care in a subacute nursing facility. (Hove, supra, 76 Cal.App.4th at p. 1268.) The trial court, in ordering restitution in the higher amount (claims billed instead of amount paid), noted that "there will be continuing care costs beyond the date of the computer run. Obviously, if [the victim] remains in a vegetative state the rest of his life, as expected, the costs caused by defendant's conduct will far exceed the amount of the restitution actually ordered." (Id. at pp. 1274-1275.) The Court of Appeal accordingly found the trial court did not abuse its discretion in determining restitution on the basis of the claims amounts billed to Medi-Cal (id. at p. 1275)a conclusion with which it is difficult to disagree. In any event, Hove does not support the proposition that a trial court must order restitution in amounts billed by medical providers, regardless of whether the victim or her insurers actually incurred, or might in future incur, those expenses.
(2) The People also assert that it was error for the trial court to rely on Hanifwhich holds that an injured plaintiff may not recover from a tortfeasor more than the actual amount of medical expenses she paid or for which she incurred liabilitybecause Hanif was a civil case analyzing tort law. (Hanif, supra, 200 Cal.App.3d at p. 640.) But the civil or criminal nature of a case does not render the principles adduced in the case inapplicable in any other context. Indeed, the Supreme Court has analogized restitution in civil cases with restitution in criminal cases. (People v. Giordano (2007) 42 Cal. 4th 644, 658 [68 Cal. Rptr. 3d 51, 170 P.3d 623] [the object of restitution is the same in the context of a criminal conviction as it is under unfair competition law, that is, to restore the economic status quo]; see also People v. Hamilton (2003) 114 Cal. App. 4th 932, 944 [8 Cal. Rptr. 3d 190] ["[t]here is no reason why that same principle of tort law [the collateral source doctrine] should not apply to restitution for crime victims"].) Just so here: there is no reason why the Hanif principlethat "an award of damages for past medical expenses in excess of what the medical care and services actually cost constitutes *1172 overcompensation" (Hanif, supra, 200 Cal.App.3d at p. 641)should not be applied in a criminal restitution case.
Finally, we observe that in analogous circumstancesa restitution order in a juvenile offender caseanother court reached the same conclusion we do here. In In re Anthony M. (2007) 156 Cal. App. 4th 1010 [67 Cal. Rptr. 3d 734], the juvenile court ordered the minor to pay victim restitution for medical expenses based on the amount billed by the victim's health care provider, rather than on the amount actually paid by Medi-Cal.[3] (156 Cal.App.4th at p. 1013.) The Court of Appeal reversed the order, holding that, because the victim was only liable for the amount expended by Medi-Cal, "the juvenile court erred by ordering victim restitution for past medical expenses in excess of the actual amount expended or incurred." (Id. at p. 1014, 1017 [restitution order must fully reimburse the victim for economic losses incurred as a result of the juvenile's criminal conduct, without regard to potential reimbursement from a third party insurer, but the order is not intended to provide the victim with a windfall].)[4]
(3) In sum, Penal Code section 1202.4 requires restitution "directly from [the] defendant" of "any economic loss" as a result of the defendant's crime. (§ 1202.4, subd. (a)(1).) Restitution is to be without regard to the victim's reimbursement from other sources. (Birkett, supra, 21 Cal.4th at p. 246.) The restitution ordered is to be "sufficient to fully reimburse the victim ... for every determined economic loss incurred as the result of the defendant's criminal conduct...." (§ 1202.4, subd. (f)(3).) Neither Armstrong nor her insurers incurred any economic loss beyond the amount identified in the trial court's restitution order. Like the trial court, we find it impossible to see any basis for concluding that Armstrong has not been "100 percent compensated" by payment of the amount specified in the trial court's order.
*1173 DISPOSITION
The order is affirmed.
Rubin, J., and Flier, J., concurred.
NOTES
[1] Further statutory references are to the Penal Code, unless otherwise specified.
[2] The People repeatedly imply that amounts billed by medical providers constitute "the victim's actual costs incurred...." But "incur" means "to become liable or subject to" (Webster's 9th New Collegiate Dict. (1989) p. 611), and there is no suggestion in the record that Armstrong was at any time liable for the amounts billed by her medical providers.
[3] The court applied Welfare and Institutions Code section 730.6, "which is the parallel provision [to restitution requirements for adult offenders] applicable to juvenile offenders." (In re Anthony M., supra, 156 Cal.App.4th at p. 1016.) In like manner as Penal Code section 1202.4, Welfare and Institutions Code section 730.6 provides that it is the Legislature's intent that a victim "who incurs any economic loss as a result of the minor's conduct shall receive restitution directly from that minor," and a restitution order "shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct...." (Welf. & Inst. Code, § 730.6, subds. (a)(1), (h).)
[4] The People say the rationale of In re Anthony M. is not applicable because the case involved Medi-Cal, not private insurance. While, by law, final payment by Medi-Cal to a medical provider constitutes payment in full, the People say there is no law precluding health care providers who accept private insurance from "collect[ing] any unpaid balance from a patient who recovers from a third-party criminal wrongdoer, depending upon their plan or policy provisions." But the People point to no such "plan or policy provisions" in this case, and we therefore think it is safe to assume there are none; certainly none was presented to the trial court.
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167 Cal. App. 4th 1428 (2008)
RICK AUERBACH, as Assessor, etc., Plaintiff and Appellant,
v.
LOS ANGELES COUNTY ASSESSMENT APPEALS BOARD NO. 2, Defendant and Respondent;
CKE ASSOCIATES, Real Party in Interest and Respondent.
No. B201617.
Court of Appeals of California, Second District, Division Five.
October 30, 2008.
*1430 Raymond G. Fortner, Jr., County Counsel, and Albert Ramseyer, Principal Deputy County Counsel, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Dreier Stein Kahan Browne Woods George, Eric M. George, Marta B. Almli and Ira Bibbero for Real Party in Interest and Respondent.
OPINION
MOSK, J.
INTRODUCTION
Plaintiff and appellant Rick Auerbach, in his capacity as the Los Angeles County Assessor (Assessor), levied, i.e., enrolled,[1] a property tax assessment *1431 on a business jet aircraft owned by real party in interest CKE Associates (CKE) that included a hypothetical sales tax as an element of value. CKE appealed the assessment to the respondent Los Angeles County Assessment Appeals Board No. 2 (Appeals Board). The Appeals Board found that CKE's aircraft was exempt from sales tax based on its use by a common carrier, that the Assessor therefore improperly included the sales tax figure as an element of value, and that the assessment should be reduced accordingly. The Assessor filed a petition for a writ of administrative mandamus in the trial court seeking to overturn the decision of the Appeals Board. The trial court denied the petition.
On appeal from the judgment of the trial court, the Assessor argues that the use of CKE's aircraft as an on-demand, unscheduled air taxi did not qualify it for the common carrier exemption from sales tax. In the alternative, the Assessor contends that there is no evidence in the administrative record that CKE's aircraft was operated in a manner that qualified it for the common carrier exemption as of the January 2004 valuation date.
We hold that (i) the use of CKE's aircraft as an unscheduled air taxi qualified it under the definition of a common carrier, even though the aircraft was not a commercial aircraft used for scheduled airline operations; (ii) based on its use by a common carrier, CKE's aircraft was exempt from sales tax; (iii) the Assessor did not carry his burden of proof to show that CKE's aircraft was not operated by a common carrier as of the January 2004 valuation date; and (iv) an amount attributed to sales tax should not have been included in the Assessor's valuation of CKE's aircraft. We therefore affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 1999, CKE purchased a 1989 "Gulfstream Aerospace G-IV" business jet aircraft, serial No. 1099 (aircraft) from Gulfstream Aerospace Corporation in Savannah, Georgia for $19.2 million. CKE entered into an agreement with Elite Aviation, LLC (Elite), which had an "Air Carrier Certificate" authorizing it "to operate as an air carrier and conduct common carriage operations in accordance with said Act [Federal Aviation Act of 1958]." Pursuant to the agreement, Elite would charter the aircraft to third parties on behalf of CKE, which did not have an air carrier certificate. CKE also authorized another company comparable to Elite, AVJet Corporation (AVJet), to operate the aircraft under the same federal regulations applicable to Elite. It is not uncommon for private individuals or companies owning corporate jets, as here, to enter into agreements with charter companies to charter the jets for use by third parties when the owners are not using the jets.
*1432 In April 2000, the State Board of Equalization (SBE) sent CKE a letter stating, "The State Board of Equalization administers the Sales and Use Tax Law.[2] The purchase of an aircraft for use, storage, or other consumption in this state is subject to sales or use tax. A purchase from a licensed dealer is subject to sales tax payable by the dealer directly to the Board of Equalization. All other purchases are subject to use tax payable by the purchaser. There is no indication in our records that your purchase was a dealer sale. Therefore, your purchase appears subject to use tax. [¶] If you made your purchase through a broker and did not pay use tax, or your purchase was from a private party, you must complete the enclosed return form and mail it with the payment of the use tax due. The enclosed instructions contain information regarding possible exemptions from the use tax." (Boldface omitted.)
CKE responded by filing a "use tax return for aircraft" seeking an exemption from use tax as a common carrier. In January 2001, the SBE sent CKE a letter requesting documentation that would "establish that the principal use of the aircraft was as a common carrier during the first twelve months of operational use."[3] CKE replied in February 2001 with a letter that enclosed "the information that [the SBE] requested in [its] letter dated January 24, 2001." According to CKE, "[o]ut of the 521.6 operational hours [that the aircraft flew in the first 12 months of use], 329.0 hours were Charter hours." In May 2001, the SBE sent CKE a letter advising that the "information received [from CKE] has enabled [the SBE] to close [CKE's] Consumer Use Tax file . . . ."
*1433 In October 2004, the Assessor sent CKE a "Notice of Enrollment of Escape Assessment"[4] for the year 2004a year in which an assessment presumably had already been made. The amount of the assessment was $1,025,000. On November 16, 2004, the Assessor enrolled the escape assessment and notified CKE of its right to appeal. According to CKE, the assessment was based on "so called underreported costs" that consisted of a "theoretical sales tax on the value of the aircraft."
In January 2005, CKE filed an "Application for Changed Assessment 2004/2005" in which CKE contended that because "the aircraft purchase was exempt from California sales or use tax and no California sales or use tax have [sic] ever been payable on this aircraft . . . there is no justification in fact or law to impose a property tax based on a theoretical sales or use tax which has never been assessed or paid."
CKE also requested an opinion from the SBE regarding the propriety of the escape assessment on its aircraft. The SBE provided the following opinion: "[W]e conclude that [CKE's] aircraft [was] exempt from sales and use tax when [it was] purchased and when [it was] valued [by the Assessor] so long as [CKE] is a common carrier as defined and implemented by the California Code of Regulations, Title 18, section 1593."
The Appeals Board held a hearing on CKE's application for a change in the escape assessment. CKE appeared through its tax agent, David Lucero, who introduced several of the documents discussed above into the record, including the correspondence with the SBE showing that CKE had established an exemption from use tax as a common carrier in 2001 and the opinion letter from the SBE stating that CKE's aircraft should be valued without including sales tax. In addition, Mr. Lucero presented excerpts from sections of the Assessors' Handbook issued by the SBE for use by the local boards of equalization and assessors.[5] Those excerpts stated that because aircraft operated by common carriers are exempt from sales or use tax, they *1434 should be valued without any sales tax component.[6] Mr. Lucero also introduced the "Air Carrier Certificates" that authorized Elite and AVJet to operate CKE's aircraft as an air carrier. On cross-examination, Mr. Lucero admitted that CKE was not in the "aircraft business" and that he was unaware of "the line of business" in which CKE was engaged.
Carol Ruwart, senior tax counsel with the SBE's legal department, opined that all aircraft operated by air carriers are equally situated and should be treated for purposes of property tax assessment as being at the same "trade level."[7] According to Ms. Ruwart, "the common carrier exemption creates essentially a trade level of its own, a subgroup." Ms. Ruwart concluded that so long as an "aircraft is operated in a manner . . . that qualifies as a common carrier . . . sales tax should not be an element of value."
The Assessor's supervising appraiser for the "Marine & Aircraft" section, Ira Litchman, explained that the Assessor considers only two trade levels for aircraftcommercial carriers such as "Delta, United, [and] Southwest" and general aviation aircraft. The aircraft of commercial carriers are valued using a "methodology based on the amount of time in the county, landings and take *1435 offs . . . [and] ground time . . . ."[8] General aviation aircraft are assessed at 100 percent of market value using "the aircraft blue book price digest" and "various adjustments that are required." Normal adjustments for general aviation aircraft, including CKE's aircraft, include "adjustments for engine and airframe hours . . . maintenance service plans . . . a 10% reduction off the market value in blue book guides to account for . . . an average condition for the aircraft and . . . sales tax . . . ." According to Mr. Litchman, a "common carrier" is generally understood to be a commercial airline, not a charter company, and therefore the common carrier exemption from sales or use tax applied only to commercial airlines.
Mr. Litchman indicated that he and his staff researched CKE and determined that it was formed by Michael Ovitz and that it was composed of four separate companies that represented artists and persons in the entertainment industry. Mr. Litchman believed the aircraft was a business jet owned by CKE and that CKE was not a commercial air carrier or a "charter business."
Mr. Litchman determined from the Federal Aviation Administration's Web site that CKE leased the aircraft to Elite "to charter [the] aircraft out." He opined that a majority of the corporate jets in the county are privately owned, but leased to charter companies to use when the owners are not using them to help defray the costs associated with maintenance and operation of the aircraft.
Mr. Litchman asserted that there was no evidence that CKE's aircraft was being operated by a common carrier as of the "lien date"[9] in issue, January 1, 2004. Instead, it appeared to him that the aircraft was exempted from sales or use tax at the time of its purchase in 1999 because it was purchased out of state, not because CKE was a common carrier. He also understood that *1436 CKE's aircraft was not a "certificated aircraft," as that term is used in Revenue and Taxation Code section 1150, because, based on his understanding, that section refers to commercial airlines.
The Appeals Board issued its findings of fact and noted that CKE "agreed to all of the elements of the Assessor's calculation [of the value of CKE's aircraft] except the sales tax trade level adjustment." The Appeals Board made the following findings: "The Board finds that the Assessor's primary basis for finding that this aircraft should have a sales tax component added is not justified. [¶] The Assessor agrees that the subject aircraft is a certified common carrier, but that it is an unscheduled air taxi, the Assessor has relied on Revenue and Taxation Code Section 1154 C. The Board finds that the Assessor's reliance on this section is ill founded. The Board believes that this code section is intended to only differentiate between scheduled commercial carriers and air taxis for the methodology to be use [sic] for allocation purposes. [¶] The Board agrees with letters and testimony of the [SBE] that as long as this aircraft is continued to be used as a common carrier it is exempt from the addition of sales tax as component of value. [¶] The Board finds that the Assessor is correct that he may question that the use of the aircraft still meets the standards set by the [SBE] to be a common carrier as defined by Regulation 1593 on the annual lien date. [¶] In this matter, the Assessor is wrong that the Applicant has the burden of proof. The 2004 addition of sales tax was by a roll change and the Assessor has the burden. The Assessor presented no evidence that the aircraft was not still being used as a common carrier. [¶] Therefore, the Board finds for a total value of $11,562,200."
The Assessor filed a petition for writ of administrative mandamus in the trial court challenging the Appeals Board's decision on the valuation issue. The trial court agreed with the Appeals Board that the Assessor had the burden of proof in the administrative proceeding, and denied the petition. The trial court reasoned that the "regulation defines a common carrier as, `Any person who engages in the business of transporting persons or property for hire or compensation and who offers his or her services indiscriminately to the public or to some portion of the public.' 18 CCR section 1593(a)(2). The decision of the Appeals Board is supported by substantial evidence in the administrative record and is not contrary to law. The Assessor has failed to carry his burden of proof that the aircraft is not being used as a common carrier or that the price of the aircraft, if purchased by [CKE] on the valuation date, would not be exempt from sales tax."
The trial court entered judgment in favor of CKE. The Assessor timely filed a notice of appeal from the judgment.
*1437 DISCUSSION
A. Standard of Review
"The nature of an issue on appeal determines the appellate court's standard of review in an administrative mandamus case. Questions of law . . . are given a de novo review . . . . (JKH Enterprises[, Inc. v. Department of Industrial Relations (2006)] 142 Cal.App.4th [1046,] 1058, fn. 11 [48 Cal. Rptr. 3d 563].) [¶] In examining the findings in a [Code of Civil Procedure] section 1094.5 case, reviewing courts apply the substantial evidence test. That test is applied to the trial court's findings if a fundamental vested right is involved or substantially affected and the trial court exercised its independent judgment in examining the administrative decision. (Bixby v. Pierno (1971) 4 Cal. 3d 130, 143, fn. 10 [93 Cal. Rptr. 234, 481 P.2d 242].) On the other hand, if no fundamental vested right presents in the case and the trial court applied the substantial evidence test, then the reviewing court's task is the same as the trial court'sexamination, under the substantial evidence test, of the administrative agency's findings. (JKH Enterprises, supra, 142 Cal.App.4th at p. 1058.) When an appellate court examines the administrative findings and determines they are supported by substantial evidence, the court then determines whether those findings support the administrative order or decision. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 514-515 [113 Cal. Rptr. 836, 522 P.2d 12].)" (Antelope Valley Press v. Poizner (2008) 162 Cal. App. 4th 839, 851 [75 Cal. Rptr. 3d 887].)
"`"[I]n an administrative mandamus action where no limited trial de novo is authorized by law, the trial and appellate courts occupy in essence identical positions with regard to the administrative record, exercising the appellate function of determining whether the record is free from legal error. [Citations.]" (Honey Springs Homeowners Assn. v. Board of Supervisors (1984) 157 Cal. App. 3d 1122, 1135, fn. 10 [203 Cal. Rptr. 886].) Thus, the conclusions of the superior court, and its disposition of the issues in this case, are not conclusive on appeal. (Lewin v. St. Joseph Hospital of Orange (1978) 82 Cal. App. 3d 368, 387 [146 Cal. Rptr. 892][.])' (Orinda Assn. v. Board of Supervisors (1986) 182 Cal. App. 3d 1145, 1160 [227 Cal. Rptr. 688].)" (Stolman v. City of Los Angeles (2003) 114 Cal. App. 4th 916, 922 [8 Cal. Rptr. 3d 178].)
B. Burden of Proof
The parties disagree as to which of them had the burden of proof before the Appeals Board. The Assessor contends that under California Code of *1438 Regulations, title 18, section 321,[10] he merely had the burden of production, which he satisfied by providing the Appeals Board with "the factual detail of the challenged assessments, together with an analysis of the law and applicable public policy." CKE contends that Revenue and Taxation Code section 167 placed the burden of proof on the Assessor because the challenged assessment was an escape assessment. (See fn. 4, ante.) According to CKE, it was entitled under Revenue and Taxation Code section 167 to a presumption that its aircraft was operated by a common carrier on the lien date and that the Assessor had the burden of proving otherwise.
(1) Revenue and Taxation Code section 167, subdivision (a) provides: "Notwithstanding any other provision of law to the contrary, and except as provided in subdivision (b), there shall be a rebuttable presumption affecting the burden of proof in favor of the taxpayer or assessee who has supplied all information as required by law to the assessor in any administrative hearing involving the imposition of a tax on an owner-occupied single-family dwelling, the assessment of an owner-occupied single-family dwelling pursuant to this division, or the appeal of an escape assessment." By its express terms, section 167, in effect, shifts the burden of proof to the Assessor in an appeal of an escape assessment. In doing so, the statute creates a rebuttable presumption in favor of CKE that CKE's valuation of its aircraft was correct. (See Mitchell v. County of Los Angeles (1997) 60 Cal. App. 4th 497, 500 [70 Cal. Rptr. 2d 476] ["Under Revenue and Taxation Code section 167, in an administrative hearing involving an owner-occupied single-family dwelling, there is a rebuttable presumption that the owner's valuation is correct. In such an instance, the burden is on the County to overcome the presumption."].)
The Assessor's reliance on California Code of Regulations, title 18, section 321 in support of his burden of proof argument is misplaced. Revenue and *1439 Taxation Code section 167 creates for an appeal of an escape assessment an "exception[] set by law" to the general rule that "it is presumed that the [A]ssessor has properly performed his or her duties." (Cal. Code Regs., tit. 18, § 321, subd. (a).) California Code of Regulations, title 18, section 321 does state that the presumption in favor of the taxpayer may be rebutted by "the submission of evidence supporting the assessment." But, in appeals in which the Assessor disputes the factual basis of the taxpayer's valuation, the Assessor's submission must, under a reasonable reading of the regulation, include evidence rebutting that factual basis.
In this case, the Assessor challenged CKE's valuation on both legal and factual grounds. The legal challenge asserted either that charter carriers like Elite were not common carriers for purposes of the sales tax exemption or that even if CKE's aircraft was operated by a common carrier, such a status was legally irrelevant to the property tax calculation. According to the Assessor, the relevant determination was whether CKE's aircraft was operated as a scheduled "air taxi," in which case the sales tax exemption would apply, or as an unscheduled "air taxi," in which case the exemption would not apply.[11]
The Assessor's factual challenge, however, asserted that, even if unscheduled air taxis could qualify for the common carrier sales tax exemption, CKE's aircraft was not being operated by a common carrier on the lien date. As to that factual challenge, the Assessor had the burden of proof under Revenue and Taxation Code section 167 to show how CKE's aircraft was being operated on the lien date.
C. Common Carrier Exemption
(2) California Revenue and Taxation Code section 6366.1, subdivision (a)[12] expressly exempts from sales tax aircraft that are leased to lessees *1440 that use the aircraft "as common carriers of persons or property . . . ." (See also Cal. Code Regs., tit. 18, § 1593, subd. (b)(1)(A) ["(b) Application of Tax. [¶] (1) Aircraft. Tax does not apply to the sale of and the storage, use, or other consumption of aircraft sold, leased, or sold to persons for the purpose of leasing, to: [¶] (A) a person who operates the aircraft as a common carrier of persons or property, provided: [¶] 1. the person operates the aircraft under authority of the laws of this state, of the United States, or of any foreign government, and [¶] 2. the person's use of the aircraft as a common carrier is authorized or permitted by the person's governmental authority to operate the aircraft . . . ."].) The term "common carrier" means "any person who engages in the business of transporting persons or property for hire or compensation and who offers his or her services indiscriminately to the public or to some portion of the public." (Cal. Code Regs., tit. 18, § 1593, subd. (a)(2).)
In 2001, CKE submitted evidence to the SBE that during the first year of operation, the use of its aircraft met the definition of a common carrier under the sales and use tax law. As a result, the SBE determined that CKE's aircraft was exempt from use tax.
Assuming that CKE's aircraft qualified for the common carrier exemption on the January 1, 2004, lien datea factual issue we discuss belowthe legal issue is whether sales tax should nevertheless have been included as an element of its market value. According to several opinions from the SBE, a sales tax should not have been included in the Assessor's valuation. For example, in September 2001, the SBE sent an opinion letter to the Santa Clara County Assessor regarding "Sales Tax as a Component of Value When Valuing an Aircraft," in which the SBE concluded, "if sales tax is typically included in the taxable value of the aircraft, it should be included in the value, whereas if aircraft are not subject to sales tax (common carriers), sales tax is not an element of their value."
Similarly, the two excerpts from the Assessors' Handbook, both prepared by the SBE and introduced in evidence[13] by CKE, provide that "there are exceptions to the general rule [that sales tax is an element of value]. Equipment rented to federal instrumentalities and aircraft used by common carriers (neither of which are subject to sales tax), for example, are valued without sales tax as an element of value. The reason in both cases is that the consumer (the federal government or the air carrier) is never liable for sales tax on purchases of such equipment. Consequently, the reproduction or *1441 replacement cost of such property should not include sales tax, unless or until the property is put to private use or rented to a private party." (SBE Assessors' Handbook, § 504, supra, at p. 56; see id., § 577, supra, at p. 15.) Moreover, the opinion letter that CKE obtained from the SBE after receiving notice of the escape assessment was consistent with these opinions: "[W]e conclude that [CKE's] aircraft [was] exempt from sales and use tax when [it was] purchased and when [it was] valued [by the Assessor] so long as [CKE] is a common carrier as defined by California Code of Regulations Title 18, section 1593."
In addition, Ms. Ruwart, a senior tax counsel with the SBE's legal department, stated that as long as an aircraft was operated by a common carrier, a sales tax should not be an element of value. She reasoned that common carriers had their own trade level because of the sales tax exemption.
The Appeals Board agreed with and adopted the SBE's conclusions concerning the effect of the common carrier exemption on the valuation of an aircraft for property tax purposes. According to the Board, as long as the use of CKE's aircraft met the definition of a common carrier, a sales tax should not be an element of valuation for purposes of property tax assessment.
(3) We agree with the trial court, which in turn agreed with the Appeals Board. They properly relied upon the SBE's opinion letters and the Assessor's Handbook excerpts, as well as the views of Ms. Ruwart. (See Watson Cogeneration Co. v. County of Los Angeles (2002) 98 Cal. App. 4th 1066, 1070, fn. 2 [120 Cal. Rptr. 2d 421] ["Assessors' handbooks have been relied upon by the courts and been accorded great weight in the interpretation of valuation questions. (CAT Partnership v. County of Santa Cruz (1998) 63 Cal. App. 4th 1071, 1085, fn. 12 [74 Cal. Rptr. 2d 652]; Prudential Ins. Co. v. City and County of San Francisco (1987) 191 Cal. App. 3d 1142, 1155 [236 Cal. Rptr. 869].)"].)
(4) The SBE concluded in 2001 that the operation of CKE's aircraft qualified it for the common carrier sales or use tax exemption, and such agency opinions, although not binding or dispositive, are entitled to deference under the circumstances of this case. As the Supreme Court explained, "We addressed the issue of judicial deference to administrative agency statutory interpretation in Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal. 4th 1 [78 Cal. Rptr. 2d 1, 960 P.2d 1031] (Yamaha). In Yamaha, the Court of Appeal had determined a State Board of Equalization publication represented the dispositive interpretation of Revenue and Taxation Code section 6008 et seq. (Yamaha, supra, at pp. 5-6.) In reversing and remanding, we acknowledged that while `agency interpretation of the meaning and legal *1442 effect of a statute is entitled to consideration and respect by the courts' (id. at p. 7), `agency interpretations are not binding or . . . authoritative' (id. at p. 8). `Courts must, in short, independently judge the text of [a] statute . . . .' (Id. at p. 7.) We determined that the weight accorded to an agency's interpretation is `fundamentally situational' (id. at p. 12, italics omitted) and `turns on a legally informed, commonsense assessment of [its] contextual merit' (id. at p. 14). Yamaha set down a basic framework of factors as guidance and concluded that the degree of deference accorded should be dependent in large part upon whether the agency has a `"comparative interpretative advantage over the courts"' and on whether it has arrived at the correct interpretation. (Id. at p. 12.)" (Bonnell v. Medical Board (2003) 31 Cal. 4th 1255, 1264-1265 [8 Cal. Rptr. 3d 532, 82 P.3d 740].)
(5) The Appeals Board's interpretation is also entitled to considerable deference. (See Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal. App. 4th 629, 648 [43 Cal. Rptr. 3d 434] ["`The board's interpretation of an ordinance's implementation guidelines is given considerable deference and must be upheld absent evidence the interpretation lacks a reasonable foundation. [Citation.] The burden is on the appellant to prove the board's decision is neither reasonable nor lawful.' [Citation.]"].) Based on the administrative record, the Appeals Board's interpretation does not lack a "reasonable foundation." To the contrary, in light of the SBE's consistent conclusions concerning the application of the common carrier exemption to the aircraft valuation issue, the Appeals Board's adoption of that interpretation was reasonable. The definition of a common carrier in California Code of Regulations, title 18, section 1593, subdivision (a)(2) is broad enough to include unscheduled air taxi operations as well as large commercial airlines. The definition expressly includes "any person who engages in the business of transporting persons . . . for hire."
Relying primarily on the decision in Xerox, supra, 66 Cal. App. 3d 746, the Assessor contends that "California business personal property is routinely assessed at a valuation level that includes a provision for sales tax." According to the Assessor, the decision in Xerox supports the Assessor's conclusion that the "trade level" for CKE's aircraft is that of general aviation aircraft, which, according to the Assessor, are always assessed using sales tax as an element of value.
In Xerox, supra, 66 Cal. App. 3d 746, the "personal property in question consisted of office copying machines and related equipment manufactured by [Xerox], and leased by it on the lien date to various users . . . ." (Id. at p. 750.) Under the lease agreements, the property remained under Xerox's ownership. (Ibid.) Although the property had a list price, the history of the industry showed that very few copiers were actually sold to end-users. (Id. at *1443 p. 751.) Nevertheless, various county assessors valued the property using sales tax and freight as an element of value. (Ibid.) Xerox filed actions in the trial court alleging that the assessors erroneously included sales tax and freight as an element of value. (Id. at p. 750.) The trial court entered judgment in favor of the assessors. (Ibid.)
In affirming the judgment of the trial court, the court in Xerox, supra, 66 Cal. App. 3d 746 rejected Xerox's argument that sales tax should not have been included as an element of value because the copiers in issue had been leased, not sold, to the end users. As the court in Xerox observed, "[t]he real basis for [Xerox's] argument against the inclusion of the sales tax as a part of cost in the cost approach appears to be that the consideration of a consumer's cost assumes a sale, whereas the equipment being appraised is leased. As we have previously observed, the form of the transaction is irrelevant where value is being determined at the consumer trade level. The fair market value of the property is the same whether the ultimate consumer owns it or leases it. [Citation.]" (Id. at p. 760, italics added.)
Contrary to the Assessor's assertion, Xerox, supra, 66 Cal. App. 3d 746 does not support his conclusion concerning sales tax as an element of value in the instant case. In Xerox, there was no dispute regarding the proper trade level at which to assess the property. The court analyzed the issue on the assumption that the property was in the hands of the ultimate consumer, regardless of whether it was leased or purchased. Here, the Assessor argues that the proper trade level at which to assess CKE's aircraft is that of general aviation aircraft, i.e., privately owned aircraft that are primarily used by their owners. In contrast, CKE contends that because its aircraft was operated by a common carrier, the proper trade level at which to value it is that of common carrier aircraft, i.e., it should be valued at the price at which a common carrier like Elite could acquire it in the market on the lien date. Because a common carrier similarly situated to Elite on the lien date could have acquired the aircraft without incurring sales tax, CKE contends that sales tax should not have been included as an element of value.
We agree with CKE that the proper trade level is that of a common carrier in the market on the lien date. Therefore, the holding in Xerox, supra, 66 Cal. App. 3d 746 is not dispositive of the trade level issue. In any event, the rationale underlying the court's decision in that case would suggest only that CKE's aircraft must be assessed at the appropriate trade levelwhatever that may beand regardless of whether it is leased or owned. Accordingly, if the evidence before the Board showed that CKE leased the aircraft to Elite on the lien date for use in its common carrier operations, the holding in Xerox would neither mandate nor imply that the aircraft should nevertheless be assessed as a general aviation aircraft.
*1444 That CKE may have bought the aircraft subject to a sales or use tax or could sell it to a private party who is not a common carrier is irrelevant if, on the lien date, the aircraft was operated by a common carrier. The common carrier aircraft's hypothetical purchase or sale price on the lien date would be determined by the price a common carrier at the same trade level as Elite would pay for the aircraft in the marketi.e., without considering a sales or use tax. Accordingly, we hold that so long as CKE was eligible for a common carrier exemption from sales or use tax on the January 1, 2004, lien date, a sales tax figure should not have been included as an element of value in the assessment of CKE's aircraft.
D. Proof As to Common Carrier
The Assessor contends that even assuming the common carrier exemption can operate to exclude sales tax as an element of value in the assessment of a common carrier's aircraft, there is no evidence in the record showing that CKE's aircraft was being operated by a common carrier on the lien date. According to the Assessor, CKE's evidence of common carrier status was limited to the use tax exemption for which it applied in 2001 based on the first 12 months of operational use. From the Assessor's perspective, it was incumbent upon CKE, as the taxpayer seeking a change in assessment, to demonstrate affirmatively to the Appeals Board that its aircraft was operated by a qualifying common carrier in January 2004.
(6) The Assessor, not CKE, had the burden of rebutting the presumption of correctness in CKE's favor concerning CKE's valuation, which valuation was based upon the use of its aircraft by a common carrier. To rebut that presumption successfully, the Assessor was required to demonstrate affirmatively that CKE's aircraft did not qualify for a common carrier exemption on the lien date. As the Assessor admitted, however, he did not present any evidence on that issue at the hearing on CKE's appeal, nor did he even request that CKE produce documentation relevant to that issue at the hearing. The Assessor therefore failed to rebut the presumption that CKE's valuation was correct.
That the Assessor produced some evidence in support of the amount of the escape assessment is insufficient. Under Revenue and Taxation Code section 167, the Assessor had to prove, as a factual matter, that CKE's valuation was incorrect by showing that CKE's aircraft had been converted to private usei.e., non-common-carrier statusby the time of the valuation. The Assessor's failure to do so justified the Appeal Board's determination in favor of CKE.
*1445 DISPOSITION
The judgment of the trial court is affirmed. CKE is awarded its costs on appeal. We deny CKE's motion for sanctions. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal. App. 4th 1237, 1261-1262 [82 Cal. Rptr. 3d 440].)
Armstrong, Acting P. J., and Kriegler, J., concurred.
NOTES
[1] Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal. App. 4th 1323, 1330 [101 Cal. Rptr. 2d 591].
[2] "The California Sales and Use Tax Law (Rev. & Tax. Code, § 6001 et seq.) embodies a comprehensive tax system created to impose an excise tax, for the support of state and local government, on the sale, use, storage or consumption of tangible personal property within the state. (See Douglas Aircraft Co. v. Johnson (1939) 13 Cal. 2d 545 [90 P.2d 572].) The two taxes, sales and use, are mutually exclusive but complementary, and are designed to exact an equal tax based on a percentage of the purchase price of the property in question. In essence `"[a] sales tax is a tax on the freedom of purchase . . . . [a] use tax is a tax on the enjoyment of that which was purchased."' (Union Oil Co. v. State Bd. of Equalization (1963) 60 Cal. 2d 441, 452 [34 Cal. Rptr. 872, 386 P.2d 496], quoting McLeod v. J. E. Dilworth Co. (1944) 322 U.S. 327, 330 [88 L. Ed. 1304, 1306-1307, 64 S. Ct. 1023].)" (Wallace Berrie & Co. v. State Bd. of Equalization (1985) 40 Cal. 3d 60, 66-67 [219 Cal. Rptr. 142, 707 P.2d 204], fns. omitted.)
[3] There is no dispute that the aircraft met the statutory or regulatory criteria for the common carrier exemption. Revenue and Taxation Code section 6366, subdivision (b) provides that with respect to aircraft sold on or after January 1, 1997, there is a rebuttable presumption that a person is not engaged in business as a common carrier if the yearly gross receipts from the use of the aircraft by a common carrier do not exceed 20 percent of the purchase cost of the aircraft or $50,000, whichever is less. California Code of Regulations, title 18, section 1593, subdivision (c)(1)(B) provides, in part, "If the aircraft is used as a common carrier for more than one-half of the operational use during the test period, the carrier's principal use of the aircraft will be deemed to be that of a common carrier . . . ."
[4] "In California, assessors have a statutory duty to `assess all property subject to general property taxation at its full value.' (Rev. & Tax. Code, § 401; see Rev. & Tax. Code, § 1361 et seq.) If an assessor discovers property has `escaped assessment,' i.e., has been underassessed or unassessed, he or she has a constitutional duty to levy retroactive assessments. (Rev. & Tax., Code §§ 531-531.7; 1 Ehrman & Flavin, Taxing Cal. Property [(3d ed. 1988)] §§ 14:01, p.1, 14.02, 14.03, pp. 6-9.)" (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal. 4th 1110, 1127 [51 Cal. Rptr. 2d 251, 912 P.2d 1198].)
[5] "The Assessors' Handbook is a series of manuals developed by the staff of the Board of Equalization in an open process. The objective of the Assessors' Handbook is to give county assessors, their staff, and other interested parties an understanding of the principles of property assessment and real and personal property appraisal for property tax purposes. The Assessors' Handbook is intended to serve as a guide for the appraisal and assessment of real and personal property. Additionally, the Assessors' Handbook presents the Board staff's interpretation of rules, laws, and court decisions on property assessment." (SBE Assessors' Handbook [as of Oct. 30, 2008].)
[6] The Assessor's request for judicial notice of excerpts from a document entitled "Madera County Assessment Practices Survey Manual 2008," that purportedly contains the SBE's recommendation that a sales tax should be included when estimating the full cash value of aircraft, is denied as not being appropriate for judicial notice (see Evid. Code, §§ 451, 452) or particularly helpful because, inter alia, it was not before the Appeals Board or trial court. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal. 4th 739, 748, fn. 6 [76 Cal. Rptr. 2d 749, 958 P.2d 1062].)
[7] "In the appraisal of tangible personal property for purposes of taxation, the property may be found on the [valuation] date at various phases or levels of production or distribution. At whatever level it is found, from primary producer or manufacturer to the ultimate consumer, it is necessary that the property be assessed on the [valuation] date to the person owning, possessing or controlling it on that date. (Rev. & Tax. Code, § 405.) It would be manifestly unfair to the taxpayer to value personal property such as livestock or petroleum in the hands of the primary producer at the price it will ultimately bring after having been processed and moved to the market place. It is equally apparent that it would be unfair to the taxing agency and to other taxpayers for the ultimate consumer, or even the retailer, to be taxed at the value of the unprocessed mineral or livestock. Under neither circumstance would the assessment represent the market value of the product at that level of its production or trade. Thus, the costs incurred in producing and marketing property are elements which in common experience ordinarily determine value. (Michael Todd Co. v. County of Los Angeles (1962) 57 Cal. 2d 684, 697 [21 Cal. Rptr. 604, 371 P.2d 340].) [¶] In an attempt to establish uniformity in the assessment of such property, the State Board of Equalization has established regulations requiring the assessor to give recognition to the `trade level' at which the property is situated on the [valuation] date and `to the principle that property normally increases in value as it progresses through production and distribution channels.' (Cal. Admin. Code, tit. 18, § 10.)" (Xerox Corp. v. County of Orange (1977) 66 Cal. App. 3d 746, 753-754 [136 Cal. Rptr. 583] (Xerox).)
[8] "In California, property taxes on certificated [commercial] aircraft having a tax situs in multiple jurisdictions are allocated according to a prescribed formula. (Rev. & Tax. Code, §§ 1150-1156; American Airlines, Inc. v. County of San Diego (1990) 220 Cal. App. 3d 164, 167-168 [269 Cal. Rptr. 372]; County of Alameda v. State Bd. of Equalization (1982) 131 Cal. App. 3d 374, 379 [182 Cal. Rptr. 450].) This formula enables county assessors to determine `the amount of aircraft presence within the state during the taxable year, i.e., the "time in state" factor.' (County of Alameda v. State Bd. of Equalization, supra, 131 Cal.App.3d at pp. 379-380.) Once this apportionment is determined, it is taxed in the same manner as all locally assessed personal property in California; that is, it is annually assessed at 100 percent of fair market value, and taxed at the rate of 1 percent. (Cal. Const., art. XIII, §§ 2, 12; Rev. & Tax. Code, §§ 106, 110.5, 135, subd. (a), 401; 1 Ehrman & Flavin, Taxing Cal. Property[, supra,] § 9:06, p. 6.)" (American Airlines, Inc. v. County of San Mateo, supra, 12 Cal.4th at pp. 1124-1125.)
[9] The Assessor each year assesses all taxable property in the county on the lien date to the person who owns that property on that date. (Rev. & Tax. Code, §§ 401.3, 405, subd. (a).) The lien date is the date on which the taxes for a fiscal year attach to and become a lien against the property. (Rev. & Tax. Code, § 117.)
[10] California Code of Regulations, title 18, section 321 provides in pertinent part: "(a) Subject to exceptions set by law, it is presumed that the assessor has properly performed his or her duties. The effect of this presumption is to impose upon the applicant the burden of proving that the value on the assessment roll is not correct, or, where applicable, the property in question has not been otherwise correctly assessed. The law requires that the applicant present independent evidence relevant to the full value of the property or other issue presented by the application. [¶] (b) If the applicant has presented evidence, and the assessor has also presented evidence, then the board must weigh all of the evidence to determine whether it has been established by a preponderance of the evidence that the assessor's determination is incorrect. The presumption that the assessor has properly performed his or her duties is not evidence and shall not be considered by the board in its deliberations. [¶] (c) The assessor has the burden of establishing the basis for imposition of a penalty assessment. [¶] (d) Exceptions to subsection (a) apply in any hearing involving the assessment of an owner-occupied single-family dwelling or an escape assessment. In such instances, the presumption in section 167 of the Revenue and Taxation Code affecting the burden of proof in favor of the applicant who has supplied all information to the assessor as required by law imposes upon the assessor the duty of rebutting the presumption by the submission of evidence supporting the assessment."
[11] The Assessor's position in this regard is based on subdivisions (b) and (c) of Revenue and Taxation Code section 1154, which provide: "(b) Air taxis which are operated in scheduled air taxi operations are not subject to the provisions of Part 10 (commencing with Section 5301) of this division and shall be assessed in accordance with the allocation formula [for commercial aircraft] set forth in Section 1152. [¶] (c) All other air taxis shall be assessed in the county where the aircraft is habitually situated in the same manner and at the same ratio as other personal property in the county subject to general property taxation. Such aircraft shall be taxed at the same rate and in the same manner as all other property on the unsecured roll."
[12] Revenue and Taxation Code section 6366.1, subdivision (a) provides: "There are exempted from the taxes imposed by this part, the gross receipts from the sale of and the storage, use, or other consumption in this state of aircraft which are leased, or are sold to persons for the purpose of leasing, to lessees using such aircraft as common carriers of persons or property under authority of the laws of this state, of the United States or any foreign government, or to any foreign government as lessees for use by such government outside the state, or to persons as lessees who are not residents of this state and who will not use such aircraft in this state otherwise than in the removal of such aircraft from this state."
[13] Each of the excerpts are from manuals contained in the SBE Assessors' Handbook, section 504 (Oct. 2002) Assessment of Personal Property and Fixtures, page 56 and section 577 (Nov. 2003) Assessment of General Aircraft, page 15. (See fn. 5, ante.)
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288 Md. 645 (1980)
421 A.2d 571
WILLIAM T. BOGLEY
v.
MIDDLETON TAVERN, INC. AND AETNA CASUALTY & SURETY COMPANY
[No. 55, September Term, 1979.]
Court of Appeals of Maryland.
Decided June 5, 1980.
Filed October 22, 1980.
Motion for reconsideration and clarification filed July 7, 1980.
Filed issuing an amended mandate on October 22, 1980.
Argued and reargued by William M. Nickerson and Larry M. Waranch, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellant.
Argued and reargued by Richard R. Beauchemin, with whom were Joel G. Fradin and Arnold, Beauchemin & Tingle, P.A. on the brief, for appellees.
The cause was argued before SMITH, DIGGES, ORTH, COLE and DAVIDSON, JJ., and reargued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Per Curiam filed October 22, 1980.
Per curiam filed issuing an amended mandate on October 22, 1980, and motion denied, see per curiam at page 653 infra.
*647 The motion for reconsideration and clarification was submitted to MURPHY, C.J., and SMITH, DIGGES, COLE, DAVIDSON and RODOWSKY, JJ. Judge Eldridge did not participate in the consideration of the motion.
DIGGES, J., delivered the opinion of the Court. Per Curiam on motion for reconsideration and clarification at page 653 infra.
This action was initially instituted by Middleton Tavern, Inc. in the Circuit Court for Anne Arundel County against the petitioner William T. Bogley (Bogley)[1] and respondent Aetna Casualty and Surety Co. (Aetna), as defendants, to recover under an insurance policy the business interruption loss the insured sustained when its Annapolis tavern was extensively damaged by fire.
From the pertinent facts, either undisputed or implicitly established by the jury verdict in this case, we learn that Bogley sold to Middleton an Aetna fire insurance policy covering its tavern that, in addition to insuring against other types of damage, contained a business interruption loss reimbursement provision. The original one year policy was renewed for a three year period and it was during this latter time frame that the tavern was partially destroyed by fire on November 25, 1973. When, because of the wording of the contribution or co-insurance clause as set out in the issued policy, the insured was not fully reimbursed by the insurer for its business interruption loss, Middleton docketed this suit against Aetna and Bogley claiming that the co-insurance clause was not in accord with the insurance contract the tavern corporation purchased.
By its multicount amended declaration, containing one count sounding in tort and one in contract against each of the two defendants separately, Middleton, in essence, asserted: count 1 Bogley through his negligent conduct *648 failed to obtain the necessary insurance coverage for fire-caused business interruption of the duration here, which would have reimbursed the insured to the extent of $61,183 rather than the $23,285.07 paid under the policy as actually written; count 2 Bogley breached his agreement to obtain for Middleton the amount of business interruption by fire coverage mentioned in count 1; count 3 Aetna, acting through its agent (Bogley), negligently failed to provide for Middleton business interruption by fire coverage in the amount stated above as that insurance company, through this same agent, had agreed to do; and count 4 Aetna breached its agreement, entered into through its authorized agent (Bogley), to provide the previously mentioned amount of business interruption by fire coverage. Each defendant responded to this declaration with a general denial and, in addition, filed a cross-claim seeking indemnification from the co-defendant for any damages awarded Middleton against it.
At the ensuing jury trial the vitality of the cross-claims were not litigated, but by agreement were reserved for decision by the judge at a later time in the event the jury's verdict was in favor of Middleton against both Aetna and Bogley. Judge Lowe for the Court of Special Appeals explains what then took place:
Under the jury's view of the facts, both Bogley and Aetna were liable [to Middleton for $21,714.93 in damages]. Presumably, in anticipation of deciding the cross-claims, the trial judge determined unprecedentedly, by inquiry of the foreman [before the jury was discharged], that the jury had decided not only that "Bogley was acting as an agent for [Aetna]," but also that its verdict was arrived at on the basis of both the negligence and the contract counts.[[2]]
*649 To the extent divulged, the jury's findings of fact were adopted by the trial judge as his own when deciding the cross-claims [, which by stipulation, were submitted to him only on the evidence presented during the jury trial]. As interpreted by [the trial judge]:
"... the jury found Bogley negligent and to be the agent of Aetna, with the result that Aetna became liable for its agent's wrongful conduct. There was not and could not be any other theory under the facts and Court's instructions for the jury to find Aetna liable, and in finding Bogley negligent and also the agent of Aetna the jury quite correctly under the Court's instructions found Aetna liable. This is the posture of the case in which the Cross-Claim for indemnity must be decided."
He then entered judgment in favor of Aetna against Bogley on both cross-claims. [Bogley v. Middleton Tavern, 42 Md. App. 314, 316, 400 A.2d 15, 17-18 (1979).]
The record here reveals that initially both Aetna and Bogley noted an appeal, but shortly thereafter the insurance company paid Middleton the judgment in full and dismissed its appeal.[3] In the Court of Special Appeals William T. Bogley, while not contesting the right of Middleton to recover from Aetna, contended: (i) that the trial court erred when it permitted the Middleton judgment to be entered so as to include him, an agent for a disclosed principal, as a judgment debtor; and (ii) that not only because of the just mentioned error, but also because Aetna failed to show it had suffered any legally recoverable damage from Bogley's default the judgment in favor of Aetna on its cross-claim against the agent for indemnity cannot stand. When the *650 intermediate appellate court disagreed and affirmed the judgments as entered by the trial court, this Court granted William T. Bogley's certiorari petition. Since we agree with the petitioner that Aetna failed to establish it had suffered damage caused by dereliction on his part, we will reverse the judgment entered in favor of the insurance company on its cross-claim. With this conclusion it thus becomes unnecessary that we discuss the other issues raised by the petitioner.
In explaining our disagreement with the conclusions reached by the two lower courts, we observe that implicit in the jury's verdict resolving Middleton's base claim against Aetna and Bogley, and as found by the trial judge in disposing of the cross-claims, is that Bogley was a representative of Aetna with authority to issue policies on behalf of the insurance company of the type involved in this case. Like conventional agents, an insurance agent must exercise reasonable care and skill in performing his duties. And if such a representative fails to do so, he may become liable to those, including his principal, who are caused a loss by his failure to use standard care. Lowitt v. Pearsall Chemical, 242 Md. 245, 253-56, 219 A.2d 67, 72-74 (1966); accord, Central Nat. Ins. Co. of Omaha v. Devonshire Co., 426 F. Supp. 7, 23 (D. Nebr. 1976), modified, 565 F.2d 490 (8th Cir.1977); Max Holtzman, Inc. v. K & T Co., Inc., 375 A.2d 510, 514 (D.C. 1977); Washington v. Mechanics & Traders Ins. Co., 174 Okl. 478, 50 P.2d 621, 623-24 (1935); 3 Couch on Insurance 2d § 25:37, at 335 (1960); Restatement (Second) of Agency § 379 (1958). Cf. Canatella v. Davis, 264 Md. 190, 206, 286 A.2d 122, 130 (1972) (agent's duty of care to insured). However, it does not follow from what we have just said that the requirement that additional money be paid in connection with an insurance policy as it should have been written, rather than as it was, always measures the damages collectible by the insurance company from its agent. Although the validity of that statement has not before been examined or considered by this Court, it has the approval of the courts of a number of our sister states. Lumbermens Mutual Insurance Company v. Bowman, 313 *651 F.2d 381, 388 (10th Cir.1963) (applying New Mexico law); Emersons, Ltd. v. Max Wolman Company, 388 F. Supp. 729, 735 (D.D.C. 1975), aff'd, 530 F.2d 1093 (D.C. Cir.1976); Millers Mutual Fire Insurance Co. of Tex. v. Russell, 246 Ark. 1295, 443 S.W.2d 536, 538-39 (1969); Pennsylvania Millers Mutual Ins. Co. v. Walton, 236 Ark. 336, 365 S.W.2d 859, 861 (1963); Max Holtzman, Inc. v. K & T Co., Inc., 375 A.2d 510, 514-15 (D.C. 1977); State Ins. Co. v. Richmond, 71 Iowa 519, 32 N.W. 496, 499 (1887); Mathews v. Marquett Casualty Company, 152 So. 2d 577, 584-85 (La. Ct. App.), cert. denied, 153 So. 2d 880 (La. 1963); Norby v. Bankers Life Co. of Des Moines, Iowa, 304 Minn. 464, 231 N.W.2d 665, 671 (1975); Julien v. Spring Lake Park Agency, Inc., 283 Minn. 101, 166 N.W.2d 355, 357 (1969); 16 J. Appleman, Insurance Law and Practice § 878, at 360-61 (1968 & 1979 Supp.); Annot., 35 A.L.R. 3d 815 (1971).
The precept distilled from these authorities may be expressed in this manner: When an agent possessing authority to bind an insurer as the principal with respect to designated types of insurance, negligently, but without violating express instructions of his principal, binds that principal in a manner different from that expressed in the issued policy and which, because of the additional exposure, would have required a larger premium, the agent ordinarily is liable to his principal only for the additional premium. In making its like ruling the Supreme Court of Iowa presented an apt example:
If a merchant's clerk should sell goods on credit, which he is employed to sell in that way, and to a person to whom he might properly sell, but for a price less than he was expressly required to obtain, the measure of the merchant's recovery against the clerk in an action for damages would unquestionably not be greater than the difference between the two prices, and that, too, even if the buyer should become insolvent, and not pay anything. If, on the other hand, the clerk should *652 sell property of his employer of a kind which he was not employed to sell at all, he probably would be held responsible for the whole value. [State Insurance Co. v. Richmond, 71 Iowa 519, 32 N.W. 496, 499 (1887).]
In determining whether the doctrine applies it is quite important that the insurance company be not caused to assume a risk it is not in the business of insuring against or one that it has specifically declined to take. But when an agent possessing authority to bind as principal an insurance company on a risk of the type the company normally accepts, and the principal does not affirmatively show that it would not have accepted the extended obligations of the particular risk then being considered, the insurer's recoverable loss from the agent is normally confined to the difference, if any, between the premium actually collected and the one that would have been collectable had the issued policy included the coverage agreed to between the agent and the insured.
Applying what we have just set out in the context of the case now before us, we find that Aetna, as cross-plaintiff, has in no way attempted to show (nor does the record otherwise indicate) that the full business interruption claim here involved a specifically prohibited risk nor that the agent (Bogley) refused or failed to carry out an unequivocal demand or instruction from the company in writing this policy. Here, the matter of the cross-claims was submitted by agreement solely on the evidence produced in the jury trial of Middleton's claims. No witness was produced by Aetna at that trial and the crucial evidence was not otherwise supplied. Consequently, since Aetna did not meet its burden of showing it was damaged, in that it did not demonstrate that an additional premium would have been payable because of a greater exposure (or, even if it did, the amount of that additional premium), the judgment in favor of Aetna against Bogley on the cross-claim for indemnity must be reversed. E.g., Scott v. Watson, 278 Md. 160, 165, 359 A.2d 548, 552 (1976); Peroti v. Williams, 258 Md. 663, 669, 267 *653 A.2d 114, 118 (1970); Fagiolo v. Mencarini, 236 Md. 437, 441, 204 A.2d 560, 562 (1964).
Judgment of the Court of Special Appeals reversed as to William T. Bogley, and case remanded to that court with instruction to reverse the judgment of the Circuit Court for Anne Arundel County rendered in favor of Aetna Casualty & Surety Co. against William T. Bogley.
Costs to be paid by the respondent, Aetna Casualty & Surety Co.
(See amended mandate at page 655 infra.)
PER CURIAM:
By his Motion for Reconsideration and Clarification, petitioner William T. Bogley asks this Court to rule on his cross-claim and amend its mandate so as to direct the entry of a judgment of indemnity in his favor against Aetna for any monies he may be required to pay towards satisfaction of the judgment Middleton obtained jointly against Bogley and Aetna. In support of this motion, petitioner contends that since we determined Aetna alone to be the party ultimately responsible to Middleton and since, contrary to the statement in our opinion that Aetna had fully satisfied the Middleton claim, no part of that judgment in fact has been paid, the relief he now seeks should be granted. We agree and accordingly will direct the issuance of an amended mandate.
This court did not specifically deal with the Bogley cross-claim for indemnity against Aetna because, accepting the fact that Aetna had paid the Middleton judgment in full, *654 there was no occasion to do so under the views we expressed in our opinion. That we were justified in making the statement that "[t]he insurance company paid Middleton the judgment in full and dismissed its appeal" is completely documented by a playback of the tape of the oral argument made by counsel before this Court. This tape records the following:
MR. WARANCH, counsel for petitioner Bogley: This Court has ordered argument today on issues concerned with the joining of contract and tort claims by the plaintiff and cross-claimants and concerning the doctrine of election of remedies. To ascertain if a claim is properly stated
JUDGE ELDRIDGE: Before you move to that, counselor, I just want to make sure I understand one thing as far as the appeal and your position. Am I correct that nothing in this, as far as the outcome of this appeal, can actually affect Middleton? No one's challenging in this proceeding, in any way, their right to a recovery?
MR. WARANCH: That is correct, Your Honor. I take it that you ask that because you are present today and are wondering if you should remain so [, rather than recuse yourself].
JUDGE ELDRIDGE: That is correct, I just want to make it clear.
MR. WARANCH: That is correct, that has not been challenged and will not be challenged.
JUDGE ELDRIDGE: Okay.
Not only did Aetna's counsel remain silent when counsel for the petitioner made the just quoted statements, but additionally, the tape reveals that during the latter portion of respondent's argument, the following colloquy took place:
JUDGE ELDRIDGE: Before you sit down, do you know if Middleton's been, their judgment against Aetna has been satisfied?
*655 MR. BEAUCHEMIN, counsel for respondent Aetna: The initial judgment?
JUDGE ELDRIDGE: Has Aetna paid Middleton?
MR. BEAUCHEMIN: I'm sorry?
JUDGE ELDRIDGE: Has Aetna paid Middleton?
MR. BEAUCHEMIN: Yes. That's not an issue.
JUDGE ELDRIDGE: I understand that. I just have my own reasons.
MR. BEAUCHEMIN: They honored the contract and paid on the full coverage. I believe that that's stated in the briefs.
The factual assertion that the Middleton judgment had been satisfied by Aetna is binding and in the posture in which this cause reaches us, influences the law of the case. Under the somewhat unorthodox manner in which this entire litigation was conducted, we conclude, for the reasons set out in our earlier opinion, that Aetna must bear the ultimate responsibility for the damages sustained by Middleton. Since it now develops that Bogley may, at the instance of Middleton, be required to pay all or a portion of the insured's judgment, we will amend our mandate to provide for this eventuality.
Mandate of June 5, 1980, amended to read as follows: Judgment of the Court of Special Appeals reversed as to William T. Bogley, and case remanded to that court with instruction to reverse the judgment of the Circuit Court for Anne Arundel County rendered in favor of Aetna Casualty & Surety Co. against William T. Bogley and direct the entry of an indemnity judgment in favor of William T. Bogley on his cross-claim.
Costs to be paid by the respondent, Aetna Casualty & Surety Co.
Judge Eldridge did not participate in consideration of motion for reconsideration.
NOTES
[1] In addition to William T. Bogley, this action, as instituted in the trial court, included as insurance agents being sued, Bogley and Harting, Inc., doing business as Bogley, Harting and Betts, Inc. The record discloses that William T. Bogley was vice-president of that corporate defendant. Bogley and Harting, Inc., although joining William T. Bogley in noting an appeal to the Court of Special Appeals, neither filed a brief in that court nor sought review by this Court.
[2] Although we do not pursue the matter, it may well be that many of the problems which developed in this litigation would have been avoided had the claims and issues been more sharply identified. Likewise, it is doubtful that the manner in which the issues were submitted to the jury for decision and the form of the judgments entered were in accord with recognized trial practice.
[3] As no party raises the issue, we do not consider the question whether this suit could be maintained against Aetna without first, in equity, reforming the contract of insurance. See Canatella v. Davis, 264 Md. 190, 206, 286 A.2d 122, 130 (1972). Cf. Housing Auth. of College Pk. v. Macro, 275 Md. 281, 340 A.2d 216 (1975).
On Motion for Reconsideration and Clarification
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59 Mich. App. 49 (1975)
228 N.W.2d 539
PEOPLE
v.
STREETMAN
Docket No. 18106.
Michigan Court of Appeals.
Decided February 24, 1975.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael E. Dodge, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Aloysius J. Lynch, Special Assistant Attorney General, of counsel), for the people.
John A. Lydick, Assistant State Appellate Defender, for defendant.
Before: V.J. BRENNAN, P.J., and J.H. GILLIS and D.E. HOLBROOK, JR., JJ.
Leave to appeal denied, 394 Mich. 798.
J.H. GILLIS, J.
Defendant was charged with embezzlement in violation of MCLA 750.174; MSA 28.371. He had a jury trial in the circuit court for Cass County, was found guilty and sentenced to serve two to ten years. He appeals as of right.
Defendant raises six issues on appeal and we deem it necessary to consider only two of these, the others not being of substance.
At trial, Francis McClane, former president of Ledgerwood Mobile Homes, Inc., of Edwardsburg, Michigan, testified that he hired defendant on June 29, 1972 to haul a mobile home from the Ledgerwood plant to a buyer in Butte, Montana. McClane said that although the buyer accepted delivery of the mobile home on July 4, 1972 and paid defendant $3,645.70 cash therefor, defendant *51 returned from Montana on or about July 7, 1972 without the cash or defendant's truck. Defendant told McClane that the money and defendant's truck had burned up in a fire on the highway near Dell, Montana. McClane testified that defendant had no permission to retain the money in question.
Although defendant told several of the witnesses about the fire, there was no independent evidence that it ever occurred. Further, two prosecution witnesses a State Police Fire Marshal and a service mechanic each stated that there was no evidence of fire damage after having examined defendant's truck.
Defendant took the stand and testified in his own behalf, recounting how the money, which was in a cardboard suitcase in the cab of the truck, burned up when the truck caught fire. During his cross-examination, the prosecutor asked the defendant if he had ever sold a mobile home to a Beatrice Price in Florida. Defendant denied doing so but acknowledged that he had heard of her and that he was presently paying her for a trailer which she never received.
Defendant contends that the trial court committed reversible error in permitting the prosecutor to question the defendant about this prior misconduct, and to refer to it in his closing argument.
It is the general rule that evidence tending to show the commission of other criminal offenses by the defendant is inadmissible on the issue of his guilt or innocence of the offense charged. People v Der Martzex, 390 Mich. 410; 213 NW2d 97 (1973).
There is a statutory exception to this rule, however. Under this exception, evidence of independent acts may be admitted, not as substantive proof of guilt, but for the purpose of showing 1) motive, 2) intent, 3) absence of mistake or accident, *52 or 4) a scheme, plan or system in doing an act. MCLA 768.27; MSA 28.1050.
In this case defendant testified that the money in question was destroyed in an accidental fire. Thus, the use of evidence of a prior similar act was particularly appropriate to support the conclusion that the defendant did indeed have the intent to embezzle the funds in question and that there had been no accidental truck fire.
Defendant contends that the act in question was not sufficiently similar to come under the statutory exception. However, the statute does not require identical acts, only "like acts". MCLA 768.27; MSA 28.1050. In People v Crawford, 218 Mich. 125; 187 N.W. 522 (1922), for example, the cashier of a bank was prosecuted for embezzling $2,000 from the bank. He was charged with taking two certificates of deposit which were delivered to the bank by a customer in payment of a note, and crediting the payment to his account and the account of a third party. At trial, evidence of three other similar acts was admitted, even though these acts involved three different methods of converting the bank's funds to his own use, none of them identical with the offense charged. The Supreme Court of Michigan affirmed, finding that "those transactions though not identical were similar to the one charged in the entries and manipulation of funds tending to indicate misapplication of assets of the bank". 218 Mich. 125, 137; 187 N.W. 522, 526.
Defendant also assigns as error that no instruction was given limiting the purpose for which evidence of a prior offense was admitted. However, defendant never requested a cautionary instruction, nor did he object to the instructions as given. In the absence of request or proper objection, there is no absolute requirement that the trial judge *53 give limiting instructions. People v Chism, 390 Mich. 104; 211 NW2d 193 (1973).
We hold, therefore, that the trial judge did not err in admitting evidence of a prior similar act. Nor was it reversible error to fail to instruct the jury on the limited purpose for which the evidence was admitted, where, as here, there was no request for such instruction and no objection to the failure to instruct.
By way of a supplemental brief, defendant also argued that the district court lacked jurisdiction to conduct the preliminary examination because 1968 PA 154, creating the district court and providing it with jurisdiction to bind over felons, violates Const 1963, art 4, § 24, the title-body clause. This identical issue has recently been considered by the Michigan Supreme Court, and decided adversely to defendant's position. See People v Milton, 393 Mich. 234; 224 NW2d 266 (1974).
Affirmed.
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178 Cal.App.4th 958 (2009)
In re CALVIN P. et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
P.P., Defendant and Appellant;
CALVIN P. et al., Appellants.
No. D054830.
Court of Appeals of California, Fourth District, Division One.
October 8, 2009.
*960 Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Katharine R. Bird, Deputy County Counsel, for Plaintiff and Respondent.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Minors and Appellants.
OPINION
McDONALD, J.
P.P. (Mother) and her children Calvin P. and Kayla P. (together the children) appeal a juvenile court order requiring the San Diego County Health and Human Services Agency (the Agency) to provide family maintenance services for their family. They contend the court erred by requiring family maintenance services instead of reunification services for Mother because the children were placed in the custody of their father C.P. (Father), not with Mother, and the Agency had not provided reasonable reunification services for Mother even though the services were court ordered and were in the children's best interests. We affirm the order requiring family maintenance services for Father and the children, but reverse the order for family maintenance services for Mother and order she be provided reasonable reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 2006, the Agency petitioned under Welfare and Institutions Code[1] section 300, subdivision (b), on behalf of 12-year-old Calvin and seven-year-old Kayla, alleging Mother's use of methamphetamine had caused their sibling K.P. to be removed from Mother's care at birth; Mother's services regarding K.P.'s dependency were terminated in part because she did not participate in substance abuse treatment; after K.P. was returned to Father's custody, Father allowed Mother to reside in the family home in violation of an order that she have no visitation with K.P.; K.P. died while in Mother's care; Mother stated she may have overmedicated him; and she left his body in a crib to decompose and then placed it in a dumpster.
*961 Mother was arrested and Calvin and Kayla were detained with a relative. The court ordered Mother have no contact with the children, but later ordered they would have supervised visits at the jail where she was incarcerated because the children wanted to see her. In June 2007 the court found the allegations true and ordered reunification services for Father, but ordered no services for Mother.[2]
Mother appealed and on January 2, 2008, this court reversed the order denying her services and remanded the case for the juvenile court to determine whether offering services to her would be in the children's best interests within the meaning of section 361.5, subdivision (c).
At the 12-month hearing on May 12, 2008, the court found it would be in the children's best interests to offer reunification services to Mother and determined she was entitled to 12 months of services. The court authorized therapy for her, and ordered the social worker to submit a case plan and for Mother to undergo a psychological evaluation. The court also continued Father's reunification services.
On May 20, 2008, the Agency filed subsequent petitions under section 342, alleging Mother had pleaded guilty to involuntary manslaughter in connection with K.P.'s death.
On June 9, 2008, the court found the allegations of the section 342 petitions true and ordered a case plan for Mother that required counseling, parenting education and drug treatment. The court placed the children with Father with family maintenance services and set a six-month review hearing.
In October 2008 the social worker reported she had written to the counselor to whom Mother was assigned at the Chowchilla women's prison (Chowchilla), where Mother was incarcerated. She said Father had not taken the children to visit Mother because he thought Chowchilla was too far away and he believed Mother would soon be moved back to San Diego. Mother had written letters to the children. In March 2009 the social worker reported that in October 2008 Mother had asked to participate in parenting classes at the prison, but it was determined she would not be incarcerated long enough to complete the class. Her scheduled release date was in April 2009.
*962 At the six-month review hearing in March 2009, Mother's counselor at Chowchilla testified therapy for inmates and their children was available at the prison, but there had never been a request for therapy in Mother's case.
The social worker testified she had informed Father about a free quarterly bus service to Chowchilla, but Father did not take the children to visit Mother. The social worker said she had written to Mother's counselor at Chowchilla in October 2008 and had left telephone messages, but received no response. She had spoken with other counselors, and one told her a parenting class was not offered to Mother because by the time she requested it, her remaining time at the prison was too short for her to be able to complete the class. The social worker testified Mother had not had conjoint therapy or a psychological evaluation. The Agency had provided no services to Mother from the date they were ordered in May and June 2008 until October 2008.
After considering the testimony, documentary evidence and argument, the court stated if it were to decide whether Mother had been provided reasonable services, it would find she had not received reasonable services, but the question was moot because the children had been placed with Father. It continued the placement, ordered family maintenance services for the family and set a six-month review hearing. It ordered Mother be provided with a psychological evaluation on her release from custody.
DISCUSSION
Mother and the children contend the court prejudicially erred by finding the issue of whether Mother received reasonable reunification services was moot and by ordering family maintenance services, rather than reunification services, for Mother.
The Agency argues when the children have reunified with one parent the goal of reunification has been met, and thus the court should proceed by way of section 364, which provides that services to the nonreunifying parent are discretionary. In our view, the Agency's argument misses the point.
(1) The juvenile court had already exercised its discretion under section 364 on June 9, 2008, when it placed the children with Father with family maintenance services and reaffirmed its order of May 12 that Mother was entitled to 12 months of reunification services. Because the court ordered reunification services for Mother, but the Agency disregarded the order, the order must now be implemented and reunification services provided to Mother. "Family preservation is the first priority when dependency proceedings *963 are commenced. [Citations.] . . . `Reunification services implement "the law's strong preference for maintaining the family relationships if at all possible." [Citation.]' [Citations.]" (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010 [70 Cal.Rptr.2d 603].) "`Child welfare services' . . . means services provided on behalf of children alleged to be the victims of child abuse, neglect, or exploitation. The child welfare services provided on behalf of each child represent a continuum of services, including emergency response services, family preservation services, family maintenance services, family reunification services, and permanent placement services. The individual child's case plan is the guiding principle in the provision of these services." (§ 16501, subd. (a).)
(2) The significant difference between family maintenance services and reunification services is that family maintenance services are intended for situations in which children are not removed from parental custody, while reunification services are designed for times when children are removed from their parents.
"[F]amily reunification services are activities designed to provide time-limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the child cannot safely remain at home, and needs temporary foster care, while services are provided to reunite the family." (§ 16501, subd. (h).)
"[F]amily maintenance services are activities designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation, for the purposes of preventing separation of children from their families." (§ 16501, subd. (g).)
"The goal of both reunification and maintenance services is to address the circumstances which required agency and court intervention into a family's life." (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166 [48 Cal.Rptr.2d 669].) Reunification and family maintenance services offered in particular cases may, in fact, be nearly identical. However, one example of a reunification service is visitation, a service that would not be appropriate as a part of a family maintenance plan. (Id. at p. 166, fn. 7.)
Providing family maintenance services for one parent and reunification services for the other can be appropriate in certain situations. Under section 361.2, when a child is removed from the previously custodial parent and placed with the previously noncustodial parent, the court chooses whether or not to order services for the previously custodial parent, for the custodial *964 parent or for both parents. Section 361.2, subdivision (b)(3), provides the court "may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody. . ., or that services be provided to both parents . . . ." (§ 361.2, subd. (b)(3), italics added; see In re Erika W. (1994) 28 Cal.App.4th 470, 475 [33 Cal.Rptr.2d 548].)
This situation is analogous. At the June 9, 2008, hearing, the children were placed with Father, not with Mother. At that hearing the court ordered family maintenance services for Father, while ordering a reunification case plan for Mother designed to help her reunite with the children. (§ 16501, subd. (h).) It was error for the court at the six-month review hearing on March 24, 2009, to find the issue of whether Mother had received reasonable reunification services was moot and that her reunification services had necessarily become a part of the family maintenance services ordered for the family.
At the March 3, 2009, hearing the social worker acknowledged the Agency had not provided the court-ordered reunification services to Mother. Mother's counsel asked the social worker, "You're aware that the services were ordered in the best interest of the children?" The social worker answered, "Yes." The children's counsel asked, "Between May 12th and October 20th of 2008, what services did the Agency provide to Mother to reunify with her children?" The social worker answered, "None."
(3) When a dependency case is referred to a section 366.26 hearing and a parent for whom the court had ordered reunification services has not received reasonable services, the reviewing court will vacate the order setting the section 366.26 hearing so that the services may be provided. (See Mark N. v. Superior Court, supra, 60 Cal.App.4th at pp. 1015-1019.) Here, although this family is on the path toward reunification, not toward termination of parental rights, the remedy for Mother not receiving the court-ordered services is the same. Because the court exercised its discretion at the June 9, 2008, hearing and ordered a reunification case plan for Mother, but the Agency disregarded the order, the order must now be implemented to provide reasonable reunification services for Mother. We reverse the order for family maintenance services for Mother and direct the juvenile court to order the Agency to provide the reunification services the court ordered on May 12, 2008, and reaffirmed on June 9, 2008.
*965 DISPOSITION
The order to provide family maintenance services for Father and the children is affirmed. The order to provide family maintenance services for Mother is reversed. The juvenile court is directed to vacate the order requiring family maintenance services for Mother and to order the Agency to implement the June 9, 2009, order that she be provided reasonable reunification services.[3]
Benke, Acting P.J., and McIntyre, J., concurred.
NOTES
[1] Statutory references are to the Welfare and Institutions Code.
[2] In August 2007, while in jail, Mother gave birth to another child. He also became a dependent of the court and the court ordered Mother not receive services.
[3] If, at a family maintenance review hearing, the juvenile court determines under section 364, subdivision (c), that conditions no longer exist to justify continued juvenile court jurisdiction, the juvenile court has the authority to terminate Mother's reunification services.
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178 Cal.App.4th 751 (2009)
In re J.B. et al., Persons Coming Under the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
v.
R.S.C., Defendant and Appellant.
No. F056765.
Court of Appeals of California, Fifth District.
October 26, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*753 Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
*754 OPINION
KANE, J.
INTRODUCTION
Appellant R.S.C. (Mother) appeals from the jurisdictional findings and dispositional orders of the juvenile court regarding her two children, 16-year-old J.B. (J.) and 12-year-old L.K. (L.). Mother contends there was insufficient evidence to support the jurisdictional findings and the orders removing the children from her custody. We will affirm.
In the published portion of this opinion, we hold that a finding under Welfare and Institutions Code section 361, subdivision (c)(6),[1] which must be supported by expert testimonythat continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the childis not required when an Indian child is removed from the custody of one parent and placed with the other parent.
PROCEDURAL AND FACTUAL SUMMARY[*]
DISCUSSION[*]
I.-III.[*]
A. Sufficiency of the Evidence[*]
*755 B. Indian Child Welfare Act Finding
Mother contends that before the juvenile court could remove her daughter L., an Indian child, from her custody and place her in father's (Father) custody, the court was required to make a finding, supported by expert testimony, that continued custody of L. by Mother was likely to result in serious emotional or physical damage to L. We disagree.
According to section 361, subdivision (c)(1), before the juvenile court can remove a child from a parent's physical custody, it must find by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." This finding must be made to remove a dependent child "from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated." (§ 361, subd. (c), italics added.) In other words, this finding is required even when the child is removed from one parent and placed with the other, noncustodial parent. (See In re Katrina C. (1988) 201 Cal.App.3d 540, 548-549 [247 Cal.Rptr. 784].)
A second finding is required in "an Indian child custody proceeding"section 361, subdivision (c)(6), requires that the juvenile court must also find by clear and convincing evidence that "continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. . . ." Furthermore, "that finding [must be] supported by testimony of a `qualified expert witness' as described in Section 224.6." (Ibid.) Mother asserts that the plain language of this provision requires that the juvenile court make this finding even when an Indian child is placed with a noncustodial parent rather than in foster care, and thus the juvenile court in this case was required to make this finding, supported by expert testimony, before it could remove L. from Mother's custody. We disagree.
(1) "In construing a statute, our task is to determine the Legislature's intent and purpose for the enactment. [Citation.] We look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning. [Citation.]" (People v. Garcia (2002) 28 Cal.4th 1166, 1172 [124 *756 Cal.Rptr.2d 464, 52 P.3d 648].) Our first and most important responsibility in interpreting statutes is to consider the words employed; in the absence of ambiguity or conflict, the words employed by the Legislature control, and there is no need to search for indicia of legislative intent. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) "[W]e presume the Legislature meant what it said. [Citation.] `However, if the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.' [Citations.]" (People v. Garcia, supra, at p. 1172.) "To resolve [an] ambiguity, we rely upon well-settled rules. `The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. . An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].' [Citations.]" (People v. Shabazz (2006) 38 Cal.4th 55, 67-68 [40 Cal.Rptr.3d 750, 130 P.3d 519]; see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 903 [135 Cal.Rptr.2d 30, 69 P.3d 951] [statutory language should not be interpreted in isolation, but must be construed in the context of the entire statute of which it is a part, in order to achieve harmony among the parts].) We must interpret a statute in accord with its legislative intent and where the Legislature expressly declares its intent, we must accept that declaration. (Tyrone v. Kelley (1973) 9 Cal.3d 1, 10-11 [106 Cal.Rptr. 761, 507 P.2d 65].) Absurd or unjust results will never be ascribed to the Legislature, and a literal construction of a statute will not be followed if it is opposed to its legislative intent. (Webster v. Superior Court (1988) 46 Cal.3d 338, 344 [250 Cal.Rptr. 268, 758 P.2d 596]; Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735.)
Thus, we begin by examining the plain language of section 361, the relevant portion of which was enacted to incorporate the requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) into California's statutes:
"(c) A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the *757 time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, and, in an Indian child custody proceeding, paragraph (6):
"(1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody. . . [¶] . . . [¶]
"(6) In an Indian child custody proceeding, continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child, and that finding is supported by testimony of a `qualified expert witness' as described in Section 224.6." (§ 361, subd. (c)(1), (6), italics added.)
(2) An "Indian child custody proceeding" in turn is defined by section 224.1, subdivision (c), as "a `child custody proceeding' within the meaning of Section 1903 of [ICWA], including a proceeding for temporary or long-term foster care or guardianship placement, termination of parental rights, preadoptive placement after termination of parental rights, or adoptive placement." This list does not include a proceeding in which a dependent child is removed from one parent and placed with the other. Similarly, the ICWA definition referenced in section 224.1 (25 U.S.C. § 1903) does not refer to placement with a noncustodial parent.[3] By expressly including certain placements, the Legislature impliedly excluded others, such as placement with a parent. (See Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 389 [97 *758 Cal.Rptr.3d 464, 212 P.3d 736] [citing the rule of statutory construction, expressio unius est exclusio alteriusto express or include one thing implies the exclusion of the other].) If the Legislature intended to include placement with a parent, we assume it would have expressly done so by adding it to the list.
(3) Furthermore, the plain language of the statute cannot be said to include placement with a parent as a type of foster care placement. Placement with a parent is not foster care. (See 25 U.S.C. § 1903(1)(i); see also, e.g., In re Nicholas H. (2003) 112 Cal.App.4th 251, 262-265 [5 Cal.Rptr.3d 261] [discussing different considerations for juvenile court and different schemes when child is placed with noncustodial parent rather than in foster care].) Section 1903 defines "foster care placement" as "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated. . . ." (25 U.S.C. § 1903(1)(i), italics added.)
(4) Thus, the plain language of section 361, subdivision (c)(6), establishes that the statute applies only in an "Indian child custody proceeding," the definition of which expressly includes various proceedings, but not a proceeding for placement with a parent. (§ 224.1, subd. (c); 25 U.S.C. § 1903.) Accordingly, the finding under that provision and the expert testimony to support it are not required when an Indian child is placed with a parent.
Although we believe the statutory language is unambiguous, we note for good measure that this reading comports with the remainder of the ICWA statutory scheme and the express purpose of ICWA. We briefly note some examples supporting the conclusion that ICWA does not apply to a proceeding to place an Indian child with a parent.
First, 25 United States Code section 1912(e)the federal counterpart to section 361, subdivision (c)(6)addresses only foster care in this context: "No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(e).)
*759 Likewise, the California Rule of Court that implements section 361, subdivision (c)(6), also notes the foster care context, providing that "[i]n any child custody proceeding listed in rule 5.480, the court may not order placement of an Indian child unless it finds by clear and convincing evidence that continued custody with the parent or Indian custodian is likely to cause the Indian child serious emotional or physical damage and it considers evidence regarding prevailing social and cultural standards of the child's tribe, including that tribe's family organization and child-rearing practices. [¶] (1) Testimony by a `qualified expert witness,' as defined in . . . section 224.6 . . . is required before a court orders a child placed in foster care or terminates parental rights." (Cal. Rules of Court, rule 5.484(a), italics added.)[4]
The notice provision of ICWA also reflects the same purpose, coming into play when the agency seeks foster care placement and the juvenile court has reason to believe the child is an Indian child. (25 U.S.C. § 1912(a) ["In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of . . . an Indian child shall notify the parent or Indian custodian and the Indian child's tribe. . . ."]; 25 C.F.R. § 23.11(a) (2009); see, e.g., In re Alexis H. (2005) 132 Cal.App.4th 11, 15 [33 Cal.Rptr.3d 242] [because agency sought neither foster care nor adoption, ICWA seemingly did not apply]; In re Jennifer A. (2002) 103 Cal.App.4th 692, 699-701 [127 Cal.Rptr.2d 54] [although child ultimately placed with father, ICWA applied where child was initially in foster care and agency sought continued foster care placement]; see also In Interest of J.R.H. (Iowa 1984) 358 N.W.2d 311, 321-322.)
Finally, the legislative intent behind ICWA expressly focuses on the removal of Indian children from their homes and parents, and placement in foster or adoptive homes. In establishing ICWA, Congress found "that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and *760 private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions. . . ." (25 U.S.C. § 1901(4), italics added.) Thus, Congress declared its policy "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." (25 U.S.C. § 1902, italics added; see 25 C.F.R. § 23.3 (2009).) Following suit, the California Legislature declared that "[t]he state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with [ICWA] (25 U.S.C. Sec. 1901 et seq.) and other applicable law, designed to prevent the child's involuntary out-of-home placement and, whenever that placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child's tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child's tribe and tribal community." (§ 224, subd. (a)(1), italics added.)
In sum, the plain language of section 361, subdivision (c)(6), demonstrates that it does not apply to placement of an Indian child with a parent, and this conclusion comports with the Legislature's intent and the purpose of ICWA. Thus, a finding under section 361, subdivision (c)(6), and the expert testimony to support it were not required to remove L. from Mother and place her in Father's custody. If the Agency seeks foster care placement of L. in the future, the requirements under ICWA will again become an issue.[5]
C.-D.[*]
*761 DISPOSITION
The juvenile court's findings and orders are affirmed.
Vartabedian, Acting P.J., and Levy, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction, part III.B. of the Discussion, and the Disposition are certified for publication.
[1] All statutory references are to the Welfare and Institutions Code unless otherwise noted.
[*] See footnote, ante, page 751. The facts of the case are irrelevant to the legal issue addressed in the published portion of this opinion and we omit them for brevity.
[3] Title 25 United States Code section 1903 provides: "(1) `child custody proceeding' shall mean and include[¶] (i) `foster care placement' which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated; [¶] (ii) `termination of parental rights' which shall mean any action resulting in the termination of the parent-child relationship; [¶] (iii) `preadoptive placement' which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and [¶] (iv) `adoptive placement' which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. [¶] Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents." (See also 25 C.F.R. § 23.2 (2009), reiterating this provision.)
[4] California Rules of Court, rule 5.480 states that the rules "addressing [ICWA] as codified in various sections of the California Family, Probate, and Welfare and Institutions Codes, appl[y] to all proceedings involving Indian children that may result in an involuntary foster care placement; guardianship or conservatorship placement; custody placement under Family Code section 3041; declaration freeing a child from the custody and control of one or both parents; termination of parental rights; or adoptive placement, including: [¶] (1) Proceedings under Welfare and Institutions Code section 300 et seq., and sections 601 and 602 et seq. in which the child is at risk of entering foster care or is in foster care, including detention hearings, jurisdiction hearings, disposition hearings, review hearings, hearings under section 366.26, and subsequent hearings affecting the status of the Indian child. . . ."
[5] Accordingly, the Cherokee Nation responded to the placement of L. with Father, as follows:
"The child, [L.], is currently placed back in the home of [Father]. The Cherokee Nation has staffed the case detailed in the above stated action and have determined to not intervene at this time due to the child's in home placement. If the child is removed from the home and the department seeks foster care placement or termination of parental rights, the Cherokee Nation requests to be notified in accordance with 25 U.S.C. § 1901 et seq."
[*] See footnote, ante, page 751.
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UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, T.P. BELSKY
Appellate Military Judges
UNITED STATES OF AMERICA
v.
EDMUND R. GALLEGOS
GUNNERY SERGEANT (E-7), U.S. MARINE CORPS
NMCCA 201300391
GENERAL COURT-MARTIAL
Sentence Adjudged: 29 May 2013.
Military Judge: LtCol Nicole Hudspeth, USMC.
Convening Authority: Commander, United States Marine Corps
Forces Command, Norfolk, VA.
Staff Judge Advocate's Recommendation: LtCol D.J. Bligh,
USMC.
For Appellant: LT Jonathan Hawkins, JAGC, USN; LT David
Dziengowski, JAGC, USN.
For Appellee: Maj Crista D. Kraics, USMC.
23 December 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
BELSKY, Judge:
A military judge, sitting as a general court-martial,
convicted the appellant pursuant to his pleas of two
specifications of conspiracy, one specification of wrongfully
selling government property, one specification of wrongfully
possessing machineguns, and one specification of wrongfully
transporting machineguns through interstate or foreign commerce,
in violation of Articles 81, 108, and 134, Uniform of Military
Justice, 10 U.S.C. §§ 881, 908, and 934. The adjudged sentence
included three years’ confinement, reduction to pay grade E-1, a
dishonorable discharge, and a $10,000.00 fine, with an
additional twelve months’ confinement if the fine was not paid
by 17 April 2014. The convening authority (CA) approved the
sentence as adjudged and, pursuant to the terms of a pretrial
agreement, suspended for a period of twelve months all
confinement in excess of eighteen months.
On appeal, the appellant raises the following assignments
of error:
WHETHER APPELLANT’S SENTENCE IS DISPARATELY SEVERE
COMPARED TO THE CLOSELY-RELATED CASES OF GYSGT
CARSTENSEN, GYSGT LEONARD, 1STLT WARP, CAPT PUMP AND
CAPT BROWN?
WHETHER THE MILITARY JUDGE ERRED WHEN SHE DENIED
APPELLANT’S MOTION TO DISMISS PURSUANT TO ARTICLE 10,
UCMJ?1
Finding merit in his first assignment of error we will
grant relief in our decretal paragraph. Following our
corrective action, no error materially prejudicial to a
substantial right of the appellant remains. Arts. 59(a) and
66(c), UCMJ.
Background
The following facts are taken from the appellant's
providence inquiry, and in the stipulation of fact entered into
evidence as Prosecution Exhibit 1.
While deployed to Iraq, the appellant and Gunnery Sergeant
(GySgt) Daniel Leonard, USMC, became acquaintances. During the
course of that relationship, GySgt Leonard invited the appellant
to join a scheme to obtain excess military property and
illegally sell it for a profit through Internet sites such as
eBay. The appellant agreed to join GySgt Leonard.
Through his assigned duties, GySgt Leonard continued to
surreptitiously obtain military property, and gave a portion of
the property to the appellant to sell. GySgt Leonard and the
appellant also provided some of the property to Captain (Capt)
1
Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1992).
2
Christopher Brown, USMC, and Capt Donald Pump, USMC, for them to
sell as well. In total, GySgt Leonard made approximately
$85,000.00 from this scheme, the appellant made approximately
$39,000.00, and Capt Brown profited approximately $30,000.00.
Capt Pump actually sold little, if any, of the items, and
investigators were able to retrieve much of the property given
to him. However, Capt Pump played a pivotal role in the scheme
by taking advantage of his position to enable acquisition of the
excess military property.
In addition to wrongfully obtaining and selling military
property, GySgt Leonard also solicited the appellant to help him
secretly ship from Iraq to the United States 22 illegally
obtained AK-47 machineguns. GySgt Leonard informed the
appellant that he and a fellow Marine, GySgt Steven Carstensen,
USMC, intended to ship the weapons to the U.S., and the
appellant agreed to use his position as logistics chief to
facilitate the shipments. The appellant’s conduct in this
scheme included ensuring that the weapons, hidden in shipping
containers with false bottoms, were not discovered during
customs inspections. Once the weapons were in the U.S., the
appellant, at GySgt Leonard’s request, delivered one weapon each
to Capt Brown and First Lieutenant (1st Lt) Christopher Warp.
Based on this conduct, the CA referred charges against all
the Marines involved, with the exception of GySgt Leonard, who
was administratively separated with an other than honorable
conditions discharge and faced possible prosecution in civilian
federal court. However, the record of trial does not indicate
whether civilian authorities ever actually prosecuted GySgt
Leonard.
Capt Brown pled guilty at a general court martial to one
specification of wrongfully selling military property, one
specification of wrongfully possessing a machinegun, one
specification of obstructing justice, and one specification of
receiving stolen property. His adjudged sentence included a
dismissal, confinement for twelve months, a $15,000.00 fine, and
forfeiture of $1,000.00 pay per month for twelve months. The CA
was obligated pursuant to a pretrial agreement to defer the
adjudged and automatic forfeitures, and suspend the amount of
the fine in excess of $10,000.
GySgt Carstensen pled guilty at a general court martial to
one specification of conspiracy, one specification of wrongfully
possessing machineguns, one specification of wrongfully
transporting machineguns, two specifications of larceny, and
3
one specification of receiving stolen property. His adjudged
sentence included a bad-conduct discharge, confinement for nine
months, and a reduction to pay grade E-1.
1st Lt Warp pled guilty at a general court martial to three
specifications of violating Article 134, UCMJ. His adjudged
sentence included a dismissal, confinement for seventy days, and
forfeiture of $1,000.00 pay per month for twelve months. The CA
was obligated pursuant to a pretrial agreement to disapprove the
adjudged forfeitures, and defer and waive the automatic
forfeitures.
Finally, Capt Pump pled guilty at a general court martial
to one specification of dereliction of duty, and one
specification of receiving stolen property. His adjudged
sentence included a dismissal, confinement for eighteen months,
a $10,000.00 fine, and forfeiture of $2,500.00 pay per month for
eighteen months. The CA was obligated pursuant to a pretrial
agreement to suspend the fine, defer and then waive and defer
the automatic and adjudged forfeitures respectively, and suspend
all confinement in excess of 180 days.
Sentence Disparity
In his first assignment of error, the appellant alleges
that his sentence is disproportionately severe compared to the
sentences of his fellow Marines involved in the conduct in
question. He avers that disapproving the dishonorable discharge
will remedy this error.
In general, we review the appropriateness of a sentence
without reference or comparison to sentences in other cases.
United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985). We
will not engage in comparison of specific cases “‘except in
those rare instances in which sentence appropriateness can be
fairly determined only by reference to disparate sentences
adjudged in closely related cases.’” United States v. Lacy,
50 M.J. 286, 288 (C.A.A.F. 1999) (quoting Ballard, 20 M.J. at
283) (additional citation omitted). “Closely related” cases are
those that involve offenses “similar in both nature and
seriousness or which arise from a common scheme or design.”
United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994); see
also Lacy, 50 M.J. at 288 (examples of closely related cases
include co-actors in a common crime, servicemembers involved in
a common or parallel scheme, or “some other direct nexus between
the servicemembers whose sentences are sought to be compared”).
The burden is upon the appellant to make the initial showing
4
that his case is closely related to another, and that the
sentences are highly disparate. Lacy, 50 M.J. at 288. If the
appellant meets this burden, the Government must then establish
a rational basis for the disparity. Id.
In conducting this analysis it is important to note that
“[s]entence comparison does not require sentence equation.”
United States v. Durant, 55 M.J. 258, 260 (C.A.A.F. 2001)
(citations omitted). Additionally, co-conspirators are not
entitled to equal sentences simply due to their status as co-
conspirators. See id. at 261. Sentence disparity exists when a
sentence exceeds “relative uniformity” or represents an “obvious
miscarriage of justice or an abuse of discretion.” United
States v. Swan, 43 M.J. 788, 793-94 (N.M.Ct.Crim.App. 1995)
(citations and internal quotation marks omitted). It is with
these concepts in mind that we review the appellant's sentence.
In its answer, the Government concedes that the appellant's
case is closely related to those of his fellow Marines.
However, the Government alleges that the appellant is not
entitled to relief since he has failed to demonstrate that the
sentences in question are highly disparate. We disagree.
Of all the Marines involved, the appellant's adjudged
confinement was the longest by two years, and he was the only
Marine to suffer both an approved fine and unsuspended automatic
forfeitures. Moreover, the appellant was the only enlisted
Marine involved in the misconduct to receive a dishonorable
discharge. In light of these facts, and given that the cases
are closely related, we find that the appellant's sentence is
highly disparate to the sentences of his fellow Marines.
Although we find the appellant's sentence highly disparate
we will not grant relief so long as the Government provides a
rational basis for the disparity. In its brief, the Government
asks that we find a rational basis for the disparity based on a
“presumption” that the military judge in each case carefully
weighed all the evidence in mitigation, extenuation and
aggravation and rendered an individualized and appropriate
sentence. Government's Brief of 13 May 2014 at 12. We cannot
apply such a presumption as doing so would improperly relieve
the Government of its burden. See Lacy, 50 M.J. at 288 (stating
that if the appellant meets his burden of showing a high
disparity among closely related cases, or if the court raises
the issue on its own motion, “then the Government must show that
there is a rational basis for the disparity”). Additionally,
5
our review of the record as a whole, including the Government's
brief, does not reveal a rational basis for the disparity.
The record of trial demonstrates that the appellant, while
playing a significant role in both plans to sell military
property and to transport the machineguns, was the most junior
Marine involved in the misconduct, and did not become involved
in either scheme, until solicited by two senior Marines while
all were forward deployed to Iraq. Equally concerning is the
record’s silence on why GySgt Leonard – the recognized
ringleader of both schemes - avoided military justice
altogether. Based on all these facts, we conclude that the
Government has failed to meet its burden of providing a rational
basis for the appellant's highly disparate sentence.
Accordingly, we will grant relief.
Article 10, UCMJ
In a Grostefon submission, the appellant claims that the
military judge erred in denying his motion to dismiss based on
an alleged violation of Article 10, UCMJ. We disagree. We
review de novo whether an appellant was denied his right to a
speedy trial under Article 10, UCMJ. United States v. Cooper,
58 M.J. 54, 58 (C.A.A.F. 2003).
Article 10, UCMJ, states that when a servicemember,
[I]s placed in arrest or confinement prior to trial,
immediate steps shall be taken to inform him of the
specific wrong of which he is accused and to try him
or to dismiss the charges and release him.
The Court of Appeals for the Armed Forces has explained that
this provision “is specifically addressed to a particular harm,
namely causing an accused to languish in confinement or arrest
without knowing the charges against him and without bail.”
United States v. Schuber, 70 M.J. 181, 187 (C.A.A.F. 2011)
(citation omitted). “[I]f the condition precedent is addressed
— the accused is no longer confined without knowing the charges
of which he is accused and without opportunity for bail — the
purpose of Article 10, UCMJ, is vindicated.” Id. This remains
true even if the appellant is placed on restriction after
release from confinement, so long as that restriction is not
tantamount to arrest or confinement. Id.
In the present case, the appellant was placed in pretrial
confinement on 14 April 2011. However, he was released from
confinement nineteen days later, on 3 May 2011, and placed on
6
pretrial restriction where he remained until his court-martial
held 17 May 2013. Although the appellant argued to the military
judge that this period of restriction was tantamount to arrest
or confinement, our review of the record convinces us that the
military judge did not err in rejecting this argument. Thus,
the purpose of Article 10, UCMJ, was “vindicated” in the
appellant's case upon his release from confinement. Id.2
Accordingly, this assignment of error is without merit.
Conclusion
The findings are affirmed. However, we affirm only so much
of the sentence so as to include a bad- conduct discharge,
confinement for eighteen months, a $10,000.00 fine, and
reduction to pay grade E-1.3 The supplemental court-martial
order will reflect that Capt Brown’s adjudged sentence included
a fine of $15,000.00 vice $5,000.00.
Senior Judge FISCHER and Judge KING concur.
For the Court
R.H. TROIDL
Clerk of Court
2
We also find that the nineteen days that the appellant did spend in
pretrial confinement did not violate Article 10, UCMJ, as we do not
find this delay unreasonable. See Schuber, 70 M.J. at 187-88.
3
The staff judge advocate's recommendation demonstrates that the
appellant paid his fine in full by 6 June 2013.
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UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, M.C. HOLIFIELD, K.J. BRUBAKER
Appellate Military Judges
UNITED STATES OF AMERICA
v.
GERALD A. FAIRLEY
SEAMAN APPRENTICE (E-2), U.S. NAVY
NMCCA 201400268
GENERAL COURT-MARTIAL
Sentence Adjudged: 15 April 2014.
Military Judge: Col Daniel J. Daugherty, USMC.
Convening Authority: Commandant, Naval District Washington,
Washington, D.C.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAGC, USN; Addendum: LT J.T. Taylor, JAGC, USN.
For Appellant: LCDR John T. Zelinka, JAGC, USN.
For Appellee: Maj Suzanne M. Dempsey, USMC.
23 December 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as general court martial convicted
the appellant, pursuant to his pleas, of three specifications of
assault consummated by a battery, in violation of Articles 128,
Uniform Code of Military Justice, 10 U.S.C. § 928. The military
judge sentenced the appellant to fourteen months confinement,
reduction to pay grade E-1, total forfeitures, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged and, except for the bad-conduct discharge, ordered
it executed. Although the CA was obligated, pursuant to a
pretrial agreement, to suspend all confinement in excess of six
months for the period of confinement served by the appellant
plus six months thereafter, the CA’s action fails to do so.
On appeal, the appellant alleges that the CA’s action is
defective and that he is entitled to a new post-trial review or,
in the alternative, that he is entitled to have the CA’s action
accurately reflect the results of his court-martial. The
appellant has not alleged that he was actually required to serve
additional confinement as a result of the error. After
carefully considering the record of trial, the appellant's
assignments of error, and the Government's response, we conclude
that the findings and sentence are correct in law and fact and
that following our corrective action no error materially
prejudicial to the substantial rights of the appellant remains.
Arts. 59(a) and 66(c), UCMJ.
An appellant who pleads guilty pursuant to a pretrial
agreement is entitled to the fulfillment of any promises made by
the Government as part of that agreement. Santobello v. New
York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971);
United States v. Smith, 56 M.J. 271, 272 (C.A.A.F. 2002). Here,
the CA erred by failing to comply with the terms of the pretrial
agreement in his action. This court has the authority to
enforce the agreement and will correct the error in our decretal
paragraph. United States v. Cox, 46 C.M.R. 69, 72 (C.M.A.
1972); United States v. Carter, 27 M.J. 695, 697 n.1 (N.M.C.M.R.
1988); see also United States v. Bernard, 11 M.J. 771, 772-74
(N.M.C.M.R. 1981).
The findings and the sentence as approved by the CA are
affirmed, but all confinement in excess of six months is
suspended for the period of confinement served by the appellant
plus six months thereafter.
For the Court
R.H. TROIDL
Clerk of Court
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228 N.W.2d 133 (1975)
CARGILL, INC., Plaintiff-Appellant,
v.
Patrick J. KAVANAUGH, Defendant-Appellee.
Civ. No. 9069.
Supreme Court of North Dakota.
April 4, 1975.
*135 Haugland & Heustis, Devils Lake, for plaintiff-appellant; argued by John C. Haugland, Devils Lake.
R. C. Heinley, Carrington, for defendant-appellee.
SAND, Judge.
Plaintiff Cargill appeals from a judgment in its favor on the basis that such judgment is insufficient because improperly predicated, and from the trial court's denial of its motion for modification of judgment.
The parties are in agreement on the following facts: That
On October 20, 1972, the appellant Cargill entered into a written contract to buy 7,500 bushels of # 1 hard amber durum wheat from the appellee Patrick J. Kavanaugh, a farmer.
The terms of that written contract provided that Kavanaugh was to deliver said wheat to Cargill at its Lakota, North Dakota, elevator between June 1, 1973, and June 15, 1973, and that Cargill was to pay for said wheat $1.97 per bushel.
The contract further provided that should Kavanaugh default in delivery, he [Kavanaugh] ". . . agrees to pay to [Cargill] as damages for default in delivery hereunder the difference between the above specified price [i. e., $1.97 per bushel] and the highest market price . . . on the date of default."
Kavanaugh defaulted in delivery as provided for in this contract.
In his answer and at the pre-trial conference Kavanaugh admitted he was in default on the written contract and offered to settle the matter on the basis of the liquidated-damages *136 clause contained in that contract. Cargill refused this offer of settlement and, at trial before the district court, sought to show that the parties had either orally agreed to modify the written contract so as to extend the delivery date (date of default) or that the parties had agreed to a new oral contract differing only from the superseded written contract in terms of a later delivery date (date of default).
The trial judge, after having heard the evidence in the matter, promulgated as one of his findings of fact, in Paragraph VII, the following:
"That the plaintiff [Cargill] has failed to establish that there was an extension of that [written] contract [of October 20, 1972] beyond the 15th day of June, 1973."
Cargill challenges this finding of fact and requests this court declare the finding of fact to be otherwise.
It is so well settled as not to require citation that the scope of our review as to the findings of fact of a trial judge is limited by rule 52(a), North Dakota Rules of Civil Procedure, which provides, in pertinent part, that "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."
In In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D.1973), this court, attempting to elucidate the term "clearly erroneous," said:
"A finding is `clearly erroneous' only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746 (1948). The mere fact that the appellate court might have viewed the facts differently, if we had been the initial trier of the case, does not entitle us to reverse the lower court. Nee v. Linwood Securities Co., 174 F.2d 434 (8th Cir. 1949); Wright & Miller, Federal Rules of Civil Procedure, Sec. 2585, p. 729 et seq."
With these tenets in mind, we have thoroughly reviewed the record in this case and find that the evidence of record in support of Cargill's assertion that the date of default was July 27, 1973 (when the relevant market price was $5.82 per bushel), rather than June 15, 1973 (when the relevant market price was $2.70 per bushel), consists of the testimony at trial of Mr. Kavanaugh and of Orville Peterson, Cargill's Lakota elevator manager.[1]
The gist of the testimony, even when we look at it in a light most favorable to Cargill, which we are not required to do, is as follows:
In May 1973, Orville Peterson [hereinafter Peterson] told Kavanaugh that he could bring in the grain provided for in the contract at any time as there was elevator space available to handle it. Kavanaugh asked how much it would cost to buy his way out of the October 20, 1972, contract and Peterson quoted an approximate figure.
In early June and on June 10, 1973, Peterson told Kavanaugh he could begin delivering the wheat. Kavanaugh's response of June 10 was that he was busy with Spring's work and, implicitly, couldn't deliver the wheat at that time or in the near future.
After June 15, 1973 (the last day Kavanaugh could deliver the wheat contracted for without being in default under the written contract) Peterson contacted Kavanaugh several times about beginning to deliver the wheat but Kavanaugh was either noncommittal about doing so or had some excuse such as the fact that he was doing summer-fallowing or that he could not deliver in the rain.
*137 Finally, on July 24, 1973, after Peterson contacted Kavanaugh and requested him to deliver the grain, Kavanaugh, for the first time, said that he could not deliver the grain for the contract price and would like to see if things could be settled out somehow. Kavanaugh asked Peterson to contact his superior so some sort of settlement could be worked out. Cargill states that this was the first inkling that it had that Kavanaugh did not intend to honor the contract.
On July 25, 1973, Kavanaugh went to the office of Orville Peterson, where the latter asked him to sign an extension of the delivery date specified in the original contract. Kavanaugh refused to do so. Peterson also asked him to start delivering the grain but Kavanaugh said that he couldn't do so while it was raining. Peterson then gave Kavanaugh until July 27 to deliver the grain.
On July 27, Kavanaugh said he would not deliver the grain for the original contract price and he was advised by Peterson that the contract was to be considered canceled.
We will examine these facts to determine whether the contentions of the appellant Cargill that the delivery date specified on the written contract was extended pursuant to an oral agreement to modify the written contract or whether (and this point seems to be more strongly contended by the appellant) the written contract was superseded by a later oral contract between the parties to deliver the grain have any substantial basis in law.
But because of appellant's contention that the written contract was modified in part, we must first take cognizance of an applicable statute not cited by either of the parties, to wit, Section 9-09-06, North Dakota Century Code, which reads as follows:
"A contract in writing may be altered by a contract in writing or by an executed oral agreement and not otherwise. An oral agreement is executed within the meaning of this section whenever the party performing has incurred a detriment which he was not obligated by the original contract to incur."
In Northwestern Equipment, Inc. v. Tentis, 74 N.W.2d 832 (N.D.1956), this court held, citing Williston on Contracts, Revised Edition, Section 631, that this provision was not a mere rule of evidence but a provision of substantive law. We therefore conclude that the statute has application to the case at hand.
Northwestern Equipment was an action by a seller to replevin farm equipment previously sold under conditional sale contract on the basis of a breach of contract by the buyer. The buyer counterclaimed and, in pertinent part, alleged that seller's representatives promised, after the execution of the conditional sale contract, to repair the defects in the equipment and, failing therein, the seller would take the tractor back.
In resolving the argument of the buyer, this court quoted the first sentence of Section 9-0906, N.D.R.C. 1943 (the provisions of which are identical to our present Section 9-09-06, N.D.C.C.), and said:
"These rules [Sections 9-0607, N.D.R.C. 1943 and 9-0906, N.D.R.C. 1943] are not rules of evidence but of substantive law. Williston on Contracts, Revised Edition, Section 631. The jury might find as a fact that the oral promises [to repair or take back] were made but their finding in that respect could not change the [written conditional sale] contract. The legal effect of the oral testimony is for the court to determine as a matter of law. In this connection it should be noted that the plaintiff did subsequently agree in writing to make certain repairs on the tractor and performed that agreement. In that respect only was the original contract of sale modified." Northwestern Equipment v. Tentis, 74 N.W.2d 832, 839. [Emphasis supplied.]
Several of our earlier opinions expounded on the meaning of the term "executed oral *138 agreement" as found in Section 9-09-06, N.D.C.C. A synopsis of two of those opinions will adequately provide an overview as to the meaning of the term. Thus, in Ley v. Gulke, 58 N.D. 727, 227 N.W. 222, 223 (1929), where a housebuilder sued to recover the cost of building a house for the defendant pursuant to a written contract, this court held that oral evidence that the parties had agreed subsequent to execution of the written contract to modify it by requiring certain additional work by the builder which was done was properly considered by the trial court because
"Section 5938, Compiled Laws of 1913 [now Section 9-09-06, N.D.C.C.], provides that a contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise. In so far as recovery has been had for extra work performed, the parol agreement under which it was performedif such existedwas in each instance executed. The plaintiff does not rely upon an executory parol agreement. See Quinlivan v. Dennstedt Land Co., 39 N.D. 606, 168 N.W. 51, and cases therein cited."
Similarly, in Reitman v. Miller, 78 N.D. 1003, 54 N.W.2d 477 (1952), where this court, by a 3-to-2 majority, stated in syllabus paragraph 2 that
"A written lease complete in itself may be altered by a subsequent independent oral agreement and such oral agreement, if executed, is binding upon the parties."
and held that the trial court could properly instruct as to the enforceability of an oral agreement seemingly modifying the terms of a prior written farm lease between them where a third party pursuant to the subsequent oral agreement had already performed by doing the threshing of leasehold grain agreed upon as consideration for the oral agreement.
In the instant case, if appellant Cargill's theory that the written contract was modified, at least as to delivery date, by subsequent oral agreement between the parties, is to remain tenable, we would have to find that the oral agreement was "executed" as contemplated by Section 9-09-06, N.D.C.C. The question is not merely whether an oral agreement was made, but also whether or not it was executed. We are unable to find that Cargill "has incurred a detriment [pursuant to any oral agreement] which [it] was not obligated by the original contract to incur." Further, Cargill could in no way be construed as a "party performing" under an oral agreement, since it has in no way changed its relative position with Kavanaugh as a result of the alleged oral agreement.
Thus, proof of an executed oral agreement altering the written contract having failed, we are required by statute to rule that the evidence tending to show such alteration is not available for our consideration as to the incidents of such alteration, if any were effectuated.
However, the appellant Cargill also urges that a new oral agreement was made which did not merely alter the prior written contract but superseded it in toto. We have thoroughly examined the facts which the appellant points to as buttressing this argument but we are convinced that the contention is not tenable. We believe a mere recitation and brief discussion of the elements which meld to form a legally enforceable contract, together with the facts in the instant case, will reveal the fallacies in the appellant's argument.
Basically, Hornbook law (i. e., Simpson on Contracts) tells us that a contract requires an offer, and acceptance of that offer, and mutual acceptance and understanding of the offeror and offeree as to the terms of the legally enforceable obligation thus incurred. In the instant case, the breach by Kavanaugh of the written contract to deliver occurred on June 15, 1973. It was not until July 8, 1973, that Cargill was able to contact Kavanaugh as to when *139 he (Kavanaugh) would deliver the grain. We presume that it must have been on this date or on some other date in July 1973 when Cargill contacted Kavanaugh about delivery of the grain, that Kavanaugh, as contended by Cargill, "accepted" this "offer" to enter into a contract to deliver grain of the same grade, in the same amount, at a future date, and at the same price as provided by the written contract.
We find this contention untenable, both for the element of solicitude transformed into requests or proposals on Cargill's part, which seems to be its sole support, and for the reason that the elements making up a legally enforceable contract are so utterly lacking in the situation as outlined. We cannot transmute an equivocal "maybe" into an agreement to deliver grain at some unspecified later date, presumably at the original price, nor can we infer an intent on the part of Kavanaugh to enter into a legally enforceable agreement on the basis of equivocations and taciturnity.
Lastly, our continuing discussion (by no means definitive) on Hornbook law requires that we consider the aspect of mutual consideration for any asserted independent mutual oral agreement. After having thoroughly scrutinized the record, we find no mutuality of consideration such as would allow us to find the existence of a legally binding independent oral agreement.
Certainly the consideration and benefit flowing from Kavanaugh to Cargill as the result of any binding subsequent oral agreement would be considerable because Cargill would obtain the grain promised by the oral agreement for a sum substantially below the market price at the time of its delivery or, as liquidated damages, the difference between the market price at the time of default in the subsequent delivery date and the price provided for in the subsequent oral agreement in the event of a second default in delivery. But there is no consideration flowing from Cargill to Kavanaugh to support Cargill's theory of a subsequent oral agreement embodying the same subject matter.
We are aware, of course, that it could be argued that Cargill's implicit agreement to forbear suit for the liquidated damages under the prior written agreement is sufficient consideration to support the asserted subsequent oral agreement. (Lest the reader be misled, we are only postulating the existence of a subsequent oral agreement for purposes of pointing out the legal insufficiency of such a postulationwe are merely hypothesizing the existence of such a subsequent agreement at this time.) Such an argument totally lacks merit under the circumstances present in the instant case. We find it difficult to believe and there is no evidence that Kavanaugh would enter into a subsequent oral contract totally to his detriment. The situation at the time of the asserted subsequent oral agreement was this:
The relevant grain price had gone up apace and was over $5.00 per bushel.
Under the written contract between the parties, which was breached by Kavanaugh on June 15, 1973, Kavanaugh had agreed to accept the sum of $1.97 per bushel.
The market price at the time of the breach of the written contract was $2.70 per bushel.
The liquidated-damages clause in the written contract provided that in the event of breach Kavanaugh would have to pay the difference between the contract price and the market price at the time of breach.
Thus, Kavanaugh on or after July 8, 1973 (which date is the first date that he could have entered into a subsequent oral contract), would have suffered only detriment by entering into an oral agreement reflecting the same price terms when he could have, alternatively, paid the liquidated damages provided for in the written contract through sale of the grain in July 1973 *140 at the then going price and retained a subsequent profit for himself as a result.[2]
Cargill also argued and contended that Kavanaugh's breach of the written contract constituted a breach of the "obligation of good faith" imported by Section 41-01-13, N.D.C.C., which provides that:
"Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement."
Appellant's argument in this regard is that Kavanaugh, after breaching the written contract, continued to transmit ambiguous signals that he might honor it despite the breach. Such actions on the part of Kavanaugh, however, had nothing to do with any breach of "an obligation of good faith in [the contract's] performance or enforcement," rather such actions perforce occurred after the contract had been breached. Although Kavanaugh's breach of the written contract may serve as an indication that he may not have acted most honorably in the matter (as alleged by the appellant), we cannot hold that he (Kavanaugh) had a duty under the written contract to abstain from the rendering of ambiguous responses to ambiguous requests for delivery.
Cargill appears to be contending that Kavanaugh breached the obligation of good faith by not seriously negotiating a new contract or agreement. Section 41-01-13 does not apply to such situations. Cargill has failed to establish that this statutory provision applies to the transactions in question and therefore its contention in this respect cannot be seriously entertained.
We further believe that Cargill's request that this court invoke its equitable powers and find that equity requires the finding or imposition of a subsequent oral agreement in order to do substantial justice between the parties and prevent Kavanaugh's unjust enrichment is ill-advised in light of the circumstances. First, it was Cargill that prepared and proffered the form for the written contract. A contract prepared by one party (unless the product of negotiation) will be construed against that party when ambiguities exist which must be resolved by construction. (See § 9-07-19, N.D.C.C.) Farmers Union Grain Terminal Ass'n v. Nelson, 223 N.W.2d 494 (N.D.1974). Here, Cargill prepared a contract which provided for liquidated damages in the event of breach by the other party. No alternate method of computing damages was set forth and, under the circumstances, the liquidated-damages clause must be upheld as the exclusive measure of computing damages for breach. Farmers Union Grain Terminal Ass'n v. Nelson, supra. Since Cargill alone set the damages in event of breach without the intercession of Kavanaugh in those particulars, it can now hardly be heard to argue that the application of those terms has caused them an onerous loss, especially in light of the fact that the incurred loss resulted from its own failure to mitigate its damages.
We believe that a quotation from the nineteenth century English philosopher, Jeremy Bentham (the founder of Utilitarianism) is apt in this regard: "A fixed penalty is a license in disguise." Last Epigrams and Sayings, A Bentham Reader, p. 363 (Edited by Mary Peter Mack, 1969). Aside from the fact that the instant action sounds in contract, the exercise of this court's equitable powers would be inappropriate under the circumstances because there exists no showing of unjust enrichment, fundamental unfairness, or miscarriage of law requiring the intervention of equity.
We hold therefore that there is no sufficient showing as a matter of law that the parties entered into an independent oral agreement of which this court can take judicial cognizance. Further, we hold that *141 the trial court's finding that no oral agreement extending the delivery date of June 15, 1973 (as provided for by the written contract) was made is not clearly erroneous.
Aside from the issues disposed of by our holdings supra, the appellant has posited that the trial judge erred in excluding testimony concerning prior transactions between the parties. The appellant urges that the trial judge failed to take proper cognizance of the relevancy of a portion of Section 41-01-15, N.D.C.C., which provides as follows:
"Course of dealing and usage of trade. 1. A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct."
Appellant sought to introduce copies of certain documents at trial which purported to be copies of deferred grain sale contracts executed between Cargill and Kavanaugh in previous years. Although these copies were excluded from introduction into evidence, we note that Kavanaugh testified that only one of these prior transactions involved a prior deferred sale. Other testimony was to the effect that Kavanaugh had been late on one prior occasion in delivering grain as per the scheduled date on the contract.
We believe that the purport of Section 41-01-15(1), N.D.C.C., is to assist the court by allowing evidence as to those matters in which the basic contract is lacking or as to which the basic contract is ambiguous. Such does not appear to be the case here.
Furthermore, the appellant has made no offer of proof as to the testimonial evidence it would have adduced. This court is unable to review the issue in the absence of such offer of proof. Hefty v. Aldrich, 220 N.W.2d 840 (N.D.1974). Also see, Signal Drilling Company, Inc. v. Liberty Petroleum Company, 226 N.W.2d 148 (N.D.1975), for a discussion of offers of proof.
After the trial in the instant case, the appellant filed within ten days after the judgment therein a "motion for modification of judgment." Said motion was based upon an affidavit of appellant's trial attorney asserting that newly discovered evidence existed which required a re-examination of the findings, conclusion, and judgment of the trial court.
Although the appellant sought to predicate this motion upon Rule 60(b), N.D.R. Civ.P., the language of Rule 60(b)(2) stating that "[The court may relieve a party from a judgment on the basis of] (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)" precludes reliance upon Rule 60(b) and requires a referral to Rule 59(b), the subject matter of which deals with grounds for new trial. Kavanaugh resisted the motion on the grounds that it was without merit or was improper under any of the rules of civil procedure.
The sole ground for a new trial set forth in the motion is that referred to in Rule 59(b)(4), N.D.R.Civ.P., to wit:
"4. Newly discovered evidence material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial."
The question before us is whether the trial judge abused his discretion in denying the motion for a new trial.
In denying the motion, the trial judge made no finding as to whether the evidence in support thereof was "Newly discovered evidence . . . which . . . could not with reasonable diligence [on the part of the presenting party] have [been] discovered and produced at trial." By way of comparision, this court in Hefty v. Aldrich, 220 N.W.2d 840, 846 (N.D.1974), based its affirmance of the trial judge's denial of a similar motion, on the grounds "that the evidence was not newly discovered and that there was a lack of due diligence in presenting *142 it, and therefore no relief is available under either Rule 59(b)(4) or Rule 60(b)(4) relating to newly discovered evidence"; whereas in the instant case the trial judge apparently bypassed this determination and grounded his denial of the motion on the ground that the cause for the motion (newly discovered evidence) would not "materially [affect] the substantial right of the [moving] party." Rule 59(b), N.D.R.Civ.P.
The alleged newly discovered evidence received by appellant's trial counsel from appellant's Minneapolis corporate counsel after the trial had been completed consists of four documents, to wit:
(1) A letter dated July 26, 1973, from Kavanaugh to Cargill asking for the market price of June 15, 1973, as computed by Cargill;
(2) A document denominated "invoice," dated July 27, 1973, on which computation of default damages has been made indicating that Kavanaugh is liable for the difference between the relevant market price on July 27, 1973 ($5.78 per bushel) and the contract price of $1.97 per bushel, which difference equals $28,605.00;
(3) A memorandum dated July 28, 1973, prepared by either Orville or Marge Peterson, or both, stating their recollections as to the dates on which they contacted Kavanaugh relative to delivery of the grain; and
(4) A letter dated July 30, 1973, from Orville Peterson to Kavanaugh indicating that Cargill considered Kavanaugh to be in default as of July 27, 1973, and indicating that Cargill considered that date to be the date of default for the reason that they had exercised an option in the written contract providing that if Cargill's elevator was "unable to receive grain on the final delivery date . . . specified, said date may be extended, at Buyer's option, for not more than sixty (60) days."[3]
As the trial judge noted in his memorandum decision denying the motion, the last three of these enumerated documents are merely self-serving, whereas the first, although not self-serving, adds nothing to the testimony adduced at trial. We concur, and therefore hold that the trial judge did not abuse his discretion in denying the motion.
The judgment of the district court is affirmed.
ERICKSTAD, C. J., and PEDERSON, PAULSON and VOGEL, JJ., concur.
NOTES
[1] Marge Peterson, another employee of Cargill's Lakota elevator, testified as to a conversation which she overheard on July 25, 1973, but her testimony as to that conversation was essentially the same as that of Orville Peterson.
[2] The latter alternative is precisely what occurred although the chronological sequence is reversed.
[3] This point was properly disposed of by the trial judge's memorandum decision denying the motion for a new trial holding that the condition precedent never existed, i. e., that the elevator never was full ("plugged") and unable to receive grain during the period when Kavanaugh's performance was required under the written contract.
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418 S.E.2d 299 (1992)
106 N.C. App. 614
N.E. FOY and Ruth Carolyn Foy
v.
Robert N. HUNTER, Jr., Administrator of the Estate of Forrest William Whisnant.
No. 9118SC649.
Court of Appeals of North Carolina.
July 7, 1992.
*300 James W. Workman, Jr., and E. Raymond Alexander, Jr., Greensboro, for plaintiff-appellants.
Henson Henson Bayliss & Sue, by Perry C. Henson and A. Robinson Hassell, Greensboro, for defendant-appellee.
GREENE, Judge.
The plaintiffs appeal from an order entered 7 February 1991 in which the trial court granted the defendant's motion for involuntary dismissal under N.C.G.S. § 1A-1, Rule 41(b) (Rule 41(b)).
On 4 October 1984, the plaintiffs were injured in an automobile accident in Greensboro, North Carolina, due to the alleged negligence of Forrest Whisnant (Whisnant). On 30 September 1987, the plaintiffs filed an unverified complaint against Whisnant in the District Court Division of Cabarrus County, North Carolina. At the time of the accident and the filing of *301 the complaint, the plaintiffs resided in Cabarrus County, and Whisnant resided in Guilford County, North Carolina. In the complaint, N.E. Foy sought damages in the amount of $88,000 for personal injuries and property damage, and Ruth Foy sought damages in the amount of $88,000 for personal injuries.
Whisnant filed an answer on 9 November 1987 in which he denied negligence on his part and made various motions. Whisnant moved for involuntary dismissal of the plaintiffs' complaint under Rule 41(b) on the grounds that the plaintiffs had violated N.C.G.S. § 1A-1, Rule 8(a)(2) (Rule 8(a)(2)) by specifically demanding $176,000 in damages in a negligence action. Rule 8(a)(2) provides that "[i]n all negligence actions... wherein the matter in controversy exceeds the sum or value of ten thousand dollars ($10,000), the pleading shall not state the demand for monetary relief, but shall state that the relief demanded is for damages incurred or to be incurred in excess of ten thousand dollars ($10,000)." Furthermore, because the plaintiffs brought their action in the district court, Whisnant moved to dismiss the complaint with prejudice, and in the alternative, to transfer the action to Cabarrus County Superior Court. See N.C.G.S. § 1A-1, Rule 12(b)(3) (motion to dismiss for improper division); N.C.G.S. § 7A-240 (as a general rule, superior and district courts possess concurrent jurisdiction "of all justiciable matters of a civil nature"); N.C.G.S. § 7A-243 (superior court is proper division for trials of civil actions where amount in controversy exceeds $10,000); N.C.G.S. § 7A-258 (motion to transfer to proper division).
On 19 July 1988, Whisnant died from health problems unrelated to his accident with the plaintiffs. The plaintiffs did not learn of Whisnant's death until 17 August 1989 when Whisnant's attorney informed the plaintiffs' attorney of the death. On 21 November 1989, Whisnant's attorney filed a motion to dismiss under N.C.G.S. § 1A-1, Rule 25 (Rule 25) alleging that the plaintiffs' action had abated because the plaintiffs had not presented their claims to Whisnant's personal representative and had not requested substitution of the personal representative for Whisnant. Furthermore, Whisnant's attorney moved for dismissal under Rule 41(b) for the plaintiffs' alleged failure to prosecute their claims. According to the record, the plaintiffs had not engaged in any discovery upon Whisnant nor had they taken any further action with regard to their claims since filing their complaint. On 27 November 1989, the plaintiffs filed a motion under Rule 25(a) to substitute Robert N. Hunter, Jr. (defendant) as the defendant in the action in place of Whisnant. According to the motion, the defendant was appointed to administer Whisnant's estate in November, 1989. Before that date, no one had been appointed to administer the estate. The trial court allowed the plaintiffs' Rule 25(a) motion on 7 February 1990.
On approximately 7 February 1990, the defendant moved to transfer the plaintiffs' action from the Cabarrus County District Court to the Guilford County Superior Court. In a motion filed 7 February 1990, the plaintiffs' attorney, William Alexander, requested that he be allowed to withdraw as attorney of record for the plaintiffs and that Raymond Alexander be substituted in his place. The basis for the motion was that William Alexander's practice was located in Cabarrus County while Raymond Alexander's practice was located in Guilford County. By order filed 7 February 1990, the trial court granted this motion, and on 9 February 1990, the trial court transferred the plaintiffs' action to the Guilford County Superior Court.
At some time in late 1990, the action was placed upon the Non-Jury Administrative Civil Session calendar for the week of 31 December 1990 for the purpose of setting a trial date. The action was scheduled to be heard at 12:00 p.m. on 4 January 1991. Nothing in the record indicates that the plaintiffs were notified of or knew of the hearing. When the case came on for hearing, the defendant's attorney appeared but the plaintiffs and their attorney did not. The defendant requested and the trial court set 3 June 1991 as the trial date. The defendant also requested orally that the action be placed on the Motion Non-Jury *302 Civil Session calendar for the week of 4 February 1991 because he planned to make another motion for involuntary dismissal under Rule 41(b). The trial court granted the defendant's calendar request.
On 10 January 1991, the defendant filed a Rule 41(b) motion for involuntary dismissal for the plaintiffs' alleged failure to prosecute their claims and to comply with the Rules of Civil Procedure. The motion came on for hearing on 4 February 1991. Nothing in the record indicates that the plaintiffs were notified of or knew of the hearing. Neither the plaintiffs nor their attorney appeared at the 10:00 a.m. calendar call. According to the plaintiffs, their attorney did not appear because he was answering the calendar call for a criminal case in superior court. At approximately 2:00 p.m., however, the plaintiffs' attorney appeared for hearing on the defendant's motion. The trial court granted the plaintiffs a hearing on the motion and ordered the hearing set for 7 February 1991. The parties' attorneys appeared at the hearing, and after the hearing, the trial court filed its order granting the defendant's Rule 41(b) motion and dismissed the complaint with prejudice.[1] Although a transcript of this hearing was apparently made, the transcript has not been included as a part of the record on appeal. The plaintiffs gave notice of appeal on 12 February 1991, and on 16 April 1991, they filed in the trial court a motion under N.C.G.S. § 1A-1, Rule 60(b)(1) (Rule 60(b)(1)) for relief from the order of involuntary dismissal entered 7 February 1991. The trial court denied this motion on 10 June 1991. The record does not reflect that the plaintiffs gave notice of appeal from the trial court's denial of their Rule 60(b)(1) motion.
The dispositive issue is whether the trial court erred in dismissing the plaintiffs' action under either N.C.G.S. § 1A-1, Rule 41(b) or N.C.G.S. § 1A-1, Rule 8(a)(2).
Under Rule 41(b), a trial court may enter sanctions for failure to prosecute only where the plaintiff or his attorney "manifests an intention to thwart the progress of the action to its conclusion" or "fails to progress the action towards its conclusion" by engaging in some delaying tactic. Green v. Eure, 18 N.C.App. 671, 672, 197 S.E.2d 599, 601 (1973); Jones v. Stone, 52 N.C.App. 502, 505, 279 S.E.2d 13, 15, disc. rev. denied, 304 N.C. 195, 285 S.E.2d 99 (1981); see also Smith v. Quinn, 324 N.C. 316, 318-19, 378 S.E.2d 28, 30-31 (1989) (trial court did not err in dismissing plaintiff's action where plaintiff's attorney violated Rule of Civil Procedure for purposes of delay and gaining unfair advantage). Whether a plaintiff or his attorney has manifested an intent to thwart the progress of an action or has engaged in some delaying tactic may be inferred from the facts surrounding the delay in the prosecution of the case. Green, 18 N.C.App. at 672, 197 S.E.2d at 600-01; see also Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S. Ct. 1386, 1393, 8 L. Ed. 2d 734, 739-40 (1962) (petitioner's deliberate dilatory conduct reasonably inferred from facts including "drawn-out history of the litigation"). Furthermore, a trial court may enter sanctions when the plaintiff or his attorney violates a rule of civil procedure or a court order. Harris v. Maready, 311 N.C. 536, 551, 319 S.E.2d 912, 922 (1984) (Rule 8(a)(2)); Rivenbark v. Southmark Corp., 93 N.C.App. 414, 420, 378 S.E.2d 196, 200 (1989) (court order). The sanctions may be entered against either the represented party or the attorney, even when the attorney is solely responsible for the delay or violation. See Smith, 324 N.C. at 318-19, 378 S.E.2d at 30-31; Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 674-75, 360 S.E.2d 772, 776 (1987) (trial court properly sanctioned plaintiff for plaintiff's attorney's violation of court order); cf. Turner v. Duke Univ., 101 N.C.App. 276, 280-81, 399 S.E.2d 402, 405, disc. rev. denied, 329 N.C. 505, 407 S.E.2d 552 (1991) (attorney committed acts giving rise to sanction). The lack of misconduct by a represented *303 party, however, can mitigate against the use of severe sanctions against that party.
This case concerns an order of involuntary dismissal with prejudice based on the plaintiffs' alleged failure to prosecute their action and based on an alleged failure to comply with the Rules of Civil Procedure.
Failure To Prosecute
Although the trial court made no finding as to whether the plaintiffs or their attorney had manifested an intent to thwart the progress of their action or had engaged in some delaying tactic, the trial court found that the plaintiffs had not assisted or cooperated with their attorneys and had not been diligent in prosecuting their action and concluded that the plaintiffs had failed to prosecute their action. Assuming arguendo that these findings support the conclusion, the evidence in the record does not support these findings. Nothing in the record indicates that the plaintiffs failed to assist or cooperate with their attorneys or that they were not diligent in prosecuting their action, and therefore, the entry of sanctions against either the plaintiffs or their attorney may not be upheld on the ground of the plaintiffs' failure to prosecute. We do not consider whether the plaintiffs' attorneys failed to prosecute the action because the trial court did not make any findings on the issue.
Demand for Excessive Monetary Relief
The trial court also found that the plaintiffs' unverified complaint demanded $176,000 in damages and concluded that there had been a violation of Rule 8(a)(2) because of this demand in the plaintiffs' negligence action. The evidence supports this finding which in turn supports the conclusion that the complaint violated Rule 8(a)(2). Harris, 311 N.C. at 550, 319 S.E.2d at 921 (violation of Rule 8(a)(2)). Although dismissal under Rule 8(a)(2) is within the discretion of the trial court, when the rule is violated such sanction "may not be imposed mechanically." See Rivenbark, 93 N.C.App. at 420, 378 S.E.2d at 200. Because the drastic sanction of dismissal "is not always the best sanction available to the trial court and is certainly not the only sanction available," dismissal "is to be applied only when the trial court determines that less drastic sanctions will not suffice." Harris, 311 N.C. at 551, 319 S.E.2d at 922; Rivenbark, 93 N.C.App. at 420-21, 378 S.E.2d at 200-01 (failure to comply with court order); see also W. Brian Howell, Shuford North Carolina Civil Practice and Procedure § 8-3 (4th ed. 1992) (dismissal not the only sanction available to "adequately enforce the purpose" of Rule 8(a)(2)). Less drastic sanctions include: (1) striking the offending portion of the pleading; (2) imposition of fines, costs (including attorney fees) or damages against the represented party or his counsel; (3) court ordered attorney disciplinary measures, including admonition, reprimand, censure, or suspension; (4) informing the North Carolina State Bar of the conduct of the attorney; and (5) dismissal without prejudice. See generally Daniels, 320 N.C. at 674, 360 S.E.2d at 776 (discussing inherent power of the court); Chambers v. NASCO, Inc., ___ U.S. ___, ___, 111 S. Ct. 2123, ___, 115 L. Ed. 2d 27, 44-46 (1991) (discussing inherent power of the court); see also Rules, Regulations and Organization of the North Carolina State Bar, Article IX, § 2-C(2) (court has "inherent authority to take disciplinary action against attorneys").
Before dismissing an action with prejudice, the trial court must make findings and conclusions which indicate that it has considered these less drastic sanctions. Rivenbark, 93 N.C.App. at 421, 378 S.E.2d at 201. If the trial court undertakes this analysis, its resulting order will be reversed on appeal only for an abuse of discretion. Miller v. Ferree, 84 N.C.App. 135, 137, 351 S.E.2d 845, 847 (1987) (no abuse of discretion where trial court considered sanctions less severe than dismissal without prejudice, determined that they were inappropriate, and dismissed the action without prejudice).
The record shows that the trial court dismissed the plaintiffs' action with prejudice without assessing the appropriateness of sanctions less severe than dismissal with prejudice. Accordingly, we reverse the dismissal of the complaint and *304 the denial of the plaintiffs' Rule 60(b)(1) motion and remand for reconsideration of an appropriate sanction for violation of Rule 8(a)(2).
Reversed and remanded.
PARKER and COZORT, JJ., concur.
NOTES
[1] Although the trial court did not specify that the dismissal was with prejudice, the failure of the order to specify otherwise operated "as an adjudication on the merits." N.C.G.S. § 1A-1, Rule 41(b) (1990).
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158 Ariz. 266 (1988)
762 P.2d 553
John Bryant SHEPHERD, Petitioner,
v.
The Honorable Philip FAHRINGER, Judge of the Superior Court, in and For the County of Pima, State of Arizona, Respondent. and The STATE of Arizona, Real Party in Interest.
No. CV-87-0466-PR.
Supreme Court of Arizona, En Banc.
September 27, 1988.
*267 Harold L. Higgins, Jr., Pima County Public Defender by Blaine S. Gaub, Asst. Public Defender, Tucson, for petitioner.
Stephen D. Neely, Pima County Atty. by John R. Gustafson, Pima County Deputy Atty., Tucson, for real party in interest.
Roderick G. McDougall, Phoenix City Atty. by Mary G. Isban and Cynthia A. Certa, Asst. City Prosecutors, Phoenix, for amicus curiae Phoenix City Prosecutor.
Frederick S. Dean, Tucson City Atty. by R. William Call and Christopher L. Straub, Asst. City Attys., Tucson, for amicus curiae Tucson City Prosecutor.
CAMERON, Justice.
I. JURISDICTION
This is a special action brought by the defendant, John Bryant Shepherd, who was charged with driving under the influence of intoxicating liquor (DUI), A.R.S. § 28-692(A) (Supp. 1987), while his license was suspended or revoked, A.R.S. § 28-692.02 (Supp. 1987). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.Sp.Act. 8, 17A A.R.S.
II. ISSUES
The following issues must be resolved:
A. Was defendant denied his right to a speedy trial in violation of Rule 8, Ariz.R.Crim.P., and Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986)?
B. Was defendant denied his right to due process?
C. Was defendant denied his right to counsel?
III. FACTS
On 27 March 1987, defendant was arrested for driving under the influence of intoxicating liquor. He refused to submit to a breath test to determine his blood alcohol content. Defendant's initial appearance was the following day. At that hearing, the court determined that defendant was indigent and appointed the Pima County Public Defender to represent him. The court set a preliminary hearing for 17 April and released defendant on his own recognizance.
On 15 April 1987, the State moved to dismiss the complaint without prejudice on the grounds that the Motor Vehicle Department (MVD) records were unavailable at that time. The court granted the motion.
On 4 August 1987, based on the 27 March incident, the Pima County Grand Jury returned an indictment charging defendant *268 with driving while under the influence of intoxicating liquor with a license that is suspended, cancelled, revoked or refused, A.R.S. § 28-692.02 (Supp. 1987), and with committing a second offense of driving while under the influence without having applied for or obtained a license after suspension, cancellation, refusal or revocation, A.R.S. § 28-692(A) (Supp. 1987). These offenses are both class five felonies. Defendant was arraigned in superior court on 12 August, 138 days after arrest. The court again appointed the public defender to represent defendant, set a pretrial conference for 18 August, and released defendant on his own recognizance.
On 18 August, defendant appeared for his pretrial conference. According to defendant's counsel, the court advised counsel that the case would have to go to trial on 24 August in order to comply with the 150-day arrest-to-trial requirement of Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986). On 20 August, defendant filed a motion to dismiss the DUI charges with prejudice. Arguments on the motion were heard by the court on 24 August. The court denied the motion to dismiss, but stayed further prosecution of the case pending special action proceedings in the court of appeals. The court of appeals denied relief and defendant petitioned this court for review. We granted the petition because the question presented is one of statewide importance.
IV. DISCUSSION
A. Speedy Trial
Defendant argues that the trial court's refusal to dismiss the charges with prejudice violated the defendant's right to a speedy trial as interpreted by Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986). Arizona's speedy trial rule is embodied in Rule 8, Ariz.R.Crim.P., which states in part that:
Every person against whom an indictment, information or complaint is filed shall be tried ... within 150 days of the arrest or service of summons ... except for those excluded periods set forth in Rule 8.4....
Rule 8.2(a), Ariz.R.Crim.P. In Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), we held that in DUI cases the time for trial ran from date of arrest even though the matter had been dismissed and re-filed. The issue before us arises out of that decision.
Hinson involved a defendant who had been arrested for drunk driving four times within four months but was not brought to trial until twenty-one months after his first arrest. The trial court held that Rule 8.2(a), Ariz.R.Crim.P., was not violated because the charges were all dismissed and later re-filed after the indictment was handed down. We held that because of the unique nature of DUI cases, the defendant must be tried within 150 days of arrest regardless of whether charges are dismissed and re-filed. Id. at 311, 723 P.2d at 660.
The major concern we had in Hinson was the delay in bringing defendants charged with drunk driving to trial. The delay bothered us for two reasons. First, it allowed potential drunk drivers to continue driving without punishment for their prior DUI violations. Second, the deterrent value of a conviction and punishment was decreased by the delay in obtaining a conviction and imposing punishment. We also noted the legislature's intent to remove drunk drivers from the streets and highways as soon as possible due to the clear threat to public safety which they impose. Id. at 309-10, 723 P.2d at 658-59.
In Hinson we did, however, allow for the possibility of extensions or continuances when we stated that failure to try the defendant within 150 days would lead to dismissal unless the Rule 8 exceptions applied.
We wish to make clear what we are saying here. After the police have arrested and removed a drunken driver from the highway as the statute and caselaw contemplates must be done, the prosecutor must proceed to charge or indict as well as try the defendant within the 150 day limit mandated by Rule 8.2(a) of the Rules of Criminal Procedure if not in custody and 120 days from arrest if in *269 custody pursuant to Rule 8.2(b) Ariz.R. Crim.P., 17 A.R.S. Failure to proceed promptly will result in a dismissal with prejudice, unless the exceptions contained in Rule 8 apply. In any event, the defendant must be tried within 150 days of arrest as provided in Rule 8.2(a), Ariz. R.Crim.P., 17 A.R.S.
Hinson, 150 Ariz. at 311, 723 P.2d at 660.
Rule 8.5, Ariz.R.Crim.P., allows a continuance for a maximum of thirty days "upon a showing that extraordinary circumstances exist and that delay is indispensible to the interests of justice." Also an extension is permitted under Rule 8.2(e), Ariz.R. Crim.P., which allows the trial court to permit one 30-day extension if the defendant is not in custody and all parties stipulate to a certain trial date.
The court of appeals, in considering this case, interpreted Hinson as follows:
As we read Hinson, the rule adopted by the supreme court is not that the trial must actually commence within 150 days of the defendant's arrest, but rather that the state must be prepared to try the case within that period. The entire thrust of the court's discussion of the issue is directed at the prosecutor's ability and obligation to bring these cases to trial in an expeditious manner. In requiring strict compliance with Rule 8 in these cases, the court is in effect establishing a presumption of prejudice to the defendant if the prosecutor is not prepared to try the case within 150 days of arrest.
Shepherd v. Fahringer, 155 Ariz. 394, 396, 746 A.2d 1324, 1326 (App. 1987). Although this may not be exactly what we said, it appears to be a logical application of Hinson to the facts in this case. If the prosecution is ready for trial within the 150-day time period, the state should not be penalized if the defendant is not also ready for trial.
We hold that if the prosecution is ready to proceed to trial within 150 days of the defendant's arrest and the defendant does not have enough time within which to prepare for trial, he or she may move for a continuance or extension. This extension of time, not to exceed 30 days, will be excluded from the 150-day time period as provided by Rule 8.4, Ariz.R.Crim.P. See also State v. Long, 148 Ariz. 295, 296, 714 P.2d 465, 466 (App. 1986); State v. Smith, 146 Ariz. 325, 327, 705 P.2d 1376, 1377-78 (App. 1985).
In the instant case, because the state was ready to proceed within 150 days of the date of defendant's arrest, as required by Hinson, supra, and the need for a continuance was a delay on behalf of the defendant, defendant's right to a speedy trial was not violated. We find no error.
B. Due Process
Defendant contends that dismissing the charges on grounds that the MVD records are unavailable is a ruse and the real reason for dismissal is to grant the state an extra 30- or 60-day continuance by avoiding the time limit of Rule 8.2(c), Ariz.R. Crim.P. Defendant contends that this is supported by the fact that the prosecutor only told the grand jury of the substance of the MVD records and did not actually show the records themselves. Under these circumstances, defendant contends it was unnecessary to dismiss the complaint for the lack of the MVD records. Defendant claims that the prosecutor's dismissal on grounds that the MVD records were not available and then re-filing the matter close to or at the running of the 150-day period prejudiced him and denied him of his right to due process. We do not agree.
Drunk driving charges vary depending on whether the driver's license was suspended or revoked due to a previous DUI, and also on the number of prior offenses committed. The MVD records must be examined in order to charge the defendant with the proper offense. Also, the records are necessary to prove that the defendant had notice that his or her driver's license was suspended as is required by State v. Williams, 144 Ariz. 487, 489, 698 P.2d 732, 734 (1985).
A prosecutor should not seek an indictment without probable cause. Ariz.R.S.Ct. 42, E.R. 3.8(a) 17A A.R.S. Nor is a *270 prosecutor expected to obtain an indictment until he or she believes that the accused's guilt can be proven beyond a reasonable doubt. United States v. Lovasco, 431 U.S. 783, 790-91, 97 S. Ct. 2044, 2049, 52 L. Ed. 2d 752 (1977). The MVD records are necessary for the prosecutor to have probable cause to support the indictment. Even though the records are not presented to the Grand Jury, as long as the prosecution is ready for trial within the 150 days required by Hinson, we will not presume deliberate delay.
We do not wish, however, to encourage prosecutors to delay the obtaining of an indictment after the MVD records are available. We reiterate what we have already stated concerning delay by the state. Once a person is arrested "the state has the obligation to proceed forthwith to bring formal charges against that person or drop them". Oshrin v. Coulter, 142 Ariz. 109, 113, 688 P.2d 1001, 1005 (1984). DUI cases should be tried as soon as possible and this means the prosecution should be diligent in filing the charges and not wait until the last minute to file charges. If the facts indicate that the prosecutor deliberately delayed filing the complaint in order to secure a tactical advantage or to prejudice defendant in the preparation of his case, then dismissal with prejudice would be appropriate.
Admittedly, our court of appeals has stated:
When the state is prepared to go to trial within the time limits ... it would be inappropriate to require judicial inquiry into whether the defense's inability to proceed is due to some "fault" on the part of the state. That would create yet another sub-issue for litigation unrelated to the substantial issues in the case.
State v. Smith, 146 Ariz. 325, 327, 705 P.2d 1376, 1378 (App. 1985). There are times, however, in the prosecution of DUI cases, in which the prosecutor's lack of diligence in bringing the matter to trial can be questioned. We do not find it necessary to do that in this case.
We find no unnecessary delay by the prosecutor and no prejudice to the defendant.
C. Right to Counsel
Defendant, an indigent, was represented by the public defender. When the charges were first dismissed, the defendant no longer had the right to appointed counsel and therefore was left without counsel for 118 days until he was arraigned upon the indictment. The defendant claims his loss of counsel during the period between dismissal and the indictment prejudiced him. We do not agree.
The public defender, by statute, is required to represent and defend indigent criminal defendants, A.R.S. § 11-584, Rule 6, Ariz.R.Crim.P., 17 A.R.S. The public defender, however, is not required to defend a potential defendant. Nowhere is it provided that the public defender must represent a person against whom no charges are pending. In the instant case, there was no certainty that the defendant would be indicted after the charges had been dismissed. Under these circumstances, it would have been inappropriate for the public defender to have been appointed to represent the defendant. It was only after the defendant was indicted that he was entitled to the services of the public defender. Nor do we agree that the delay or interruption in counsel prejudiced the defendant. Defendant had an attorney from 28 March until 15 April, and an attorney after 12 August. At all times, when criminal charges were pending, the defendant was represented by the public defender. We find no error.
AFFIRMED.
GORDON, C.J., FELDMAN, V.C.J., and HOLOHAN and MOELLER, JJ., concur.
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59 Mich. App. 62 (1975)
228 N.W.2d 542
GILBERT
v.
REYNOLDS METALS COMPANY
Docket No. 19074.
Michigan Court of Appeals.
Decided February 24, 1975.
Reamon, Williams & Klukowski, for plaintiff.
Smith, Haughey, Rice, Roegge & Gould (by Lance R. Mather), for Reynolds Metals Company and Travelers Insurance Company.
Cholette, Perkins & Buchanan (by Kenneth L. Block), for Reynolds Metals Company and Liberty Mutual Insurance Company.
Before: ALLEN, P.J., and N.J. KAUFMAN and O'HARA,[*] JJ.
N.J. KAUFMAN, J.
This is an appeal from a Workmen's Compensation Appeal Board decision which resulted in liability for compensation payments falling to defendant-appellant, Liberty Mutual Insurance Company ("Liberty Mutual"). The appeal board found that plaintiff-employee, Dale *64 Gilbert, suffered work-related injuries not attributable to a single event, and fixed the date of injury as the last date worked with defendant-employer, Reynolds Metals. MCLA 418.301(1); MSA 17.237(301)(1). During the course of Reynolds' employment of the plaintiff, Reynolds changed compensation insurance carriers, replacing defendant-appellee Travelers Insurance Company ("Travelers") with Liberty Mutual. Having fixed the last date worked as the date of injury, the appeal board applied the holding in Sosnowski v Dandy Hamburger, 384 Mich. 221; 180 NW2d 761 (1970), and held the last insurer, Liberty Mutual, liable for compensation benefits. Liberty Mutual challenges the appeal board's findings as to date of injury, as to which insurance carrier is liable, and as to the amount of interest awarded. We will discuss these issues seriatim.
An understanding of the employee's work and medical history is necessary to an understanding of the issues. Plaintiff, Dale Gilbert, commenced employment with Reynolds Metals in 1956 working as a stretcher-saw operator. He reported back problems for the first time in 1960, but the pains became especially severe after a 1962 incident in which he pulled hard on a strap stuck under pieces of metal and felt pain in the lower part of his back. The back pains kept him out of work for two months in 1962, but he returned in May of that year and worked until April, 1964, when he again left work because of the back pain. Travelers was the carrier for Reynolds at this time.
In late 1964, plaintiff underwent surgery for a spinal fusion by Dr. James Glessner. At the hearing on this matter, in 1973, there was a factual dispute as to whether the 1964 fusion was successful, but both the referee and the appeal board found that it was not. Travelers voluntarily paid *65 compensation at various times subsequent to 1964 but there was never an adjudication by the board as to the amount of disability following the 1964 fusion until the hearing on this matter in 1973.
Plaintiff was released for light work in August, 1965, and Dr. Glessner testified that plaintiff was disabled for heavy work from that time forward. Plaintiff worked in jobs for various other employers until January, 1968 when he returned to work with Reynolds as an "age-oven operator", which is classified as light work but which testimony revealed involved lifting up to 20 pounds and some bending and twisting. Plaintiff continued to have back problems and in February, 1969, stepped into a hole while carrying something, jarring him up, but not severely enough to prompt him to report to first aid. By June, 1969, plaintiff's back pains forced him to leave work, and he has not worked since. The insurance carrier for Reynolds during this latter term of employment was Liberty Mutual.
I
Both the appeal board and the hearing referee found the second course of employment with Reynolds to have aggravated the back condition which began in 1960. It has been clearly established that disability caused by aggravation of a preexisting condition is compensable. Sheppard v Michigan National Bank, 348 Mich. 577, 583; 83 NW2d 614 (1957), Smith v Lawrence Baking Co, 370 Mich. 169; 121 NW2d 684 (1963).
Since findings of fact of the Workmen's Compensation Appeal Board are conclusive absent fraud, we are limited to determining if there was any evidence to support the finding here in issue. *66 Pastaleniec v The Great A & P Tea Co, Inc, 49 Mich. App. 702; 212 NW2d 734 (1973). We find that testimony as to the nature of the work performed during the 1968-69 term of employment and as to plaintiff's being jarred up by stepping in a hole in 1969 constitutes sufficient evidence from which the Workmen's Compensation Appeal Board could have concluded that the latter term of employment aggravated the back condition. The board's finding that the spinal fusion was unsuccessful does not contradict the board's finding that the injury was not due to any single incident and, in fact, supports a finding that it was only one incident in a series of events aggravating the condition. Kubicsek v General Motors Corp, Fisher Body Plant No 1, 57 Mich. App. 517; 226 NW2d 546 (1975).
While the case cited by Liberty Mutual, Mullins v Dura Corp, 46 Mich. App. 52; 207 NW2d 404 (1973), provides a close factual analogy to the instant case, it can be distinguished. In Mullins there is no indication that the second course of employment acted to worsen the plaintiff's physical condition. In the case at bar the testimony of plaintiff and Dr. Glessner establishes that plaintiff's back condition became progressively worse during his second period of employment with Reynolds. Plaintiff testified the job entailed lifting, bending and twisting, and the doctor noted the job was too active. Additionally, unlike Mullins, this is not a case where we can point to one traumatic injury as being the cause of disability. Rather, plaintiff's back problems began in 1960 and were aggravated by a course of employment over the next nine years. The Mullins Court recognized the distinction between a chronic condition which becomes more symptomatic and one which is worsened *67 by aggravation through injury in employment and stated:
"We are not unmindful of the line of cases indicating that aggravation of a preexisting condition which results in a disability can constitute a personal injury itself. See, e.g., Underwood v National Motor Castings Division, Campbell, Wyant & Cannon Foundry Co, 329 Mich. 273 [45 NW2d 286] (1951); Fields v GM Brass & Aluminum Foundry Co, 332 Mich. 113 [50 NW2d 738] (1952); Sheppard v Michigan National Bank, 348 Mich. 577, 585 [83 NW2d 614] (1957). However, those cases involved employees performing their ordinary employment who suffered injuries which were treated as an occupational disease where no specific incident caused the disability." 46 Mich. App. 56.
The rule, however, is not limited to cases of occupational disease. Riddle v Broad Crane Engineering Co, 53 Mich. App. 257; 218 NW2d 845 (1974), and Regis v Lansing Drop Forge Co, 25 Mich. App. 637; 181 NW2d 656 (1970). This Court has recently discussed a situation where a preexisting injury, condition or infirmity is aggravated to disability and equated it with an injury not attributable to a single event, which the Court recognized would result in liability falling to the last carrier. Gibbs v Keebler Co, 56 Mich. App. 690; 224 NW2d 698 (1974).
The Court is governed here, as it was in Mullins, by a very strict standard of review, a search for evidence supporting the board's finding of fact. Since such evidence is present, we cannot reverse the board's findings.
II
As another argument Liberty Mutual presents this Court with the paradoxical question of *68 whether a totally disabled worker can become more totally disabled. The question assumes a determination that plaintiff was totally disabled when he left Reynolds in 1964. That factual determination was not made by the board, and in fact is logically rejected by the board's finding that the date of disablement was the last date worked in 1969. This Court may note an implied finding of fact not explicitly stated if the fact was necessarily determined in order to reach a certain conclusion. Clark v Apex Foundry, Inc, 7 Mich. App. 684, 688; 153 NW2d 182 (1967). In its brief, defendant Liberty Mutual refers to the appeal board's determination of two dates of disabling injury prior to 1969. While the board did review plaintiff's medical history, we find no reference by the board to "totally disabling" injury prior to 1969.
The record does reveal that plaintiff was voluntarily paid varying amounts of compensation during the period from 1962-1968 by Travelers. Voluntary payment of compensation is not an admission of liability, 3 Larson, Workmen's Compensation, § 79.41, p 177. There was no administrative or judicial adjudication that plaintiff was totally or partially disabled in 1962 or 1964, and in fact plaintiff's subsequent employment and medical history belies such a finding. Testimony revealed that during his various employments between 1965-1968, plaintiff was not under the care of a physician, was not taking medication and was not wearing a back brace. He left those jobs for reasons unconnected with his back condition and testified he was able to do the work at each of the jobs.
We agree with Liberty Mutual's interpretation of the law that a person may not lose what he has already lost. Dyer v Abrasive Dressing and Tool Co, 315 Mich. 215; 23 NW2d 640 (1946), and *69 Magreta v Ambassador Steel Co, 378 Mich. 689; 148 NW2d 767 (1967). But we note those cases dealt with the loss of an eye and of a leg, and with statutes specifically defining under what conditions the loss is deemed permanent. We deal here with a more illusive injury, a back problem spreading over an employment history of nine years. A determination of when that disability became total brings us full circle to the factual determination made by the board and which we have already determined is binding on this Court. The date of disablement, as determined by the board, was the last day worked for defendant Reynolds.
III
Liberty Mutual raises as its third issue a fundamental assault on the established Michigan rule requiring the insurer on the last date worked to assume the entire cost of successive injuries combining to produce final disability. However persuasive the argument might be, previous Michigan Supreme Court authority has answered the question, Sosnowski v Dandy Hamburger, 384 Mich. 221; 180 NW2d 761 (1970), and a challenge to that authority must be made there and not here.
IV
Liberty Mutual's final claim of error is directed at the board's award, sua sponte, of 6% interest on the unpaid compensation. This Court has recently released conflicting decisions on the issue of interest on compensation awards. White v Extra Labor Power of America, 54 Mich. App. 370; 221 NW2d 214 (1974) (5% interest); and Morris v Baker Auto Parts, 57 Mich. App. 65; 225 NW2d 179 (1974), (6% interest).
*70 We follow the holding in White, supra. We are convinced that when the Supreme Court first allowed interest on compensation awards, Wilson v Doehler-Jarvis Division of National Lead Co, 358 Mich. 510; 100 NW2d 226 (1960), the interest they considered was the "legal rate" of interest, Wilson, p 514. As Judge CARLAND recognized in White, supra, p 377, the legal rate of interest in Michigan is fixed at 5% by virtue of MCLA 438.51; MSA 19.11, now MCLA 438.31; MSA 19.15(1).
The judgment of the board is therefore affirmed but modified to include 5% interest on the judgment. No party having fully prevailed, no costs to either party.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
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418 S.E.2d 236 (1992)
106 N.C. App. 586
D. Wayne BROOKS and wife, Kathleen C. Brooks, Plaintiffs,
v.
Ella M. GIESEY, Sara Meadows, John Alexander Meadows, Sue L. Meadows and Hopie E. Beaman, Defendants.
No. 913SC163.
Court of Appeals of North Carolina.
July 7, 1992.
David P. Voerman, P.A. by David P. Voerman, appellant pro se.
Glover and Petersen, P.A. by James R. Glover, Chapel Hill, for plaintiffs-appellants, D. Wayne Brooks and Kathleen C. Brooks.
Ward and Smith, P.A. by Donalt J. Eglinton, New Bern, for defendants-appellees.
WYNN, Judge.
During 1981 and 1982, Sara Meadows, John Alexander Meadows, and Sue Meadows (the "Meadows") subdivided the land they had inherited in Craven County into a residential subdivision known as Bellefern Subdivision. Sara Meadows engaged an *237 independent engineer and surveyor, Darrel Daniels, to lay out and map the development, and an independent general contractor, Clement and Johnson, to grade and pave the roads and dig the ditches.
On 1 April 1982, after the surveyor and general contractor completed their work and the subdivision maps and restrictive covenants were recorded, the Meadows began selling lots. They contracted to sell Lot 10 on 6 June 1983 to defendant Beaman, an independent building contractor. This lot is lower than the lots on each side of it, and, at the back, there is a small swale or depression. On 24 June 1983, plaintiffs, after walking over the lot, contracted with Beaman in writing to purchase the lot and build a house on the lot. On 12 April 1984, the house was completed and, Beaman conveyed the lot to plaintiffs by warranty deed. During the period from July to September 1984, plaintiffs stated that they became aware of the drainage problem on the lot. They expressed their dissatisfaction and asked Beaman and Sara Meadows to correct the problem. Sara Meadows contacted Clement and Johnson to examine the property. The contractors later, at no cost to plaintiffs, did some grading and filling across the back of the lot, but the problem was not alleviated and water continued to stand at the back of the lot following a heavy rain.
Plaintiffs filed a complaint against defendants on 4 December 1986, alleging that they had suffered economic loss in connection with their property based on the following theories: (1) breach of warranty; (2) fraud; (3) negligent design and construction of the drainage facilities; (4) creation of an easement; (5) trespass; (6) nuisance; and (7) unfair and deceptive trade practices. The trial court entered an order granting summary judgment in favor of and awarding costs to the defendants. This Court, on 6 June 1989, affirmed the trial court's order. 94 N.C.App. 223, 381 S.E.2d 202. Subsequently, several motions regarding costs and sanctions were considered by the trial court, which resulted in an award for defendants of $3,200 in attorney's fees under Rule 37, $15,532.99 under N.C.Gen.Stat. § 6-21.5, and attorney's fees of $12,622.90 against the plaintiffs and their attorney under Rule 11. The trial court entered the three judgments and orders for fees contemporaneously as alternative means for awarding defendants the same costs and any sum paid to defendants to satisfy any of the judgments and orders would satisfy each separate judgment and order to the extent payment is remitted. It is from these costs and sanctions that plaintiffs and their attorney now appeal.
I.
Appellants contend that the trial court erred in ordering them to pay attorney's fees as Rule 11 sanctions. They argue that the trial court cannot sanction them for a complaint filed prior to the effective date of the current Rule 11, 1 January 1987. The trial court concluded that, because plaintiffs or their attorney filed papers subsequent to that date, the litigation effectively was continued beyond 1 January 1987. We disagree with the trial court's conclusion.
At the time the complaint at issue was filed, 4 December 1986, Rule 11(a) required only that the attorney sign the pleading certifying that he "has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay." Under the amended version of Rule 11(a), however, the signature of an attorney or party serves as a certification of good faith. In Kohn v. Mug-A-Bug, 94 N.C.App. 594, 380 S.E.2d 548 (1989), overruled on other grounds by Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992), this Court determined that even if "plaintiffs filed the complaint against [defendants] without making reasonable inquiry as to either the facts or law of this case, attorney's fees could not have been awarded to defendants under the provisions of Rule 11(a)" because plaintiffs filed their complaint on 23 October 1986. Id. 94 N.C.App. at 597, 380 S.E.2d at 550. Accord In re Williamson, 91 N.C.App. 668, 373 S.E.2d 317 (1988).
*238 In the instant case, the trial judge, in his Rule 11 order, stated that the defendants "are entitled to recover, pursuant to Rule 11, from the Plaintiffs and their attorney of record, David P. Voerman, Esquire, jointly and severally, as a cost incurred in connection with the defense of the claims asserted in the Plaintiffs' Complaint and pursued after April 14, 1987...." We find that the trial court erred in ordering Rule 11 sanctions against appellants and their attorney based on appellants' complaint because the complaint was filed before the enactment of the current Rule 11. Accordingly, we reverse the trial court's Rule 11 order.
II.
In their second assignment of error, appellants contend that the trial court had no jurisdiction to order them to pay attorney's fees under N.C.Gen.Stat. § 6-21.5 (1986), when the motion seeking such payment was filed more than a year after summary judgment was entered for the defendants and more than a month after the judgment was affirmed on appeal. They further argue that even if there was jurisdiction to enter the order to pay attorney's fees under section 6-21.5, the order was erroneous. We disagree.
Section 6-21.5 deals with attorney's fees in nonjusticiable cases and provides, in pertinent part,
In any civil action or special proceeding the court, upon motion of the prevailing party, may award a reasonable attorney's fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading. The filing of a general denial or the granting of any preliminary motion, such as a motion for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12, a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), a motion for a directed verdict pursuant to G.S. 1A-1, Rule 50, or a motion for summary judgment pursuant to G.S. 1A-1, Rule 56, is not in itself a sufficient reason for the court to award attorney's fees, but may be evidence to support the court's decision to make such an award. A party who advances a claim or defense supported by a good faith argument for an extension, modification, or reversal of law may not be required under this section to pay attorney's fees.
N.C.Gen.Stat. § 6-21.5 (1986).
Under a statute such as section 6-21.5, which contains "prevailing party" requirement, the parties should not be required to litigate fees when the appeal could moot the issue. Furthermore, upon filing of a notice of appeal, a trial court in North Carolina is divested of jurisdiction with regard to all matters embraced within or affected by the judgment which is the subject of the appeal. N.C.Gen.Stat. § 1-294 (1983). We, therefore, overrule appellants' jurisdictional argument.
Because we find that the trial court had jurisdiction to enter the order, we next must determine whether the trial court's order was erroneous. Section 6-21.5 "requires review of all relevant pleadings and documents in determining whether attorneys' fees should be awarded." Bryson v. Sullivan, 330 N.C. 644, 660, 412 S.E.2d 327, 335 (1992). Compare Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 257 n. 1, 400 S.E.2d 435, 437 n. 1 (1991) (A violation of Rule 11 occurs when the paper is filed. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S. Ct. 2447, 2455, 110 L. Ed. 2d 359, 375 (1990)). Only losing parties and not their attorneys can be sanctioned under section 6-21.5. Bryson, 330 N.C. at 665-66, 412 S.E.2d at 338-39. In Sprouse v. North River Ins. Co., 81 N.C.App. 311, 326, 344 S.E.2d 555, 565, disc. review denied, 318 N.C. 284, 348 S.E.2d 344 (1986), this Court stated the following:
A "justiciable" issue is not defined by our statutes or case law. A "justiciable controversy" is a real and present one, not merely an apprehension or threat of suit or difference of opinion. Presumably, a "justiciable controversy" involves "justiciable issues," thus those which are real and present, as opposed to imagined or fanciful. "Complete absence of a justiciable *239 issue" suggests that it must conclusively appear that such issues are absent even giving the losing party's pleadings the indulgent treatment which they receive on motions for summary judgment or to dismiss.
Id. (citations omitted). Accord Bryson, 330 N.C. at 665, 412 S.E.2d at 338; Sunamerica, 328 N.C. at 257, 400 S.E.2d at 437.
When granting defendants' motion under section 6-21.5, the trial court made the following relevant conclusions of law:
8. None of the claims asserted by the Plaintiffs in their Complaint seeking to recover from the Defendants on any theory presents any justiciable issue of fact or law.
9. The entry of the Order on April 25, 1988 granting summary judgment in favor of the Defendants against the Plaintiffs with respect to all claims asserted by the Plaintiffs in their Complaint and the affirmation of this Order by unanimous opinion filed on June 6, 1989 by the Court of Appeals lend support to the conclusion that none of the claims asserted by the Plaintiffs in their Complaint presents any justiciable issue of fact or law.
Furthermore, in the earlier appeal of this case, this Court, in an unpublished opinion, held that the facts presented by appellants did "not give rise to an enforceable claim against the appellees under any theory known to our law."
It should be noted that under Rule 11, "a represented party may rely on his attorney's advice as to the legal sufficiency of his claims" and only "will be held responsible if his evident purpose is to harass, persecute, otherwise vex his opponents, or cause them unnecessary cost or delay." Bryson, 330 N.C. at 663, 412 S.E.2d at 337. In our opinion, it is unfortunate that under section 6-21.5, which does not contain the same limitations, clients who presumably know nothing about the law can be sanctioned for factual and legal deficiencies. Based on the foregoing, however, we are constrained to conclude that appellants' assignment of error is without merit.
III.
Finally, appellants contend that the conclusion of law in the order requiring the them to pay for 32 hours of time for appellees' attorney under Rule 37(a) is not supported by findings of fact or the evidence in the record. They argue that, at the time that they were required to admit or deny, they had not conducted discovery to gather information regarding the matters they were requested to admit. We disagree.
The choice of sanctions under Rule 37 is within the trial court's discretion and will not be overturned on appeal absent a showing of abuse of that discretion. Roane-Barker v. Southeastern Hospital Supply Corp., 99 N.C.App. 30, 36, 392 S.E.2d 663, 667 (1990), disc. review denied, 328 N.C. 93, 402 S.E.2d 418 (1991). The trial court sanctioned appellants because of their failure to admit under N.C.R.Civ.P. 37(c), which provides:
Expenses on failure to admit.If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (i) the request was held objectionable pursuant to Rule 36(a), or (ii) the admission sought was of no substantial importance, or (iii) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (iv) there was other good reason for the failure to admit.
N.C.Gen.Stat. § 1A-1, Rule 37(c) (1990).
We find that the trial court did not abuse its discretion. In the Rule 37 order, the trial judge listed a number of requests for admission which were denied by appellants for no valid reason. The trial judge also stated that the appellees ultimately established, by affidavit, deposition, and *240 motion to strike, the matters denied by appellants. Furthermore, the order contained a detailed list of the expenses incurred in establishing the matters denied. We, therefore, overrule appellants' assignment of error.
IV.
The trial court's Rule 37 order and Section 6-21.5 order are affirmed, and the Rule 11 order is reversed.
PARKER, J., concurs.
GREENE, J., concurs in part and dissents in part in separate opinion.
GREENE, Judge, concurring in part and dissenting in part.
Rule 11
I agree with the majority that the trial court was without authority pursuant to the legal and factual sufficiency prongs of Rule 11 to impose as a sanction for filing the complaint that the plaintiffs and their attorney pay the defendants' attorney's fees. Whether the complaint complies with the legal and factual sufficiency prongs of Rule 11 is determined "as of the time it was signed," Bryson v. Sullivan, 330 N.C. 644, 657, 412 S.E.2d 327, 333 (1992), and is not affected by subsequently occurring events. Therefore, because on 4 December 1986, the date the complaint was signed and filed, Rule 11 did not authorize an award of attorney's fees as a sanction for violation of the Rule, Kohn v. Mug-A-Bug, 94 N.C.App. 594, 597, 380 S.E.2d 548, 550 (1989), the continued prosecution of the action beyond 1 January 1987 (effective date of amended Rule 11 permitting award of attorney's fees) did not authorize such an award based on a violation of the legal or factual sufficiency prongs of Rule 11. However, the plaintiffs' and their attorney's continued prosecution of meritless claims after 1 January 1987 could support an attorney's fee sanction under either the improper purpose prong of Rule 11 or "pursuant to the inherent power of the court." Bryson, 330 N.C. at 658, 412 S.E.2d at 334; see also Chambers v. NASCO, Inc., ___ U.S. ___, ___, 111 S. Ct. 2123, 2133, 115 L. Ed. 2d 27, 45 (1991) (trial court has inherent power to "assess attorney's fees when a party has `acted in bad faith, vexatiously, wantonly, or for oppressive reasons'").
Judge Llewellyn concluded that the plaintiffs and their attorney with an improper purpose signed and filed documents after 1 January 1987. More specifically, Judge Llewellyn determined that the papers and documents "were interposed for the improper purpose of attempting to circumvent a summary adjudication adverse to the [p]laintiffs with respect to unwarranted claims ... thereby causing unnecessary delay and needless increase in the cost to the Defendants of defending these claims." Although this conclusion supports the order of sanctions, the order cannot be affirmed because the record does not reflect that plaintiffs were given any notice that sanctions were sought on the grounds of improper purpose. "[D]ue process requires that an alleged Rule 11 offender be given timely notice, not only that sanctions are being sought or considered, but of the bases for those sanctions...." Taylor v. Taylor Products, Inc., 105 N.C.App. 620, 629, 414 S.E.2d 568, 575 (1992). The record reflects that defendants gave written notice only that they were seeking Rule 11 sanctions "upon Plaintiffs and counsel for the Plaintiffs for filing this action which fails to assert any claim supported by fact and law...." Furthermore, the record does not reflect any advance notice from the trial court that it was considering imposition of sanctions under the improper purpose prong of Rule 11 or pursuant to its inherent powers. See Chambers, ___ U.S. at ___, 111 S.Ct. at 2135, 115 L.Ed.2d at 48 (trial court must comply with due process when invoking inherent power); N.C.G.S. § 1A-1, Rule 11 (1990) (trial court may on its own initiative impose sanctions). Having given notice of their intention to seek sanctions under the factual and legal sufficiency prongs of Rule 11, and no notice having been given by the trial court to the contrary, defendants cannot now seek to sustain an order supported only under the improper purpose prong of Rule 11. Accordingly, I agree with the majority that *241 the trial court's Rule 11 order must be reversed.
N.C.G.S. § 6-21.5
I agree with the majority that the trial court was not without jurisdiction to order the payment of attorney's fees pursuant to N.C.G.S. § 6-21.5. Under Rule 11, sanctions "may be imposed years after a judgment on the merits," Chambers, ___ U.S. at ___, 111 S.Ct. at 2138, 115 L.Ed.2d at 52, and I see no bases for requiring a different rule for the imposition of attorney's fees under N.C.G.S. § 6-21.5.
However, I disagree with the majority that under N.C.G.S. § 6-21.5 "clients who presumably know nothing about the law can be sanctioned for factual and legal deficiencies." There are two prerequisites to an award of attorney's fees under N.C.G.S. § 6-21.5. First, the court must determine that the pleading contains no "justiciable issue of law or fact." Second, the court must determine that the plaintiff should reasonably have been aware, at the time the complaint was filed, that the pleading contained no justiciable issue of law or fact or that the plaintiff persisted in litigating the case "after the point where [he] should reasonably have become aware that the pleading [he] filed no longer contained a justiciable issue." Bryson, 330 N.C. at 665, 412 S.E.2d at 338 (affirming denial of attorney's fees where plaintiffs' claims rendered nonjusticiable); see also Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 258, 400 S.E.2d 435, 438 (1991). Assuming that the complaint in this case did not contain justiciable issues of law or fact, the order nevertheless cannot be sustained because the trial court made no findings or conclusions on whether these plaintiffs should reasonably have been aware of these deficiencies at the time the complaint was filed or persisted in litigating the case after a point where they should have been aware of its deficiencies. I therefore would reverse the order of the trial court requiring the plaintiffs to pay attorney's fees pursuant to N.C.G.S. § 6-21.5.
Rule 37
I agree with the majority and for the reasons asserted in the opinion that the trial court did not err in awarding attorney's fees pursuant to Rule 37.
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418 S.E.2d 260 (1992)
106 N.C. App. 635
Jacqueline Harrington GARDNER, Administratrix of the Estate of Seth Campbell Gardner, Jacqueline Harrington Gardner, Individually, Plaintiffs,
v.
Benjamin A. GARDNER, Defendant.
No. 913SC675.
Court of Appeals of North Carolina.
July 7, 1992.
*261 Gaskins & Gaskins, P.A. by Herman E. Gaskins, Jr., Washington, for plaintiff-appellant.
Baker, Jenkins & Jones, P.A. by Ronald G. Baker and Roswald B. Daly, Jr., Ahoskie, for defendant-appellee.
Nichols, Caffrey, Hill, Evans & Murrelle by Richard L. Pinto, Greensboro, for North Carolina Ass'n of Defense Attorneys, amicus curiae.
WELLS, Judge.
We begin and close our review of this appeal, as we must, by revisiting Johnson v. Ruark Obstetrics, 89 N.C.App. 154, 365 S.E.2d 909 (1988), modified and affirmed, 327 N.C. 283, 395 S.E.2d 85 (1990).
In Ruark, plaintiff mother and father's claim for severe emotional distress were grounded in the events surrounding the death of their full-term child immediately before delivery. The case came to this Court on appeal from the trial court's order allowing defendant's N.C. Rules of Civil Procedure 12(b)(6) motion for failure to state a claim. After a careful and lengthy analysis of the facts in that case and what we considered to be the applicable law, we reversed, holding that the Johnsons had stated valid claims for severe emotional distress arising out of the negligence of the defendants. Our opinion, of course, speaks for itself.
Our Supreme Court then heard this case on discretionary review and, in a lengthy opinion, reviewed the law of North Carolina on claims for negligent infliction of emotional distress. The Court rejected much of the reasoning of this Court, but for its own reasons as set out in the majority opinion, held that the Johnsons had stated *262 valid claims. There were two dissents from the majority opinion, one of which is of particular significance because it tells us in careful detail what the Ruark majority did not do. The elements of the wrong set out in the majority opinion in Ruark may be summarized as follows. Any doubt as to whether North Carolina law allows recovery for negligent infliction of purely emotional or mental injury has been put to rest. Neither a physical impact, a physical injury, nor a subsequent physical manifestation of emotional distress is an element of the tort of negligent infliction of emotional distress.
A defendant's negligent act toward one person may proximately and foreseeably cause emotional distress to another person and justify his recovering damages, depending upon their relationship and other factors present in the case.
A plaintiff may recover for severe emotional distress arising from concern for another person if the plaintiff can prove that he or she has suffered such severe emotional distress as a proximate and foreseeable result of the defendant's negligence.
In such cases, the term "severe emotional distress" means any severe and disabling emotional or mental disorder or condition which may be generally recognized and diagnosed by professionals trained to do so.
After clearly setting out the elements of the wrong, the Court provided guidance on the question of foreseeability in such cases. Recognizing that foreseeability is at the threshold of proximate cause, we look to established precedent to further guide us in our resolution of this question. In Ruark, the Court restated the foreseeability rule stated in Azzolino v. Dingfelder, 315 N.C. 103, 111, 337 S.E.2d 528, 534 (1985). "Under traditional theories of tort law, defendants are liable for all of the reasonably forseeable results of their negligent acts or omissions." 327 N.C. at 306, 395 S.E.2d 85.
We find further guidance in the statements of the Court in Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E.2d 559 (1984), where the Court, in summary, stated that proximate cause is a cause which produced the plaintiff's injuries, and "one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed." 310 N.C. at 233, 311 S.E.2d 559. "[The] test of foreseeability does not require that [a] defendant should have been able to foresee the injury in the precise form in which it actually occurred." 310 N.C. at 233, 234, 311 S.E.2d 559.
With these generally well-established principles in mind, we look to the further guidance the Ruark court provided as to the element of foreseeability in cases of this kind. Factors to be considered on the question of foreseeability in such cases include the plaintiff's proximity to the negligent act, whether the plaintiff personally observed the negligent act, and the relationship between the plaintiff and the other person for whose welfare the plaintiff was concerned. (Emphasis supplied.) 327 N.C. at 305, 395 S.E.2d 85.
Questions of foreseeability and proximate cause must be determined under all the facts presented and should be resolved on a case-by-case basis. 327 N.C. at 305, 395 S.E.2d 85.
The negligence of the defendant and the injury to the plaintiff have been stipulated. The dispositive question before the trial court, and to be resolved by us, is that of foreseeability.
The trial court, in this case, having reviewed the Ruark guidelines, adopted a "close proximity" requirement for foreseeability, and that is what defendant contends we should affirm. Perhaps the best answer to that argument is to be found in Justice Meyer's lengthy dissent in Ruark, where he makes it clear that he was unable to persuade a majority in Ruark to adopt a close proximity requirement.
As we perceive the close proximity requirement as it has been adopted and followed in other jurisdictions, see Meyer's dissent in Ruark, a plaintiff in cases such *263 as the one now before us must have been in such close proximity to the injury-producing event as to experience a sensory perception of the event and its "on the scene" manifestation; i.e., be at the scene, or arrive promptly thereafter.
We are of the opinion, and so hold, that the proximity factor established in Ruark is not that narrow. In common experience, a parent who sees its mortally injured child soon after an accident, albeit at another place, perceives the danger to the child's life, and experiences those agonizing hours preceding the awful message of death may be at no less risk of suffering a similar degree of emotional distress than that of a parent who is actually exposed to the scene of the accident.
Thus, we hold that the defendant, in this case, could have reasonably foreseen that his negligence might be a direct and proximate cause of the plaintiff's emotional distress.
The relationship factorparent and childis, of course, answered in Ruark in plaintiff's favor.
For the reasons stated, the judgment of the trial court must be and is
Reversed.
ARNOLD, J., concurs.
EAGLES, J., dissents.
EAGLES, Judge, dissenting.
I respectfully dissent. The majority opinion here is based on the premise that because the majority in Ruark chose not to set out specific limits on foreseeability, we should infer that the Court intended no further limitation. I think this position is flawed. Ruark was not a case whose facts raised a question about the limits of the proximity requirement. Ruark involved the parent/child relationship and parents who were in close proximity to and observed many of the events surrounding the death of the fetus and the stillbirth.
Here, plaintiff did not observe the negligent act of defendant and was not in close proximity to the negligent act. She was in fact several miles away when the accident occurred. Although Ruark does not specifically set limits on proximity, nothing in the Supreme Court's opinion prevents this Court from announcing a limit when facts are presented which raise the question. Gardner v. Gardner is such a case. Plaintiff has failed to establish sufficient proximity to satisfy the foreseeability requirements of Ruark, and I would affirm the judgment of the trial court.
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499 S.E.2d 619 (1997)
201 W.Va. 619
Vernon R. HAMRIC and Debra Hamric, Individually and as Guardians and Next Friends of Stacey Hamric, Appellants,
v.
John DOE and State Farm Mutual Automobile Insurance Company, Appellees.
No. 23964.
Supreme Court of Appeals of West Virginia.
Submitted September 17, 1997.
Decided December 5, 1997.
*621 Scott S. Segal, Mark R. Staun, Lori A. Simpson, Charleston, for Appellants.
R. Carter Elkins, Laura L. Gray, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for Appellees.
*620 MAYNARD, Justice:
Facts
In this case we are presented with two certified questions from the Circuit Court of Fayette County, West Virginia, regarding whether uninsured motorist coverage and/or medical payment coverage will be made available to Stacey Hamric under the insurance policies issued to her father by State Farm Mutual Automobile Insurance Company (State Farm).
The questions certified to this Court and the circuit court's answers are:
1. Whether the physical contact requirement of W.Va.Code § 33-6-31(e)(iii) is satisfied so that uninsured motorist coverage is available to Stacey Hamric, who was injured as a pedestrian while avoiding being struck by a vehicle driven by an unknown driver.
Circuit court's answer: NO
2. Whether the provisions of the State Farm policies providing medical payment coverage which provide that "the bodily injury through being struck as a pedestrian by a motor vehicle" prior to being applicable are satisfied when Stacey Hamric was injured as a pedestrian while avoiding being struck by a vehicle driven by an unknown driver.
Circuit court's answer: NO
The facts are not in dispute and were stipulated by the parties below. On September 9, 1994, Stacey Hamric, then twelve years old, and her friends, Leann Frame, Kirk Frame, and Hanna Frame, traveled from Braxton County to Midland Trail High School in Fayette County to attend a football game. The minors were accompanied to the game by adults George Keener, Audrey Keener, and Terry Frame. Upon arrival at Midland Trail High School, Terry Frame parked her vehicle on the berm of Route 60 across the road from the school since no parking was available on school property.
When the game ended, Terry Frame and Audrey Keener accompanied Stacey Hamric, Kirk Frame, and Hanna Frame out of the gate of Midland Trail High School, where they walked onto the berm of Route 60 and waited for traffic to clear so they could cross the road. While they were waiting, a vehicle operated by an unknown driver traveling on Route 60 swerved off the paved portion of the road surface and continued onto the berm directly toward the group. Terry Frame saw the careening vehicle bearing down on them and yelled to the children to get out of the way. Stacey Hamric jumped or was pushed by Terry Frame off the berm down into a ravine. The fall caused her to fracture her left ankle and leg. The parties all agree the unknown vehicle did not strike Stacey. The parties also agree that had Stacey not jumped out of the path of the oncoming vehicle, the vehicle unquestionably would have struck her.
Stacey is the daughter of Vernon Hamric and Debra Hamric. As a relative and a resident of her parents' home, Stacey qualifies *622 as an additional insured under the six policies of automobile liability insurance issued by State Farm to Vernon Hamric. The six policies had the following pertinent coverages in force and effect on September 9, 1994:
1. Policy number 2494 489 48 providing medical payment coverage of $100,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence;
2. Policy number 2406 701 48 providing medical payment coverage of $25,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence;
3. Policy number 2175 661 48 providing medical payment coverage of $100,000 per person and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence;
4. Policy number 1286 865 48 providing medical payment coverage of $25,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence;
5. Policy number 1970 899 48 providing medical payment coverage of $100,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence; and
6. Policy number 2070 788 48 providing medical payment coverage of $100,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence.
Vernon Hamric and Debra Hamric filed an action against John Doe and State Farm in circuit court, seeking recovery for the injuries sustained by their minor daughter. The Hamrics brought a declaratory judgment action asking the court to determine whether the uninsured motorist coverage and medical payments coverage were available under the policies issued by State Farm to Vernon Hamric. The Hamrics request recovery for payment of medical bills, gratuitous home health care, loss of consortium, mental anguish, loss of enjoyment of life and emotional distress.
The parties filed cross motions for summary judgment on the declaratory judgment action. The circuit court's September 27, 1996 order granted State Farm's motion for summary judgment by declaring that no uninsured motorist coverage benefits or medical payment benefits were available to the Hamrics because there had been no physical contact between the unknown vehicle and Stacey Hamric. The two questions previously noted were then certified to this Court.
I. The Uninsured Motorist Statute Issue
The circuit court's first certified question to this Court is framed as follows:
Whether the physical contact requirement of West Virginia Code § 33-6-31(e)(iii) is satisfied so that uninsured motorist coverage is available to Stacey Hamric, who was injured as a pedestrian while avoiding being struck by a vehicle driven by an unknown driver.
W.Va.Code § 33-6-31 provides a mechanism by which insureds may recover uninsured motorist coverage benefits for bodily injury or property damage caused by an uninsured motor vehicle whose driver or operator is unknown. The statute encompasses the definition of a "hit and run" motor vehicle. W.Va.Code § 33-6-31(e)(iii) (1995) states in pertinent part:
(e) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured be unknown, the insured, or someone in his behalf, in order for the insured to recover under the uninsured motorist endorsement or provision, shall:
(iii) Upon trial establish that the motor vehicle, which caused the bodily injury or property damage, whose operator is unknown, was a "hit and run" motor vehicle, meaning a motor vehicle which causes damage to the property of the insured arising out of physical contact of such motor vehicle therewith, or which causes bodily injury to the insured arising out of physical contact of such motor vehicle with the insured or with a motor vehicle which the insured was occupying at the time of the accident. If the owner or operator of any motor vehicle causing bodily injury or property damage be unknown, an action may be instituted against the unknown defendant as "John Doe", in the county in which the accident took place or in any other county in which such action *623 would be proper under the provisions of article one [§ 56-1-1 et seq.], chapter fifty-six of this code[.] (Emphasis added).
The State Farm policies issued to Mr. Hamric state that an "[u]ninsured [m]otor [v]ehicle means ... a `hit-and-run' motor vehicle whose owner or driver remains unknown and which strikes:
a. the insured,
b. the vehicle the insured is occupying, or
c. other property of the insured and causes bodily injury to the insured or property damage."
The parties agree the State Farm policies conform to the statutory requirements. The question we must answer is whether uninsured motorist coverage is available to Stacey Hamric under the particular set of facts presented in this case; in other words, we must determine the meaning of "physical contact" and "strikes" under West Virginia law. To begin with, we reiterate that "`[t]he uninsured motorist statute, West Virginia Code § 33-6-31 (Supp.1986), is remedial in nature and, therefore, must be construed liberally in order to effect its purpose.' Syllabus point 7, Perkins v. Doe, 177 W.Va. 84, 350 S.E.2d 711, 714 (1986)." Syllabus Point 1, State Farm Mut. Auto. Ins. Co. v. Norman, 191 W.Va. 498, 446 S.E.2d 720 (1994).
In the Perkins case, the Perkins, who were West Virginia residents, were traveling in Virginia when an oncoming unknown motorist crossed left of center and into the Perkins' lane, thereby causing Mr. Perkins to swerve to avoid the oncoming vehicle. The Perkins' vehicle struck an embankment and Mr. Perkins was rendered a quadriplegic. Unlike West Virginia, Virginia had no statutory "physical contact" requirement. This Court was asked to determine whether to apply Virginia or West Virginia law. This Court was also asked to determine whether any public policy or legal doctrine of West Virginia would operate to bar the Perkins' uninsured motorist claim. This Court concluded the law of Virginia applied and that "no public policy or legal doctrine operate[d] to bar the Perkins' claim on the uninsured motorist endorsement." Perkins, 177 W.Va. at 87, 350 S.E.2d at 715 (footnote omitted).
More recently, in State Farm Mut. Auto Ins. Co. v. Norman, 191 W.Va. 498, 446 S.E.2d 720 (1994), this Court was asked to determine "[w]hether uninsured motorist coverage [was] available pursuant to W.Va. Code § 33-6-31 (1988) and State Farm policies of insurance for the death of an insured driver whose vehicle struck a tire of unknown origin lying on a public highway[.]" Norman, 191 W.Va. at 500, 446 S.E.2d at 722. In Norman, Ms. Barnett struck a large tire which was located on the edge of the left-hand lane of the interstate. She lost control of her vehicle, which then ran into a rock embankment. Ms. Barnett was thrown from the car and died as a result of the injuries she received. This Court concluded "that the insertion of a physical contact requirement in the uninsured motorist statute was a matter of legislative choice." Id., 191 W.Va. at 507, 446 S.E.2d at 729. Nonetheless, the Norman Court went on to hold in syllabus point 2 that "[a]bsent specific coverage provisions to the contrary, uninsured motorist coverage is not available where an insured vehicle strikes a tire or other type of immobile object or debris which may be lying on a highway. In order to satisfy the `physical contact' requirement set forth in W.Va.Code § 33-6-31(e)(iii), it is necessary to establish a close and substantial physical nexus between an unidentified hit-and-run vehicle and the insured vehicle." (Emphasis added).
Inasmuch as Norman did not discuss the specific meaning of the phrase "close and substantial physical nexus", we now revisit this area in order to put flesh on the skeletal bones of Norman, to take the next step and define what is meant by a "close and substantial physical nexus". We must do so by "accord[ing] every liberal extension to the remedial statute [without] judicially removing the meaning and frustrating the purpose of limiting language deliberately inserted into the statute." Norman, 191 W.Va. at 506, 446 S.E.2d at 728 (quoting Smith v. Great American Insurance Co., 29 N.Y.2d 116, 324 N.Y.S.2d 15, 19, 272 N.E.2d 528, 531 (1971)).
This Court previously acknowledged that the purpose of the physical contact requirement is the prevention of fraud or collusion.
*624 Perkins, 177 W.Va. at 87 n. 4, 350 S.E.2d at 714 n. 4. We remain strongly committed to the underlying policy of preventing fraud even though we are mindful that abandoning an objective standard in favor of a more subjective one increases the potential for fraud or collusion.
Ohio was faced with a situation similar to the one facing us today, but in a slightly different context. An insured was injured when she lost control of her car and it overturned after an unidentified vehicle swerved into her lane of traffic. The insured sought uninsured motorist coverage from her automobile insurer. The insurer denied coverage based on its determination that there was no physical contact between the vehicles.[1] The insured brought a declaratory judgment action against her insurer, asking that the physical contact requirement be declared invalid and unenforceable. The Ohio Supreme Court found the physical contact requirement to be contrary to public policy and stated further:
We are persuaded that some of the rationale underlying the physical contact requirement is unjustified and that this absolute standard for recovery should be abandoned. Instead, we hold that the test that ought to be applied in cases where an unidentified driver's negligence causes injury is the corroborative evidence test, which allows the claim to go forward if there is independent third-party testimony that the negligence of an unidentified vehicle was a proximate cause of the accident.
Girgis v. State Farm Mut. Auto. Ins. Co., 75 Ohio St. 3d 302, 305, 662 N.E.2d 280, 282 (1996).[2]
We agree with the Ohio Supreme Court that absolute enforcement of the physical contact requirement is contrary to public policy. We believe the physical contact requirement should not bar recovery when there is sufficient independent third-party evidence to conclusively establish that the sequence of events leading to an injury was initially set in motion by an unknown hit-and-run driver or vehicle. We therefore hold that a close and substantial physical nexus exists between an unidentified hit-and-run vehicle and the insured for uninsured motorist insurance coverage under W.Va.Code § 33-6-31(e)(iii) (1995) when an insured can establish by independent third-party evidence to the satisfaction of the trial judge and the jury, that but for the immediate evasive action of the insured, direct physical contact would have occurred between the unknown vehicle and the victim. The requirement now is that physical contact with an unknown vehicle be immediate and imminent and the danger is avoided only by the urgent evasive action of the insured. In the literature of this developing area of law, this is commonly referred to as the "but for" test. While this phrase might not have an intellectual ring, it certainly is accurate and descriptive and provides a practical, shorthand way to identify the rule.
The "but for" test is satisfied and the uninsured motorist claim can go forward only if the injured insured presents independent third-party testimony by disinterested individuals which clearly shows the negligence of an unidentified vehicle was a proximate cause of the accident. This is commonly called the corroborative evidence test. It would be impossible to say in advance what might constitute sufficient corroborative evidence in a given case, and while it is difficult to spell out what is independent third-party evidence, we believe we must be very clear about what is not adequate independent third-party testimony. Testimony by close family members, close personal friends, by those who might share in the award or have a direct pecuniary interest in the outcome of the case, and all others similarly situated is not testimony which is sufficient to allow the claim to proceed. Evidence from these witnesses standing alone is not adequate to *625 meet the corroborative evidence test. This is not to suggest that family members would routinely perjure themselves; we believe most would not. However, if we are going to have a truly effective bright line rule which genuinely eliminates the very real potential for fraud, clear and simple guidelines must be established. We realize that to avoid fraud, the evidence needs to be free of taint or suspicion and be strong and reliable. Accordingly, to insure that this Court is not opening the door to fraud, the corroborative witnesses or other evidence must be absolutely and totally independent and reliable.
Blind adherence to the physical contact requirement wrongfully deprives insured individuals of any recovery under uninsured motorist coverage even when reliable, independent third-party testimony is available. We believe proper use of the independent corroborative evidence test should assist in preventing the filing of fraudulent claims, while at the same time the test should help avoid the injustice of prohibiting clearly legitimate claims where no physical contact has occurred. To the extent that our prior cases allowed recovery only after an insured proved at trial that his or her injuries were the result of actual physical contact with a hit-and-run vehicle, they are overruled.[3]
In the case at bar, Stacey Hamric's accident was witnessed by four adults, all of whom were clearly disinterested and independent. In fact, the parties stipulated that Stacey would have been struck by the unknown vehicle had she not moved out of the vehicle's path. This ameliorates the potential for fraud. We find the evidence in the case at bar satisfies both the "but for" test and the independent corroborative evidence test. Accordingly, we answer the first certified question affirmatively.
II. The Medical Payment Provisions Issue
The second certified question, as set forth above, is:
Whether the provisions of the State Farm policies providing medical payment coverage which provide that "the bodily injury through being struck as a pedestrian by a motor vehicle" prior to being applicable are satisfied when Stacey Hamric was injured as a pedestrian while avoiding being struck by a vehicle driven by an unknown driver.
State Farm also denied coverage under the medical payment coverage (med-pay) provisions of the insurance policies because Stacey Hamric was not physically "struck" by the unknown vehicle. The med-pay provisions of the State Farm policies at issue provide:
Persons for Whom Medical Expenses Are Payable
We will pay medical expenses for bodily injury sustained by:
1. a. the first person named in the declarations;
b. his or her spouse; and
c. their relatives.
These persons have to sustain the bodily injury:
a. while they operate or occupy a vehicle covered under the liability section; or
b. through being struck as a pedestrian by a motor vehicle or trailer.
A pedestrian means a person not an occupant of a motor vehicle or trailer.
No statutory requirements govern medical payments coverage; therefore, we must look to the language of the policy to determine if coverage is available. This Court has previously said:
"`Where provisions in an insurance policy are plain and unambiguous and where such provisions are not contrary to a statute, regulation, or public policy, the provisions will be applied and not construed.' Syl. Pt. 2, Shamblin v. Nationwide Mut. Ins. Co., [175] W.Va. [337], 332 S.E.2d 639, 640 (1985)." Syllabus Point 2, Deel v. *626 Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).
Syllabus Point 1, Keiper v. State Farm Mut. Auto. Ins. Co., 189 W.Va. 179, 429 S.E.2d 66 (1993). An ambiguous insurance policy is defined as one that "is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning[.]" Syllabus Point 1, Prete v. Merchants Property Ins. Co. of Indiana, 159 W.Va. 508, 223 S.E.2d 441 (1976).
State Farm argues the med-pay provisions of the policies are clear and unambiguous and must be applied as written. Even though Stacey Hamric is an insured and was a pedestrian on September 9, 1994, State Farm argues she was not actually "struck" by a motor vehicle on that day. Therefore, under the policy language, no med-pay is available. Vernon Hamric and Debra Hamric argue that, under Norman, an insured does not have to be physically struck for coverage to be afforded. Rather, a "close and substantial physical nexus" must exist between an unknown hit-and-run vehicle and the insured.
We turn to 43 Am.Jur.2d Insurance § 632 (1982) for guidance. This provision states:
It has been held that the proper construction of the policy provision "struck by an automobile" does not necessitate physical contact of the body of the insured with the automobile as a prerequisite to recovery. Thus, such a policy provision was held to cover an injury to one who suffered an accident while attempting to avoid being struck by an oncoming automobile, and when in imminent danger of being struck, even though the moving car did not come in contact with his body. (Footnotes omitted).
Liberally construing the med-pay provisions of the State Farm policies, as our law requires us to do, and viewing the phrase "must be struck" or "through being struck" in light of the method and logic we just used to define "physical contact" under the uninsured motorist statute, we now concur with the construction outlined in Am.Jur.2d, supra. Since this phrase is "reasonably susceptible of two different meanings," we believe it is ambiguous. "Ambiguous ... provisions of an insurance policy should be construed strictly against the insurer and liberally in favor of the insured[.]" Syllabus Point 2, in part, Marson Coal Co. v. Ins. Co. of State of Pennsylvania, 158 W.Va. 146, 210 S.E.2d 747 (1974).
Even though Stacey Hamric was not actually physically "struck" by the unknown vehicle, a liberal construction of the med-pay provisions of the insurance policies allows this claim to go forward. In the instant case, there simply is no doubt the actions of a negligent automobile driver proximately caused Stacey Hamric's injury. The parties stipulated that "but for" the evasive actions of Stacey Hamric, she would have been struck. No less than four disinterested adults witnessed the accident. These witnesses can provide the necessary independent third-party testimony to meet the corroborative evidence requirement.
We therefore hold that medical coverage benefits should be available to an insured under the medical payments coverage provisions of his or her automobile insurance policy or policies when an insured is struck as a pedestrian in the same way coverage is available under the uninsured motorist statute. In order for the claim to go forward, the insured must satisfy the same tests that must be satisfied in order for a claim to proceed under the uninsured motorist statute. These tests include the "but for" test and the corroborative evidence test. Accordingly, we answer the second certified question affirmatively.
We pause here to note that this Court has unequivocally declared that "although we have allowed the stacking of uninsured motorist coverage based on the public policy mandate of W.Va.Code 33-6-31 [1988], there exists no statutory or other public policy requirement that would provide a basis for invalidating or modifying the anti-stacking language for medical benefits contained in an insurance policy." Keiper v. State Farm Mut. Auto. Ins. Co., 189 W.Va. 179, 183, 429 S.E.2d 66, 70 (1993). We now reiterate that the stacking of medical coverages and benefits is not permissible when the *627 language of an insurance policy prohibits such stacking. Thus, the trial court must determine whether or not any of these six insurance policies contain anti-stacking language and determine coverage accordingly.
For the foregoing reasons, we find the Hamrics' claims for uninsured motorist benefits and medical benefits should be allowed to proceed if they satisfy the "but for" test and the corroborative evidence test, both of which are articulated in this opinion.
Certified questions answered.
DAVIS, J., deeming herself disqualified, did not participate in the decision of this case.
NOTES
[1] State Farm concluded there was no "`hit and run' land motor vehicle" involved in the accident as was described by the insurance contract, and, therefore, the company was not obligated to pay the claim. Girgis v. State Farm Mut. Auto. Ins. Co., 75 Ohio St. 3d 302, 303, 662 N.E.2d 280, 281 (1996). The decision in this Ohio case was based strictly on contract language rather than on a statute.
[2] See note 1 of Girgis, supra, for a list of states that have adopted this rule or an even stricter rule.
[3] For example, Lusk v. Doe, 175 W.Va. 775, 778, 338 S.E.2d 375, 378, unequivocally states, "In order for the insured to recover from the insurer, upon trial it must also be shown that the injuries were incurred after physical contact with the hit and run vehicle."
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NO. 07-06-0119-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
DECEMBER 13, 2006
______________________________
BLAKE STRINGER, BACC FARMS, LTD., and
ROCKIN’ LAZY S, INC.,
Appellants
v.
RED RIVER COMMODITIES, INC., and
CARROLL MICHAEL WILLIAMS,
Appellees
_________________________________
FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;
NO. 04-11; HON. ROLAND D. SAUL, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellants Blake Stringer, BACC Farms, Ltd., and Rockin’ Lazy S, Inc. (collectively
referred to as Stringer) appeal from a judgment denying them recovery against Red River
Commodities, Inc. and Carroll Michael Williams (collectively referred to as Red River).
Their two complaints involve the trial court’s refusal to admit into evidence a purported
government record labeled Plaintiffs’ Exhibit 333 (P333) and the expert testimony of Dr.
Peter Bernhardt. We affirm the judgment.
Background
The dispute concerns failed sunflower crops planted by Stringer in the years 2002
and 2003. The seed for the crops was acquired from Red River, and, Stringer believed
them to be defective given their purported inability to produce as represented by the
business. Thus, Stringer sued Red River to recover damages. Red River defended
against the suit by, among other things, attempting to illustrate that events or acts other
than the quality of its seed caused the low crop yields experienced by Stringer.
P333
Stringer initially contends that the trial court erred in excluding his exhibit P333 from
evidence. The document purported to be a government record issued by the United States
Department of Agriculture Risk Management Agency. Through it, the agency found that
a potential crop planted with the type of seed utilized by Stringer in 2002 was uninsurable.
Red River objected to its admission on the grounds of hearsay and relevance. Stringer
sought to refute those grounds by asserting that the exhibit 1) was “excluded from the
hearsay rule because it’s a document required by a governmental agency,” 2) showed
“insurance was denied in 2002 because the crop was uninsurable,” and 3) was “relevant
among other things to the mental anguish of the Plaintiff.”1 The trial court sustained Red
River’s objection, though it did not specify any particular ground for doing so.
1
What the “other things” were went unmentioned.
2
Whether the trial court erred in sustaining the objection depends upon whether it
abused its discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998). Moreover, we must uphold the evidentiary ruling if there is any legitimate basis
upon which to do so, id., and the burden lies with appellant to show that there were no
grounds supporting the decision. See Minnesota Min. & Mfg. Co. v. Nishika, Ltd., 885
S.W.2d 603, 630 (Tex. App.–Beaumont 1994), rev’d on other grounds, 953 S.W.2d 733
(Tex. 1997) (stating that “3M . . . had to bear the burden of showing that there was no
ground upon which the trial court could have properly excluded the hearsay evidence”).
Given that at least two grounds were mentioned as basis for excluding P333, the
burden lay with Stringer to show us why neither justified the trial court’s decision. And, as
to hearsay, he simply wrote in footnote three of his brief that: “P333 is excluded from the
hearsay rule. See TEX. R. EVID . 803(8); Nissan Motor Co., 145 S.W.3d at 141.” Nothing
more was said. So, to the extent both Rule 803(8) and Nissan mention that governmental
records may be excluded from the hearsay rule, Stringer did not explain why P333 should
fall within that exclusion. Nor did he explain within what category of Rule 803(8) the
document fell. This is of import since three exist and two of them mandate that the report
encompass 1) matters observed per duty imposed by law or 2) factual findings deriving
from an investigation made pursuant to authority granted by law.2 Whether P333 met the
requirements of either category went unmentioned, as did whether the document came
2
The rule states that reports, reco rds, and the like of pub lic offices or agen cies are excluded from the
hearsay rule if they set forth 1) the activities o f the ag enc y or office , 2) matters observe d pu rsua nt to du ty
imposed by law as to which there was a duty to report, or 3) factual findings resulting from an investigation
ma de p ursu ant to authority gra nted by law . T E X . R. E VID . 803(8 ).
3
within the parameters of the third category (i.e. records setting forth the activities of the
issuing agency).
As stated in State v. Foltin, 930 S.W.2d 270 (Tex. App.–Houston [14th Dist.] 1996,
writ denied), “[o]nce a document has been authenticated, Rule 803(8) does not require a
formal predicate to be laid through a witness, but the offered document must be shown to
satisfy the requirements of the rule.” Id. at 272. Stringer cites us to no evidence (and we
found none) authenticating P333 and thereby relieving himself of having to prove the item
satisfied Rule 803(8). Nor have we uncovered testimony purporting to illustrate that the
document met the requirements of that rule. Thus, he did not carry his burden to prove that
the trial court erred in excluding it on the basis of hearsay.
As for the matter of relevance, we reiterate that Stringer claimed the document was
“relevant . . . to the mental anguish of the Plaintiff.” Yet, that particular ground goes
unmentioned on appeal. Rather, he avers here that the trial court should have admitted
the record since it was relevant to the issue of causation. Given that the ground uttered
here differed from that mentioned below, nothing was preserved for our review. Hoxie
Implement Co., Inc. v. Baker, 65 S.W.3d 140, 151 (Tex. App.–Amarillo 2001, pet. denied).
Finally, even if the trial court erred in excluding the item, it remained Stringer’s
burden to establish harm. Doing so obligated him to demonstrate “that the whole case
depended upon the evidence that was excluded.” Minnesota Min. & Mfg. Co. v. Nishika
Ltd., 885 S.W.2d at 630. Stringer endeavored to illustrate the potential relevance of P333.
He also opined that exclusion of the document “probably resulted in an improper judgment.”
4
But, given the tenor of the entire record, we cannot say that Stringer’s whole case
depended upon admission of P333.
In sum, Stringer did not establish that the trial court abused its discretion in excluding
P333. So, we overrule the contention.
Expert Testimony
Next we address the expert testimony excluded by the trial court. It consisted of
comments by Dr. Peter Bernhardt of an experiment conducted after various of Stringer’s
crops allegedly failed. The experiment allegedly consisted of his planting various types of
sunflower seeds, including those of the kind Stringer planted. Bags were placed over the
flowers of some of the maturing plants while the flowers of others were left uncovered.
Through this, he hoped to determine the self-pollination rate of the seed used by Stringer.
Red River moved to strike the testimony, which motion the trial court granted on the basis
that Bernhardt “did not conduct a valid scientific experiment.” We overrule the issue.
As already stated, we may uphold the trial court’s decision on any legitimate ground.
Owens-Corning Fiberglas Corp. v. Malone, supra. Next, when questioned, Bernhardt
revealed that he did not know the weather conditions (i.e. rainfall, humidity, and wind) that
prevailed during his experiment. Nor did he plant the seeds himself or know the amount
of irrigation provided in the experiment, the fertility of the soil before the seeds were
planted, or the fertilizer requirements for sunflowers. This is of import because he also
opined that climatic conditions, insufficient water, “insufficient timing of water,” humidity,
and fertilizer could impact the plants’ growth and production of acceptable seed.
When asked about soil moisture at the time of planting, Bernhardt also stated that
he checked it by “eyeballing it,” a method he then agreed was not reliable for a plant
5
physiologist. So too did he admit that he could not provide a specific rate of error related
to his experiment, he had never been involved in raising sunflowers or in their breeding or
fertilization prior to being hired by Stringer’s attorney to conduct the experiment, and he
was not an expert on sunflowers. Nor did he know if the seeds used in the experiment
were of the type or breed represented because they were given him by Stringer or his
attorney. This too is of import because he later indicated that hybrid seed similarly labeled
could produce differently if they came from different “parents” or “heads.”
Before purportedly expert testimony is admitted, it must be shown not only that the
expert is qualified but also that his opinions are relevant and have a reliable foundation.
E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). To be
qualified, the expert must have knowledge, skill, experience, training, or education
regarding the specific issue before the court. Broders v. Heise, 924 S.W.2d 148, 153-54
(Tex. 1996); see Helena Chemical Co. v. Wilkins, 18 S.W.3d 744, 752-53 (Tex. App.–San
Antonio 2000), aff’d, 47 S.W.3d 486 (Tex. 2001) (stating that the focus is on whether the
expert’s expertise goes to the very matter on which he is to give an opinion). The very
matter about which Bernhardt was to opine encompassed the self-pollination of sunflowers.
Because he admitted to lacking expertise on sunflowers and to never before having been
involved with their raising or breeding, the trial court could have rationally inferred that he
lacked the experience and training in that field and, thus, was not qualified in the matter.
Or, the trial court could have concluded that the reliability of his experiment was
suspect. Again, Bernhardt did not personally know if any of the particular sunflower seeds
planted were of the same type involved in the underlying suit; instead, he had to rely on the
representations of Stringer and his attorney. Nor was he aware of the climatic or soil
6
conditions involved in his experiment even though they could affect the results. Reason
suggests that one attempting to determine the productivity of seed would know of and
regulate the many indicia that may affect that productivity. Bernhardt did not viz his
experiment.
In sum, we cannot say that the trial court abused its discretion in excluding the
purportedly expert testimony at issue. The issue is overruled.
Having overruled each issue, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
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491 Pa. 598 (1980)
421 A.2d 1046
COMMONWEALTH of Pennsylvania
v.
William PHILPOT, Appellant.
Supreme Court of Pennsylvania.
Submitted September 24, 1980.
Decided October 31, 1980.
John H. Corbett, Jr., David Metinko, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.
*599 Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
This is a direct appeal from a judgment of sentence imposed by the Court of Common Pleas of Allegheny County on a jury verdict of guilty of murder of the third degree. We affirm for want of compliance with the written post-verdict motion specificity requirement of Pa.R.Crim.Proc. 1123(a) and Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).
On February 15, 1979, appellant filed a written "Motion For New Trial And/Or Arrest Of Judgment." Contained in the written motion was only the following allegation:
"1. The jury verdict was against the weight of the law and the evidence in this case."
The post-verdict court denied relief and entered judgment of sentence. On this appeal, appellant contends (1) that he should be discharged for want of sufficient evidence of malice and (2) that he should be awarded a new trial because the Commonwealth failed to produce allegedly existing handwritten notes of the investigating officer to whom appellant gave a statement.
Rule 1123(a) of our Rules of Criminal Procedure (adopted June 8, 1973) provides:
"Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued."
In Blair, this Court (on January 29, 1975) unanimously stated:
*600 "The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth, issues not presented in compliance with the rule will not be considered by our trial courts and appellate courts."
460 Pa. at 32 n.1, 331 A.2d at 214 n.1. See also Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) (appellate courts shall not dispose of cases on substantive issues raised sua sponte). Here, well over five years after the promulgation of Rule 1123(a) and over four years after Blair, appellant failed to present his allegations of error in writing to the post-verdict court. See Commonwealth v. Meadows, 471 Pa. 201, 208-209, 369 A.2d 1266, 1270 (1977). Consistent with Rule 1123(a) and Blair, this Court will not consider appellant's claims.
From the opinion of the post-verdict court in response to appellant's "Statement of Matters Complained of on Appeal," see Pa.R.App.Proc. 1925(b), it would appear that appellant orally argued his present contentions and that the post-verdict court considered them. The post-verdict court's violation of Rule 1123(a) and Blair, however, does not alter our conclusion that appellant's present contentions are not properly preserved. This Court uniformly has held that a post-verdict court's erroneous consideration of orally presented allegations of error will not suffice to preserve the allegations for appellate review. E.g., Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d 1032 (1979); Commonwealth v. Hagans, 483 Pa. 415, 397 A.2d 412 (1979); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978). As this Court stated in Waters,
"Where boilerplate variety motions are filed it is often difficult, if not impossible, to determine with precision the issues actually argued before the court below."
477 Pa. at 435, 384 A.2d at 237. See also Commonwealth v. Hilton, 461 Pa. 93, 95 n.1, 334 A.2d 648, 649 n.1 (1975). Indeed, the post-verdict court's authority here to direct appellant to file a "Statement of Matters Complained of on Appeal" arose because of its "uncertain[ty] as to the basis for the appeal. . . ." Pa.R.App.Proc. 1925(b). This record, *601 therefore, fails to disclose any basis for disturbing the judgment of sentence.
Judgment of sentence affirmed.
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280 Pa. Super. 417 (1980)
421 A.2d 791
COMMONWEALTH of Pennsylvania, Appellant,
v.
Michael Xavier PFENDER.
Superior Court of Pennsylvania.
Submitted March 21, 1980.
Filed August 22, 1980.
Petition for Allowance of Appeal Denied February 27, 1981.
*419 Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellant.
David F. Wedge, Lancaster, for appellee.
Before PRICE, CAVANAUGH and WATKINS, JJ.
CAVANAUGH, Judge:
Appellee, Michael Xavier Pfender, is charged with arson and related offenses[1] in Lancaster County. Pfender's former attorney met with the District Attorney to discuss the charges and thereafter an agreement was reached whereby Pfender would voluntarily undergo a polygraph (lie detector) test. The proposed use of the polygraph test results was set forth in a stipulation signed by Ronald L. Buckwalter, District Attorney of Lancaster County, Samuel M. Mecum, Pfender's attorney and appellee. The stipulation provides:
AND NOW, this 30 day of October, 1978, Michael Xavier Pfender, Defendant in the above-captioned matter, and Ronald L. Buckwalter, Esquire, District Attorney of Lancaster County, hereby stipulate and agree as follows:
1. Defendant Michael Xavier Pfender agrees to submit himself to a Polygraph (lie detector) test, which test will be designed to determine whether or not Defendant Pfender is telling the truth, in connection with his recollection of events transpiring at the Willow Street Mobile Home Park, 1014 Willow Street Pike, Lancaster, Pennsylvania, on or about the date of April 16, 1978.
2. The Polygraph, or lie detector test is to be administered by any qualified member of the Lancaster City Police Department.
*420 3. It is agreed on part of Defendant Pfender that, should the results of the Polygraph indicate deception, these results may be used against him in connection with information No. 1376 of 1978.
4. On part of Ronald L. Buckwalter, Esquire, District Attorney of Lancaster County, it is agreed that, should the results of the Polygraph test indicate no deception on the part of Defendant Pfender, information No. 1376 of 1978 shall be nol prossed (dismissed).
5. Defendant Michael Xavier Pfender expressly certifies that this Stipulation is entered voluntarily on his part, after having had his legal rights explained to him by his attorney, Samuel M. Mecum, Esquire, of 121 East King Street, Lancaster, Pennsylvania, and further certifies that he has been made aware of the fact that he is not required to enter into the above Stipulation, and does so, * * * any rule of law or of court to the contrary notwithstanding.
STIPULATED AND AGREED the day and year first above written.
By: /s/ Michael Xavier Pfender
Defendant Michael Xavier Pfender
GLAZIER, MINNEY, MECUM & KOHR
By: /s/ Samuel M. Mecum
Samuel M. Mecum, Esquire
Attorney for Defendant
Michael Xavier Pfender
By: /s/ Ronald L. Buckwalter, Esquire
Ronald L. Buckwalter, Esquire,
District Attorney of
Lancaster County
Pursuant thereto, a polygraph test was administered to appellee by an experienced polygraphist from the Lancaster Bureau of Police, Jan G. Walters. The result in the opinion of Mr. Walters, was that Pfender was "not being entirely truthful" in that the examiner found deception indicated in three of the four pertinent questions asked during the test.
*421 Thereafter, Pfender obtained new counsel who filed an application to suppress any evidence of the results of the polygraph examination. After a hearing the Court suppressed the results of the polygraph examination, reasoning that since the appellate courts in Pennsylvania have determined that the results of polygraph tests are inadmissible in evidence, that a stipulation could not cure the inadmissibility. The court found, however, that the stipulation was entered into by Pfender "knowingly, voluntarily and intelligently, without coercion having been exerted against him." The court also entered a certification under the Act of July 9, 1976, P.L. 586, No. 142 § 2 (42 Pa.C.S. § 702(b)) that an immediate appeal may materially advance the ultimate termination of the case. However, since the Commonwealth did not file a petition for permission to appeal as required by Pa.R.A.P. 1311, the certification under § 702(b) does not provide us with jurisdiction over this case.
Nevertheless it is settled that the Commonwealth may appeal from a pretrial suppression order if the question raised is a pure question of law and if the order effectively terminates or substantially handicaps the prosecution. E.g., Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d 522 (1978); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S. Ct. 204, 11 L. Ed. 2d 149 (1963). However, our Court is divided over how the Commonwealth establishes its right to appeal. Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496 (1978), presents three different views. One view is that the Commonwealth need only certify in its brief that the suppression order will effectively terminate or substantially handicap the prosecution. Id., 254 Pa.Super. at 12-13, 385 A.2d at 500 (Price, J. dissenting). A second view is that the record must indicate that the suppression order will in fact effectively terminate or substantially handicap the prosecution. Id., 254 Pa.Super. at 12, 385 A.2d at 499 (Hoffman, J. dissenting). The third view is that the Commonwealth in its brief must state that the suppression order will effectively terminate or substantially handicap the prosecution and must also provide an explanation, *422 not inconsistent with the record, why this is so. Id., 254 Pa.Super. at 10, 385 A.2d at 499 (plurality opinion of Spaeth, J.). However, we need not decide which view should prevail since the instant case is properly before us under any of the three views.
I
We are thus asked to determine the admissibility of polygraphic evidence by stipulation of the parties. Before attempting to decide this issue, we first consider the status of Pennsylvania law on the subject of polygraph evidence in general. Pennsylvania cases still adhere to the principle set forth in Commonwealth ex rel. Riccio v. Dilworth, 179 Pa.Super. 64, 115 A.2d 865 (1955) that:[2]
The reliability and scientific infallibility of polygraph, lie detector, or other psychological deception test must be more definitely established before our courts will accept their results as credible." 179 Pa.Super. at 68, 115 A.2d at 867.
In 1976 the Supreme Court of our State reiterated the exclusionary rule of Riccio noting that it has been repeatedly and consistently held in Pennsylvania that the results of a polygraph examination are inadmissible for "any purpose" because the reliability of such tests has not been established. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). However, the Court further stated:
Certainly it is incumbent upon us to be alert to developments in this field so that, if indeed lie detectors have passed beyond the experimental stage to a trustworthiness comparable to that of other scientific tests whose results have immeasurably aided our courts in their search for truth, we do not deny ourselves the enlightenment they might provide. (467 Pa. at 142, 354 A.2d 875.)
*423 The court in Gee nevertheless declined to reconsider the established view of inadmissibility since in that case the polygraph test results were inconclusive. Since the time of Gee, our appellate courts have not reexamined the rule of inadmissibility and still follow the principle that polygraphic examinations have not obtained acceptance as a reliable means of ascertaining truth or deception. See Commonwealth v. Kemp, 270 Pa.Super. 7, 410 A.2d 870 (Special transfer case) (1979).
Thus, it is the present view in Pennsylvania that such test results are not reliable even though the courts have evinced a desire to keep an open mind on the subject.
On the precise issue of admissibility of polygraphic evidence pursuant to stipulation we find that the Pennsylvania cases have only incidentally touched upon the subject. In Commonwealth v. McKinley, 181 Pa.Super. 610, 123 A.2d 735 (1956), the court held that the trial judge properly instructed the jury to ignore any evidence of the defendant's offer to take a lie detector test. In so holding, the court stated:
In the absence of a stipulation of the parties to the contrary, the results of lie detector tests are inadmissible when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction. (181 Pa.Super. at 619, 123 A.2d 735.)
We do not deem this statement as being any authority for the admission of polygraphic evidence by stipulation. The court was simply supporting its conclusion that the results of such tests are inadmissible and that therefore any evidence of an offer to undergo the test would likewise be inadmissible.
In Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (1978) our court had before it the issue of the refusal to permit a polygraph examination of a defendant under stipulation that the results would come into evidence. The court in a brief footnote (255 Pa.Super. 288 n. 15, 386 A.2d 994) dismissing "other points" rejected the *424 argument citing Commonwealth v. Gee, supra, and Commonwealth v. Brooks, 454 Pa. 75, 309 A.2d 732 (1973).
It appears then, that the question of admissibility of polygraphic evidence by stipulation has yet to be squarely met in Pennsylvania.
II
The leading case dealing with the admissibility of polygraphic evidence by stipulation is State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962). In that case polygraphic evidence was used at trial pursuant to a stipulation and the Supreme Court of Arizona considered the propriety of the evidence in a presentence certified appeal. After a thorough review of the nature and scientific reliability of polygraphic examinations the court concluded:
Although much remains to be done to perfect the lie detector as a means of determining credibility we think it has been developed to a state in which its results are probative enough to warrant admissibility on stipulation. (91 Ariz. at 283, 371 A.2d 894.)
The court held that polygraph evidence is admissible after stipulation to corroborate other evidence of a defendant's participation in the crime charged and to corroborate or impeach his own testimony if the defendant takes the stand. The court also laid down qualifications which must be met in order to permit the use of the evidence.[3]
*425 Ten years later the Supreme Court of New Jersey in State v. McDavitt, 62 N.J. 36, 297 A.2d 849 (1972) reached the same conclusion as the Arizona Court and held that polygraphic testing has developed to such a point of reliability that when the state stipulates to have the defendant submit to a polygraph test and have the results introduced into evidence, such evidence should be received. The court also concluded that the evidence is not admissible as direct proof of a defendant's guilt or innocence of the crime charged but that it is simply opinion evidence by an expert and tends only to indicate whether or not the subject was telling the truth when tested.[4]
More recently the question of admissibility of polygraphic evidence by stipulation limited to the issue of the defendant's credibility was faced by the highest court in West Virginia in State v. Frazier, W.Va., 252 S.E.2d 39 (1979). In that case the court ruled the evidence inadmissible, holding that evidence which the courts do not deem worthy of admission cannot be made so by stipulation. The court observed that in those cases which admit the evidence by stipulation there is the silent premise that the courts do not really believe the polygraph to be scientifically accurate and they therefore restrict the admissibility on artificial grounds. The court was persuaded that polygraph tests have an element of uncertainty because the results are dependent on the subjective analysis of the operator.
*426 Similarly, the Supreme Court of Alaska in Pulakis v. State, 476 P.2d 474 (1970) held that stipulated polygraphic evidence may not be received in evidence over objection since:
A stipulation for admission does not increase the reliability of polygraph results and therefore should not lead to any deviation from the exclusionary policy. (476 P.2d at 479.)
In Oklahoma the Court of Criminal Appeals in 1975 reversed a line of cases admitting polygraph evidence upon stipulation and found that the potential unreliability of polygraphy dictated its total exclusion.
In the situation where all parties in the case stipulate to the admission of results of a polygraph examination, this Court has held that it is within the discretion of the trial court to admit such evidence. See, Castleberry v. State, Okl.Cr., 522 P.2d 257 (1974) and Jones v. State, Okl.Cr., 527 P.2d 169 (1974). However, in light of the potential unreliability of polygraph examinations at this time, we feel that in all future cases the introduction into evidence of polygraph examination results for any purpose, even if admitted upon stipulation of all parties, will be error.
Fulton v. Oklahoma, Okl.Cr., 541 P.2d 871 (1975).
We think these last cases illustrate the proper view for Pennsylvania Courts on this issue.[5] As previously noted, our cases have held that the reliability of polygraphic test results have not as yet been sufficiently demonstrated. No Pennsylvania case has undertaken a review of the science of polygraphy in order to evaluate its present reliability. Our research discloses that there is no jurisdiction where the test is held to be generally admissible at trial. This has been the result even after an exhaustive analysis of the legal and scientific value of polygraphic evidence. See State v. Catanese, 368 So. 2d 975 (La. 1979).[6] We believe that the reception *427 of such evidence even by stipulation before our courts undertake to evaluate and accept polygraphy generally is fraught with danger.
Since the general admissibility of polygraphic test evidence has not been argued here and the record is devoid of any evidence as to the reliability of polygraph test results, we do not deem it appropriate for us to consider the broad issue in this case.
We conclude that evidence of results of the polygraphic tests is not admissible in evidence even in the face of a knowing, voluntary and intelligent stipulation that they may be submitted in evidence.
Order affirmed.
PRICE, J., concurs in the result.
NOTES
[1] 18 Pa.C.S.A. § 3301(a).
[2] See also: Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956); Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971); Commonwealth v. Brooks, 454 Pa. 75, 309 A.2d 732 (1973); Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977).
[3] State v. Valdez, supra, 91 Ariz. at 283, 371 P.2d at 900-01 provides:
(1) That the county attorney, defendant and his counsel all sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs and the examiner's opinion thereon on behalf of either defendant or the state.
(2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial judge, i.e. if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.
(3) That if the graphs and examiner's opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting:
a. the examiner's qualifications and training:
b. the conditions under which the test was administered;
c. the limitations of and possibilities for error in the technique of polygraphic interrogation; and
d. at the discretion of the trial judge, any other matter deemed pertinent to the inquiry.
(4) That if such evidence is admitted the trial judge should instruct the jury that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant was not telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given.
[4] See also: State v. Christopher, 134 N.J.Super. 263, 339 A.2d 239 (1975); State v. South, 136 N.J.Super. 402, 346 A.2d 437 (1975).
[5] For a collection of cases on admissibility by stipulation see 53 A.L.R. 3d 1005 (1973).
[6] Catanese points out that caution is dictated in the area of admission of polygraph results in that the questions which deal with the very basic issues in a case are likely to be given great weight by the fact finder. The court felt that before consideration could be given to admitting polygraphic evidence there should be state regulation and licensing of polygraphers (Pennsylvania has none) and that procedural safeguards should be established by court rule or legislation.
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279 Pa. Super. 334 (1980)
421 A.2d 226
Gregory A. KASEMER and Patrick G. Kasemer, a Co-Partnership d/b/a Fountain House Park and Andrew G. Kasemer and Dorothy M. Kasemer
v.
NATIONAL FUEL GAS DISTRIBUTION CORPORATION, Appellant.
Superior Court of Pennsylvania.
Argued April 11, 1979.
Filed July 3, 1980.
*336 Norman H. Stark, Erie, for appellant.
Paul D. Shafer, Jr., Meadville, submitted a brief on behalf of appellees.
Before VAN der VOORT, SPAETH and WATKINS, JJ.
VAN der VOORT, Judge:
This is a claim in assumpsit by operators of a mobile home park against a gas company to recover damages alleged to result from the gas company's refusal to supply gas in breach of an alleged contract of defendant to supply gas service to plaintiffs for upwards of 110 mobile homes.
Plaintiffs began the development of the park in 1972, intending eventually to construct 100 or more sites for rental to operators of mobile homes. By the end of 1974 they had readied for occupancy approximately 11 sites of which 5 were occupied between September, 1974 and April 1, 1975.
Defendant (sometimes referred to hereafter as NFG) supplied gas to plaintiffs' tenants until April 1, 1975, but refused to supply gas to additional tenants after that date. The basis of NFG's refusal was an order dated February 1, 1972 of the Pennsylvania Public Utility Commission, forbidding the gas company to take on additional customers beyond its peak capacity. NFG determined that the PUC Order of February 1972 became applicable to it, effective April 1, 1975, because of curtailments of gas supply by its suppliers in December of 1974. See Leveto v. National Fuel Gas Distribution Corporation v. The Pennsylvania Public Utility Commission, 243 Pa.Super. 510, 366 A.2d 270 (1976).
Plaintiffs brought an action in equity against the NFG seeking a mandatory injunction to force NFG to supply gas service to plaintiffs. On May 27, 1975, the Court of Common Pleas ordered defendant to provide gas service to plaintiffs up to a maximum of thirty units. Defendant apparently complied with this order of May 27, 1975 until July 23, 1975 when the P.U.C. issued its order directing *337 defendant not to make further sales of gas, other than to customers already being served, and defendant then refused to supply gas to additional tenants of plaintiffs.
On August 12, 1975 the Common Pleas Court held NFG in contempt of the court's order of May 27, 1975. NFG purged itself of contempt by renewing the supply of gas for plaintiffs, but appealed the contempt order to the Superior Court without asking for a supersedeas. On September 25, 1975 the PUC petitioned to intervene in the appeal to the Superior Court and asked for a supersedeas. The supersedeas was granted on October 6, 1975 and apparently NFG discontinued the supply of gas until November 22, 1976, on which date the Superior Court affirmed the Common Pleas contempt order of August 12, 1975. See Leveto v. NFG, supra.
As of November 22, 1976 NFG resumed the supply of gas for plaintiffs.
In August 1976, plaintiffs filed this present action in assumpsit against NFG for breach of an alleged contract to supply gas, claiming damages originally for loss of value of their real estate,[1] plus extra expenditures necessitated by defendant's refusal to supply gas, plus (by an amended complaint) "loss of income over the past 1½ years" (Paragraph 12a of the Complaint).
Defendant's answer denied the contract and any breach of contract, and any liability for damages.
The case went to trial and a jury returned a verdict against defendant for $45,000.00.
Defendant's motions for judgment N.O.V. and for a new trial were refused, and defendant has filed this present appeal.
Defendant-appellant has raised three issues in this present appeal. The issue which we will first consider is this:
"The Appellees are not entitled to damages for an alleged breach of contract with NFG during the period of time *338 NFG was bound by an order of this Court not to perform its obligations under the contract."
The printed record appears to establish that NFG failed, or refused to supply gas to plaintiffs during these periods:
April 1, 1975 to May 27, 1975, or 57 days
(because NFG understood it was so required under the PUC's order);
July 23, 1975 to August 12, 1975, or 20 days
(in response to an order of the PUC);
October 6, 1975 to November 22, 1976, or 413 days.
This last period of non-delivery of gas was pursuant to an order of the Superior Court on the PUC's petition to intervene. The order reads (Record 126a):
ORDER
AND NOW, October 6th, 1975 upon consideration of the petition of the Pennsylvania Public Utility Commission for leave to intervene, said petition is hereby granted and petitioner is granted leave to intervene as a party appellant. Said petitioner's request for supersedeas in the above captioned matters is also granted and National Fuel Gas Distribution Corporation is ordered to cease all further attachments of New residential service as required by orders of the Crawford County Court of Common Pleas on May 27, 1975, and June 6, 1975 at Nos. 2 and 4, May Term, 1975, in Equity, pending final outcome of the instant appeals. This case is advanced to the December 1st session in Philadelphia. Per Curiam, Van der Voort, J. (Emphasis supplied).
NFG argues that it is excused from liability to plaintiffs for any failure to supply gas in the period from October 6, 1975 to November 22, 1976, under Sec. 458 of The Restatement of the Law of Contracts, which has been adopted by our Supreme Court in Olyphant Borough School District v. American Surety Co. of New York, 322 Pa. 22, 184 A.2d 758 (1936), and which reads in pertinent part as follows:
*339 A contractual duty or a duty to make compensation is discharged, in the absence of circumstances showing either a contrary intention or contributing fault on the part of the person subject to the duty, where performance is subsequently prevented or prohibited
. . . (b) by a judicial, executive or administrative order made with due authority by a judge or other officer of the United States, or of any one of the United States.
We agree with defendant's argument.
The lower court's opinion, refusing n.o.v., says: "The effect of a supersedeas is a suspension or stay of all proceedings by virtue of which the cause would otherwise go forward normally . . . . Thus, execution of our contempt order was merely stayed, not overruled, by the Superior Court supersedeas pending Appellate Court's determination."
A supersedeas might so provide in any given case. The supersedeas which was granted in this present case, however, ordered defendant "to cease all further attachments of new residential services as required by orders of the Crawford County Court of Common Pleas on May 27, 1975, and June 6, 1975 . . . ." (Record 126a)
It seems to us, therefore, that NFG's refusal to supply gas to new outlets from October 6, 1975 to November 22, 1976 comes within the general intention of Sec. 458.
The Lower Court, and the plaintiffs argue, however, that even if Sec. 458 were otherwise applicable to this case, it should not be applied to excuse defendant from liability because of "a contrary intention or contributing fault" on the part of the defendant, specifically that defendant "co-operated with the PUC in the latter's obtaining the supersedeas (the Superior Court's Order dated October 6, 1975) and resisting vigorously all attempts of the Plaintiffs to have it removed". (Plaintiffs' Reply to New Matter).
We find no sufficient evidence of "contrary intention" or "contributing fault" of NFG as to the supersedeas order of October 6, 1975. The record is plain that defendant did not *340 ask for a supersedeas when it filed its appeal from the contempt order of August 12, 1975. It was the PUC which applied for and was granted the supersedeas put into effect by our Court on October 6, 1975. The lower court says in its opinion that plaintiffs established at the trial "that before the Public Utilities Commission intervened it was in touch with the defendant . . . ." (Appellant's Brief, page 41). We do not believe that this circumstance is nearly enough to establish connivance, contributing fault, or contrary intention of the defendant, which would made Sec. 458 inapplicable to defendant.
Plaintiffs claim further that defendant took itself out of the protection of Sec. 458 by opposing a motion filed by plaintiffs to our Court on March 6, 1976 asking us to remove the supersedeas. The printed record and briefs supplied to us on this appeal give us no sufficient demonstration that defendant's action in opposing plaintiffs' petition of March 6, 1976 was improper so as to make Sec. 458 inapplicable. The plaintiffs' petition[2] concluded with a prayer that the Superior Court "remove the supersedeas entered on October 6, 1975 . . . ." (Appellees' Brief, page 12b). The defendant's Answer "requests this Court [the Superior Court] to maintain the supersedeas as modified until such time as it decides the jurisdictional issue that is the subject of this appeal." (Appellees' Brief, page 13b).
We hold, therefore, that the refusal, or failure of defendant to supply gas from October 6, 1975 to November 22, 1976, comes within Sec. 458 of the Restatement of Contracts, and that refusal or failure is not a valid basis for plaintiffs' claims for damages.
We turn now to the refusal or failure to supply gas from April 1, 1975 to May 27, 1975, and from July 23, 1975 to August 12, 1975. The record seems to establish with reasonable clarity that the defendant's actions in these two periods of time resulted from orders of the PUC which defendant *341 complied with until ordered to take other action by the Crawford County Court.
Admittedly the defendant was a "utility", subject, in the usual order of things, to control and regulation by the PUC. We believe that defendant should not be subjected to liability for damages to others for acts done by it in compliance with the PUC's orders, unless there was evidence of bad faith or malice on defendant's part, or gross negligence. There appears to be no allegation nor evidence of such matters in this case.
Appellant's other arguments on appeal relate to proof of damages and to errors in the trial. Since we hold that the plaintiffs have not made out a case of liability, those other arguments do not require decision by us.
Reversed and judgment n.o.v. entered for defendant.
SPAETH, J., files a dissenting opinion.
SPAETH, Judge, dissenting:
I disagree with the majority's interpretation and application of Section 458 of the Restatement of Contracts, and with its conclusion that the contempt order should not have been received in evidence.[1] In my opinion, instead of granting a new trial, we should affirm.
*342 -1-
Section 458 of the Restatement of Contracts[2] states:
A contractual duty or a duty to make compensation is discharged, in the absence of circumstances showing either a contrary intention or contributing fault on the part of the person subject to the duty, where performance is subsequently prevented or prohibited
(a) by the Constitution or a statute of the United States, or of any one of the United States whose law determines the validity and effect of the contract, or by a municipal regulation enacted with constitutional or statutory authority of such a State, or
(b) by a judicial, executive or administrative order made with due authority by a judge or other officer of the United states, or of any one of the United States.
The manner in which these principles might be applied is explained in Illustration 3 as follows:
A contracts with B to sell and deliver to him a specific automobile on a certain day, time being of the essence. C, by false allegations of ownership of the machine induces a court having jurisdiction to enjoin A from delivering the machine. In spite of diligent effort A is unable to secure dissolution of the injunction until it is too late to fulfil his contract with B. A's duty is discharged. If C had just *343 grounds for obtaining the injunction, or if A failed in diligent effort to secure its dissolution, A would not be discharged.
It will be observed that Illustration 3 does not exactly track the black letter of Section 458; indeed, the particular significance of the present case is that it brings this apparently up-to-now unobserved discrepancy to light. Section 458 requires the court to determine whether in fact "performance [was] subsequently prevented or prohibited" by a judicial order. Illustration 3 requires the court to determine only whether the promisor made a "diligent effort . . . to secure dissolution of the injunction." Furthermore, it is not clear from Section 458 whether a promisor's consent to or acquiescence in a court order will constitute "contributing fault," whereas under Illustration 3 it seems clear that such consent or acquiescence would be inconsistent with, and would preclude a finding of, a diligent effort to secure dissolution of the order.
I believe that Illustration 3 presents a better summary of the law as it may be found in the cases than does Section 458. In Peckham v. Industrial Securities Co., 31 Del. (1 W.W.Harr.) 200, 113 A. 799, 802 (1921), an oft-cited case on this subject, the court stated:
The promisor is not required to do something that is impossible or unlawful; and he is bound to respect the decree of a court which he can neither change nor remove. But in an honest effort to carry out his agreement he must, if possible, procure the dissolution of the injunction, or secure the dismissal of the interfering proceeding by removing therefor. . . . It must appear that the injunction was not secured by the act or fault of the defendant, and also that an effort has been made by the defendant, to dissolve the injunction or that such an effort would have been futile, if made. (Emphasis added.)
See St. Luke's House, Inc. v. Digiulian, 274 Md. 317, 336 A.2d 781, 787 (1975); Kuhl v. School District No. 76 of *344 Wayne County, 155 Neb. 357, 51 N.W.2d 746 (1952); Cushman and Wakefield, Inc. v. Dollar Land Corp. Unlimited, 36 N.Y.2d 490, 369 N.Y.S.2d 394, 330 N.E.2d 409 (1975).
Illustration 3, I suggest, is a fair paraphrase of Peckham; both require the court to determine whether a promisor should be discharged by looking to the effort, if any, that the promisor made to have the court's order dissolved. This determination is quite different from that required by Section 458, which requires the court to determine whether in fact the promisor's performance was prevented by the court's order.
I also believe that Illustration 3 presents a better statement of the law as it should be than does Section 458. Where a promisor is seeking discharge from a contractual obligation, he should have the burden of showing that he did everything reasonably within his power to perform-in the words of Peckham, that he made "an honest effort to carry out his agreement." Under Illustration 3 a promisor must make this showing much more clearly than under Section 458; the illustration thus better serves the policy of effectuating the performance of contracts and avoiding forfeitures if at all possible. Carsek Corporation v. S. Schifter, Inc., 431 Pa. 550, 246 A.2d 365 (1968); Barraclough v. Atlantic Refining Co., 230 Pa.Super. 276, 326 A.2d 477 (1974).
In view of these considerations, I should decide this case by applying not Section 458 but Illustration 3. Another way to make this point is to say that I should decide this case by applying Section 458, but only after construing the section to mean not what it literally says but what Illustration 3 says it says.
Here, the period in question is from October 6, 1975, when this court, in response to a petition by the Public Utility Commission, issued a supersedeas ordering appellant-the promisor and defendant below-not to supply gas to appellees, until November 22, 1976, when this court affirmed the lower court's order holding appellant in contempt, whereupon *345 appellant resumed supplying gas to appellees. This period may in turn be divided into two shorter periods: from October 6, 1975, to March 6, 1976, when appellees filed a petition to remove the supersedeas; and from March 6, 1976, when we refused to remove the supersedeas, to November 22, 1976.
The difficulty in applying Section 458-if it is construed to mean what it literally says-may be seen if one focuses on March 6, 1976. At that time appellant alone opposed appellees' petition to remove the supersedeas; the Public Utility Commission, which had obtained the supersedeas, did not oppose removal. The majority says that appellant's opposition to removal "is all" that appellant did, at 229, and this "all" did not "take [] [appellant] out of the protection" of Section 458, at 229. I assume that the majority means that appellant's opposition did not contribute to this court's refusal to remove the supersedeas, i.e., that we should have refused appellees' petition to remove the supersedeas even if appellant had not opposed removal. I agree that if in fact this is true, then, under Section 458, if construed literally, appellant should be discharged from liability for the period of March 6, 1976, to November 22, 1976. However, how can the majority say that it is true in fact? Who knows, and who can tell, what factors we thought decisive when we decided not to remove the supersedeas? I submit that whether a promisor should be discharged of his contractual liability should not depend upon the outcome of so uncertain a venture as reading the judicial mind.
If one applies Illustration 3, such a venture becomes unnecessary, and the case may be decided by reference only to facts of record. For it is clear from the record that at no point did appellant make a "diligent effort" to dissolve this court's supersedeas.
Certainly appellant's resistance to appellees' petition of March 6, 1976, asking this court to remove the supersedeas, was inconsistent with a "diligent effort" to dissolve the *346 supersedeas. Thus, appellant should not be discharged of its liability for the period from March 6, 1976, to November 22, 1976.
Nor should appellant be discharged of its liability for the period from October 6, 1975, to March 6, 1976. Although appellant did not join in the Public Utility Commission's petition for a supersedeas, neither did it oppose the petition; only appellees filed an answer in opposition to the petition. N.T. 198. It seems fair to say that appellant sat back and watched as the Public Utility Commission succeeded in getting a supersedeas. Again, such action-or inaction-was inconsistent with a "diligent effort" to dissolve the supersedeas.
In short, the majority, by its application of Section 458, has given appellant the best of all worlds: so long as appellant did not itself request the supersedeas, it could benefit from it, and could oppose its removal, without liability. I regard such a result as both unfair to appellees and contrary to the settled case law that a promisor will not be discharged of his contractual liability unless he has made a "diligent effort" to prevent the order in question-injunction or supersedeas-from becoming, and remaining, effective.
-2-
I also cannot agree with the majority that a new trial is justified in this case because the lower court received in evidence its August 12, 1975, contempt order. This evidence may have been highly prejudicial to appellant, but appellant did not object when the evidence was offered. N.T. 62-63. If counsel does not object to the admission of evidence, he may not argue on appeal that the admission was error. See Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 410 A.2d 1282 (1979); Dilliplaine v. Lehigh V. Tr. Co., 457 Pa. 255, 322 A.2d 114 (1974).
The judgment of the lower court should be affirmed.
NOTES
[1] It appears that the claim for loss of value of the real estate was eliminated by court order before trial.
[2] The contents of the petition and the answer are not furnished to us in the record and briefs.
[1] In passing, I agree with the majority's discussion on damages, but believe it to be somewhat incomplete. The majority does not discuss the decisions of this court and the Supreme Court that suggest that lost profits are unduly speculative where a new business is concerned. See Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319 (1969), cert. den., 400 U.S. 819, 91 S. Ct. 36, 27 L. Ed. 2d 46 (1970); Pines Plaza Bowling Inc. v. Rossview Inc., 394 Pa. 124, 145 A.2d 672 (1958); Pollock v. Morelli, 245 Pa.Super. 388, 369 A.2d 458 (1976). These cases are arguably applicable here since appellees were newcomers to the mobile home business when appellant cut off their gas supply. Nevertheless, unlike the plaintiffs in Exton Drive-In, Pines Plaza Bowling Inc., and Pollock, appellees were able to show that there was significant interest in their product or service before the contract breach occurred. Appellee Gregory Kasemer and Karen Kasemer testified that several people called prior to the gas shutoff to inquire about the mobile homes. Appellant argues that this testimony was highly speculative since these people may not have rented the homes even if there had been gas. That may well have turned out to be true, but I think it better that the jury heard this evidence itself and decided its weight, rather than the court excluding it entirely. Accord S. Jon Kreedman and Co. v. Meyers Bros. Parking-West Corp., 58 Cal. App. 3d 173, 130 Cal. Rptr. 41 (1976); Vogue v. Shopping Centers, Inc., 402 Mich. 546, 266 N.W.2d 148 (1978); Fera v. Village Plaza Inc., 396 Mich. 639, 242 N.W.2d 372 (1976). Contra Handley v. Guasco, 165 Cal. App. 2d 703, 332 P.2d 354 (1958); Adrian v. Rabinowitz, 116 N.J.L. 586, 186 A. 29 (1936); Weiss v. Revenue Bldg. and Loan Assn., 116 N.J.L. 208, 182 A. 891 (1936).
[2] As the majority indicates, at 228, Section 458 has been cited with approval in this state. See e.g. Burkus v. Henshall, 386 Pa. 478, 126 A.2d 722 (1956); Olyphant Borough School District v. American Surety Company of New York, 322 Pa. 22, 184 A. 758 (1936); In Re Craven's Estate, 169 Pa.Super. 94, 82 A.2d 60 (1951). The precise issue presented by the present case, however, has not been decided.
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491 Pa. 402 (1980)
421 A.2d 199
COMMONWEALTH of Pennsylvania,
v.
Alfred HARRIS, Appellant.
Supreme Court of Pennsylvania.
Argued April 17, 1980.
Decided September 22, 1980.
*403 *404 Arthur J. King, Asst. Public Defender, Chief, Appeals Division, Douglas M. Johnson, Asst. Public Defender, Montgomery Co., for appellant.
John T. Salvucci, Mary M. Killinger, Asst. Dist. Attys., Montgomery Co., for appellee.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION OF THE COURT
O'BRIEN, Justice.
Appellant, Alfred Harris, was convicted by a jury of robbery, burglary and conspiracy. Post-verdict motions were denied and appellant was sentenced to concurrent two-to-ten-year prison terms for the robbery and burglary convictions. Sentence was suspended for the conspiracy conviction. The Superior Court affirmed, Commonwealth v. Harris, 255 Pa.Super. 8, 386 A.2d 108 (1978), and we granted appellant's petition for allowance of appeal.
Appellant first argues that the suppression court erred in refusing to suppress certain physical evidence. The facts are as follows.
On July 11, 1972, while on routine patrol, Officer David Duboraw of the Cinnaminson Township, New Jersey, Police *405 Department noticed a black and white Mercury Cougar with green and white out-of-state license plates parked in a service station lot with a black male sitting inside the auto. Duboraw's interest was piqued because he remembered a month-old police bulletin describing a black and white Mercury Cougar with green and white out-of-state plates that had been used in a robbery and shooting by two black men in a neighboring community.
While observing the automobile, Duboraw saw a Ford van pull up alongside the Cougar. After the driver of the Cougar talked to two black men in the van, both vehicles were driven out of the service station lot. While Officer Duboraw was following both vehicles, the men pulled into the parking lot of a liquor store. The Cougar had been parked in a normal manner; the van, however, had been parked in such a way as to have blocked the semi-circular driveway. Suspecting that a robbery was in progress, Duboraw radioed for help. Shortly after two other police cars arrived, the three men came out of the liquor store with a six pack of beer and a bottle of liquor. The trio got into the two vehicles and drove off. The police followed both vehicles for approximately a quarter mile before pulling them over and asking both drivers for identification. Earl Golden, the driver of the Cougar, produced an expired Pennsylvania driver's license. Samuel Foster, the driver of the van, had no identification. Appellant was the passenger in the van. Although the record is far from clear, appellant apparently told the officers that his name was Rufus Outlands. As the Cougar, the van and the three police cars were blocking traffic, the police asked the threesome if they would accompany the officers to the police station a block away. Golden, Foster and appellant drove their own vehicles to the police station.
When everyone arrived at the police station, appellant and his cohorts were placed in an interrogation room, where, as one officer testified, "We could run a check on them, all three subjects." The same officer, on cross-examination testified:
*406 "Q: When you took them to the police station, they were in fact confined there, is that correct?
"A: Well, they were brought into the room and sat down at the table.
"Q: They couldn't just walk out at that point?
"A: No, they could not.
"Q: You had them in custody?
"A: For investigation, yes. I would say they were in custody until we found out if they were clear or not as far as their driver's license was concerned. If they weren't, then subsequent motor vehicle summons' would have been issued."
Once inside the interrogation room, Foster asked if he could use the men's room. Unbeknownst to the three "suspects", Officer John Long, as a part of routine practice, had inspected the men's room, including the top of the toilet tank, before allowing Foster to use the men's room. When Foster entered the men's room, closing the door behind him, Officer Long remained at the door. Long testified that the only sound emanating from the men's room was the sound of porcelain scraping on porcelain. When Foster exited from the men's room, appellant asked if he could use the facilities. Again, Officer Long remained outside the door and heard the same sound of porcelain on porcelain. After appellant came out of the room, Long went in and removed the top of the toilet tank and found various papers and credit cards, including a credit card which Long recognized as belonging to an individual who had been the victim of a robbery ten days earlier. The police sought and obtained search warrants for both the Cougar and the van; while executing the warrants, police discovered, inter alia, evidence which linked appellant to the criminal episode in Pennsylvania which is the subject of the instant appeal.
Appellant argues now, as he did to the suppression court, that he had been arrested illegally when he was placed in the interrogation room of the police station. Believing that the arrest was illegal, appellant contends that *407 the evidence seized after arrest was the fruit of the illegal arrest, and hence should have been suppressed. We agree and reverse.[1]
One of the elemental protections our system provides is that which shields a citizen from arrest in the absence of a showing he or she has committed or is committing a crime. U.S.Const.Amend. IV; Pa.Const. art. I, § 8; Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969); Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975).
As the instant encounter occurred in New Jersey, we must look to the law of that state to determine the validity of the police conduct here at issue. U.S. v. DiRe, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948); Commonwealth v. Johnson, 198 Pa.Super. 51, 182 A.2d 541 (1962). New Jersey allows the police to arrest any person who violates the Motor Vehicle Code of the state. State v. Roberson, 156 N.J.Super. 551, 384 A.2d 195 (1978); State v. Gray, 59 N.J. 563, 285 A.2d 1 (1971). As the New Jersey legislature has provided:
"Any . . . police officer . . . may, without a warrant, arrest any person violating in his presence any provision of chapter three of this title . . . ." N.J.S.A. § 39:5-25.
Further:
"The driver's license, the registration certificate of a motor vehicle . . . shall be in the possession of the driver or operator at all times when he is in charge of a motor vehicle on the highways of this state . . . ." N.J.S.A. § 39:3-29.
It is undisputed, however, that appellant was not the driver of either of the vehicles involved in the instant encounter. Thus, as to appellant, the above-cited New Jersey statutes provide no justification for arrest.
The Superior Court, however, determined the police conduct in the instant case was justifiable under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1966). We have interpreted Terry to permit a police officer to "legitimately *408 seize a person . . . and conduct a limited search of the individual's outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous." Commonwealth v. Hicks, 434 Pa. 153, 158-159, 253 A.2d 276, 279 (1969).
Certainly on the facts of this case a Terry argument could be made. But we are bound by the record, and the record in the instant case discloses that the arresting officers testified appellant and his companions were told to accompany them to the police station to check on their driver's licenses and vehicle registrations. Thus what began as a routine "motor vehicle check" at no time acquired additional justification until the incriminating evidence was discovered.
Thus neither Terry nor the New Jersey statute adequately supports appellant's arrest.
"Evidence obtained following an illegal arrest must be suppressed unless the Commonwealth can establish that the evidence is sufficiently purged of any taint from the illegal arrest." Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976); Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).
Instantly the Commonwealth does not attempt to purge the seized evidence of the taint of the illegal arrest; rather the Commonwealth argues the initial stop was justifiable and the arrest legal. Whatever value this argument may have as to appellant's two companions, the Commonwealth does not articulate how its argument, in light of the record before us, validates the arrest of appellant, who was driving neither vehicle. We hold that on this record appellant's arrest was illegal.
It is true, as the dissenters have stated, that the evidence instantly at issue was not directly seized by the police. It may be argued the evidence was abandoned.
*409 We have long held that "[a]lthough abandoned property may normally be obtained and used for evidentiary purpose by the police, such property may not be utilized where the abandonment is coerced by unlawful police action." Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973).
In Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), we analyzed on "abandonment" and determined that the officer's "unlawful and coercive conduct" in chasing appellant was the "causative factor which motivated appellant's abandonment." We reached the same result in Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979) under similar facts. In both Jeffries and Barnett we held the abandoned property was inadmissible evidence.
So too here, where the coercive police conduct was the illegal arrest, we cannot find appellant's abandonment of the property was an intervening, independent act of a free will.
Judgments of sentence reversed. The record is remanded for new trial.
LARSEN, J., files a dissenting opinion which FLAHERTY and KAUFFMAN, JJ., join.
LARSEN, Justice, dissenting.
I dissent.
The majority implies that the resolution of this case turns upon the timing and legality of appellant's arrest. I am persuaded, however, that the circumstances of appellant's arrest are irrelevant to a determination of the suppression issue.
Even if appellant were illegally arrested, the evidence subsequently recovered from the police station toilet tank would not have been the fruit of that illegal arrest. "The general rule is that evidence obtained through a prior illegality is inadmissible against a criminal defendant." Commonwealth v. Romberger, 474 Pa. 190, 197, 378 A.2d 283, 286 (1977). This Court has recognized, however, that "an illegal arrest does not necessarily taint all evidence that follows in time." Commonwealth v. Richards, 458 Pa. 455, 464, 327 A.2d 63, 67 (1974). Relying on Wong Sun v. United States, *410 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), this Court has noted that
the challenged evidence may be purged of the primary taint only (1) if it results from "`an intervening, independent act of a free will,'" or (2) if the connection between the arrest and the evidence . . . has "`become so attenuated as to dissipate the taint.'" (Citations omitted.)
Betrand Appeal, 451 Pa. 381, 388-89, 303 A.2d 486, 490 (1973).
Applying these rules to the facts of the instant case, it is readily apparent that the recovery of the items from the toilet tank was the result of an intervening independent act of free will on the part of appellant, and not the result of an exploitation of the illegal arrest on the part of the police. These items were discovered only after appellant voluntarily sought permission to enter the restroom, voluntarily removed the items from his person, and voluntarily placed them into the tank. At no time prior to the discovery of these items did the police coerce, intimidate, search or physically restrain appellant, nor did they make any inquiry into the circumstances of the robbery during which the items had been taken. Once appellant voluntarily placed the items into the tank, those items were purged of the primary taint of any unlawful arrest.
Alternatively, if appellant were not unlawfully arrested prior to the recovery of the evidence from the toilet tank, he would still have suffered no violation of rights under the Fourth Amendment. The Fourth Amendment protects individuals from unreasonable governmental invasions of legitimate expectations of privacy. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387 (1978). The legitimacy of any expectation of privacy must be determined with reference to the law of property or to "understandings that are recognized and permitted by society," and not by resort to any subjective standard. Id., at 430-31 n.12. An individual may forfeit a legitimate expectation of privacy, and thus the protection of the Fourth Amendment, by conduct or presence in a particular place, under such conditions that society would cease to recognize the continued legitimacy of *411 that expectation. See, Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (Larsen, J., dissenting, 1980.) While an individual may have a legitimate expectation of privacy with regard to property kept on his person, a defendant can scarcely claim to have any expectation of privacy with respect to evidence that he voluntarily removes from his person and attempts to conceal inside a police station. In the present case, appellant had no grounds for complaint when the police found the items he had placed in the tank because he had lost the protection of the Fourth Amendment with respect to those items when he voluntarily placed them there.
Finally, that evidence retrieved from the van and the Cougar, pursuant to the warrant obtained after the evidence was found in the toilet tank, was also admissible against appellant because it was the fruit of the lawful discovery of other evidence-the items in the tank-and was in no way tainted by any unlawful arrest or illegal search and seizure. The suppression court was thus correct in refusing to suppress any of the evidence admitted at appellant's trial. Accordingly, I would affirm the order of the Superior Court.
FLAHERTY and KAUFFMAN, JJ., join in this dissenting opinion.
NOTES
[1] Our review of the record convinces us appellant's other assignments of error, i.e. that he was denied his constitutional rights to speedy trial and effective assistance of counsel, are without merit.
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281 Pa. Super. 8 (1980)
421 A.2d 1120
Anthony J. CUSAMANO, Appellant,
v.
ANTHONY M. DiLUCIA, INC.
Superior Court of Pennsylvania.
Argued June 13, 1979.
Filed September 26, 1980.
*10 Ronald I. Rosenstein, Norristown, for appellant.
Frederick M. Wentz, Norristown, for appellee.
Before SPAETH, STRANAHAN and SUGERMAN, JJ.[*]
SUGERMAN, Judge:
Appellant ("Landlord") entered into a lease agreement with Appellee ("Tenant"), leasing to the Tenant a suite of offices in Norristown, Pennsylvania, for a term of two years, commencing June 1, 1972, and expiring May 31, 1974, at the annual rental of $3,600, payable in monthly installments of $300.
The lease, prepared by the Landlord, was a printed form lease. At the request of the Tenant, the Landlord inserted by typewriter an option clause in a blank space beneath paragraph 4 of the form, containing the following language:
*11 "It is further understood and agreed that the Lessee will have an option to continue renting for an additional one year at Three Hundred ($300.00) per month with a 60 day notice to terminate by either party.
Upon expiration of above clause, Lessor will continue said Lease on a month to month basis at the monthly rental of Three Hundred Fifty ($350.00) Dollars per month until terminated by either party."
The lease contained no indication of the means by which the Tenant might exercise the option to renew.
Paragraph 24 of the printed form provided in part:
"It is hereby mutually agreed that either party hereto may determine this lease at the end of said term by giving to the other party written notice thereof at least 60 days prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions in force immediately prior to the expiration of the term hereof as are herein contained for a further period of ______ and so on from month to month unless or until terminated by either party hereto, giving the other 60 days written notice for removal previous to expiration of the then current term. . ."
The Tenant went into possession under the lease and remained upon the premises until September 23, 1974, nearly four months beyond the expiration of the original term.
By letter dated August 21, 1974, the Tenant caused the following notice to be delivered to the Landlord:
"In accordance with the terms of the lease, this is to hereby notify you that we will be terminating on September 23, 1974. This is in accordance and fulfills the month to month basis for notification as stipulated in the lease."
The Tenant continued to pay and the Landlord accepted monthly rental in the sum of $300 for the months of June, July, August, and apparently September, 1974.
Shortly after the Tenant vacated the premises, the Landlord confessed judgment by complaint against the Tenant for the sum, inter alia, of $3,600 in rent.
*12 By stipulation, the matter was submitted to arbitration, and thereafter, was tried before the lower court sitting without a jury. Following trial, the court filed a decision awarding the Landlord the sum of $300 as rental, on the theory that the Tenant "held over" under the terms of Paragraph 24 of the lease and was thus required to give 60 days' notice of its intention to vacate. As the Tenant endeavored to vacate upon only 30 days' notice, the court reasoned, the Landlord was entitled to a further month's rental.
On appeal, the Landlord contends, as he did below, that by remaining in possession of the premises beyond the original term of the lease, without notice, the Tenant thereby exercised the option to renew the lease for an additional one year term as set forth in Paragraph 4 of the lease. The Landlord thus seeks additional rental at the rate of $300 per month for the months of October, 1974 through June, 1975.
The Tenant, to the contrary, asserts and the lower court agreed that it held over pursuant to Paragraph 24 of the lease, and was thus a tenant from month to month upon the expiration of the original term. The Tenant thus asserts that it is only liable to the Landlord in the sum of $300, representing rental for the month of October, 1974, and due by reason of its having given only 30 days' written notice of its intention to vacate.
The lower court, in an opinion written in support of its decision, sets forth its rationale thusly:
"The basis of the Court's decision that the occupancy by defendant [Tenant] of the subject premises after May 31, 1974, was not pursuant to an inferred exercise of the option, but rather as a continuation of occupancy under paragraph 24, arose from its conclusion that the language set forth in paragraph 24 of the lease; viz., `It is hereby mutually agreed that either party hereto may determine this lease at the end of said term . . .' (emphasis supplied) could as easily have applied to the two-year term identified as the `term' in paragraph three of the lease as it could to the one-year option term set forth under the *13 designation `Minimum Rent' at paragraph four of the lease. Accordingly, by reason of this ambiguity, and inasmuch as plaintiff [Landlord] had prepared the lease, the Court construed the agreement against the party responsible for the ambiguity." R. 30-31
As is thus apparent, the lower court determined that the phrase ". . . end of the said term . . ."[1] (emphasis in original) was ambiguous, and then resolved the ambiguity against the Landlord, the party that prepared the lease.
We begin with the observation that leases are in the nature of contracts and are thus controlled by principles of contract law, including the well settled rules of interpretation and construction. Pugh v. Holmes, 253 Pa.Super. 76, 384 A.2d 1234 (1978), affirmed as modified, 486 Pa. 272, 405 A.2d 897 (1979). As in the case of other written contracts, the purpose in interpreting a lease is to ascertain the intention of the parties, and such intention is to be gleaned from the language of the lease. National Biscuit Co. v. Baehr Bros., 203 Pa.Super. 133, 199 A.2d 494 (1964). Such intention is not to be determined merely by reference to a single word or phrase, but rather by giving every part of the document its fair and legitimate meaning. Boyd v. Shell Oil Co., 454 Pa. 374, 377, 311 A.2d 616, 618-19 (1973); Friestad v. Travelers Indemnity Co., 260 Pa.Super. 178, 393 A.2d 1212 (1978).
Where the terms of a lease are not ambiguous, the interpretation and construction are for the court, and the court must determine the intention of the parties from the language of the lease alone. National Biscuit Co. v. Baehr Bros., supra.
*14 When an ambiguity does appear, however,[2] or when doubt arises as the result of uncertainty concerning the meaning of language used in a lease, its provisions will be construed most strongly against the party that drafted the lease. Burns Mfg. Co. v. Boehm, 467 Pa. 307, 356 A.2d 763 (1976); West Penn Realty Co. v. Acme Markets, Inc., 224 Pa.Super. 202, 303 A.2d 836 (1973).[3]
It is of course the latter rule upon which both the lower court and the Tenant rely. In our approach to the question before us, however, we are mindful of the admonition of Justice Pomeroy, set forth in Burns Mfg. Co. v. Boehm, 467 Pa. 307, 356 A.2d 763 (1976):
". . . the rule is not intended as a talismanic solution to the construction of ambiguous language. Rules of construction serve the legitimate purpose of aiding courts in their quest to ascertain and give effect to the intention of the parties to an instrument. They are not meant to be applied as a substitute for that quest. . . It is only when such an inquiry fails to clarify the ambiguity that the rule of construction relied upon by the chancellor should be used to conclude the matter against that party responsible for the ambiguity, the drafter of the document. . ." Id., 467 Pa. at 313 n. 3, 356 A.2d at 766, n. 3
Positing for the moment that an ambiguity exists either between Paragraphs 4 and 24 of the lease, or in Paragraph 24 itself, and guided by the admonition of Burns, our diligent search of the trial record fails to assist us in determining *15 the intention of the parties.[4] We may, nevertheless, resolve the question by application of two rules of construction not alluded to in the opinion of the lower court or in the briefs of counsel.
We first note that Paragraph 3 of the lease grants the Tenant an initial term of two years. The option typed in Paragraph 4 provides that upon expiration of the initial term granted by Paragraph 3, the Tenant may renew for an additional term of one year, at the same rental. Paragraph 4 further provides that upon 60 days' notice, the Tenant may terminate at the expiration of the renewal term, and if it does not, the lease continues upon a month-to-month basis, at an increased rental, until terminated by either party.
It is thus apparent that except for the method by which the Tenant may terminate at the expiration of the original two-year term,[5] and the method by which the Tenant may exercise the option to renew, Paragraphs 3 and 4 in combination explicitly consider the entire subject.
In such circumstances, a familiar rule of construction provides that the particular provisions of Paragraphs 3 and 4 "will be regarded as qualifying or controlling any different interpretations one may derive from the more general provisions of the lease." Kline v. Marianne Germantown Corp., 438 Pa. 41, 45, 263 A.2d 362, 364 (1970); Minnotte Appeal, 411 Pa. 492, 192 A.2d 394 (1963); Philadelphia v. Philadelphia Transportation Co., 345 Pa. 244, 26 A.2d 909 (1942). It *16 will also be recalled that a "clear" provision controls a doubtful one, and a general provision must give way to a specific provision covering the same subject matter. Harrity v. Continental-Equitable Title and Trust Co., 280 Pa. 237, 124 A.2d 493 (1924).
We note again that the option was inserted in its entirety in the lease by typewriter, while Paragraph 24, with the exception of the several completed blank spaces with typed insertions, is a part of the printed form.[6] In such case we apply the rule of construction which provides that where written and printed portions of a contract are repugnant to each other, the printed form must give way to the written clauses of the instrument, as the latter are presumed to be the deliberate expression of the true intent of the parties. Mailey v. Rubin, 388 Pa. 75, 130 A.2d 182 (1957); Onofrey v. Wolliver, 351 Pa. 18, 40 A.2d 35 (1944); Commonwealth v. Friedman, 121 Pa.Super. 591, 184 A. 672 (1936); 8 P.L.E. Contracts § 160; 1 Stern's Trickett on the Law of Landlord and Tenant, § 30 at p. 34 (Rev. 3d ed. 1973).
We therefore find that the provisions of Paragraph 4, as typed on the lease, set forth the true intention of the parties, and insofar as the same are inconsistent with Paragraph 24, are controlling. The question we must then address is whether the Tenant exercised the option contained in Paragraph 4.
At trial, the Tenant by its president, testified that it did not exercise the option contained in Paragraph 4 (N.T. 32-33). In addition, Paragraph 25 of the lease, sets forth in general terms the method by which each party was to give written notice to the other when required by the lease.[7] The *17 Tenant argued to the lower court, and orally here, that as it did not notify the Landlord of its intention to renew under the option in accordance with the requirements of Paragraph 25, such absence of notice is further evidence supporting the contention that the Tenant did not exercise the option to renew.
The argument, however, overlooks a fundamental principle applicable to options to renew or extend a lease. It will be recalled that although the original term of the lease expired on May 31, 1974, the Tenant remained in possession of the premises until September 21, 1974. When a lease provides that the Tenant may occupy the leasehold premises for an extended term as specified in the lease, the mere act of holding over constitutes an election by the Tenant to hold for the additional term, regardless of the intention of the Tenant.
For more than a century, in Pennsylvania, the very act of holding over has been considered to constitute "notice" by a tenant to the landlord of the election to exercise an option for an additional term. Sloan v. Longcope, supra; Canonico v. Lucente, 40 Pa.Super. 75 (1909); Lipper v. Bouve, 6 Pa.Super. 452, 41 W.N.C. 566 (1897); Cairns v. Llewellyn, 2 Pa.Super. 599, 39 W.N.C. 251 (1896); 21 P.L.E. Landlord and Tenant § 120; Stern's Trickett on the Law of Landlord and Tenant, §§ 355-57,[8] and as we have said, this rule pertains without regard to a contrary intention on the part of the Tenant. For example, in Adams v. Dunn, 64 Pa.Super. 303 (1916), the tenants leased the premises for a term of one year, expiring at midnight of March 1st. The tenants held over and continued to occupy the premises during March 2nd. The lower court found that the act of holding over on March 2nd, the first day of a new yearly term, resulted in a renewal of the lease for a further year. On appeal, the tenants contended that their holding over was under a *18 mistake of law as to the time when the first term expired, and that they intended to vacate at the expiration of the first term.
Affirming the entry of judgment for rent for the entire second year, we said:
"This was not a case in which, by the terms of the original lease, the Lessee was given the option to renew the same on condition that his election so to do should be evidenced by a written notice a period of time in advance of the end of the term. And so it was held in Murtland v. English, 214 Pa. 325 [63 A. 882], that no notice of such an election having been given, as provided in the lease, the mere holding over could not be conclusive on the landlord; because the Lessee had not done what was required to bind himself by the exercise of the conditional option given him. There is nothing in that case to infringe upon the long established doctrine that where a tenant, after the expiration of his term, holds over with the acquiescence of the landlord, the lease will be considered renewed for another term. In Graham v. Dempsey, 169 Pa. 460 [32 A. 408], we quote the syllabus: `A tenant cannot escape liability for the rent of another term by giving notice that he is going out at the end of this year and then not going.' To that statement of the law Mr. Justice MITCHELL adds: `That actions speak louder than words is sound law as well as proverbial wisdom.' To the same effect is McBrier v. Marshall, 126 Pa. 390 [17 A. 647]."
So it is at bar, and thus we find that by the act of holding over for a period of nearly four months, the Tenant exercised the option to renew the lease for an additional period of one year.
Paragraph 4, which we have found to be controlling, does not require that the Tenant notify the Landlord of his intention to exercise the option to renew. Paragraph 25, relating to notices by the Tenant to the Landlord provides ". . . notices given by Lessee to Lessor must be given by registered mail. . ." The paragraph obviously does not require that the Tenant give any specific notice, but merely indicates how notices that are required to be given by the *19 lease shall be given. Paragraph 25 thus has no application to Paragraph 4.
The record indicates that the Landlord has received monthly installments of rental for the first four months of the renewal term. We accordingly remand the case to the lower court with directions to enter judgment in favor of Appellant-Landlord and against the Appellee-Tenant in the sum representing the balance of rental due for the remaining eight months of the renewal term. Adams v. Dunn, supra.[9]
Reversed.
NOTES
[*] President Judge JOHN Q. STRANAHAN, of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge LEONARD SUGERMAN, of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.
[1] See Sloan v. Longcope, 288 Pa. 196, 135 A. 717 (1927) and Pettit v. Tourison, 283 Pa. 529, 129 A. 587 (1925), both construing similiar language, the latter case holding that an option to purchase given during the "term" of the lease could be exercised only during the original term and not during any renewal thereof.
[2] We recently noted that in order for us to find an ambiguity in a contract, we must find that the document is reasonably subject to two different interpretations. Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 252, 258-259, 404 A.2d 398, 401 (1978).
[3] The parties appear to recognize that this rule of construction has no application when construing an option. "When contracts are optional in respect to one party, they are strictly interpreted in favor of the party bound and against the party that is not bound. . ." West Penn Realty Co. v. Acme Markets, Inc., 224 Pa.Super. 202, 205, 303 A.2d 836, 837 (1973), quoting McArthur v. Rosenbaum Co. of Pittsburgh, 180 F.2d 617 (3d Cir. 1950) and 3 Williston on Contracts, Sec. 620, p. 1788.
[4] Nearly all of the testimony at trial was directed at the question of whether the Landlord was entitled to recover upon his claim for damage to the leasehold. Those sporadic references to the circumstances surrounding the execution of the lease that do appear in the record shed no light upon the intention of the parties beyond the fact that both intended that the option, as it appears in Paragraph 4 of the lease, be included in the instrument. There was no testimony whatever upon the questions of why Paragraph 24 was in part completed or what the parties intended in doing so.
[5] Although we are not called upon to decide the question, presumably the provisions of Paragraph 24 would require the Tenant to notify the Landlord at least 60 days prior to the expiration of the original term if it desired to terminate. The lower court, although it found an ambiguity in Paragraph 24, implicitly, found that the Tenant was required to adhere to the 60-day notice requirement of Paragraph 24.
[6] The words "end of said term", found ambiguous by the lower court, are printed as well.
[7] Paragraph 25, printed upon the form, provides the following, in its entirety:
"All notices required to be given by Lessor to Lessee shall be sufficiently given by leaving the same upon the demised premises, but notices given by Lessee to Lessor must be given by registered mail, and as against Lessor the only admissible evidence that notice has been given by Lessee shall be a registry return receipt signed by Lessor or his agent." R. 9
[8] See, to the same effect, Restatement, Property 2d, § 14.4 and comment f.
[9] There is no evidence in the record below that the Landlord accepted the Tenant's surrender of the premises on September 24, 1974. The record does reveal, however, that following the tenant's surrender, the Landlord endeavored without success to rent the premises. Such act was in the interest and for the benefit of the Tenant however, and does not discharge the Tenant from his obligation to pay rent for the balance of the term. Wilson Laundry Co. v. Joos, 200 Pa.Super. 595, 189 A.2d 917 (1963). And see Restatement, Property 2d, § 12.1(3) and Comment i. As the record thus reveals an effort on the part of the Landlord to mitigate the Tenant's damages by endeavoring to relet, and as the issue is not before us, we need not consider the question of whether modern Pennsylvania jurisprudence recognizes a duty on the part of a Landlord to mitigate the damages recoverable from a Tenant who abandons or fails to occupy leasehold premises. See Ralph v. Deiley, 293 Pa. 90, 141 A. 640, 61 A.L.R. 763 (1928), and 21 A.L.R. 3d 534 (1968).
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175 N.J. Super. 598 (1980)
421 A.2d 602
VICTOR D'ARC, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
MARY LEA J. D'ARC, DEFENDANT-RESPONDENT, CROSS-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued September 23, 1980.
Decided October 10, 1980.
*600 Before Judges MATTHEWS, MORGAN and MORTON I. GREENBERG.
Monroe Ackerman argued the cause for appellant and cross-respondent (Monroe Ackerman and Neil Braun on the brief).
Richard H. Thiele, Jr. argued the cause for respondent and cross-appellant (Herold & Ragsdale, attorneys).
The opinion of the court was delivered by MORTON I. GREENBERG, J.A.D.
Plaintiff appeals and defendant cross appeals from a final judgment dated December 1, 1978 dealing with the alimony, equitable distribution and counsel fee aspects in this divorce action. This judgment covered only these financial matters because the case had been bifurcated and a divorce granted on December 20, 1977. At the conclusion of the trial Judge Imbriani filed a written opinion in which he set forth his findings of fact and conclusions of law. 164 N.J. Super. 226 (Ch.Div. 1978). We accept his findings of fact which are fully supported by the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974). Consequently the judgment of December 1, 1978 is affirmed substantially for the reasons set forth in the written opinion of Judge Imbriani, except as modified herein and subject to the additional comments we make. Our decision, however, is not to be deemed to have affirmed the interlocutory order of Judge Imbriani entered as a result of his opinion reported at 157 N.J. Super. 553 (Ch.Div. 1978). The record before us is not adequate for us to review that decision and, in any event, since the tape was admitted on another ground it is not necessary to decide the issue.
A preliminary question exists as to whether we should even consider plaintiff's appeal. The trial court, by orders dated *601 March 27, 1979 and June 11, 1979, directed plaintiff to comply with the judgment in particular acts. Plaintiff did not comply with the orders. Consequently, defendant obtained a further order on June 29, 1979 for a warrant for plaintiff's commitment. R. 1:10-5. The warrant was issued on the same day. It recites that plaintiff is to be committed until he furnishes defendant with a record of safe deposit box entry, returns to her art works and items of personal property and turns over to her a $50,000 certificate of deposit as well as stock in Bernards State Bank or the proceeds thereof. The warrant has not been served because plaintiff is in New York. Counsel for defendant has indicated that there are difficulties in making service there. But regardless of the legal enforceability of the order in New York, plaintiff had an obligation to comply with the order of Judge Imbriani since no stay was issued pending appeal. In the circumstances, in view of the willful default of plaintiff we would be fully justified in dismissing his appeal and confining his participation before us to opposition to defendant's cross-appeal. See Sarner v. Sarner, 45 N.J. Super. 216, 221-222 (App. Div. 1957), certif. den. 25 N.J. 103 (1957); Kirchner v. Kirchner, 5 N.J. Super. 341 (App.Div. 1949); cf. Mahne v. Mahne, 66 N.J. 53 (1974) (court more inclined to dismiss complaint than suppress answer when privilege against self-incrimination invoked by a party); R. 4:37-2(a) (complaint may be dismissed if plaintiff fails to comply with order of court). But since the practical consequence of determination of the cross-appeal results in disposition of plaintiff's appeal, we have decided to consider the appeal on the merits.
Plaintiff asserts that the tape recording of his alleged conversations should not have been admitted because it may have been the product of illegal wiretapping and thus inadmissible. 18 U.S.C.A. § 2511. The point is without merit. The testimony of defendant at trial showed that one of the parties to the conversation, Theodore Fino, told her he made the tape. Though defendant's testimony was hearsay, it nevertheless could be considered in a preliminary proceeding under Evid. R. 8 to determine admissibility of the tape, particularly since defendant *602 could rightly regard Fino as not available. State v. Moore, 158 N.J. Super. 68, 80-84 (App.Div. 1978). In any event, there is no showing of illegal wiretapping-only speculation by plaintiff.
Plaintiff argues that his conduct should not have been considered as germane in denying him alimony. We agree with the trial judge that by stipulation defendant reserved her rights to assert plaintiff's fault on this issue.
The only points on which we disagree with Judge Imbriani are raised by defendant's cross-appeal. She objects to distribution to plaintiff of any assets derived from her and the partial allowance of his counsel fees against her. With respect to equitable distribution Judge Imbriani indicated that:
Candidly, the court believes that Dr. D'Arc is entitled to nothing, but to compel an accounting of assets which he has secreted or already expended may well be a venture in futility and consume inordinate time of counsel and the court.
We agree with Judge Imbriani that plaintiff is entitled to nothing by way of equitable distribution of any assets derived from defendant. We also agree that attempting to collect the assets may be an exercise in futility. Certainly, plaintiff's failure to comply with the prior post-trial orders is not encouraging. But nevertheless, plaintiff cannot be permitted to obtain any distribution from a woman whom he tried to have murdered. Further, his contribution to the monetary status of defendant was to help her spend her money. We are quite clear that she cannot be denied the recovery of her assets on the pragmatic theory that the order will be difficult to enforce. Judgments are often entered in circumstances where their satisfaction is doubtful. Thus we reverse the order of December 1, 1978 insofar as it awards to plaintiff the proceeds of sale of the United Nations apartment asserted to be $120,000, the cash proceeds of $16,000 received from the sale of 1,000 shares of stock in Bernards State Bank, the small bank accounts and life insurance policies which he cashed and from which he took the proceeds of about $25,000, and the proceeds from the sale of the art objects sold prior to the divorce on December 20, 1977. While the precise amounts of these items have not been established, defendant is entitled to them. We will remand this *603 matter for further proceedings by the trial court to determine precisely what is owed defendant.
The trial judge allowed plaintiff a counsel fee on the theory that notwithstanding his attempt to have his wife murdered he may have considered himself entitled to alimony and a substantial share of the marital assets. Perhaps this is so, but nevertheless we consider that it is an abuse of discretion to award counsel fees in the extraordinary circumstances of this case.
The judgment of the Superior Court, Chancery Division, is affirmed except insofar as it awards plaintiff an equitable distribution of assets and a counsel fee from defendant. As to these items it is reversed. The award of counsel fees is deleted. The matter is remanded to the trial court for entry of a final judgment in favor of defendant as to the items previously distributed to plaintiff. If necessary, supplementary proceedings may be conducted in that court to determine exactly what is due defendant within the framework of this opinion. We do not retain jurisdiction.
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279 Pa. Super. 347 (1980)
421 A.2d 232
COMMONWEALTH of Pennsylvania ex rel. Shirley GRALLNICK
v.
Philip GRALLNICK.
Appeal of Shirley GRALLNICK.
Superior Court of Pennsylvania.
Argued June 12, 1979.
Filed July 3, 1980.
*348 Jack A. Rounick, Norristown, for appellant.
Edward J. Hughes, Norristown, for Commonwealth, appellee.
Before SPAETH, STRANAHAN and SUGERMAN, JJ.[*]
STRANAHAN, Judge:
The appellant-mother and the appellee-father are separated. Their daughter, Jayne, age 19, attends college but spends the vacation periods with her mother.
The father paid between seven and eight thousand dollars for his daughter's college expenses including maintenance while in college during the 1977-78 academic year.
During her vacations the daughter lives at home with the mother for approximately 22 weeks per year. The cost of this maintenance is about $960.00 which the mother has paid. The daughter worked as a camp counsellor during the summer and her earnings were used to buy clothes.
The father is a dentist and nets approximately $80,000.00 per year in spendable dollars after adding back the depreciation he takes on his tax returns.
The mother is employed part-time as a reading improvement teacher and nets $4,000.00 per year. She also tutors and earns an additional $45.00 per week. Her total earned income is less than $5,000.00 a year. She has $10,000.00 in savings plus $15,000.00 her husband gave her.
The mother petitioned for support of the daughter and, after hearing, the petition was dismissed. The court, in its opinion, indicated that the dismissal resulted from a finding *349 that "the mother provides but a minimal contribution to the total amount that is paid for the support, maintenance and education of her daughter. In light of the equal obligation of both parents to support any dependent child, the amount contributed by her is proportionate to her present means and her earning capacity."
The mother has appealed the Order dismissing the petition.
It is not the function of this Court to reverse the lower court in a support matter if there is sufficient evidence to sustain the lower court. The trial judge who hears a support case can view the parties and hear their testimony which gives him an insite that the appellate court does not have. There must be an abuse of discretion for this Court to reverse. Commonwealth ex rel. Schmidt v. Schmidt, 223 Pa.Super. 20, 296 A.2d 855 (1972).
It is the opinion of this Court, based on the facts as set forth, that the lower court was in error in dismissing the petition and in doing so, it abused its discretion.
The lower court relies on Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974), which holds that: "Support, as every other duty encompassed in the role of parenthood, is the equal responsibility of both mother and father. Both must be required to discharge the obligation in accordance with their capacity and ability." (456 Pa. pg. 540, 318 A.2d 324).
While this case elevates the financial responsibility of the mother from a secondary source to a co-equal primary source with the father, it continues to make capacity and ability to pay the controlling factor in allocating the responsibility between mother and father.
The duty of parents to educate their children at the college level differs from the food, shelter and clothing requirement owing to precollege children in that it will not be imposed upon either parent if it creates an undue hardship. Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), Commonwealth ex rel. Schmidt v. Schmidt, supra. Absent such hardship the duty exists.
*350 In the present case we do not feel that the mother's financial position warrants placing the $960.00 cost of the daughter's support and maintenance on her. Admittedly this is a small amount compared to the father's expense, yet the mother's income barely sustains her in very moderate circumstances. Comparing this with the father's $80,000.00 income, it leads us to the conclusion that the entire cost of maintaining the daughter during her college years should be placed on the father. He can accept this responsibility without undue financial hardship. In addition, we feel that the services of the mother, whose home is used by the daughter during vacations, would have some value, even though it would be difficult to reduce it to a specific amount. The claim of $960.00 for 22 weeks amounts to about $44.00 a week. If the mother can provide room, board and other household services for this amount, we believe the father is being assessed a modest amount for such services and that the mother is contributing services of considerable value over and above the amount paid for the daughter's care.
The order of the lower court is reversed and this matter is remanded so that the lower court can make an order against the father for the support of his daughter, Jayne, during her vacation periods.
NOTES
[*] President Judge JOHN Q. STRANAHAN of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge LEONARD SUGERMAN of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.
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167 Cal. App. 4th 466 (2008)
PACIFIC SUNWEAR OF CALIFORNIA, INC., Plaintiff and Appellant,
v.
OLAES ENTERPRISES, INC., Defendant and Respondent.
No. D051391.
Court of Appeals of California, Fourth District, Division One.
October 9, 2008.
*469 Gordon & Rees, Matthew D. Murphey, Kimberly D. Howatt and Steven Lawson for Plaintiff and Appellant.
Law Offices of Darren J. Quinn, Darren J. Quinn and Alexander E. Papaefthimiou for Defendant and Respondent.
*470 OPINION
IRION, J.
In this appeal, clothing retailer Pacific Sunwear of California, Inc. (PacSun), appeals a trial court order granting summary judgment in favor of Olaes Enterprises, Inc. (Olaes), in PacSun's breach of warranty lawsuit. The lawsuit alleges that Olaes breached the warranty contained in section 2312, subdivision (3) of the California Uniform Commercial Code (hereafter section 2312(3)), which requires certain sellers to warrant that their goods are "free of the rightful claim of any third person by way of infringement or the like." (§ 2312(3).) PacSun seeks monetary damages for the alleged breach to compensate it for litigation expenses incurred in defending against a third party trademark infringement lawsuit that arose out of PacSun's sale of T-shirts purchased from Olaes.
The trial court granted Olaes's motion for summary judgment on the ground that the third party claim did not constitute a "rightful claim" of infringement under the California Uniform Commercial Code and thus did not breach the section 2312(3) warranty. The trial court reached this conclusion, as a matter of law, after analyzing a federal district court's ruling on the third party's request for a preliminary injunction in the underlying trademark infringement litigation. In particular, the trial court highlighted the district court's finding that there was not a "`likelihood of confusion'" between the allegedly infringing T-shirts and the third party's trademark.
As we shall explain, the trial court's interpretation of rightful claim was erroneous. A rightful claim under section 2312(3) is not synonymous with a claim that ultimately will prove successful in litigation. Rather, as we will define for the first time under California law, a rightful claim under section 2312(3) is a nonfrivolous claim of infringement that has any significant and adverse effect on the buyer's ability to make use of the purchased goods. Under this standard, the trial court could not properly conclude on the evidence before it, as a matter of law, that the third party infringement claim against PacSun was not a rightful claim, and consequently we reverse.
FACTS
Olaes supplies PacSun with T-shirts imprinted with graphic designs for resale in PacSun stores. In 2004 PacSun purchased 16,000 "Hot Sauce Monkey" T-shirts from Olaes. These T-shirts depict, on the front, a monkey drinking a bottle of hot sauce and, on the back, the same monkey in apparent pain, expelling fire. Centered underneath each of the images is a two-word caption: on the front, the phrase "Smile Now"; on the back, the phrase "Cry Later."
*471 A. The Hawaii Litigation
On May 14, 2004, clothing maker Smile Now Cry Later Inc. (SNCL) filed a complaint in the United States District Court for the District of Hawaii against another clothing maker, Yakira, LLC (also known as "Ecko"), as well as a subsidiary of PacSun, Pacific Sunwear Stores Corp. (also known as "d.e.m.o."), for trademark infringement. The complaint alleged that Ecko had manufactured shirts that infringed on SNCL's trademark, and d.e.m.o. sold the shirts in its retail stores. SNCL included in its complaint a copy of its registered trademark, which depicts two masks in the style of ancient Greek theater masks. One of the masks is smiling and the other is crying. Underneath the corresponding masks are the words "Smile Now" and "Cry Later." SNCL's complaint also contained an example of the allegedly infringing design manufactured by Ecko.
On January 12, 2005, SNCL amended its complaint in the Hawaii litigation to include PacSun as a defendant and to add an allegation that the Hot Sauce Monkey T-shirts violated SNCL's trademark. In the ensuing litigation, PacSun, with cooperation from Olaes, defended itself, denying that the Hot Sauce Monkey T-shirts infringed SNCL's trademark.
In the course of the trademark litigation, SNCL filed a motion for a preliminary injunction barring further sales of the Hot Sauce Monkey T-shirts. The district court issued a 20-page order denying SNCL's motion. In the order, the federal court analyzed SNCL's trademark infringement claim under an eight-factor test utilized by the Ninth Circuit to determine likelihood of confusion, "`i.e., whether the similarity of the marks is likely to confuse customers about the source of the products'""`[t]he core element of trademark infringement.'" (Brookfield Communications v. West Coast (9th Cir. 1999) 174 F.3d 1036, 1053-1054.) The district court determined that SNCL failed to carry its burden with respect to five of the eight factors, and had not "established a likelihood of confusion" between the Hot Sauce Monkey T-shirts and SNCL's trademark. In June 2005, all parties to the Hawaii litigation entered into a settlement agreement. The settlement was filed under seal.
B. The Instant Action
In May 2006 PacSun filed the instant action in superior court. The complaint alleged a single cause of action: that Olaes breached the statutory warranty that the Hot Sauce Monkey T-shirts were "free of the rightful claim of any third person by way of infringement or the like." (§ 2312(3).) After Olaes answered the complaint, PacSun and Olaes filed cross-motions for summary judgment.
*472 The trial court denied PacSun's summary judgment motion and granted Olaes's summary judgment motion.[1] With respect to Olaes's motion, the court ruled that "SNCL's underlying claims of infringement were not `rightful claims' under [section] 2312(3) and thus [Olaes] did not breach the warranty provided for under that section." In reaching this conclusion, the court noted that "`rightful'" was not defined in the California Uniform Commercial Code, and that the parties had failed to present any case law "expressly construing the meaning of that word as it appears in [section] 2312(3)." Consequently, the court examined the "usual and ordinary meaning" of the term "rightful" by reference to various dictionary definitions, such as "valid," "just," "`appropriate; fitting; right or proper' etc." To determine whether the claim was rightful under these definitions, the court proceeded to review the federal district court's preliminary injunction ruling. Highlighting the fact that the federal district court found that SNCL "failed to meet its burden as to five of the eight factors required to establish a claim of trademark infringement," and that there was not a likelihood of confusion, the trial court concluded "as a matter of law, [that] the underlying claim does not meet the plain meaning of the word `rightful,' i.e., `valid'; `proper'; `appropriate'; [or] `just.'" The court also "note[d]" the fact that PacSun continued selling the T-shirts after being put on notice of the infringement claim, suggesting that PacSun itself believed the claim was not "rightful." PacSun appeals.
DISCUSSION
PacSun contends that the trial court erred in ruling, as a matter of law, that SNCL's trademark infringement claim was not a rightful claim. PacSun argues that, "at the very least," there is a disputed factual issue as to whether the claim is "`rightful,'" precluding summary judgment. We agree.
California Uniform Commercial Code section 2312 states as follows:
"(1) Subject to subdivision (2) there is in a contract for sale a warranty by the seller that
"(a) The title conveyed shall be good, and its transfer rightful; and
"(b) The goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.
"(2) A warranty under subdivision (1) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know *473 that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.
"(3) Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications."
California Uniform Commercial Code section 2312 is identical to section 2-312 of the Uniform Commercial Code, which has been adopted in almost every American jurisdiction. (See U. Com. Code, § 2-312; East River S.S. Corp. v. Transamerica Delaval (1986) 476 U.S. 858, 872, fn. 7 [90 L. Ed. 2d 865, 106 S. Ct. 2295] [noting that "the Uniform Commercial Code ... has been adopted by 49 States"]; Hricik, Remedies of the Infringer: The Use by the Infringer of Implied and Common Law Federal Rights, State Law Claims, and Contract to Shift Liability for Infringement of Patents, Copyrights, and Trademarks (1997) 28 Tex. Tech L.Rev. 1027, 1065 [recognizing that "section 312(3) of Article 2 of the Uniform Commercial Code" has been "[e]nacted by virtually every state"].) The statutory warranties contained in Uniform Commercial Code section 2-312 are derived from the implied warranty of title that emerged at common law as an "exception[] to the caveat emptor doctrine." (See Dudine, Warranties Against Infringement Under the Uniform Commercial Code (1964) 36 N.Y. State Bar J. 214, 215.)
At issue in the instant appeal is the applicability of section 2312(3) and, specifically, whether the trial court properly ruled on a motion for summary judgment that the section 2312(3) warranty did not apply because the trademark suit filed by SNCL was not a rightful claim of infringement.
In interpreting section 2312(3), the parties suggest widely divergent definitions of the phrase "rightful claim." Olaes suggests that a rightful claim is a valid claim, i.e., one that has proven, or will likely prove, meritorious in litigation. (See Dudine, Warranties Against Infringement Under the Uniform Commercial Code, supra, 36 N.Y. State Bar J. at p. 219 ["A rightful claim is one where the buyer or seller reasonably believes that a third party's infringement charge would probably be upheld by the Courts"].) By contrast, PacSun argues that any claim "in the form of litigation" constitutes a rightful claim regardless of its underlying merits. We believe the correct interpretation of section 2312(3) lies somewhere in between these positions. (Cf. 84 Lumber Co. v. MRK Technologies, Ltd. (W.D.Pa. 2001) 145 F. Supp. 2d 675, 680 ["If claims of patent infringement are seen as marks on a continuum, whatever a `rightful claim' is would fall somewhere between purely frivolous claims, at one end, and claims where liability has been proven, at the other."].)
*474 Despite the widespread adoption of subdivision (3) of section 2-312 of the Uniform Commercial Code, there are few reported cases discussing the provision and little precedent regarding the definition of a rightful claim. (See Phoenix Solutions, Inc. v. Sony Electronics, Inc. (N.D.Cal., Dec. 11, 2007, No. 07-02112) 2007 U.S.Dist. Lexis 91017; Bonneau Co. v. AG Industries, Inc. (5th Cir. 1997) 116 F.3d 155, 157 [recognizing that there is "very little case law regarding this specific section"].) There are no California cases on point. Thus we take up the question on a relatively clean slate, applying the familiar rules of statutory interpretation.
(1) The role of the courts in construing a statute is to "`ascertain the intent of the Legislature so as to effectuate the purpose of the law.'" (People v. Wright (2006) 40 Cal. 4th 81, 92 [51 Cal. Rptr. 3d 80, 146 P.3d 531].) "`Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning.'" (Ibid.) "`[I]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.'" (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal. 4th 222, 227 [120 Cal. Rptr. 2d 795, 47 P.3d 639].) If, however, the statutory language is ambiguous or reasonably susceptible to more than one interpretation, we will "examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes," and we can "`"look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part."'" (People v. Jefferson (1999) 21 Cal. 4th 86, 94 [86 Cal. Rptr. 2d 893, 980 P.2d 441].)
The phrase "rightful claim" is not defined in the California Uniform Commercial Code, and is not a legal term of art that can be interpreted by reference to existing California statutory or case law. In addition, due to the multitude of definitions of "rightful" in common usage (as noted by the trial court), the term is ambiguous with respect to its application in the current context. Thus, the phrase is reasonably susceptible to more than one interpretation, and we must turn to "`"extrinsic aids"'" to discern its meaning. (People v. Jefferson, supra, 21 Cal.4th at p. 94.)
(2) The primary extrinsic aid for interpretation of the Uniform Commercial Code is the official commentary to that code. While the statutory text, of course, controls over any inconsistent commentary, courts regularly look to the official commentary to determine the meaning of ambiguous statutory provisions. (See, e.g., AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal. App. 4th 631, 638 [49 Cal. Rptr. 3d 493]; Wilson v. Brawn of California, Inc. (2005) 132 Cal. App. 4th 549, 555 [33 Cal. Rptr. 3d 769]; *475 Cohen v. Disner (1995) 36 Cal. App. 4th 855, 862 [42 Cal. Rptr. 2d 782]; see also Jefferson v. Jones (1979) 286 Md. 544 [408 A.2d 1036, 1039] [recognizing that the U. Com. Code's official comments are "a useful aid for determining the purpose of its provisions" and, while "not controlling authority," constitute "an excellent place to begin a search for the legislature's intent when it adopted the Code"].)
(3) As explained below, the commentary to Uniform Commercial Code section 2-312[2] demonstrates that, contrary to Olaes's position, the term "rightful claim" as used in the statute is intended to broadly encompass any nonfrivolous claim of infringement that significantly interferes with the buyer's use of a purchased good.
Official comment 3 to Uniform Commercial Code section 2-312 states that subdivision (1) creates a duty on the part of the seller "to see that no claim of infringement of a patent or trade-mark by a third party will mar the buyer's title." (U. Com. Code com., par. 3, reprinted at 23A pt. 1 West's Ann. Cal. U. Com. Code (2002 ed.) foll. § 2312, p. 290, italics added.) The commentary further explains that the subdivision's purpose is to "reject[]" case law that had required a buyer to be "expressly prevented from using the goods" by an infringement claim prior to obtaining relief. (U. Com. Code com., par. 4, reprinted at 23A pt. 1 West's Ann. Cal. U. Com. Code, supra, foll. § 2312, p. 290.) The commentary, thus, explains that under the Uniform Commercial Code, "`eviction'[[3]] is not a necessary condition to the buyer's remedy since the buyer's remedy arises immediately upon receipt of notice of infringement." (U. Com. Code com., par. 4, reprinted at 23A pt. 1 West's Ann. Cal. U. Com. Code, supra, foll. § 2312, p. 290, italics added.) The comment quoted above, by stating that the seller warrants there will be "no claim of infringement," and by asserting that the buyer's remedy arises immediately upon notice of infringement (i.e., well before resolution of the claim), strongly suggests that any significant claim of infringementwhether or not ultimately meritorioustriggers the section 2312(3) warranty.[4] (U. Com. *476 Code com., par. 3, reprinted at 23A pt. 1 West's Ann. Cal. U. Com. Code, supra, foll. § 2312, p. 290.)
(4) The parameters of the section 2312(3) warranty are further clarified by the official commentary to an analogous warranty in subdivision (1) of Uniform Commercial Code section 2-312.[5] The subdivision (1) warranty requires a seller to warrant that title to a purchased item "shall be good, and its transfer rightful." (U. Com. Code, § 2-312, subd. (1)(a); see Cal. U. Com. Code, § 2312, subd. (1)(a).) The accompanying commentary states that the requirement that the transfer be "rightful" obligates the seller to ensure that the goods are free from any significant claims against titlenot simply those claims that ultimately will prove successful in litigation. (U. Com. Code com., par. 1, reprinted at 23A pt. 1 West's Ann. Cal. U. Com. Code, supra, foll. § 2312, p. 290.) (5) The Uniform Commercial Code section 2-312, subdivision (1) warranty thus "makes provision for a buyer's basic needs in respect to a title which he in good faith expects to acquire by his purchase, namely, that he receive a good, clean title transferred to him also in a rightful manner so that he will not be exposed to a lawsuit in order to protect it." (U. Com. Code com., par. 1, reprinted at 23A pt. 1 West's Ann. Cal. U. Com. Code, supra, foll. § 2312, p. 290, italics added.)
In line with the above commentary, the majority view of the courts is that the Uniform Commercial Code section 2-312, subdivision (1) warranty is not inapplicable simply because the underlying claim against the buyer's title ultimately lacks merit. (See Maroone Chevrolet, Inc. v. Nordstrom (Fla.Dist.Ct.App. 1991) 587 So. 2d 514, 518 (Maroone Chevrolet) [agreeing with the "majority view" that "there need not be an actual encumbrance on the purchaser's title or actual disturbance of possession to permit a purchaser to recover for a breach of warranty of title," and explaining that this view "`is supported by the policy that a purchaser should not be required to engage in a contest over the validity of his ownership'"]; Frank Arnold Contractors v. Vilsmeier Auction Co. (3d Cir. 1986) 806 F.2d 462, 464, 465 (Frank Arnold Contractors) [noting that the "majority" of courts hold that "there need not be an actual encumbrance on the purchaser's title to permit *477 recovery for a breach of warranty of title," but rather "a `substantial shadow' on the purchaser's title" is sufficient, and concluding that "the majority approach is well-reasoned and ... firmly grounded in the policy of the statute"].) This broad interpretation, in the commentary and the case law, of Uniform Commercial Code section 2-312, subdivision (1)'s warranty of a good and rightful transfer of title, carries great weight in our interpretation of the analogous warranty in section 2312(3). (People v. Jefferson, supra, 21 Cal.4th at p. 94 [in interpreting ambiguous statute, courts should "adopt[] the construction that best harmonizes the statute internally and with related statutes"]; cf. 1 Hawkland, Uniform Commercial Code Series, supra, § 2-312:4, p. 2-507 [arguing that the U. Com. Code, § 2-312, subd. (3) warranty is violated when a buyer discovers that "reasonable grounds for [a] claim of infringement exist," and noting that "[t]his viewpoint is consistent with the general thrust of section 2-312(1) dealing with the warranty of good title, rightful transfer, and no encumbrance, and with the idea that disturbance of quiet possession (`eviction') is not required as a basis for an action for warranty against infringement"]; Clark & Smith, The Law of Product Warranties (2002) § 3:18, p. 3-48 ["Just as a cloud on title is enough to trigger liability under § 2-312(1), so is notice of infringement enough to justify suit under § 2-312(3)."].)[6]
There are also strong public policy arguments that support interpreting the section 2312(3) warranty to encompass all nonfrivolous claims of infringement, and not solely those claims that ultimately prove (or are expected to prove) successful in litigation. (People v. Jefferson, supra, 21 Cal.4th at p. 94 [directing courts to look to the "`"public policy"'" underlying a statutory enactment in discerning meaning of ambiguous text].)
*478 (6) As between a buyer and "a seller who is a merchant regularly dealing in goods of the kind" (§ 2312(3)), the burden of infringement claims is most sensibly placed on the seller who will generally have superior knowledge as to the existence of such claims, and a stronger incentive to seek out and resolve potential infringement claims prior to sale. (See 1 Hawkland, Uniform Commercial Code Series, supra, § 2-312:4, p. 2-507 [emphasizing that the warranty extends only to merchants who deal in the type of goods sold "because they are the ones who know, or should know, of possible patent or trademark violations"]; cf. Dudine, Warranties Against Infringement Under the Uniform Commercial Code, supra, 36 N.Y. State Bar J. at p. 215 [recognizing that the infringement warranty is ultimately derived from the "presumption of law that a seller has superior knowledge of the title to his own goods," while also pointing out that U. Com. Code, § 2-312, subd. (3) extends this presumption even to cases "where it is sheer imagination to presume that the seller has [superior] knowledge"].) The seller's incentive to reduce or eliminate prospective claims of infringement is undermined, however, if the section 2312(3) warranty applies only to meritorious claims, leaving the risk of closely contested, but ultimately unsuccessful, infringement claims to be borne by unsuspecting purchasers.
(7) A warranty against all nonfrivolous claims of infringement also accords with California Uniform Commercial Code section 2312's status as an implied warranty, present in every sale involving a merchant who regularly deals in the goods sold, that can be altered by the contracting parties' agreement. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal. App. 4th 115, 127 [61 Cal. Rptr. 3d 221] (Linear Technology Corp.) [noting that § 2312(3) "expressly recognizes an exception for agreements to the contrary"].)[7] In the most common scenarioi.e., the situation best suited to a generally applicable implied warrantybuyers will be unwilling to make a purchase unless assured by the seller that the goods are not subject to any nonfrivolous infringement claims. Average buyers simply do not anticipate *479 that their title to and use of purchased goods will be contingent upon their successful litigation of a subsequent infringement action. (See Chemtron, Inc. v. Aqua Products, Inc. (E.D.Va. 1993) 830 F. Supp. 314, 315 [explaining that "[w]hen the goods are delivered and title is transferred, the warranty against infringement serves to provide assurances that the goods sold to the buyer are not subject to third party claims"]; Ezer, The Impact of the Uniform Commercial Code on the California Law of Sales Warranties (1961) 8 UCLA L.Rev. 281, 310 ["It certainly comports with common understanding that the buyer does not want an infringement lawsuit to accompany his purchase."].) Section 2312(3) best reflects this reality by allowing a buyer to rely on the seller's status as "a merchant regularly dealing in [the] goods" sold (ibid.), as demonstrating that the purchase price represents the total cost required for a buyer to use the purchased goodsi.e., that the buyer's ultimate use of the goods does not include a hidden litigation cost. (See Maroone Chevrolet, supra, 587 So.2d at p. 518 [recognizing public policy "`that a purchaser should not be required to engage in a contest over the validity of his ownership'"]; Frank Arnold Contractors, supra, 806 F.2d at p. 464 [same]; 2A Lawrence's Anderson on the Uniform Commercial Code (3d ed. rev. 2008) § 2-312:127, p. 642 [explaining that "[t]he justification for this rule is that the buyer of goods that are warranted for title has a right to rely on the fact that there will be no need later to have to contest ownership"].) If the purchased goods are not, in fact, available for use without an initial investment of buyer-financed litigation expenses, this should be made explicit as between the parties. The parties can, then, modify the implied warranty and/or factor the anticipated litigation costs (discounted by the likelihood of their arising) into the purchase price.
(8) The policy rationales discussed above are also consistent with the most unusual aspect of the section 2312(3) warranty: the creation of a risk-shifting alternative warranty that runs, in certain circumstances, from buyer to seller. The code provides an exception to the section 2312(3) warranty when the buyer "furnishes specifications to the seller" for the purchased goods, and an infringement "claim" arises out of the seller's compliance with the specifications. (Cal. U. Com. Code, § 2312, subd. (3).) In such circumstances, the buyer must "hold the seller harmless" against any rightful infringement claim. (Ibid.)
This exception to the seller's warranty for claims arising out of buyer-furnished specifications comports with the policy rationales we have described above. When an infringement claim arises from the seller's compliance with buyer-furnished specifications, it is the buyer who is properly required to ensure that the specifications (which will generally not have been known to or desired by the seller prior to sale) will not generate a rightful infringement claim. If the buyer fails to do so, he or she must bear the costs of defending a *480 resulting claim. On the other hand, when the buyer does not provide specifications but purchases goods "as is" from an experienced seller, the seller properly bears responsibility for defending later (nonfrivolous) claims that the goods infringe on a third party's intellectual property rights.
The alternate warranties contained in section 2312(3) also set up a clean dividing line delineating which party (buyer or seller) will be required to bear the burden of infringement claims arising from the use of purchased goods. This dividing line provides a degree of certainty to parties entering into a commercial transaction as to who will bear the costs of potential third party infringement claims. It would disrupt this finely crafted statutory allocation of risk, with little apparent benefit, to refocus the inquiry, as Olaes requests, on the ultimate validity of the potential third party infringement claim something that will be difficult to discern at the time of sale (particularly for the buyer).
Finally, if the section 2312(3) warranty were determined by reference to the ultimate success or failure of third party infringement litigation, the buyer would be placed in an untenable position when a third party sues, contending infringement of a trademark, patent or copyright. Only by losing the lawsuitor helping the third party claimant to maintain an appearance of success prior to settlementwould the buyer preserve the right to recover from the seller under Uniform Commercial Code section 2-312.[8] This would create a perverse incentive that would undermine the adversary processa public policy outcome unlikely to have been intended by California Uniform Commercial Code section 2312's drafters. (Cf. Cover v. Hydramatic Packing Co., Inc. (Fed. Cir. 1996) 83 F.3d 1390, 1394 [stating that a construction of "`rightful claim'" as synonymous with actual infringement "would not lead to judicious public policy inasmuch as parties would eschew settlement and be forced to go to trial to discern whether a `rightful claim' exists under federal patent law"], quoted in Linear Technology Corp., supra, 152 Cal.App.4th at p. 128.)[9]
*481 (9) In sum, it is clear from the official commentary, the statutory scheme and the public policy rationales underlying California Uniform Commercial Code section 2312, that the section 2312(3) warranty covers a broad scope of infringement claims and is not limited to claims that ultimately will prove successful in litigation. (See 1 Hawkland, Uniform Commercial Code Series, supra, § 2-312:4, p. 2-507 ["The warranty of no infringement is breached if the buyer is reasonably exposed to the patent or trademark claims of third persons, even though his use or quiet enjoyment of the goods is not disturbed"].) As we have explained, the warranty against rightful claims applies to all claims of infringement that have any significant and adverse effect on the buyer's ability to make use of the purchased goods, excepting only frivolous claims that are completely devoid of merit. This exception for frivolous claims comports with the Uniform Commercial Code commentary and policy rationales discussed above, while giving necessary effect to the statutory qualifier "rightful." The seller's warranty under California Uniform Commercial Code section 2312 is broad, but neither the statutory text, nor the policy rationales, can support extension of the seller's warranty to even frivolous claims of infringement. As reflected in the statutory text, a seller cannot reasonably be required to seek out and resolve even meritless claims of infringement prior to sale.
Our analysis is consonant with that of the only other court that has squarely addressed the question of how to define a rightful claim under section 2312(3). The Appellate Division of the Superior Court of New Jersey, interpreting the identical rightful claim provision under New Jersey law, held that a rightful claim of infringement, like claims against title under Uniform Commercial Code section 2-312, subdivision (1), is a claim that "cast[s] a `substantial shadow' on the buyer's ability to make use of the goods in question." (Sun Coast Merchandise Corp. v. Myron Corp. (App.Div. 2007) 393 N.J.Super. 55 [922 A.2d 782, 796-797] (Sun Coast).) The New Jersey court explained that under this standard, it was not necessary for the infringement claim to ultimately prove successful, or even for it to blossom into litigation. Rather, a buyer must establish only "that the infringement claim is of a substantial nature that is reasonably likely to subject the buyer to litigation, and has a significant and adverse effect on the buyer's ability to make use of the goods in question." (Id. at p. 797; see also Johnson Electric North America v. Mabuchi Motor (S.D.N.Y. 2000) 98 F. Supp. 2d 480, 489 *482 [noting that "[c]ourts have interpreted [§] 2-312(3) to entitle the buyer of an infringing good to indemnification from the seller for any claims by a third party for infringement"].)
(10) While our analysis is analogous to that of the Sun Coast court, we believe some modification of the standard set forth in Sun Coast is necessary. First, the phrase "claim ... of a substantial nature" (Sun Coast, supra, 922 A.2d at p. 797) should be understood to mean a nonfrivolous claim. Unlike "substantial," "nonfrivolous" is a term that can be readily applied to the evaluation of legal claims and is thus more conducive to concrete application. (See, e.g., Code Civ. Proc., § 128.5, subd. (b)(2) [defining "`[f]rivolous'" in the context of attorney or party sanctions to mean, inter alia, "totally and completely without merit"]; In re Marriage of Flaherty (1982) 31 Cal. 3d 637, 650 [183 Cal.Rptr.508, 646 P.2d 179] [defining "frivolous appeals" as those that "indisputably ha[ve] no merit"].) Second, contrary to the potential implication of the Sun Coast standard quoted above, the existence of litigation is neither necessary nor, in itself, sufficient to establish that a claim is "rightful." A claim of infringement may be rightful under section 2312(3) whether or not it is ultimately pursued in litigation. For example, a claim may be deemed rightful if the buyer, prior to any litigation, voluntarily ceases to use purchased goods due to a third party claim of infringement. And, contrary to PacSun's suggestion, the mere filing of litigation will not necessarily establish that a claim is "rightful."[10] As the courts are well aware, a third party may file a complaint and pursue litigation despite the absence of any merit to the underlying contention. (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 575 [21 Cal. Rptr. 3d 331, 101 P.3d 140] [recognizing that some lawsuits result in settlement even though they achieve that result "`"by dint of nuisance and threat of expense"'" rather than "`"by threat of victory"'"].) Consequently, while we are generally in accord with the discussion in Sun Coast, we set forth a different formulation of the applicable standard for purposes of California law. A rightful claim under section 2312(3) is a nonfrivolous claim of infringement that has any significant and adverse effect, through the prospect of litigation or otherwise, on the buyer's ability to make use of the purchased goods.
Applying the above standard to the facts of the instant case, we conclude that the trial court erred in granting Olaes's motion for summary judgment.
A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that *483 the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) In the instant case, Olaes did not meet this threshold.
(11) The evidence presented on Olaes's summary judgment motion demonstrated that there was at least a "triable issue of material fact" as to whether SNCL's infringement claim was a rightful claim.[11] (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 [107 Cal. Rptr. 2d 841, 24 P.3d 493].) SNCL based its claim on a registered trademark that bore at least some semblance to the Hot Sauce Monkey T-shirts. Further, the claim quickly blossomed into full-blown litigation in federal district court, causing PacSun to appear, answer the complaint and litigate a preliminary injunction motion. The case continued after the Hawaii court denied the request for an injunction (in a 20-page order), ultimately resulting in a settlement. (Cf. Linear Technology Corp., supra, 152 Cal.App.4th at p. 130 [recognizing settlement of a claim as potential factor to be considered in determining whether the claim is rightful, and quoting discussion in indemnity case that a "`settlement is presumptive evidence of liability of the indemnitee and of the amount of liability, but it may be overcome by proof from the indemnitor that the settlement was unreasonable ...'"].) While these factors may, or may not, ultimately prove dispositive, they create, at the least, a triable question as to whether SNCL's claim was a rightful claim, i.e., whether the claim constituted a nonfrivolous claim of infringement that had a significant and adverse effect on PacSun's ability to make use of the purchased goods. On this record, the trial court could not properly resolve that question, as a matter of law, in favor of Olaes. (Code Civ. Proc., § 437c, subd. (c).)
Olaes next contends that even if we disagree with the trial court's interpretation of rightful claim, we can still affirm the summary judgment ruling on an alternate ground not ruled on by the trial court: that Olaes's breach of the warranty was not the proximate cause of PacSun's damages. (See Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal. App. 4th 53, 57 [72 Cal. Rptr. 3d 354] [appellate court "may affirm an order granting summary judgment on a ground not relied on by the trial court, if the parties have been afforded the opportunity to brief the issue"], citing Code Civ. Proc., § 437c, subd. (m)(2).) We disagree.
Olaes does not dispute that PacSun would be entitled to its litigation expenses in the underlying infringement litigation (the primary relief sought by PacSun) if the fees were "proximately caused" by Olaes's breach of the warranty. (See De La Hoya v. Slim's Gun Shop (1978) 80 Cal. App. Supp. 3d 6, 10-12 [146 Cal. Rptr. 68] [discussing circumstances under which party may *484 recover attorney fees in action for "breach of warranty of title"].) Olaes argues, however, that the warranty breach cannot be considered the proximate cause of the damages in the instant case because PacSun "clearly knew of the purported defect in the Hot Sauce [Monkey] T-shirts ... before it ordered [them] and well before" it received notice of SNCL's claim. (See U. Com. Code com., par. 5, reprinted at 23A pt. 2 West's Ann. Cal. U. Com. Code (2002 ed.) foll. § 2715, p. 120 [explaining that if the buyer "did in fact discover the defect" in goods that underlies a claim for consequential damages "prior to his use, the injury would not proximately result from the breach of warranty"].)
(12) Again, the evidence presented on Olaes's summary judgment motion did not meet the threshold for a ruling in Olaes's favor. (Code Civ. Proc., § 437c, subd. (c).) "Proximate cause ... is generally a question of fact for the jury ..." (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal. 3d 508, 520 [150 Cal. Rptr. 1, 585 P.2d 851]) that cannot be resolved on a motion for summary judgment "unless from the facts only one reasonable conclusion could be drawn." (Koepke v. Loo (1993) 18 Cal. App. 4th 1444, 1450 [23 Cal. Rptr. 2d 34].) The meager facts adduced by Olaes on appeal do not support a ruling, as a matter of law, on the question of proximate cause. Olaes points out only that SNCL sued PacSun's subsidiary, d.e.m.o., and clothing maker Ecko prior to PacSun's purchase of the Hot Sauce Monkey T-shirts, and that the lawsuit included an allegation that SNCL possessed the "Smile Now Cry Later" trademark. Olaes fails to establish, and PacSun disputes, however, that (i) the lawsuit against PacSun's subsidiary necessarily demonstrated PacSun's knowledge of SNCL's trademark; (ii) that the lawsuit against PacSun's subsidiary was sufficiently similar to the instant infringement claim that it provided the requisite notice of the "defect" in the goods offered for sale by Olaes; and (iii) that PacSun's knowledge of SNCL's trademark immunizes Olaes, as a matter of law, from any damages based on a breach of the section 2312(3) warranty. In short, we cannot conclude that the evidence offered by Olaes leads to "only one reasonable conclusion" (Koepke, at p. 1450), excluding the breach of the section 2312(3) warranty as the proximate cause of PacSun's damages. Consequently, we cannot affirm the trial court's ruling on this alternative ground.[12]
*485 DISPOSITION
The judgment is reversed.
Benke, Acting P. J., and Huffman, J., concurred.
NOTES
[1] The denial of PacSun's motion for summary judgment is not before us on this appeal.
[2] As we have noted, California adopted section 2-312 of the Uniform Commercial Code without change.
[3] The use of the term "eviction" in this context refers to case law of ancient lineage that required a buyer to demonstrate that he or she had been precluded from using the purchased goods as a prerequisite to a warranty claim. (See generally 1 Hawkland, Uniform Commercial Code Series (2007) § 2-312:4; see, e.g., The Electron (1896) 74 F. 689, 697 ["If the purchaser is prevented from the use of the purchased property,in other words, if he is evicted,he has a defense to an action for the purchase price."].)
[4] At the time of the drafting of the Uniform Commercial Code, the drafters were presented with a request from the New York Patent Law Association "that the phrase `rightful claim'" be replaced with "`valid claim.'" (1 Rep. of the N.Y. Law Revision Com. for 1955: Study of the Uniform Commercial Code (1998) p. 738.) The request was supported by the argument that the phrase "`rightful claim'" had "the effect of broadening the scope of the warranty" and encompassed even claims that were "only prima facie valid." (Ibid.) The drafters did not adopt this proposed change, however, suggesting that a broad interpretation of the term "rightful" was intended.
[5] The phrase "rightful claim" first appears in the 1949 draft of the Uniform Commercial Code under subdivision (1)(b) of section 2-312. (U. Com. Code Official Draft (1949) § 2-312, subd. (1)(b), p. 86.) Uniform Commercial Code section 2-312, as then written, did not include any language specific to infringement claims. The rightful claim language was later deleted from subdivision (1)(b) and immediately reintroduced in the context of infringement claims, when subdivision (3) was added to section 2-312 of the Uniform Commercial Code in a supplement to the official draft in 1955. (U. Com. Code 1952 Official Draft Supp. No. 1 (Jan. 1955) § 2-312, subd. (3), pp. 8-9.)
[6] Olaes and PacSun both point to Uniform Commercial Code section 2-607 as providing support for their positions. In fact, however, that section sheds little light on the inquiry. Uniform Commercial Code section 2-607 primarily concerns the notice that must be made by the buyer regarding infringement claims to the seller. It states that with respect to a "claim" for infringement against the buyer, where "the buyer is sued as a result of such a breach," the buyer "must so notify the seller within a reasonable time after he receives notice of the litigation or be barred from any remedy over for liability established by the litigation." (U. Com. Code, § 2-607, subd. (3)(b); see also Cal. U. Com. Code, § 2607, subd. (3)(b) [same].) The section also states that "[w]here the buyer is sued" for an infringement claim "for which his or her seller is answerable over," the "original seller may demand in writing that the buyer turn over to the seller control of the litigation." (Cal. U. Com. Code, § 2607, subd. (5)(b).) Olaes contends that the phrases, "answerable over" and "liability established by the litigation" suggest that only claims pursued to a successful verdict trigger the warranty. PacSun argues that the language's equation of a "claim" and "sued" with a breach of the warranty supports its contention that virtually any litigation triggers the warranty. While we can see the merits of both arguments, we believe that Uniform Commercial Code section 2-607 ultimately sheds no light on the question presented in this appeal. Uniform Commercial Code section 2-607 is directed at notice, tender of defense and damages, not the substance of the Uniform Commercial Code section 2-312(3) warranty.
[7] At issue in Linear Technology Corp. was the trial court's subject matter jurisdiction to resolve a suit under section 2312(3) in light of the federal courts' exclusive jurisdiction over patent cases. (Linear Technology Corp., supra, 152 Cal.App.4th at pp. 123, 127; see 28 U.S.C. § 1338(a).) The Sixth District concluded that the trial court possessed jurisdiction to hear the claim, particularly as the parties had modified section 2312(3)'s implied warranty to include an express warranty for "any claim of infringement." (Linear Technology, at p. 127.)
The issue of subject matter jurisdiction is not raised in the instant appeal. This is because federal law grants exclusive jurisdiction to the federal courts to resolve patent claims (the underlying infringement claim in Linear Technology Corp., supra, 152 Cal. App. 4th 115), but allows state courts concurrent jurisdiction over trademark claims. (28 U.S.C. 1338(a) [granting federal district courts "original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks," and stating that "[s]uch jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases"]; Duggan's Funeral Service, Inc. v. Duggan's Serra Mortuary, Inc. (2000) 80 Cal. App. 4th 151, 157 [95 Cal. Rptr. 2d 253].)
[8] The Uniform Commercial Code contemplates a potential resolution to this dilemma by providing a mechanism for the seller to assume control of the defense to the third party claim. (See Cal. U. Com. Code, § 2607.) The buyer cannot, however, force the seller to do so. (See Dudine, Warranties Against Infringement Under the Uniform Commercial Code, supra, 36 N.Y. State Bar J. at p. 219 [emphasizing buyer's dilemma despite provisions of U. Com. Code, § 2-607].)
[9] The difficult nature of the buyer's positionif section 2312(3) is understood as only applying to valid claimsis apparent in this very lawsuit. Olaes contends on appeal that it is "dispositive" that PacSun has previously asserted that SNCL's claims in the Hawaii litigation are without merit. (Italics added.) Essentially, Olaes contends that PacSun was required to admit the validity of SNCL's claims against it in order to preserve a warranty claim against Olaes. With respect to Olaes's further contention, echoed by the trial court, that it is also significant that PacSun "continued to sell the T-Shirts" during the Hawaii litigation, we emphasize that the relevance of this factor is specifically refuted by the official commentary to the Uniform Commercial Code, which states that eviction (i.e., prevention of use) is not required to establish a breach of the section 2312(3) warranty. (U. Com. Code com., par. 4, reprinted at 23A pt. 1 West's Ann. Cal. U. Com. Code, supra, foll. § 2312, p. 290.)
[10] Indeed, were we to agree that the warranty is triggered by the filing of litigation, without any evaluative inquiry into the merits of the underlying claim itself, we would effectively be reading the term "rightful" out of the statute.
[11] Neither party contends that the question of whether a claim is rightful is a question of law that must be always resolved by the trial court.
[12] During the pendency of this appeal, Olaes filed a motion to "strike or disregard" portions of PacSun's appellate brief and eight-volume appendix on the generic ground that the identified portions are unnecessary "for proper consideration of the issues." (Cal. Rules of Court, rule 8.124(b)(2)(A).) Olaes also contends that PacSun's appendix erroneously includes court filings that were not pertinent to the summary judgment ruling at issue in this appeal. Olaes fails to identify any argument made by PacSun that would be impacted were we to grant the motion. We deny the motion.
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281 Pa. Super. 19 (1980)
421 A.2d 1126
COMMONWEALTH of Pennsylvania
v.
James L. POUNDS, Appellant.
Superior Court of Pennsylvania.
Submitted November 16, 1979.
Filed August 15, 1980.
Petition for Allowance of Appeal Denied December 18, 1980.
*21 James M. Keller, Ellwood City, for appellant.
Howard C. Klebe, Assistant District Attorney, New Castle, for Commonwealth, appellee.
Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
VAN der VOORT, Judge:
This is an appeal from a denial by the lower court of appellant's motion to quash an indictment. Appellant's sole claim is that to permit his re-trial following a trial which resulted in a hung jury would violate his right to be free from double jeopardy.
At his first trial appellant was found guilty by the judge of the summary offense of driving to the left of center. He was also convicted by a jury of driving under the influence of alcohol, a misdemeanor.
The jury was unable to reach a verdict, however, on the charge of homicide by motor vehicle, and without objection the jury was dismissed when the judge ascertained that further deliberations would be fruitless.
The Pennsylvania Vehicular Homicide Statute provides:
"Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death." (75 Pa.C.S.A. § 3732)
The jury evidently was undecided on the issue of whether appellant's violations of the law regarding the operation of a motor vehicle were the cause of death.
*22 Appellant first argues that reprosecution is barred by Section 110 of the Pennsylvania Crimes Code, (18 Pa.C.S.A. § 110), which says in part:
§ 110. When Prosecution barred by former prosecution for different offense.
Although a prosecution is for the violation of a different provision of the statutes than the former prosecution, or is based on different facts, it is barred by such a former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in Section 109 of this title . . . and the subsequent prosecution is for:
(i) Any offense of which the defendant could have been convicted on the first prosecution;
(ii) Any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial . . . or;
(iii) The same conduct, unless:
(A) "The offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; . . ."
The above statute applies only where the prosecution is attempting to bring charges to trial on a new offense which follows a previous trial for the same conduct. This of course is a classic double jeopardy situation. Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978); Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974).
The applicable statute under the present facts would be § 109 of the Code which is as follows:
§ 109. When prosecution barred by former prosecution for the same offense. (emphasis supplied)
When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former *23 prosecution, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
(2) The former prosecution was terminated, after the indictment had been found, by a final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.
(4) The former prosecution was improperly terminated after the first witness was sworn but before a verdict, or after a plea of guilty was accepted by the court.
1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.
None of the above paragraphs, which pertain to retrial of an offense following a prior conviction or acquittal for the same offense, apply here as the former prosecution terminated in a hung jury.
Pennsylvania Rule of Criminal Procedure 1120(e)[1] specifically provides for retrial of offenses which result in a hung *24 jury so long as such offenses are not "included offenses", either greater or lesser, in the charges for which the jury has rendered a verdict.
The United States Supreme Court has consistently upheld the validity of retrial of an offense following a hung jury. United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L. Ed. 165, 1824. The Court speaking in Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199, 61 A.L.R. 2d 1119 (1957) held:
"At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where `unforeseeable circumstances . . . arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.'"
Appellant also argues that Commonwealth v. Campana, bars his retrial. In the Campana cases the defendants had been subjected to prosecution for summary offenses at the magistrate level and later for more serious offenses at trial, all stemming from a single episode. The holding states that all charges arising from a single criminal transaction must be brought in one proceeding. Since this was done in the present case Campana is not dispositive.
The issue that remains is whether homicide by motor vehicle is a greater included offense of driving under the influence of alcohol or driving to the left of center of the highway. We find that it is not.
The test for determining when two offenses are "included" for double jeopardy purposes was first formulated by the United States Supreme Court in Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
The Court described the test as follows:
*25 "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . ."
Blockburger at 284 U.S. 304, 52 S. Ct. 182.
This test was reaffirmed recently in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) where by a 6-3 majority it was held to be double jeopardy to subject a defendant to successive prosecutions by state courts in Ohio upon charges of joyriding and auto theft, from a single episode, where every element of the former offense is contained in the latter.[2] (The Ohio courts do not have a rule similar to our Campana rule and only two Justices would have reversed on this basis).
The Third Circuit heard a similar argument in the case of Virgin Islands v. Smith, 558 F.2d 691, (3rd Cir. 1977). In that case the first jury convicted the defendant of a weapons offense but was hung on the charge of murder. The court rejected defendant's double jeopardy attack on his subsequent murder conviction, where the appellant argued that the conviction on the lesser offense should be taken as an implied acquittal of the more serious one.
The Third Circuit opinion reasons:
*26 "In the absence of a logical consistency between the two offenses, a conviction on the weapons charge implies no conclusion on the murder charge; a finding of conviction or acquittal was equally possible and no decision on the necessary facts was made by the hung jury."
Virgin Islands at 558 F.2d 691-692.
A conviction of vehicular homicide requires a finding not only of a violation of the motor vehicle laws but also an additional fact, that the defendant's illegal act caused the death. Conversely a conviction for vehicular homicide, while implying guilt as to some violation of the motor vehicle rules, does not imply a finding of guilt as to any particular offense. The offenses are not, therefore, "included offenses" for double jeopardy purposes.
Thus it is logically consistent for the jury to find as it did and the conviction on the offenses of driving to the left of center and driving under the influence of alcohol in no way implies an acquittal on the offense of homicide by vehicle.
Order affirmed.
SPAETH and HOFFMAN, JJ., concur in the result.
NOTES
[1] Rule of Criminal Procedure
1120(e) If there are two or more informations or indictments the jury may report a verdict or verdicts with respect to those informations or indictments upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the informations or indictments, if those informations or indictments to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter informations or indictments shall be dismissed. When the informations or indictments upon which the jury cannot agree are not included in the offenses of the information or indictment upon which it has agreed, the defendant or defendants may be retried on those informations or indictments.
[2] The most recent decision in this area was announced in Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228, (1980). There a decision by the Supreme Court of Illinois prohibiting prosecution of the respondent for manslaughter by automobile was overturned.
A majority in the state high court had ruled that because respondent-driver had been already convicted of "failing to reduce speed", an offense which they found to be a lesser included offense of manslaughter by automobile, he could not then be tried on the manslaughter charge. The United States Supreme Court remanded to the Illinois Supreme Court to determine whether the two offenses were indeed "included" saying, "The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the `same' under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution."
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281 Pa. Super. 153 (1980)
421 A.2d 1194
Arthur DARABANT and Lorraine Darabant
v.
ATWOOD HOME BUILDERS, INC., a corporation, Appellant,
v.
Michael SCHMIDT, Additional Defendant.
Superior Court of Pennsylvania.
Argued November 15, 1979.
Filed September 5, 1980.
*154 Maurice A. Nernberg, Jr., Pittsburgh, submitted a brief on behalf of appellant.
Kim R. Bobrowsky, Pittsburgh, for appellee.
Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
VAN der VOORT, Judge:
Mr. and Mrs. Arthur Darabant, appellees herein, entered into a written contract with Atwood Home Builders, Inc., appellant herein to perform certain repair work on the exterior of their home. The work was not performed to their satisfaction and they brought suit against the appellant to recover damages. The appellant counter-claimed for extra work done on the premises and joined Michael Schmidt, a subcontractor, as an additional defendant.
A compulsory arbitration hearing resulted in the recommendation of an award to the appellees. The appellant appealed and requested a jury trial. The case was assigned to Judge Marion Finkelhor for jury trial. At a pre-trial conference with the judge, a settlement was negotiated *155 whereby the appellant and the additional defendant would perform certain work and pay the appellees the sum of three hundred ($300.00) dollars to settle the suit. Despite the inclusion of certain performance dates in the agreement, none of the settlement terms were carried out. As a consequence, the appellees filed a Motion to set aside the settlement agreement and list the case for trial. The appellant countered with a Motion to enforce the agreement.
In response to these Motions, the Court held a hearing to determine the status of the performance of the work, why it had not been done and whether it could be rescheduled. It developed from the testimony that the parties did not agree on what work was to be done or when any of the work could be done. At the conclusion of the hearing, the Court entered an Order in which it found that the settlement agreement was ambiguous, that the appellant had not complied with it to the satisfaction of the appellees and that further negotiations would not resolve the dispute and therefore ordered the settlement agreement stricken and the case placed upon the September 1979 Trial List.
The appellant has appealed from that Order. We face the threshold question of appellate jurisdiction. This is neither a final order from which an appeal can be taken under Pa.R.A.P. 341 or one of the appealable interlocutory decrees from which an appeal is authorized by Rule 311. The appellant contends that placing the matter on the trial list is close enough to an order granting a new trial to come within Rule 311.
We do not agree. The Court has not ordered a new trial; it has ordered an initial trial, which was what the appellant requested when it appealed from the arbitration award and asked for a jury trial. The Court has now returned the case to square one, exactly where it was before the aborted settlement negotiations were initiated by the Court. The case has been placed on the trial list, nothing more. No appeal lies from such an order.
Appeal dismissed.
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827 P.2d 509 (1992)
UNITED BLOOD SERVICES, A DIVISION OF BLOOD SYSTEMS, INC., Petitioner,
v.
Chris and Susie QUINTANA, Respondents.
No. 91SC172.
Supreme Court of Colorado, En Banc.
March 23, 1992.
As Modified on Denial of Rehearing April 13, 1992.
*511 Downey & Douglas, P.C., Arthur H. Downey, Laurel E. Adams, Denver, Lewis & Roca, Steven J. Labensky, Susan M. Freeman, Phoenix, Ariz., for petitioner.
Holland & Hart, A. Bruce Jones, Maureen Reidy Witt, Steven C. Choquette, Denver, for respondents.
Arnold & Porter, P.C., Richard P. Barkley, Denver, for amici curiae American Nat. Red Cross, American Ass'n of Blood Banks, and Council of Community Blood Centers.
Williams, Youle & Koenigs, P.C., Robert E. Youle, Denver, for amici curiae College of American Pathologists, American Soc. of Clinical Pathologists, and Colorado Soc. of Clinical Pathologists.
Vinton, Waller, Slivka & Panasci, Kevin D. Allen, Margaret M. McClellan, Denver, for amici curiae Colorado Trial Lawyers Ass'n and Ass'n of Trial Lawyers of America.
*510 Justice QUINN delivered the Opinion of the Court.
In Quintana v. United Blood Services, 811 P.2d 424 (Colo.App.1991), the court of appeals reversed a judgment entered on a jury verdict for the defendant, United Blood Services (UBS), in a negligence action brought by the plaintiffs, Mrs. Susie Quintana and her husband, Chris Quintana. The Quintanas claimed that UBS, a blood bank, was negligent in supplying a hospital with plasma contaminated with the Acquired Immune Deficiency Syndrome (AIDS) virus and that, as a result of UBS's negligence, the contaminated plasma was given to Mrs. Quintana during surgery and that she subsequently became infected with AIDS. The court of appeals held that the trial court erred in construing section 13-22-104, 6A C.R.S. (1987), as imposing a professional standard of care on a blood bank in acquiring, preparing, and transferring human blood or its components for transfusion into a human being and that the trial court, in its evidentiary rulings and jury instructions, also erred by applying the professional standard of care in a manner that rendered UBS's compliance with the professional standard the equivalent of conclusive proof of reasonable care. In place of the professional standard of care applied by the trial court, the court of appeals reasoned that UBS's conduct "should be measured against what a reasonable and prudent blood bank would or should have done under the same or similar circumstances" and that, under that standard of ordinary care, compliance with governmental regulations and industrial customs and practices would merely constitute evidence of reasonable care and would not be conclusive proof on that issue. 811 P.2d at 431. We granted certiorari to review *512 the decision of the court of appeals. We conclude, as did the court of appeals, that the Quintanas must be granted a new trial, but we do so for reasons different from those relied upon by the court of appeals.
I.
UBS is a non-profit blood banking division of Blood Systems, Inc., and operates blood centers throughout the western United States. In procuring whole blood, UBS relies strictly on volunteer donors and then processes the blood in the form of whole blood or blood components, such as red blood cells, platelets, and fresh frozen plasma, and supplies the blood or blood components to hospitals. In April 1983 UBS received blood from a donor and then processed the blood for use in medical treatment. The blood was transferred to Southwest Memorial Hospital in Cortez, Colorado.
Approximately one month later, May 27, 1983, Mrs. Quintana suffered a gunshot wound and was taken to Southwest Memorial Hospital, where she underwent emergency surgery. During the surgery she received several units of whole blood and fresh frozen plasma which had been collected and processed by UBS. Approximately one year after the surgery, Mrs. Quintana began to experience a number of symptoms consistent with the presence of the AIDS virus, and in November 1985 she tested positive for the virus. Mrs. Quintana subsequently developed AIDS-Related Complex (ARC), which precedes full blown AIDS, and she ultimately was diagnosed as suffering from AIDS. It was later determined that the donor of the unit of blood collected in April 1983 and given to Mrs. Quintana tested positive for the AIDS virus. UBS learned from the donor's physician that the donor pursued a "gay lifestyle."
Mrs. Quintana and her husband sued UBS for negligence. As pertinent here, the Quintanas predicated their negligence claim on UBS's failure to properly screen the blood donor for potential infection with the AIDS virus through the use of questioning and physical examination and in failing to properly screen the donated blood through surrogate testing. UBS claimed that its screening and testing procedures satisfied the applicable standard of care and denied the allegations of negligence. Much of the ensuing litigation was directed at resolving the appropriate standard of care applicable to UBS's operations. We summarize those aspects of the proceedings relevant to that issue.
A.
Prior to trial, UBS filed a motion to preclude one of plaintiff's expert witnesses, Doctor Marcus Conant, a dermatologist, from rendering an expert opinion on the standard of care applicable to UBS's blood banking operations. Doctor Conant had extensive experience in AIDS research and had treated between 3,000 and 5,000 patients who either had the AIDS virus, had AIDS-Related Complex, or had full blown AIDS. Doctor Conant served as co-director of the Kaposi's Sarcoma Clinic at the University of California from 1981 to 1985 and was director of the AIDS Clinical Research Center at the University of California from 1983 to 1985. Doctor Conant filed an affidavit stating that he was prepared to testify at trial to the following matters: as of January 1983 there was ample evidence available to the medical community and to national blood banks that the AIDS virus was transmissible in blood and blood products and that transfusion recipients were at risk of contracting AIDS if adequate precautions were not taken by blood banks in screening donors and performing surrogate tests on donated blood; that as of January 1983 there was ample evidence that the highest risk groups for AIDS were homosexual males, intravenous drug users, Haitians, and hemophiliacs and that these groups were known at that time to present the highest risk for transmitting the AIDS virus and thus needed to be more carefully screened and tested before being allowed to donate blood or, at the very least, before their donated blood was released for transfusion; that in early 1983 blood banks ignored the warnings and advice of AIDS experts and were negligent in not implementing *513 more stringent screening and testing procedures then available, such as direct questioning of potential donors and surrogate laboratory testing of donated blood; that as of April 18, 1983, the date the contaminated blood in issue was donated, various segments of the blood banking community failed to take adequate steps and precautions to screen donors and test blood in order to protect the nation's blood supply from contamination with the AIDS virus; and that as of April 18, 1983, blood banks had inappropriately placed the privacy of blood donors over the safety of the nation's blood supply and the safety of transfusion recipients.[1]
The trial court ruled that, pursuant to section 13-22-104(2), 6A C.R.S. (1987), the acquisition, preparation, and transfer of blood and its components for purposes of medical treatment is "the performance of a medical service" and that, consequently, the procedures utilized by UBS in 1983 to protect the blood supply against the risk of AIDS contamination must be evaluated according to the professional standard of the blood banking community rather than the general standard of reasonable care. Because Doctor Conant was not directly practicing in the blood banking industry, the court ruled that he would not be permitted to testify that the screening and testing procedures of the blood banking community were substandard and unreasonably deficient in safeguarding transfusion recipients from AIDS contamination.
B.
The case was tried to a jury over a four-week period in 1989. The trial testimony concerning the practices of the blood banking community in procuring and processing blood and the evidence relating to the etiology and epidemiology of AIDS provide the evidentiary framework for the issue before us.
The blood banking industry is involved in the collection, processing, testing, and storage of human blood and blood components. There are two organizational units within the industry, whole-blood centers and source plasma centers. The industry is regulated by the Food and Drug Administration and by the industry itself in the form of guidelines issued by organizations such as the American Association of Blood Banks, the American Red Cross, the Council for Community Blood Centers, and the American Blood Resource Association.[2] The American Association of Blood Banks, to which UBS belongs, accredits member blood banks on the basis of their compliance with its guidelines.
Whole-blood centers collect and process units of whole bloodthat is, blood that has not been broken down into its constituent partsfrom voluntary donors. Most of the blood collected is separated by the whole blood centers into individual blood components, such as red blood cells, platelets, *514 or plasma. Whole blood is occasionally transfused, but patients more frequently receive transfusions of the individual blood components. Source plasma centers pay their donors to obtain what is referred to as source plasma by a procedure called plasmapheresis. This process, which is more time consuming than the donation of whole blood, involves removing the donor's blood, separating out the plasma, and then returning the red blood cells to the donor. Source plasma is pooled into large lots and then processed into various components, such as the clotting factors used in the treatment of hemophiliacs.
AIDS is a fatal viral disease that destroys the body's T-4 helper cells, which are a type of white blood cell that activates the immune system. Destruction of T-4 cells leaves the affected person susceptible to infection from a number of opportunistic diseases such as pneumocystis carinii pneumonia and Kaposi's sarcoma, a rare form of cancer. AIDS was first recognized in the United States in 1981, but at that time the medical community knew neither the cause nor the mode of transmission. It was not until December 1984 that the retrovirus, the Human T-Lymphotropic Virus Type III (now referred to as the Human Immunodeficiency Virus (HIV)), was isolated and identified as the cause of AIDS.
What was known in 1981 and 1982 is that certain groups of persons were at a high risk for contracting AIDS. These groups included homosexual and bisexual men, intravenous drug users, and recently arrived Haitians. The first reports of the possibility of blood transmission of AIDS began to appear in mid-1982 in a series of articles published by the United States Public Health Service Centers for Disease Control, a federal agency that tracks and facilitates responses to disease. Specifically, in July 1982 the Centers for Disease Control published an article in the Morbidity and Mortality Weekly Report entitled "Pneumocystis carinii Pneumonia among Persons with Hemophilia A." 31 M.M.W.R. 365-67 (July 16, 1982). This article described the cases of three persons with hemophilia who had developed AIDS, and concluded by stating that "[a]lthough the cause of severe immune dysfunction is unknown, the occurrence among the three hemophiliac cases suggests the possible transmission of an agent through blood products." In December 1982, the Centers for Disease Control published another article in the Morbidity and Mortality Weekly Report entitled "Possible Transfusion-Associated Acquired Immune Deficiency Syndrome." 31 M.M.W.R. 652-54 (December 10, 1982). This article reported that an infant who had received multiple transfusions at birth had developed AIDS and that an investigation revealed that one of the nineteen donors of the blood was subsequently diagnosed as infected with AIDS. The report concluded by stating: "This report and continuing reports of AIDS among persons with hemophilia A raise serious questions about the possible transmission of AIDS through blood and blood products." The Centers for Disease Control published other articles in 1982 which raised similar questions about the risk of transmitting AIDS through blood and blood products.
In response to the growing concern about the possibility of blood-borne transmission of AIDS, the Centers for Disease Control on January 4, 1983, convened a meeting to discuss the extent of the problem and possible ways to protect the nation's blood supply. Present at this meeting were representatives from the Food and Drug Administration, the American Red Cross, the American Association of Blood Banks, the Council of Community Blood Centers, the National Hemophilia Foundation, the National Gay Task Force, and the Pharmaceutical Manufacturer's Association. A number of safety measures were discussed at this meeting, but there was no consensus as to the usefulness of those measures and the meeting ended without any recommendations being made. On January 13, 1983, the American Red Cross, the American Association of Blood Banks, and the Council of Community Blood Banks issued a "Joint Statement on Acquired Immune Deficiency Syndrome Related to Transfusion." Although the joint statement concluded that "evidence *515 for transmission [of AIDS] by blood transfusion is inconclusive at this time," it suggested that, in light of the possibility of transmission by blood transfusion, donor screening should include specific questions to detect possible exposure to AIDS and questions designed to elicit a history of nightsweating, unexplained fevers, unexpected weight loss, lymphadenopathy (swollen lymph nodes), and Kaposi's sarcoma. The recommendations stated that "direct or indirect questions about a donor's sexual preference are inappropriate" because such inquiries would constitute an invasion of privacy and would be ineffective in eliminating AIDS-infected donors. The recommendations did not include routine implementation of a laboratory screening program because it was felt that such screening had not yet been proven effective and could reduce the available blood supply without enhancing safety. Nor did the statement recommend the employment of surrogate testing. A surrogate test is used when there is no direct test available to detect the presence of a disease or the antibody generated by the disease. Surrogate testing is thus utilized to determine the presence of factors believed to be statistically linked to the presence of a disease.[3]
On January 14, 1983, the National Hemophilia Foundation issued a memorandum containing recommendations to prevent AIDS in patients suffering from hemophilia. The foundation recommended that manufacturers of Factor VIII concentrate, a coagulating agent used by hemophiliacs, implement direct questioning of blood donors and evaluate and implement surrogate testing of donated blood in order to reduce the risk of AIDS transmission. Source plasma centers thereafter initiated aggressive donor screening by asking if the donor was homosexual, an intravenous drug-user, had recently arrived from Haiti, or was a hemophiliac. In addition, source plasma centers began to examine donors for lymphadenopathy, which is symptomatic of ARC and AIDS, and also began to implement surrogate testing of blood.
On March 24, 1983, approximately one month before the AIDS-infected donor donated the blood that was later administered in plasma form to Mrs. Quintana, the Food and Drug Administration issued a memorandum to "all establishments collecting human blood for transfusion" and a separate memorandum to "all establishments collecting source plasma." The Food and Drug Administration at that point in time had not issued any regulations regarding AIDS, and the March 1983 memorandum consisted of recommendations only.[4] The memorandum to blood centers began by acknowledging that "the Acquired Immune Deficiency Syndrome (AIDS) has caused serious concern among members of the blood banking community because of the implications for transfusion recipients if this disease is proven to be transmissible by blood or blood products." The memorandum recommended that blood centers institute additional measures "designed to decrease blood collection from individual donors and donor groups known to be at *516 increased risk for transmitting AIDS," and to include in these measures the following: educational programs to inform persons at increased risk of AIDSnamely, persons with symptoms and signs suggestive of AIDS, sexually active homosexual and bisexual men with multiple partners, Haitian entrants to the United States, intravenous drug users, and sexual partners of individuals at increased risk of AIDSthat they should refrain from blood donations because of the potential risk to transfusion recipients, at least until such time as the AIDS problem is resolved or definitive tests become available; re-education of personnel responsible for donor screening to recognize the early signs and symptoms of AIDS and to include in the medical history of donors "specific questions designed to detect possible AIDS symptoms or exposure to patients with AIDS," including a history of night sweats, unexplained fevers, unexpected weight loss, or signs of lymphadenopathy or Kaposi's sarcoma; and standard operating procedures which specifically inform the blood bank staff that all blood or blood products inadvertently collected from a donor known or suspected of having AIDS "should be considered potentially highly infectious and must be immediately quarantined and disposed of expeditiously unless designated for investigative use related to AIDS."
The Food and Drug Administration's memorandum to source plasma centers contained similar recommendations concerning the educational programs calculated to inform donors of the risk of AIDS transmission and the re-education of personnel responsible for donor screening in identifying the early signs and symptoms of AIDS by eliciting appropriate medical history. In addition, the source-plasma recommendations included a physical examination of plasma donors for swollen lymph nodes and weight monitoring for any sudden and unexplained weight loss. If a donor experienced any significant and unexplained decrease in weight, the recommendations stated that the donor should be referred to a physician for a complete evaluation and that any plasma in storage previously collected from the donor "should be quarantined until the physician's evaluation is completed." In addition, the memorandum stated that "[r]evised labeling for plasma collected from high risk donor groups and intended for further manufacture of plasma derivatives should be submitted to the Office of Biologics."
C.
The evidence at trial indicated that in April 1983, when the blood donation in question was given, UBS had revised its donor screening process in response to the Food and Drug Administration's recommendations. The screening procedures followed by UBS at this time included the following: (1) providing prospective donors with specific information about AIDS, the groups at risk, and signs and symptoms of the disease, and then requesting that prospective donors defer themselves if appropriate; (2) specific questioning of donors as to whether they understood the AIDS information and whether they were in good health at that time; (3) examining donors for skin lesions or intravenous needle tracks; (4) deferring those donors who had exposure to malaria or hepatitis B and thereby screening out Haitians and many homosexuals; (5) asking questions designed to elicit symptoms of the disease; (6) directing recruitment efforts away from high risk groups; and (7) educating the public as to groups at risk and the danger posed by members of such groups donating blood.
Doctor Earnest Simon, executive vice president for medical affairs for Blood Systems, Inc.,[5] testified that UBS's revised procedures implemented the Food and Drug Administration recommendations. In addition to modifying its donor screening procedures, UBS also began conducting a study to evaluate surrogate testing. Doctor Paul Holland, the medical director and chief executive officer of Sacramento Medical Foundation Blood Center, testified that in his opinion UBS's practices and procedures in 1983 met and in some cases exceeded *517 the standard of care for blood banks as defined by the FDA recommendations and the joint statement issued in January 1983 by the American Red Cross, the American Association of Blood Banks, and the Council of Community Blood Banks. The technician who interviewed the donor of the infected blood given to Mrs. Quintana testified that the donor screening form indicated that she had complied with all the revisions in interviewing the donor. The screening procedures utilized at this time by UBS, however, did not include the aggressive questioning and physical examination of blood donors as recommended by the National Hemophilia Foundation. Nor did UBS at this time employ surrogate testing of donated blood, as had been instituted by source plasma centers in early 1983.
It was established at trial that the donor of the blood used in the treatment of Mrs. Quintana was served with the following written interrogatory under oath prior to trial:
Assume that the following questions had been read to you on April 18, 1983:
a. Have you ever had sexual contact with someone who had received a blood transfusion?
b. Have you ever had sexual contact with someone who is in a group at high risk of AIDS or exposure to AIDS?
c. Have you ever visited Haiti?
d. Have you ever injected drugs into your vein(s)?
e. Have you ever had sex with a man since 1978?
f. Are you a hemophiliac?
If these questions had been read to you, would your answer to any of these questions have been "yes"? (you do not need to specify which question, if any, you would have answered in the affirmative.)
The donor, whose identity remained confidential, responded "yes" to the interrogatory.
Based on the trial court's pretrial ruling, the Quintanas were not permitted to present testimony from Doctor Conant as to the allegedly substandard character of the screening and testing procedures utilized by the blood banking industry at the time the donation in question was obtained by UBS. The court also refused to permit the Quintanas to present testimony from another expert witness, Doctor Thomas Asher, a microbiologist, who had performed epidemiological research for the Centers for Disease Control and had thirty years experience in the blood banking industry. Doctor Asher would have testified that the screening and testing procedures utilized by the entire blood banking industry in April 1983 were substandard and unreasonably deficient in guarding against the transmission of AIDS through blood transfusion.[6] In addition, the trial court refused to permit the Quintanas from eliciting testimony from Doctor Edgar Engleman, the Director of Stanford University Blood Bank, to rebut UBS's expert opinion evidence on the standard of care. The court, however, did permit Doctor Engleman to testify on rebuttal concerning surrogate testing and whether, in his opinion, it was an effective safeguard against AIDS-transmission.
D.
At the conclusion of the evidence, the trial court instructed the jury in Jury Instruction No. 20, over the Quintanas' objection, that "negligence means the failure to meet the standard of care of other establishments in the industry at that time, as established by the testimony of one or more expert witnesses." Jury Instruction No. 20 also stated that the jury, in determining the standard of care, must first determine "what constitutes the industry involved"that is, whether, as the Quintanas contend, "the industry consists of fresh blood centers and plasma centers," or, as UBS contends, "the industry consists of *518 fresh blood centers only and that plasma centers are a separate industry with its own standard of care." Instruction No. 20 then concluded as follows:
[Y]ou cannot set up a standard of care on your own, but you must be guided in that regard solely by the experts who have appeared for the parties in this case, in accordance with the standard of care of the industry as you find it to be.
If you find there is one industry, you may, however, find there are two schools of thought which meet the standard of care. UBS must meet the standard of care of the school of thought to which it belongs.
The trial court also instructed the jury in Instruction No. 21, again over the Quintanas' objection, as follows:
Where, under the usual practice of the profession of the defendant, United Blood Services, different courses of procedure are available which might properly and reasonably be used to meet the standard of care, the blood center must use its best judgment as to the choice of procedure.
A blood center is not negligent because of its selection of a particular course of procedure, if its selection is consistent with the skill and care which other blood centers would use at the same time in the same or similar circumstances to meet the standard of care in the industry.
The jury returned a general verdict in favor of UBS, and the trial court entered judgment on the verdict.[7]
E.
The Quintanas appealed to the court of appeals, which reversed the judgment and remanded the case for a new trial. The court of appeals held that, contrary to the trial court's pretrial ruling, section 13-22-104(2), 6A C.R.S. (1987), incorporates no standard of liability other than "negligence or willful misconduct." Quintana, 811 P.2d at 429. Proceeding from that premise, the court of appeals concluded that the trial court erred in its evidentiary rulings and in its jury instructions, both of which incorporated a professional standard of care which could be established only by testimony of experts familiar with the recognized and accepted practices within the blood banking industry. It was the court of appeals' view that the blood banking industry, although partially composed of professionals, lacks the defining characteristics of a profession and that the accepted or customary practices of similarly trained and situated professionals should not have been considered as conclusive evidence of the professional standard of care applicable to UBS's conduct. Id. at 430-31. Based on that reasoning, the court of appeals held as follows:
We hold ... that ordinary principles of negligence should govern plaintiffs' claims and that the defendant's conduct should be measured against what a reasonable and prudent blood bank would or should have done under the same or similar circumstances. Regulations imposed by government, custom, and practice promulgated by industry associations or arrived at by consensus are merely evidence to be considered in determining the proper standard of care in these cases.
Accordingly, we conclude that the trial court erred in applying the professional medical standard of care to defendant's acts, by precluding plaintiffs from presenting evidence which might tend to show that the customs and practices in the defendant's industry might not be reasonable and prudent, and by instructing the jury that defendant's compliance with these regulations, customs, and practice established, as a matter of law, the absence of negligence.
Id. at 431-32.
We granted UBS's petition for certiorari to consider whether the court of appeals erred in holding that ordinary principles of *519 reasonable care, rather than a professional standard of care, should be the appropriate measure against which to evaluate UBS's conduct in procuring and processing the AIDS-contaminated blood donation later administered to Mrs. Quintana in the form of frozen plasma during her surgery.
II.
The resolution of this case turns on the proper construction of the statutory text of section 13-22-104, 6A C.R.S. (1987), which addresses a blood bank's responsibility for the acquisition, preparation, and transfer of human blood or its components for medical transfusion into a human being. Before addressing whether the statutory scheme contemplates a professional standard of care or an ordinary standard of reasonable care, and before resolving the significance of the particular standard to the trial court's evidentiary rulings and jury instructions, we first review the basic principles of tort law bearing on the standard of care.
A.
A cause of action in tort arises out of a violation of a legal duty imposed upon an actor to avoid causing harm to others. The question of legal duty is a question of law. "The court determines, as a matter of law, the existence and scope of the dutythat is, whether the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection." Metropolitan Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980). "A court's conclusion that a duty does or does not exist is `an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.'" University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo.1987) (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 53, at 358 (5th ed. 1984)). In order to recover in tort, a plaintiff must prove not only an existence and breach of a legal duty owed by the defendant but also causation and damages. Perreira v. State, 768 P.2d 1198, 1208 (Colo.1989); Leake v. Cain, 720 P.2d 152, 155 (Colo.1986).
Legal duty is defined in terms of a standard of care. The source of the duty and the corresponding standard essential to the proper discharge of the duty may originate from a judicial decision or a legislative enactment. Dare v. Sobule, 674 P.2d 960, 963 (Colo.1984).[8] Our case law, for example, has espoused the general principle that a legal duty to use reasonable care arises in response to a foreseeable and unreasonable risk of harm to others. Lyons v. Nasby, 770 P.2d 1250, 1254 (Colo.1989); Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46-50 (Colo.1987). Thus, in ordinary negligence cases, an actor is required to conform his or her conduct to a standard of objective behavior measured by what a reasonable person of ordinary prudence would or would not do under the same or similar circumstances. See W. Keeton et al., Prosser and Keeton on Torts § 32, at 174. For those practicing a profession involving specialized knowledge or skill, reasonable care requires the actor to possess "a standard minimum of special knowledge and ability," id. at 185, and to exercise reasonable care in a manner consistent with the knowledge and ability possessed by members of the profession in good standing. Klimkiewicz v. Karnick, 150 Colo. 267, 273-74, 372 P.2d *520 736, 739 (1962); Brown v. Hughes, 94 Colo. 295, 303-04, 30 P.2d 259, 262 (1934).
A practicing professional is generally entitled to be judged according to the tenets of the school of practice which the practitioner professes to follow. Because in most cases of professional negligence the applicable standard is not within the common knowledge and experience of ordinary persons, the applicable standard must be established by expert testimony. See, e.g., Melville v. Southward, 791 P.2d 383, 387 (Colo.1990); Daly v. Lininger, 87 Colo. 401, 405, 288 P. 633, 636 (1930). "Without expert opinion testimony in such cases, the trier of fact would be left with no standard at all against which to evaluate the defendant's conduct." Melville, 791 P.2d at 387.
Colorado case law reflects several positions with respect to the compass of the professional community by which a professional standard of care is to be established. Some cases have adopted the so-called "locality rule," which requires that a health care professional be bound by the knowledge and skill applicable to those practicing the same profession in the same locality. See, e.g., Foose v. Haymond, 135 Colo. 275, 283, 310 P.2d 722, 726 (1957); Brown v. Hughes, 94 Colo. at 303, 30 P.2d at 262. Other cases describe the professional community as those practicing the same specialty in the same or similar community. E.g., Bloskas v. Murray, 646 P.2d 907, 914 (Colo.1982); Martin v. Bralliar, 36 Colo. App. 254, 258, 540 P.2d 1118, 1120 (1975). Some cases also refer to a national community and state that a national standard, if existing, is applicable when measuring the particular professional practice under consideration. See Mallett v. Pirkey, 171 Colo. 271, 282, 466 P.2d 466, 471 (1970); Martin, 36 Colo.App. at 258-59, 540 P.2d at 1120; Stauffer v. Karabin, 30 Colo. App. 357, 364, 492 P.2d 862, 865 (1971).
While a defendant practicing a profession is entitled to be judged by the standard of care applicable to the professional school to which the defendant belongs, W. Keeton, et al., Prosser and Keeton on Torts § 32, at 187, that standard is not always conclusive proof of due care. We have held, in a somewhat different context, that compliance with administrative safety regulations is a circumstance to be considered on the issue of due care but is not conclusive proof of that issue. Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 591 (Colo.1984) (citing with approval § 288C of Restatement (Second) of Torts (1965), which states that compliance with statute or administrative regulation not preclusive of finding of negligence). Judge Learned Hand, in addressing this problem of insulating a particular calling's standard of care from any challenge whatever, put the matter this way:
There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves.... Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.
The T.J. Hooper, 60 F.2d 737, 740 (2nd Cir.), cert. denied, 287 U.S. 662, 53 S. Ct. 220, 77 L. Ed. 571 (1932) (citations omitted). If the standard adopted by a practicing profession were to be deemed conclusive proof of due care, the profession itself would be permitted to set the measure of its own legal liability, even though that measure might be far below a level of care readily attainable through the adoption of practices and procedures substantially more effective in protecting others against harm than the self-decreed standard of the profession. See, e.g., Townsend v. Kiracoff, 545 F. Supp. 465, 468 (D.Colo.1982) (recognizing rule that even if hospital acted in accordance with community standard of care, plaintiff still entitled to prove at trial that entire community standard is negligent); Favalora v. Aetna Casualty & Surety Co., 144 So. 2d 544, 551 (La.App.1962) *521 (holding that medical practitioner may not avoid liability simply by adhering to the custom or procedure of similar practitioners when such practice is found to be negligent; "[t]o hold otherwise is to exempt one even from willful negligence on the patently unsound ground that others in the same profession do likewise"); Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206, 217 (Pa.1971) (recognizing that if the medical profession were allowed to set its own standard of conduct by establishing its own custom of practice, then no matter how unreasonable such standard may be by ordinary standards, all members of profession would be insulated from liability so long as they conform to the norm); cf. Denver & Rio Grande W. R.R. Co. v. Lloyd, 148 Colo. 1, 6, 364 P.2d 873, 876 (1961) (recognizing as axiomatic the general proposition that "one may not promulgate rules or establish customs, practices, or usage, or adopt constructions thereof so as to absolve himself of his own negligence").
B.
To be sure, there is a presumption that adherence to the applicable standard of care adopted by a profession constitutes due care for those practicing that profession. The presumption, however, is a rebuttable one, and the burden is on the one challenging the standard of care to rebut the presumption by competent evidence. See CRE 301. In a professional negligence case, therefore, a plaintiff should be permitted to present expert opinion testimony that the standard of care adopted by the school of practice to which the defendant adheres is unreasonably deficient by not incorporating readily available practices and procedures substantially more protective against the harm caused to the plaintiff than the standard of care adopted by the defendant's school of practice. A plaintiff may establish that proposition by the opinion testimony of a qualified expert practicing in the same school or by the opinion testimony of an expert practicing in another school if the expert is sufficiently familiar with the standard of care applicable to the school in question as to render the witness's testimony as well-informed on the applicable standard of care as would be the opinion of an expert witness practicing the same profession as the defendant, or if the standard of care at issue is substantially identical to both schools of practice. Melville, 791 P.2d at 388-89.
If the plaintiff offers competent and credible evidence that the professional standard of care adopted by the school of practice to which the defendant adheres is unreasonably lacking in readily available safeguards offering substantially more protection against the harm caused to the plaintiff, the issue of whether the standard of care adopted by the defendant's school constitutes due care is a question for the jury to resolve under appropriate instructions. If the jury is convinced by a preponderance of the evidence that the standard of care adopted by the defendant's school of practice is unreasonably deficient, it must resolve the issue of the defendant's negligence on the basis of all the evidence concerning the practices and procedures available to the defendant's profession under the circumstances existing at the time of the events in question. If, on the other hand, the jury is not convinced by a preponderance of the evidence that the standard of care adopted by the defendant's school is unreasonably deficient, the jury must accept the standard of the defendant's school of practice as conclusive evidence of reasonable care and must determine the issue of negligence on the basis of the defendant's compliance or noncompliance with that standard.
III.
We turn now to whether, as the court of appeals concluded, UBS's conduct should be measured by the general negligence standard of ordinary reasonable care or whether, as the trial court ruled, UBS's conduct should be measured by a professional standard of care applicable to the blood banking community to which UBS *522 belongs.[9] Resolution of that question requires us to focus on the statutory text of section 13-22-104, 6A C.R.S. (1987), which states in pertinent part as follows:
(1) The availability of scientific knowledge, skills, and materials for the ... transfusion ... of human ... blood, or components thereof[,] is important to the health and welfare of the people of this state. Equally important is the duty of those performing such service or providing such materials to exercise due care under the attending circumstances to the end that those receiving health care will benefit and adverse results therefrom will be minimized by the use of available and proven scientific safeguards. The imposition of legal liability without fault upon the persons and organizations engaged in such scientific procedures may inhibit the exercise of sound medical judgment and restrict the availability of important scientific knowledge, skills, and materials. It is, therefore, the public policy of this state to promote the health and welfare of the people by emphasizing the importance of exercising due care, and by limiting the legal liability arising out of such scientific procedures to instances of negligence or willful misconduct.
(2) The donation, whether for or without valuable consideration, the acquisition, preparation, ... or transfusion of any human ... blood, or component thereof[,] for or to a human being is the performance of a medical service and does not, in any way, constitute a sale. No ... blood bank ... [which] donates, obtains, prepares, ... transfuses, or otherwise transfers, or [which] assists or participates in donating, obtaining, preparing,... transfusing, or transferring any ... blood, or component thereof[,] from one or more human beings, living or dead, to another living human being for the purpose of therapy ... needed by him for his health or welfare shall be liable for any damages of any kind or description directly or indirectly caused by or resulting from any such activity; except that each such person or entity remains liable for his or its own negligence or willful misconduct.
In urging reversal of the judgment of the court of appeals, UBS argues that a professional standard of care, rather than a standard of ordinary and reasonable care, should apply to a blood bank's conduct in procuring and processing human blood for subsequent use in a medical transfusion and that, consistent with that standard, compliance with the customs and practices applicable to the blood banking community to which UBS belongs should be conclusive proof of due care. The Quintanas, in defense of the court of appeals' analysis, contend that blood banking is not a professional medical activity and that, therefore, the reasonableness of UBS's conduct should be measured under ordinary principles of negligence, pursuant to which compliance with the accepted and customary practices of the blood banking community is merely evidence of reasonable care. For reasons hereinafter discussed, we conclude that section 13-22-104 imposes a professional standard of care on a blood bank in procuring and processing human blood for use in a subsequent transfusion during medical treatment but that, under the particular circumstances of this case, such standard should not have been considered as conclusive proof of due care on the part of UBS.
A.
A court's primary task in construing a statute is to give effect to legislative intent or purpose. E.g., Gallegos v. Phipps, 779 P.2d 856, 861 (Colo.1989); Colorado *523 Common Cause v. Meyer, 758 P.2d 153, 160 (Colo.1988). The primary source for statutory interpretation is the statutory text itself. Section 13-22-104 expresses a twofold purpose: one purpose is to foster the development of medical services, and to make those services more available to health care recipients, by relieving blood banks from unduly rigid standards of legal liability; the other is to minimize the risk of harm to health care recipients by requiring a blood bank to exercise due care by utilizing "available and proven scientific safeguards" in its operations.
Because uncontaminated blood and blood components are essential to effective medical care, section 13-22-104(2) defines the acquisition, preparation, or transfusion of blood "for or to a human being" as a performance of a "medical service" and thereby exempts a blood bank from warranty liability arising from the sale of human blood or its components. In addition, by expressly limiting the legal liability of a blood bank to instances of "negligence or willful misconduct," the statute exempts a blood bank from strict liability in tort for a claim predicated on section 402A of the Restatement (Second) of Torts.
Section 13-22-104(1) imposes on a blood bank the duty "to exercise due care under the attending circumstances to the end that those receiving health care will benefit and adverse results therefrom will be minimized by the use of available and proven scientific safeguards." This statutory terminology equates a blood bank's duty of reasonable care with the use of "available and proven scientific safeguards" in acquiring, preparing, or transferring human blood or its components for use in medical treatment. Negligence in the abstract consists of a failure to exercise reasonable care in order to protect others from harm. See generally W. Keeton et. al., Prosser and Keeton on Torts § 31, at 169-70. A blood bank is liable in negligence, therefore, when it fails to make use of, or makes unreasonable use of, available and proven scientific safeguards in the course of acquiring, preparing, or transferring human blood or its components for use in medical treatment.[10]
Because section 13-22-104(2) expressly categorizes the acquisition, preparation, and transfer of human blood or its components for medical transfusion as "the performance of a medical service," the statutory scheme clearly contemplates that a blood bank's conduct in procuring or processing blood is to be measured by a professional standard of care. Although there possibly might be situations where a blood bank's decision to market human blood or its components for use in medical transfusion might solely involve business considerations within the knowledge and experience of the average person, rather than specialized knowledge or skill unique to a scientific discipline, see Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 210 (Colo.1984), we deal in this case with a negligence claim based on a blood bank's failure to properly screen blood donors and to properly test donated blood for the AIDS virus. The acquisition and preparation of human blood for use in medical transfusion and the safeguarding of donated blood against contamination require the exercise of medical and scientific expertise by health care professionals in both the donor screening and the blood testing stages of the process. Any alleged negligence of a blood bank in performing those operations can occur only by reason of the action or inaction of its officers and employees functioning as health care professionals.
We thus hold that UBS's conduct in acquiring and testing the blood subsequently used in treating Mrs. Quintana must be *524 judged by a professional standard of care established by expert testimony. Our conclusion that UBS's conduct involves a professional standard of care finds support in the medical and scientific nature of donor screening and blood testing, in the plain terms of section 13-22-104which, as explained above, classifies a blood bank's operation as a "medical service" and equates reasonable or due care with the use of "available and proven scientific safeguards"and in the case law of other jurisdictions. See, e.g., Sawyer v. Methodist Hosp., 522 F.2d 1102, 1105 (6th Cir.1975) (applying professional standard of care to blood bank); Tufaro v. Methodist Hosp., Inc., 368 So. 2d 1219 (La.App.1979) (reasoning that because a blood transfusion is a medical procedure, the standard of care is logically the same as that applicable to actions of physicians and surgeons); Hutchins v. Blood Services of Montana, 161 Mont. 359, 506 P.2d 449, 451-52 (1973) (applying professional standard of care to blood bank); Doe v. American Red Cross Blood Services, S.C. Region, 297 S.C. 430, 377 S.E.2d 323, 326 (1989) (reasoning that since transfusion of blood is characterized as a medical service, blood collector and processor should be treated as professional).
In April 1983, when the blood donor gave blood to UBS, the blood banking community was organized on a national level and its procedures were based primarily on scientific data promulgated by the Centers for Disease Control, on guidelines issued by the Food and Drug Administration, and on standards developed by the American Association of Blood Banks in conjunction with such groups as the American Red Cross, the Council of Community Blood Centers, and the National Hemophilia Foundation. UBS was a member of this national community and, as such, was subject to a national professional standard applicable to the blood banking community. The court of appeals, therefore, erred by concluding that UBS's conduct should be measured against the general nonprofessional standard of reasonable care rather than the national professional standard of care applicable to the blood banking community of which UBS was a member.
B.
The fact that the court of appeals erred in its adoption of a general standard of reasonable care does not mean that it also erred in ordering a new trial. We are satisfied that the trial court, after having correctly ruled that a professional standard of care applied to UBS's conduct, erroneously applied that standard in a manner that effectively precluded the Quintanas from establishing that the national blood fbanking community's standard of care was itself unreasonably deficient in not incorporating available safeguards designed to provide substantially more protection against the risk of infecting a transfusion recipient with AIDS.
At the time of the events underlying the instant litigation, scientific information on the etiology and epidemiology of AIDS was in the developmental stages. There did not exist at that time what might be characterized as "state of the art" screening and testing procedures, but articles published in 1982 by the Centers for Disease Control clearly suggested that AIDS well might be transmitted through blood and blood products. Three months prior to the blood donation involved in this case, the national blood organizations issued a joint statement suggesting that, in light of the possibility of AIDS transmission by blood transfusion, donor screening should include specific questions calculated to detect the potential donor's possible exposure to AIDS and physical symptoms correlated with AIDS. At about the same time, the National Hemophilia Foundation recommended to the manufacturers of the coagulating agent Factor VIII that they implement direct questioning of blood donors and evaluate and implement surrogate testing of blood in order to reduce the risk of AIDS transmission. Source plasma centers, acting on the above information, began to implement aggressive screening procedures by asking donors if they were homosexual, intravenous drug users, recent arrivals from Haiti, or hemophiliacs, and *525 also began to employ surrogate testing of donated blood. It is also noteworthy that in March 1983, the Food and Drug Administration issued recommendations calculated to decrease the risk of transmitting AIDS through donated blood and source plasma. In the case of whole blood centers, it was specifically recommended that donor screening personnel be educated in recognizing the early signs and symptoms and in directing appropriate questions to donors designed to detect possible AIDS symptoms or exposure to AIDS. The recommendations also stated that the blood center's staff should be informed that "all blood or blood products inadvertently collected... from a donor known or suspected of having AIDS should be considered potentially highly infectious and must be immediately quarantined and disposed of expeditiously unless designated for investigative use related to AIDS." In the case of source plasma centers, the recommendations included, in addition to specific questions designed to detect possible AIDS symptoms or exposure to AIDS, a physical examination of a donor for swollen lymph nodes and monitoring of a donor for significant and unexplained weight loss.
In the instant case, UBS's compliance with the Food and Drug Administration's recommendations and with the guidelines developed by the national blood banking community was some evidence of due care, but was not conclusive proof that additional precautions were not required. See Blueflame Gas, 679 P.2d at 591; Restatement (Second) of Torts § 288C (1965). The record shows that the three expert witnesses from whom the Quintanas unsuccessfully sought to elicit opinion evidenceDoctors Conant, Asher, and Englemanwere sufficiently familiar with the standard of care applicable to the national blood banking community as to render their opinions on the need for additional precautions as well-informed as the opinion of an expert engaged in procuring and processing human blood for use in medical treatment. See Melville, 791 P.2d at 388-89. The Quintanas' expert opinion evidence was calculated to show that the national blood banking community's screening and testing procedures on which UBS relied were unreasonably deficient in guarding against the transmission of the AIDS virus through blood and blood components and that those procedures, in that respect, were not in accordance with the then "available and proven safeguards" designed to be substantially more protective against the risk of transmitting AIDS through contaminated blood. Indeed, given the growing suspicion in the early months of 1983 that the AIDS virus might be transmitted through blood or blood components, and in light of the extreme caution recommended by the Food and Drug Administration and other groups within the blood banking community in dealing with donated blood, as well as the implementation by some blood and plasma centers of substantially stricter screening and testing procedures than those used by the national blood banking community, the significance of the excluded evidence to a fair and informed resolution of this case is compelling.
The trial court's ruling prohibiting the Quintanas from offering expert opinion evidence on the unreasonably deficient character of the blood banking community's screening and testing procedures was tantamount to permitting the blood banking community to establish its own standard of legal liability despite the existence of expert opinion evidence tending to show that the blood banking community had adopted unreasonably deficient practices and procedures in place of substantially more protective and readily available safeguards. We hold, therefore, that the trial court's exclusion of the Quintanas' proffered expert opinion evidence was error. See generally Kirkendall v. Harbor Ins. Co., 698 F. Supp. 768, 779 (W.D.Ark.1988) (recognizing reluctance by courts to allow an industry to set its own standards and concluding that even compliance with regulatory standards does not necessarily preclude a finding that blood bank was negligent in failing to take additional precautions); Vuono v. New York Blood Center, Inc., 696 F. Supp. 743, 747 (D.Mass.1988) (conformity with customs and standards of *526 industry does not establish conclusively the absence of negligence); Townsend v. Kiracoff, 545 F.Supp. at 468 (in a medical malpractice action, plaintiff entitled to prove that entire community's custom was negligent); Nesbitt v. Community Health of South Dade, Inc., 467 So. 2d 711, 714-15 (Fla.App.1985) (holding that even in malpractice cases customary methods of conduct are merely evidence of standard of care and do not conclusively establish absence of negligence); Chiero v. Chicago Osteopathic Hosp., 74 Ill.App.3d 166, 29 Ill. Dec. 646, 652, 392 N.E.2d 203, 209 (1979) (stating that in a professional medical malpractice case evidence that defendant's conduct conformed with general custom is indicative of due care, but may be overcome by evidence that prevailing custom was itself negligent); Lundahl v. Rockford Memorial Hosp. Ass'n, 93 Ill.App.2d 461, 235 N.E.2d 671, 674 (1968) (stating that the usual and customary medical procedure might itself be negligent); Favalora, 144 So.2d at 550-51 (holding that conformity with standard of care observed by other medical authorities in the same community is not a defense to malpractice when entire community's custom is negligent); Vassos v. Roussalis, 625 P.2d 768, 772 (Wyo.1981) (stating that the skill, diligence, and knowledge required of a professional are not those "customarily" exercised and applied but those that are "reasonably" exercised and applied and that negligence cannot be excused on the grounds that others practiced the same kind of negligence).
C.
In sanctioning the admissibility of the Quintanas' expert opinion evidence, we, of course, express no opinion on whether the blood banking community's standard of care was in fact unreasonably deficient or whether UBS was negligent in not utilizing a stricter regimen of donor screening and blood testing. We simply hold that the trial court should have permitted the Quintanas to present expert opinion testimony challenging the standard of professional care on which UBS relied in its operations. If the Quintanas had been permitted to present their expert opinion evidence, the jury then would have been required to consider whether the blood banking community's standard of care was indeed adequate and, if so, to resolve whether UBS adhered to that standard in procuring and processing the blood donation later used in treating Mrs. Quintana. If the jury had determined that the national blood banking community's standard was itself unreasonably deficient, it would have been required to resolve the issue of UBS's negligence on the basis of all the evidence bearing on UBS's conduct in procuring and processing the blood donation in question, including the data generated by the Centers for Disease Control, the Food and Drug Administration's recommendations for whole blood centers and source plasma centers, the data and recommendations generated by various groups within the national blood banking community, and the practices employed by particular entities in attempting to minimize the risk of transmitting AIDS through blood and plasma transfusion.
D.
The detrimental effect of the trial court's erroneous evidentiary ruling on the Quintanas' negligence claim was exacerbated by two jury instructions on the standard of care. Instruction No. 20 defined negligence as the failure of UBS to meet the standard of the professional community to which it belongedwhether that community be the whole blood bank community or the source plasma communityas determined by the testimony of experts. This same theme was echoed in Instruction No. 21, which told the jury that UBS, whether considered as a member of the whole blood community or the source plasma community, would not be negligent as long as its procedures were consistent with the standard of care utilized by the community to which it belonged. In addition, Instruction No. 21 told the jury that where different procedures were routinely available to and used by the blood banking community in accordance with the community's standard of care, UBS could choose from among those different procedures as long as it used its best judgment in making that *527 choice. The cumulative effect of these instructions was to create an irrebuttable presumption that UBS's compliance with the practices and procedures of the blood banking community constituted due care, regardless of whether those practices and procedures were themselves unreasonably deficient in failing to utilize available scientific safeguards designed to minimize the risk of transmitting AIDS through contaminated blood or its components.
We agree with the court of appeals' conclusion, therefore, that the trial court, under the particular circumstances of this case, erred in precluding the Quintanas from offering expert opinion evidence tending to establish the negligently deficient standard of care utilized by the national blood banking community in procuring and processing blood and its components and that the trial court further erred in instructing the jury that UBS's compliance with the blood banking community standard of care established, as a matter of law, due care and the absence of any negligence. We accordingly affirm the judgment of the court of appeals and, for the reasons stated herein, we remand the case to that court with directions to return the case to the district court for a new trial in accordance with the views herein expressed.
NOTES
[1] The Quintanas also intended to present evidence at trial concerning the screening and testing practices used by source plasma centers which, in contrast to a non-profit whole blood center such as UBS, harvest plasma from paid blood donors into units of "source plasma" for further manufacturing into various plasma derivatives, only some of which are used for therapeutic purposes. UBS took the position that source plasma centers and whole blood centers are separate and distinct industries and that the standard of care applicable to its operation in screening blood donors and in testing donated blood should be based on the practices of the blood banking industry, rather than the source plasma collection and manufacturing industry and that, therefore, all evidence involving the practices and procedures of source plasma centers should be excluded. The trial court ruled that the blood banking community included both whole blood centers and source plasma centers and, at the trial phase of the case, relegated to the jury the determination of whether UBS belonged to one or the other of these groups within the blood banking community.
[2] The American Red Cross collects approximately one-half of the nation's whole blood supply and is the nation's largest blood bank. Most other blood banks are smaller regional or community blood banks that are organized into the American Association of Blood Banks and the Council of Community Blood Centers. These three organizationsthe American Red Cross, the American Association of Blood Banks, and the Council of Community Blood Centersaccount for most of the 13 million units of blood collected from volunteer donors in the United States each year. The American Blood Resources Association represents the United States commercial plasma industry.
[3] Evidence at trial indicated that the various surrogate tests would correctly identify between 66 percent and 88 percent of AIDS-infected donors. The tests, however, had a two to five percent false-positive rate, which would result in a rejection of uninfected blood and would thereby diminish the nation's blood supply. One surrogate test is the Hepatitis B Core Antibody Test, which screens for antibodies to hepatitis, a disease frequently present in people with AIDS. Another surrogate test is the T-4/T-8 Cell Ratio Test. There are two types of T-cells, helper cells that turn on the immune system and suppressor cells that shut down the system. Because AIDS patients may have a greater number of suppressor cells than helper cells, the T-4/T-8 surrogate test can be used to check for the presence of this condition associated with persons infected with the AIDS virus.
[4] The FDA regulations then in effect, 21 CFR §§ 600-680 (1983), dealt generally with the standard operating procedures that blood banks and plasma centers were required to follow in collecting and processing blood and blood components and in testing for diseases known to be transmitted via blood, such as hepatitis. The FDA regulations did provide, however, that any facility could use the standard operating procedures of associations such as the American Association of Blood Banks and the American Red Cross, so long as "such specific procedures are consistent with and at least as stringent as [FDA] requirements." 21 CFR § 606.100(d).
[5] As previously indicated, UBS is an operating division of Blood Systems, Inc.
[6] Although the trial court precluded Doctor Asher from offering his opinion on the unreasonably deficient screening and testing procedures used by the blood banking industry, the court did permit the doctor to testify concerning the relationship between whole blood centers and source plasma centers and what the standard of care for the entire industry was in 1983.
[7] The Quintanas also had filed malpractice claims against two of Mrs. Quintana's treating physicians. The jury returned a verdict for Mrs. Quintana against one of the physicians for $55,000 and a verdict for Mr. Quintana in the amount of $15,000 for loss of consortium. Those claims are not involved in any way in the instant proceeding.
[8] In some situations the General Assembly has elected to impose a standard of care substantially different from the standard which otherwise would apply under judicially developed tort doctrine. See, e.g., § 12-47-128.5, 5B C.R.S. (1991) (abolition of common-law action against vendor of alcoholic beverages for injury to purchaser or others caused by purchaser's intoxication, except where vendor willfully and knowingly sold or served alcoholic beverages to purchaser under age or visibly intoxicated); § 13-21-115, 6A C.R.S. (1991 Supp.) (landowner liable in tort to trespassers only for injuries willfully or deliberately caused); § 13-21-117, 6A C.R.S. (1987) (mental health care professional not liable in tort for damages resulting from failure to warn any person of mental health patient's violent behavior except where patient has communicated to health care professional a serious threat of imminent physical violence against specific person or persons).
[9] We previously considered the tort liability of a hospital for furnishing defective blood for transfusion to a patient, St. Luke's Hosp. v. Schmaltz, 188 Colo. 353, 534 P.2d 781 (1975), and also the warranty liability of a blood bank for the sale of contaminated blood, Belle Bonfils Memorial Blood Bank v. Hansen, 195 Colo. 529, 579 P.2d 1158 (1978), and still later in Belle Bonfils Memorial Blood Bank v. Hansen, 665 P.2d 118 (Colo.1983), the applicability of the "unavoidably unsafe product" defense to a strict liability claim predicated on section 402A of the Restatement (Second) of Torts. These cases, however, involved transactions that occurred prior to the enactment of section 13-22-104 in 1971.
[10] Willful misconduct consists of conduct purposely committed under circumstances where the actor realizes that the conduct is dangerous but nonetheless engages in the conduct without regard to the safety of others. See Tri-Aspen Constr. Co. v. Johnson, 714 P.2d 484, 486 (Colo. 1986). A blood bank acts with willful misconduct when it purposely fails to make use of, or purposely makes improper use of, available and proven scientific safeguards in acquiring, preparing, or transferring human blood or its components for use in medical treatment and when it does so with a reckless disregard of the harmful effects that its conduct can cause to the recipient of its product.
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418 S.E.2d 729 (1992)
Timothy E. JOHNSON
v.
COMMONWEALTH of Virginia.
Record No. 0009-91-2.
Court of Appeals of Virginia.
June 23, 1992.
*730 Murray J. Janus (Deanna L. Dworakowski, Bremner, Baber & Janus, on brief), for appellant.
Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: BENTON, WILLIS and ELDER, JJ.
WILLIS, Judge.
Timothy E. Johnson was found guilty of failing to stop at the scene of an accident in violation of Code § 46.2-894. He was sentenced to ten years imprisonment, suspended on condition of good behavior. On appeal, he contends that the evidence was insufficient to convict him. We disagree and affirm the judgment of the trial court.
On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.
Josephs v. Commonwealth, 10 Va.App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc) (citation omitted).
Two weeks prior to the subject incident, Johnson and his wife separated. Mrs. Johnson left, taking their two young sons with her. On May 4, 1990, without notice to or prior arrangement with his wife, Johnson picked up his six year old son, Brad, from school. Learning of this, Mrs. Johnson's mother, Mrs. Dickerson, notified Mrs. Johnson, who called the police. Mrs. Dickerson and Mrs. Johnson then went to Johnson's home, finding him there with Brad.
After arguing with his wife, Johnson took Brad and got into his car. Mrs. Dickerson asked him to wait for the police, and Mrs. Johnson asked him to let Brad out of the car. Johnson told Mrs. Dickerson, who was at the front of the car, to get out of the way or he would "run [her] over." He backed up several feet and then accelerated forward. Mrs. Johnson jumped out of the way, but Mrs. Dickerson was struck by the car and fell to the ground. Johnson drove off without stopping or offering assistance. Mrs. Dickerson suffered abrasions on her right arm and right knee and bumps on her head. She was taken by ambulance to Johnston-Willis Hospital for treatment.
Code § 46.2-894 provides in pertinent part:
The driver of any vehicle involved in an accident in which a person is ... injured... shall immediately stop ... and report his name, address ... to the person struck.... The driver shall also render *731 reasonable assistance to any person injured in such accident.
Johnson first contends that the Commonwealth failed to prove that he violated Code § 46.2-894. He argues that the purpose of the statute is twofold: to require drivers involved in accidents to identify themselves; and to require drivers to render necessary aid. He argues that, because the victim already knew who he was, he was not required to identify himself. Thus, he contends, the first objective of Code § 46.2-894 was inapplicable to his case. He further argues that, because of the antagonism between him and Mrs. Dickerson, any attempt on his part to have rendered her aid would have been rebuffed and would, probably, have exacerbated the situation. Thus, he argues, the second objective of the statute did not apply.
Johnson places too narrow a construction on the statute. It addresses more than the relationship between a driver and the victim of an accident. The identification requirement is intended to facilitate accident investigation and to preserve public order. The assistance requirement advances public safety. It is not dependent upon the victim's desire to receive aid. Injury may allay contentiousness, and an injured antagonist may be glad to receive aid from any quarter. The record does not disclose that Mrs. Dickerson would have rejected aid from Johnson. The statute proclaims "the clear legislative intent ... that every [driver] involved in a motor vehicle accident stop at the scene of the accident to exchange information and render reasonable assistance to any person injured...." Smith v. Commonwealth, 8 Va.App. 109, 115, 379 S.E.2d 374, 377 (1989). Johnson has not raised in this appeal any issue of justification or excuse.
Johnson finally argues that the evidence did not establish that he knew that Mrs. Dickerson was injured. He contends that without such knowledge, he could not be found guilty. See Herchenbach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328 (1946).
[I]n order to be guilty of violating the statute, "the driver must be aware that harm has been done; it must be present in his mind that there has been an injury; and then, with that in his mind, he must deliberately go away without making himself known. If an injury is inflicted under such circumstances as would ordinarily superinduce the belief in a reasonable person that injury would flow, or had flowed, from the accident or collision, then it is the duty of the operator to stop his vehicle."
Id. at 220, 38 S.E.2d at 329 (citations omitted).
Viewed in the light most favorable to the Commonwealth, the evidence established that Johnson threatened to run over Mrs. Dickerson. He then reversed his car and, while she was in front, drove forward, hitting her and knocking her down. These circumstances support the trial court's determination that Johnson knew or should have known that his car had struck Mrs. Dickerson and that she may have been injured. That judgment was not plainly wrong or without evidence to support it.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
BENTON, Judge, concurring.
I concur in the judgment affirming the conviction; however, I do not join in the paragraph of the opinion that addresses the construction of the statute. In that paragraph, the majority expresses views that I do not believe are supported by the law or the facts of this case.
Timothy E. Johnson seeks to have this Court conclude that because the incident involved a family conflict, a greater disturbance would have occurred if he had stopped to render assistance. He contends that the potential for greater conflict was justification for not stopping and rendering assistance. See generally W. LaFave & A. Scott, Handbook on Criminal Law §§ 49-50 (1972). However, the record clearly establishes that, at trial, Johnson defended against the prosecution on the basis that he was not aware that his automobile struck Dickerson. He testified that he "certainly *732 would have" stopped his automobile if he had known his automobile had hit Dickerson. After trial, in a motion to reconsider and set aside the verdict, Johnson's new counsel first raised the issue of the volatility of family disputes as a justification for not stopping.
It is not difficult to conceive of exigent and volatile circumstances in which a driver may well be justified in violating the statutory command to stop and render assistance. That justification, however, must be based upon compelling circumstances shown to exist at the time of the incident and not upon a generalized notion that family quarrels are per se more violent than other confrontations. Because Johnson testified that, had he known his automobile had hit Dickerson, he would have stopped, the evidence in the record does not support his contention that this family quarrel was a compelling reason not to stop. Johnson's own testimony refutes the argument now advanced on appeal. Moreover, no evidence proves that Johnson had a reasonable basis to fear that by stopping and rendering assistance he would have caused a greater confrontation. Thus, the facts in the record do not prove a sufficient justification for Johnson's failure to stop and render assistance.
I agree with the majority that upon the evidence in the record the trial judge did not err in concluding that Johnson knew or should have known that his automobile struck Dickerson. Accordingly, I would also affirm the conviction.
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330 S.C. 447 (1998)
499 S.E.2d 238
Linda L. ETHEREDGE, as Personal Representative of the Estate of Ernest Dunlap, III, Deceased, Appellant,
v.
RICHLAND SCHOOL DISTRICT I, Respondent.
No. 2823.
Court of Appeals of South Carolina.
Heard March 4, 1998.
Decided March 30, 1998.
Rehearing Denied May 21, 1998.
*448 Henry Hammer and John W. Carrigg, Jr., of Hammer, Hammer, Carrigg & Potterfield; and Douglas N. Truslow, Columbia, for Appellant.
Donald V. Richardson, Georgia Anna Mitchell, Charles E. Carpenter, Jr., and Tara S. Taggart, all of Richardson, Plowden, Carpenter & Robinson, Columbia, for Respondent.
ANDERSON, Judge:
Linda L. Etheredge, as personal representative of the estate of Ernest Dunlap, III (Etheredge), appeals from the trial court's order granting summary judgment to Richland School District I (School District). We reverse and remand.
FACTS/PROCEDURAL BACKGROUND
On January 25, 1994, Floyd Brown, a student at Eau Claire High School, shot and killed Dunlap, a student at the school. *449 Dunlap was shot while standing in the hallway during class change. Eau Claire High School is in the Richland County School District.
Etheredge, as personal representative of Dunlap's estate, filed this action against the Richland County School District alleging causes of action for wrongful death and survival damages arising from the shooting death of Dunlap. In the complaint, Etheredge maintained that, as Dunlap lay "in agony and pain on the floor from the gunshot wounds, [Adrian Hammond] ruthlessly and violently kicked [Dunlap] about the head and face until blood flowed from his mouth and nose." The School District averred the actions were barred by the South Carolina Tort Claims Act.[1] The School District moved for summary judgment. At the summary judgment hearing, the School District submitted the affidavits of two Eau Claire High School employees: (1) Dorothy Walker, a teacher and (2) Ellen Mosely, the principal at the time of the shooting. Etheredge submitted the affidavit of Harland Brown, one of the campus monitors employed by the school.
According to Mosely, "[o]n January 20, 1993, school officials did find a pistol in Earnest [sic] Dunlap's possession." Further, "[o]n January 25, 1994, Adrian Hammond was on suspension. [Mosely] had not given [her] approval for Adrian Hammond to be present on campus that day."
Brown worked as a campus monitor at Eau Claire High School from September of 1993 until February of 1994. Brown's job encompassed "breaking up fights and preventing drugs and alcohol on the premises at the high school, to keep the hallways clear and provide security for the school." The School District employed only two campus monitors to enforce security inside and outside Eau Claire High School, which housed a student body of approximately 800-1000 students on three floors.
Brown received no training from the School District or Eau Claire High School regarding maintaining safety and security at the school. Further, Brown was not provided the proper equipment "to handle the situation that existed with the students." According to Brown, the School District had no *450 policies, procedures, or other methods in effect to maintain control of the school or to ensure the safety and security of the students. If such policies existed, they were never communicated to Brown. He stated, in order to properly perform his duties involving security on the campus and inside the school, he "would have needed to have been given equipment such as a uniform; a badge to display authority; possibly a side arm; certainly a night stick; flash light; chemical mace; handcuffs and/or other restraining devices and appropriate communication equipment." The only equipment supplied to Brown was a walkie-talkie.
Odell Sumter, the other campus monitor, "was as illequipped to enforce the security" as was Brown. Brown declared he asked the principal and assistant principals, on numerous occasions, to provide appropriate equipment, such as night sticks and mace, to assist him in doing his job. Neither Brown nor Sumter received any of the requested equipment. They were told to "do the best [they] could." Brown was "never given the authority to search the persons, book bags or lockers of the students even though that would have been necessary for [him] to properly provide security in the building."
In his affidavit, Brown averred:
At and around the time the shooting occurred, the situation at Eau Claire High School was very volatile. I observed students curse at teachers; I observed students push and shove teachers; students were bringing weapons such as knives on campus; I regularly smelled the odor of marijuana and alcohol in the hallways; I regularly saw liquor bottles almost daily at the school. I once witnessed five (5) guys rush into a classroom and jump on one of the students while class was in session. At least twice a week, I would observe students in a drunken state; on a daily basis, I observed students under the influence of drugs and/or alcohol. On one occasion, I witnessed students involved in explicit sexual activity on the school grounds. I reported all of this and still nothing was done.
Students apprehended for criminal activity were never disciplined in a manner consistent with the severity of their offense. Usually, they were given detention or some other *451 minor punishment. Brown asserted "the students were in control of the school" and the "security was totally ineffective." Two people "were charged with trying to maintain security on three (3) halls, on three (3) different floors with almost one thousand (1,000) students, and [they] were also charged with maintaining security for the remainder of the campus." He stated his job was "almost impossible to do and the later shooting of Ernest Dunlap was an inevitability given the situation at the school at that time."
The trial court granted summary judgment to the School District based on S.C.Code Ann. § 15-78-60 (Supp.1996). The court explicitly relied upon five subsections of § 15-78-60: subsections (4), (5), (9), (20), and (25). Etheredge filed a motion to reconsider, which the court denied.
ISSUE
Did the trial court err in granting summary judgment to the School District?
STANDARD OF REVIEW
Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); True v. Monteith, 327 S.C. 116, 489 S.E.2d 615 (1997); Rule 56(c), SCRCP. See also Standard Fire Ins. Co. v. Marine Contracting and Towing Co., 301 S.C. 418, 392 S.E.2d 460 (1990) (motion for summary judgment shall be granted if pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law). In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Summer, supra; Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 443 S.E.2d 392 (1994); Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455 (Ct.App.1997). See also Bates v. City of Columbia, 301 S.C. 320, 391 S.E.2d 733 (Ct.App.1990) (in determining whether to grant summary judgment, pleadings and documents on file *452 must be liberally construed in favor of nonmoving party who must be given benefit of all favorable inferences that might reasonably be drawn from record). If triable issues exist, those issues must go to the jury. Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991).
Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Tupper, supra; Koester, supra, Gilliland v. Elmwood Properties, 301 S.C. 295, 391 S.E.2d 577 (1990). See also Hamilton v. Miller, 301 S.C. 45, 389 S.E.2d 652 (1990) (trial court should deny summary judgment if there is genuine issue as to conclusions or inferences to be drawn from undisputed evidentiary facts). However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Trico Surveying, Inc. v. Godley Auction Co., 314 S.C. 542, 431 S.E.2d 565 (1993); Rothrock, supra; Pye, supra. All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the movant. True, supra; Tupper, supra; Baugus, supra.
The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact. Baughman v. American Tel. and Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991); Standard Fire Ins. Co., supra. For summary judgment to be granted, it must be perfectly clear no issue of fact is involved. Piedmont Engineers, Architects and Planners, Inc. v. First Hartford Realty Corp., 278 S.C. 195, 293 S.E.2d 706 (1982). See also State ex rel. McLeod v. Brown, 278 S.C. 281, 294 S.E.2d 781 (1982) (summary judgment should be granted only where it is perfectly clear no issue of fact is involved). With respect to an issue upon which the nonmoving party bears the burden of proof, this initial responsibility may be discharged by showing the trial court there is an absence of evidence to support the nonmoving party's case. Baughman, supra. The moving party need not *453 support its motion with affidavits or other similar materials negating the opponent's claim. Id.
Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest upon mere allegations or denials contained in the pleadings. Id.; SSI Medical Servs., Inc. v. Cox, 301 S.C. 493, 392 S.E.2d 789 (1990); NationsBank v. Scott Farm, 320 S.C. 299, 465 S.E.2d 98 (Ct.App.1995). Rather, the nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Baughman, supra; Rule 56(e), SCRCP. See also Klippel v. Mid-Carolina Oil, Inc., 303 S.C. 127, 399 S.E.2d 163 (Ct.App.1990) (when party moves for summary judgment and supports motion by affidavits, adverse party may not rest on allegations of pleadings but must respond by affidavits or other evidence demonstrating genuine issue of material fact).
The plain language of Rule 56(c), SCRCP, mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who falls to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. Baughman, supra. In such a situation, there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id. The moving party is entitled to judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of the case. Id.
Because it is a drastic remedy, summary judgment should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues. Id.
LAW/ANALYSIS
Etheredge contends the trial court erred in granting summary judgment in favor of the School District. She asserts there are genuine issues of material fact concerning whether the School District was grossly negligent in the exercise of its duties, including but not limited to the supervision, protection and control of the students in its custody. Further, Etheredge *454 maintains the actions are not barred by S.C.Code Ann. § 15-78-60(4), (5), (9), (20) and (25).
I. Duty to Student Exercised in Grossly Negligent Manner
The South Carolina Tort Claims Act, S.C.Code Ann. § 15-78-10, et seq. (Supp.1997), which provides the exclusive remedy in tort against the School District, is a limited waiver of governmental immunity. Moore v. Florence Sch. Dist. No. 1, 314 S.C. 335, 444 S.E.2d 498 (1994). See also S.C.Code Ann. § 15-78-20(b) (Supp.1997) (while acting within scope of official duty, the State, its political subdivisions, and employees are immune from liability and suit for any tort except as waived by Tort Claims Act); S.C.Code Ann. § 15-78-40 (Supp.1997) ("The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein.").
South Carolina Code Ann. § 15-78-60 (Supp.1997) sets out thirty-two exceptions to the waiver of sovereign immunity. Subsection (25) of § 15-78-60 provides a governmental entity is not liable for loss resulting from "responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any student ... except when the responsibility or duty is exercised in a grossly negligent manner." S.C.Code Ann. § 15-78-60(25) (Supp.1997) (emphasis added). See also Clyburn v. Sumter County School Dist. # 17, 317 S.C. 50, 451 S.E.2d 885 (1994) (quoting S.C.Code Ann. § 15-78-60(25) (Supp.1993)). The burden of establishing a limitation upon liability or an exception to the waiver of immunity is upon the governmental entity asserting it as an affirmative defense. Strange v. South Carolina Dept. of Highways and Public Transp., 314 S.C. 427, 445 S.E.2d 439 (1994); Doe by Roe v. Orangeburg County Sch. Dist. No. 2, 329 S.C. 221 495 S.E.2d 230 (Ct.App.1997); Wooten v. South Carolina Dep't of Transp. ., 326 S.C. 516, 485 S.E.2d 119 (Ct.App.1997).
South Carolina courts have defined gross negligence in a number of ways. Gross negligence is the intentional, conscious *455 failure to do something which one ought to do or the doing of something one ought not to do. Clyburn, supra; Hollins v. Richland County Sch. Dist. One, 310 S.C. 486, 427 S.E.2d 654 (1993); Richardson v. Hambright, 296 S.C. 504, 374 S.E.2d 296 (1988); Ford v. Atlantic Coast Line R.R., 169 S.C. 41, 168 S.E. 143 (1932), aff'd 287 U.S. 502, 53 S. Ct. 249, 77 L. Ed. 457 (1933); Brooks v. Northwood Little League, Inc., 327 S.C. 400, 489 S.E.2d 647 (Ct.App.1997); Rakestraw v. South Carolina Dept. of Highways and Public Transp., 323 S.C. 227, 473 S.E.2d 890 (Ct.App.1996); Smart v. Hampton County Sch. Dist. No. 2, 315 S.C. 192, 432 S.E.2d 487 (Ct.App. 1993). Gross negligence is a relative term which means the absence of care that is necessary under the circumstances. Hollins, supra; Hicks v. McCandlish, 221 S.C. 410, 70 S.E.2d 629 (1952); Moore v. Berkeley County Sch. Dist., 326 S.C. 584, 486 S.E.2d 9 (Ct.App.1997); Rakestraw, supra; Smart, supra. It connotes the failure to exercise a slight degree of care. Wilson v. Etheredge, 214 S.C. 396, 52 S.E.2d 812 (1949); Moore, supra; Grooms v. Marlboro County Sch. Dist., 307 S.C. 310, 414 S.E.2d 802 (Ct.App.1992). Gross negligence is the failure to exercise slight care. Clyburn, supra; Hollins, supra; Richardson, supra; Anderson v. Ballenger, 166 S.C. 44, 164 S.E. 313 (1932); Doe, supra; Rakestraw, supra; Smart, supra. Where a person is so indifferent to the consequences of his conduct as not to give slight care to what he is doing, he is guilty of gross negligence. Grooms, supra; Jackson v. South Carolina Dep't of Corrections, 301 S.C. 125, 390 S.E.2d 467 (Ct.App.1989), aff'd 302 S.C. 519, 397 S.E.2d 377 (1990). Gross negligence involves a conscious failure to exercise due care. Jackson, supra.
This Court addressed the "gross negligence" issue in Grooms v. Marlboro County Sch. Dist., 307 S.C. 310, 414 S.E.2d 802 (Ct.App.1992). In 1986, Grooms was an educable, mentally handicapped, fifteen year old in the sixth grade. Pursuant to an individual education plan developed by the School District, Grooms, with his parents' consent, was placed in 1987 in the ninth grade at McColl-Fletcher Memorial High School in Marlboro County. After Grooms became a discipline problem, the School District tested him and decided to place him in a self-contained class for educable, mentally *456 handicapped students at Bennettsville High School. His parents approved the decision on October 22, 1987.
Grooms was to begin attending the new class on November 16, 1987. In the meanwhile, McColl-Fletcher's principal, who knew Grooms to be mentally handicapped and was aware of his disruptive behavior, instructed Grooms he could skip a class if he "`felt like he was getting into a situation that was going to cause him trouble'" and that he was to report to a school janitor and "`stay with him until he felt like he could go back into the class and behave.'" Grooms, 307 S.C. at 312, 414 S.E.2d at 804. On November 11, 1987, while in the company of a janitor and during a time when students were expected to be in class, Grooms and another student began wrestling in a hallway. The janitor did nothing to stop them from wrestling with each other, choosing instead to stand by and watch. Grooms was severely injured when he landed on top of his head. He stayed in the hospital for several weeks.
Grooms sued the School District under the South Carolina Tort Claims Act for injuries he received while under the supervision of the school janitor. The trial court granted summary judgment to the School District on the grounds (1) Grooms presented no evidence the School District exercised in a grossly negligent manner its duty to supervise students in its school and (2) the loss suffered by Grooms resulted from an exercise of discretion by the School District. In reversing and remanding, this Court decided:
The trial court erred in concluding the record contains no evidence that the school district exercised in a grossly negligent manner its duty to supervise students in its school. See S.C.Code Ann. § 15-78-60(25) (Supp.1991)....
....
Here, the record contains evidence sufficient to create a genuine issue of fact regarding the question of whether the school district exercised in a grossly negligent manner its duty to supervise students in its schools. The school district's principal permitted [Grooms], a mentally-handicapped student with a behavior problem, to be supervised by a school janitor; it allowed [Grooms] himself to decide when he would be under a janitor's supervision; [Grooms], while under the supervision of a janitor and as the janitor stood *457 by and watched, wrestled with another student in a school hallway during a time when all students were expected to be in class; and [Grooms] was severely injured in the process.
Grooms, 307 S.C. at 313-14, 414 S.E.2d at 804.
In Doe by Roe v. Orangeburg County Sch. Dist. No. 2, 329 S.C. 221, 495 S.E.2d 230 (Ct.App.1997), Doe, a fourteen year old student at Bowman High School in Orangeburg, reported to her guidance counselor she had been sexually assaulted on February 16, 1994, by a sixteen year old male special education student. On the morning of the assault, the male student and several other boys were cleaning the school gymnasium under the supervision of Coach Johnnie Culbreath. In response to a phone call from another school requesting information about Bowman's athletic department, Culbreath left the boys in the gym and drove to the district office to fax some documents.
While Culbreath was gone, Doe walked through the gym on the way to deliver an attendance sheet to the main office for her homeroom teacher. Doe alleged the male student pulled her into the girls locker room and raped her. Immediately thereafter, Doe went to a friend's classroom and told both the friend and the teacher about the incident. She then reported it to her guidance counselor, the principal, the assistant principal, and the school nurse. The assistant principal and school nurse accompanied Doe to the police department, and then to Orangeburg Regional Medical Center, where a rape-protocol exam was performed.
Doe filed an action against the School District for negligent supervision. The jury returned a verdict in favor of Doe for $20,000, and in favor of her mother, Mary Roe, for $20,000. On appeal, the School District argued there was insufficient evidence of its gross negligence to warrant submission of the case to the jury. This Court disagreed and held:
The school district argues it exercised at least slight care in supervising its students and that it was not reasonably foreseeable that a male student would engage in a sexual assault upon another student. We disagree. It is undisputed that the male students were alone in the gym for at least fifteen minutes while the teacher charged with the responsibility of supervising left the school. The male student *458 involved in the attack was a special education student who had prior disciplinary violations at school, at least one of which involved the improper touching and feeling of girls.
Viewing the evidence in the light most favorable to Doe, we conclude there was sufficient evidence to create a jury question as to whether the school district acted in a grossly negligent manner.
Doe, 329 S.C. at 224, 495 S.E.2d at 232.
Here, the record contains evidence sufficient to create genuine issues of fact regarding the question of whether the School District exercised its duties, including but not limited to the supervision, protection, and control of the students in its custody, in a grossly negligent manner. First, in the answer, the School District admitted "that prior to this incident, Ernest Dunlap, III's actions toward the pupil who shot him created a belief by that pupil that such pupil was in imminent danger of losing his life or sustaining serious bodily injury."
Further, as demonstrated by Harland Brown's affidavit, there is a plethora of facts in dispute. At the time of the shooting, the School District employed only two campus monitors, who had no training or proper equipment to provide for the supervision, protection and control of approximately 800-1000 students at Eau Claire High School, which consisted of classrooms and hallways on three floors. Brown, one of two campus monitors at the school, stated that at and around the date the shooting occurred and for some time prior thereto, the situation at the high school was very volatile and the students essentially were in control. Brown observed students curse at and push and shove teachers. Students brought weapons, such as knives, on campus. On one occasion, Brown witnessed five male students rush into a classroom and assault one of the students while class was in session. Brown regularly smelled the odor of marijuana and alcohol in the hallways and saw liquor bottles nearly every day at the school. He observed students under the influence of drugs and/or alcohol on a daily basis and once witnessed students involved in explicit sexual activity on the school grounds.
Brown reported all of these incidents and conditions to the School District, but the School District took no action to *459 correct the situation. Students apprehended for criminal activity were never disciplined in a manner consistent with the severity of their offense. Usually, they were given detention or some other minor punishment, which Brown felt led to an air of instability and chaos. The School District had no policies, procedures or other methods in effect to maintain control of the school or insure the safety of the students. If such policies existed, they were never communicated to Brown.
According to Brown, the School District's efforts to maintain security at the school were totally ineffective. On numerous occasions, Brown requested equipment such as a uniform, a badge to display authority, a side arm, a night stick, a flashlight, chemical mace, and handcuffs or other restraining devices necessary for him to properly perform his job. The School District denied Brown's requests for equipment. Further, the School District failed to authorize Brown to search the students, their book bags, or lockers, all of which was necessary to provide proper security.
The School District relies on Hammond v. Scott, 268 S.C. 137, 232 S.E.2d 336 (1977), as the "most telling case" in support of its assertion the trial court properly granted summary judgment to the School District. In Hammond, Scott, a student in a woodworking shop class at school, attempted to throw a nail into a trash barrel. Instead, the nail struck Hammond, a fellow student, in the eye. At the time of the incident, the teacher was in an adjacent room. On previous occasions, students had thrown objects into the trash barrel from a few feet away. The practice was not sanctioned by the teacher and any student caught throwing objects into the trash barrel would be called down. All of the students knew this was a forbidden act and Scott had been admonished once before. The teacher had instructed the students to drop items into the trash barrel rather than throw them at it.
Hammond filed a negligence action against Scott and the shop teacher. The trial court granted summary judgment to the teacher. The Supreme Court affirmed the trial court and concluded there was only one reasonable inference arising from the evidence: the teacher acted reasonably under the *460 circumstances and therefore was, as a matter of law, not negligent.
Hammond is distinguishable from the case sub judice. First, Hammond was not decided under the Tort Claims Act. Second, there were no ill feelings between Scott and Hammond. Third, Hammond stated the occurrence was an accident.
Further, the School District cites Clyburn v. Sumter County Sch. Dist. # 17, 317 S.C. 50, 451 S.E.2d 885 (1994), in which the Supreme Court affirmed the granting of summary judgment to the School District in a Tort Claims Act case. Fernaudra Clyburn, a high school student, filed a negligence action, pursuant to the Tort Claims Act, against the School District for injuries she received when a nonstudent, Johnnie Mae Witherspoon (Assailant), attacked her with a knife on the school bus. The trial court granted summary judgment to the School District finding the facts viewed in the light most favorable to Clyburn showed school officials exercised, at the very least, slight care and the School District could not be held liable. In affirming, the Supreme Court held the School District was not grossly negligent in its handling of the dispute and, thus, under the governmental immunity statute, the School District was not liable for Clyburn's injuries.
The factual circumstances here are readily distinguishable from Clyburn. In Clyburn, the School District intervened approximately ten times. Here, the School District did not intervene, nor did it take any action to guard against Dunlap being injured by Brown. The school itself created a risky atmosphere by failing to provide adequate security measures.
Clyburn and Sylvia Witherspoon were high school student passengers on a Sumter County School District bus. On Thursday, October 25, 1990, an altercation between Clyburn's niece and Sylvia ensued after Sylvia exited the bus. The first instance of intervention occurred when the bus driver refused to allow Clyburn to get off the bus at that stop, but permitted her to exit at her regular stop. Clyburn returned to the area where her niece and Sylvia had been arguing and encountered, among others, Johnnie Mae Witherspoon (Assailant), the nonstudent adult sister of Sylvia. A fight then ensued between Clyburn and Assailant.
*461 The next morning, Assailant and her mother boarded the bus. The second act of intervention occurred when the driver, after noticing the two on the bus, immediately told them to leave. They ignored the driver's orders, however, and proceeded to where Clyburn was seated and threatened her. The third example of intervention happened when the driver followed and again ordered them to exit the bus. As the mother and Assailant left the bus, the driver heard Assailant threaten Clyburn, "Bitch, we will meet again." The fourth instance of intervention occurred when, upon arrival at school, the driver told Lamar Atkins, the District's Director of Transportation Services, about the incident and that Assailant had told Clyburn they would meet again. Atkins also was told of the Thursday afternoon incident. Upon hearing of the altercation between Assailant and Clyburn, Atkins immediately took many steps to control the situation.
As a fifth example of the School District's intervention, Atkins called Clyburn and Sylvia, Assailant's younger sister, into his office and admonished them for their behavior. He warned Sylvia if her sister tried to board the bus again, her sister would face criminal charges. Sixth, he attempted to telephone their parents to inform them of their children's unacceptable behavior and potential consequences of that behavior. Clyburn's mother was at work and her employer refused to let her take a non-emergency call. Sylvia's mother's number was disconnected. Seventh, Atkins told Clyburn and Sylvia he needed to speak with their parents quickly to resolve the matter without having to pursue criminal charges. Clyburn stated Atkins assured her after the Friday incident he would take care of the matter.
Eighth, on Friday afternoon, Atkins called the assistant principal at Clyburn's niece's school and asked him to direct the child to stay away from the bus stop where the initial altercation began. Atkins did not attempt further contact with the students' parents that weekend. Additionally, neither of the students' parents contacted Atkins over the weekend. Atkins did not notify the police the first time he was informed Assailant boarded the bus because he had successfully dealt with similar incidents in the past without involving the police and felt he could do so in this situation. Ninth, after the incident, the bus driver kept a lookout for Assailant on her *462 bus route and stated if Assailant was at a stop, she would continue to the next stop.
The following Monday, Assailant did not appear on the bus route. On Tuesday morning, however, Assailant boarded the bus, escaping the driver's immediate recognition. Tenth, when the driver saw Assailant walking down the aisle, the driver tried to follow Assailant to remove her from the bus, but was unable to stop Assailant before she cut Clyburn. Clearly, Clyburn, as a result of the School District's numerous attempts to intervene, is distinguishable.
The karma of the appeal by Etheredge involves the efficacy of the affidavit of Harland Brown. The School District contends this Court should not consider Brown's affidavit because it was not timely served. At the hearing, the School District objected to the admissibility of the affidavit. However, the trial court did not rule on the affidavit's admissibility and the School District did not file a post-trial motion. Therefore, this issue is not preserved for appeal. See Townsend v. City of Dillon, 326 S.C. 244, 486 S.E.2d 95 (1997) (issue not ruled upon by trial judge is not preserved for appellate review); Noisette v. Ismail, 304 S.C. 56, 403 S.E.2d 122 (1991) (where trial court does not explicitly rule on question and appellant falls to make Rule 59(e), SCRCP, motion to alter or amend judgment on that ground, issue is not properly before appellate court and should not be addressed); Talley v. South Carolina Higher Educ. Tuition Grants Comm., 289 S.C. 483, 347 S.E.2d 99 (1986) (if issue is presented to trial court but not ruled upon, omission must be brought to trial court's attention by Rule 59(e), SCRCP, motion for issue to be preserved for review).
Gross negligence is a mixed question of law and fact and should be presented to the jury unless the evidence supports only one reasonable inference. Clyburn v. Sumter County Sch. Dist. # 17, 317 S.C. 50, 451 S.E.2d 885 (1994); Doe by Roe v. Orangeburg County Sch. Dist. No. 2, 329 S.C. 221, 495 S.E.2d 230 (Ct.App.1997). Viewing the evidence in the light most favorable to Etheredge, we conclude there was sufficient evidence to create a jury question as to whether the School District acted in a grossly negligent manner.
*463 II. Juxtaposing Subsections (4), (5), (9) and (20) against Subsection (25)
Etheredge argues this action is not barred by subsections (4), (5), (9), or (20) of § 15-78-60. In granting summary judgment to the School District, the trial court relied on the foregoing provisions of § 15-78-60, in addition to subsection (25). The court held any of the grounds would independently justify the grant of summary judgment.
Where an action is brought against a governmental entity for injuries or death allegedly caused to a student by the entity's gross negligence in the exercise of its duty of supervision, protection and control of the students in its custody in accordance with subsection (25) of § 15-78-60, all other subsections of § 15-78-60 providing exceptions to the waiver of governmental immunity, must be read in light of subsection (25), which provides an exception to immunity where the governmental entity exercises its responsibilities or duties in a grossly negligent manner. See Jackson v. South Carolina Dep't of Corrections, 301 S.C. 125, 390 S.E.2d 467 (Ct.App.1989), aff'd 302 S.C. 519, 397 S.E.2d 377 (1990). In arguing for this Court to affirm the trial court's order, the School District relied upon subsection (4) providing immunity for loss resulting from the adoption, enforcement, or compliance with any law or failure to adopt or enforce any law, including, but not limited to, any charter, provision, ordinance, resolution, rule, regulation, or written policies; subsection (5) providing immunity for loss resulting from the exercise of discretion; subsection (9) providing immunity for loss resulting from entry onto the entity's property where authorized by law; and subsection (20) providing immunity for loss resulting from an act or omission of a person other than an employee, including but not limited to the criminal actions of third persons.
In Jackson, supra, an action for wrongful death and survival under the South Carolina Tort Claims Act, the administrator of the estate of Stroman W. Jackson brought suit against the South Carolina Department of Corrections after Jackson, an inmate, was killed by Atkinson, a fellow inmate, while incarcerated at Kirkland Correctional Institution. The jury found for Jackson on both causes of action. The Department moved *464 for a judgment notwithstanding the verdict, which the court granted.
On appeal, the Court of Appeals reversed and remanded. This Court concluded sufficient evidence supported a finding the transfer of Atkinson from one institution to another, where he killed Jackson, was the result of gross negligence. Further, the Court held:
The Department argues that even if Atkinson's transfer was an act of gross negligence, it is still immune from liability under Section 15-78-60(5). That section provides for immunity from liability for losses resulting from "... the exercise of discretion or judgment by the governmental entity or employee...."
While Atkinson's transfer was admittedly an act requiring the discretion and judgment of the Department, Section 15-78-60(25) provides an exception to immunity where the governmental entity exercises its responsibility or duty in a grossly negligent manner. Section 15-78-60(5) must be read in light of this exception. If discretion is exercised in a grossly negligent manner, the exception to the normal rule of immunity applies.
Jackson, 301 S.C. at 127-28, 390 S.E.2d at 469 (emphasis added).
In Grooms v. Marlboro County Sch. Dist., 307 S.C. 310, 414 S.E.2d 802 (Ct.App.1992), a mentally handicapped student sued the School District for injuries he received while under the supervision of the school janitor. The trial court granted summary judgment to the School District on the ground of discretionary immunity. This Court determined:
The trial court also erred in holding that the loss suffered by [Grooms] resulted from an exercise of discretion by the school district, thus immunizing the school district from liability in accordance with S.C.Code Ann. § 15-78-60(5) (Supp.1991). It viewed the decision by the principal to allow a janitor to have supervision over [Grooms] whenever [Grooms] chose for the janitor to have it as a "judgment call."
Discretionary immunity is an affirmative defense. The burden, therefore, was upon the school district to show that it not only actually weighed competing considerations and *465 alternatives regarding the question of what to do with [Grooms] in this particular instance but that, in doing so, it utilized accepted professional standards appropriate to resolve the question. The record contains no evidence that the school district did this.
Moreover, irrespective of whether the decision to place [Grooms] under the supervision of a janitor involved a proper exercise of discretion, there still remains the question of whether the janitor supervised him in a grossly negligent manner. There is evidence ... that the janitor was in fact grossly negligent.
Grooms, 307 S.C. at 314, 414 S.E.2d at 804-05 (citations omitted) (emphasis added).
In Woodell v. Marion School Dist. One, 307 S.C. 297, 414 S.E.2d 794 (Ct.App.1992), Shirley Allen, as guardian ad litem for Karen Christine Woodell, a student who was assaulted at school by another student, sued the School District pursuant to the Tort Claims Act alleging the School District was grossly negligent in supervising both Woodell and her assailant. The trial court granted the School District's Rule 12(b)(6), SCRCP, motion to dismiss and held § 15-78-60(20) immunized the School District from liability for a loss caused by a third party's criminal action. This Court reversed and remanded. We explained:
Here, the complaint does not seek to pin liability on the school district because of the alleged criminal action of the other student; rather, as we noted above, it focuses on the school district's alleged gross negligence in supervising Woodell and the student who allegedly attacked Woodell. Cf. Greenville Memorial Auditorium v. Martin, 301 S.C. 242, 391 S.E.2d 546 (1990) (the trial judge committed no error in not dismissing an action under section 15-78-60(20) where a patron at a rock concert was struck by a bottle thrown from a balcony of a municipal auditorium because the complaint did not allege the municipality was liable for the criminal act of a third party but alleged the municipality and its employees were negligent in securing and maintaining the premises during the concert). A governmental entity may be liable to a student for a loss when the entity's responsibility to supervise, protect, or control a student "is exercised in a grossly negligent manner." S.C.Code Ann. *466 § 15-78-60(25) (Supp.1990). Whether in fact Woodell's loss resulted from the school district's alleged grossly negligent supervision of Woodell and the other student or from the alleged criminal action of the other student is not a question that the trial court should have decided on a motion to dismiss.
Woodell, 307 S.C. at 298, 414 S.E.2d at 794-95.
Etheredge cites Greenville Memorial Auditorium v. Martin, 301 S.C. 242, 391 S.E.2d 546 (1990), in which a patron at a rock concert was struck by a glass bottle thrown from the balcony of the city auditorium. The governmental entity sought dismissal under S.C.Code Ann. § 15-78-60(20) (1986). In affirming the trial court's refusal to dismiss, our Supreme Court stated:
Section 15-78-60(20) provides that a governmental entity is not liable for a loss resulting from the act or omission of a person other than an employee including, but not limited to, the criminal acts of third persons. Appellant asserts the trial judge erred in failing to dismiss the action under this section because there was no evidence appellant's employees caused respondent's injuries and because such injuries were caused by the criminal acts of a third person.
Here, respondent's complaint alleged appellant and its employees were negligent in adequately securing and maintaining the premises during the concert and this negligence created a reasonably foreseeable risk of such third party conduct. Respondent's complaint did not allege appellant was liable because of the criminal act of a third party. Consequently, Section 15-78-60(20) would not operate to exonerate appellant of liability for its own conduct.
Appellant cannot successfully defend that respondent's injuries were caused by the wrongful criminal act of a third party, where the very basis upon which appellant is claimed to be negligent is that appellant created a reasonably foreseeable risk of such third party conduct.
Greenville Memorial Auditorium, 301 S.C. at 246-47, 391 S.E.2d at 548-49.
Subsection (25) of § 15-78-60 subsumes subsections (4), (5), (9), and (20). These subsections must be read in light of subsection (25). If a defendant is grossly negligent under *467 § 15-78-60(25), it cannot claim immunity under any of § 15-78-60's other subsections because "the exception to the normal rule of immunity applies." Jackson, 301 S.C. at 128, 390 S.E.2d at 469. Therefore, because genuine issues of material fact exist as to whether the School District was grossly negligent in the exercise of its duties, including but not limited to the supervision, protection and control of the students in its custody, this action is not barred by subsections (4), (5), (9), or (20) of § 15-78-60.
CONCLUSION
Viewing the evidence in the light most favorable to Etheredge, we hold there was sufficient evidence to create a jury question as to whether the School District acted in a grossly negligent manner. We cannot conclude as a matter of law the School District did not act in a grossly negligent manner. Concomitantly, the trial court erred in granting summary judgment on the ground the School District was immune from liability pursuant to subsections (4), (5), (9), (20) and (25) of § 15-78-60. Accordingly, the order of the trial court granting summary judgment to the School District is reversed and the case is remanded for trial.
REVERSED and REMANDED.
HUFF, J., concurs.
HOWELL, C.J., concurs in result in a separate opinion.
HOWELL, Chief Judge, concurring in result:
I agree with the majority's conclusion that the trial court erred in granting summary judgment to the School District. I write separately, however, because I reach that conclusion through a different analysis than that of the majority.
In my view, the majority places undue emphasis on the affidavit of Harland Brown, the campus security monitor. In his affidavit, Brown points to what he believes to be numerous deficiencies in the District's approach to maintaining security on campus, including the District's failure to supply him with a uniform, gun, or night stick, and the District's failure to properly train him. Accepting these allegations to be true, as we must when determining whether summary judgment was *468 properly granted, I do not believe Brown's affidavit creates any genuine issues of fact as to the District's liability under the Tort Claims Act.
As the majority correctly notes, the District may be held liable only if it exercised its duty to supervise its students in a grossly negligent manner. "Gross negligence is the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. Negligence is the failure to exercise due care, while gross negligence is the failure to exercise slight care." Clyburn v. Sumter County Sch. Dist. No. 17, 317 S.C. 50, 53, 451 S.E.2d 885, 887 (1994) (citation omitted).
It is undisputed that the District took some steps to ensure the safety of its students, including employing three assistant principals and two security monitors, all of whom carried walkie-talkies and monitored the hallways to prevent disturbances. Thus, I believe that the District exercised at least slight care with regard to campus security in general. While it may be that the District's security measures could have been more extensive, the fact that the District did not do everything possible does not amount to gross negligence. See e.g., Clyburn, 317 S.C. at 53, 451 S.E.2d at 887 (school not grossly negligent where its employees attempted on several occasions to prevent confrontations between student and nonstudent assailant, even though school's efforts ultimately were inadequate). The security measures actually in place cannot be considered so deficient as to amount to a failure on the part of the District to exercise slight care. Thus, to the extent Etheredge's claim is premised upon the District's failure to provide adequate security at the school, I conclude that the only reasonable inference from the facts is that the District was not grossly negligent.
Moreover, even if the District's security policies were deficient in the areas identified in Brown's affidavit, neither Brown's affidavit nor any other evidence presented by Etheredge in any way links these deficiencies to the tragic incident between Dunlap and his assailants. That is, there is no evidence in the record from which a jury could reasonably conclude that the incident would not have occurred had Brown been trained and outfitted as he desired or had the school's *469 security measures otherwise been tightened. See, e.g., Rush v. Blanchard, 310 S.C. 375, 379, 426 S.E.2d 802, 804 (1993) (Proof of proximate cause "requires proof of both causation in fact and legal cause. Causation in fact is proved by establishing the injury would not have occurred `but for' the defendant's negligence.") (citation omitted). Thus, even assuming the District's failure to properly establish and implement security measures could be considered gross negligence, there is no evidence in the record from which we could conclude that the gross negligence was the proximate cause of Dunlap's death. See, e.g., Ellis v. Oliver, 323 S.C. 121, 125, 473 S.E.2d 793, 795 (1996) ("Negligence is not actionable unless it is a proximate cause of the injury complained of.").
Although I believe Brown's affidavit fails to create any genuine issue of material fact, I nonetheless conclude that there are genuine issues of fact that render summary judgment inappropriate.
In support of its motion for summary judgment, the District presented the affidavit of Ellen Mosely, the Eau Claire principal at the time of the shooting. According to Mosely's affidavit, on January 20, 1993, just over a year before the shooting, Dunlap, the victim of the incident involved in this case, was found with a pistol in his possession on campus. Dunlap was expelled for the remainder of that school year. In its answer, the District admitted that, prior to the fatal shooting, the actions of Dunlap "toward the pupil who shot him created a belief by that pupil that such pupil was in imminent danger of losing his life or sustaining serious bodily injury."
These facts, when viewed in the light most favorable to Etheredge, indicate that the District had notice before the shooting of specific and potentially life-threatening problems between Dunlap and the student who killed him. Given this notice and Dunlap's history of bringing a dangerous weapon to school, a jury could reasonably conclude that the District's failure to intervene and attempt to resolve the problems between Dunlap and his assailant amounted to gross negligence.[1]Cf. Smart v. Hampton County Sch. Dist. No. 2, 315 *470 S.C. 192, 432 S.E.2d 487 (Ct.App.1993) (where teacher knew that student was being bullied by other students between whom the student was seated, teacher's failure to change the seating arrangement to separate the boys could reasonably be considered a failure to exercise slight care), cert. denied (December 7, 1993).
Accordingly, based on the particular facts of this case, I agree with the majority's conclusion that summary judgment should not have been granted in this case. I disagree, however, with majority's basis for its conclusion.
NOTES
[1] S.C.Code Ann. § 15-78-10, et seq. (Supp.1997).
[1] Rule 56, SCRCP does not require that the genuine issues of fact necessary to avoid summary judgment be created by the submissions of the non-moving party. Instead, Rule 56 simply provides that "[t]he judgment sought 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 the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. Thus, it is irrelevant that it was the materials submitted by the District that created the issues of fact rendering summary judgment inappropriate.
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https://www.courtlistener.com/api/rest/v3/opinions/1313021/
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196 Va. 753 (1955)
BERNARD FEIN
v.
LANSTON MONOTYPE MACHINE COMPANY, A CORPORATION, ET AL.
Record No. 4283.
Supreme Court of Virginia.
January 17, 1955.
Gallop, Climenko & Gould, for the appellant.
Williams, Mullen, Pollard & Rogers; George R. Humrickhouse; Booth, Hudley, Koontz & Boothe; Donovan, Leisure, Newton & Irvine; Robert F. Morton; Boardman, Stoddard & McCarthy and Mansfield D. Sprague, for the appellees.
Present, Eggleston, Spratley, Buchanan, Miller, Smith and Whittle, JJ.
1. Following a close vote by the stockholders of the Lanston company to merge with Lanston Industries, many stockholders of Lanston filed dissents as permitted by Code 1950, section 13-46, et seq. requesting payment of the fair cash value of their stock. Prior to the date on which the merger agreement, by its terms, could be presented to the Corporation Commission for approval, the stockholders opposing the merger acquired ownership of the majority of the stock. Litigation in various forums followed, election of directors on the date set in the by-laws was not held, and the hold-over directors favoring the merger filed the agreement with the Corporation Commission. Pending action by that body, the majority faction opposing the merger called a special stockholders' meeting to elect directors. At this meeting the judges of election ruled that no stockholder who had previously filed dissent to the merger could vote. This ruling led to the instant suit, in which the lower court held that the meeting was a nullity, since no stockholder had any right to vote at this point in the merger proceedings. This holding was in error. Nothing in the corporation's charter or by-laws indicated any loss of voting rights in the circumstances stated. Furthermore the basic accepted concepts as to the nature of corporate stock indicate that neither assenting or dissenting stockholders lose any rights pending consummation of an approved merger.
2. Shares of stock in a corporation constitute proprietary rights; and the right of voting stock at corporate meetings is an incident of ownership and part of the stockholder's property inherent in him by virtue of his title.
3. Nothing in the statutes relative to corporate mergers limits the fundamental right of a stockholder to vote pending consummation of a merger, whether he be a dissenting or an approving stockholder. The provisions of Code 1950, sections 13-46 and 13-51 contain strong indication to the contrary. Not until consummation of the merger and payment or provision for payment for their stock, do dissenting stockholders lose their normal rights in the merging corporation.
Appeal from a decree of the Corporation Court of the city of Alexandria. Hon. Franklin P. Backus, judge presiding. The opinion states the case.
Wicker, Baker & Shuford; Bendheim, Fagelson, Bragg & Giammittorio and
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
This proceeding arises out of one of the issues in a bitter and prolonged controversy over a proposed merger of Lanston Monotype Machine Company, a Virginia corporation, and Lanston Industries, Inc., another Virginia corporation, into a single corporation to be thereafter called Lanston Industries. Bernard Fein, a stockholder of Lanston Monotype Machine Company, suing on behalf of himself and other similarly situated stockholders, objecting to the proposed merger agreement, filed a petition in the Corporation Court of the City of Alexandria, pursuant to | 13-205, Code of Virginia, 1950, complaining of the manner in which the election of directors of his Corporation was being conducted *755 at a stockholders' meeting called for that purpose. From an order of the trial court holding that none of the stockholders was entitled to vote at the said meeting, and that the meeting was "a nullity and of no effect," this appeal was obtained.
In order to get a clear picture of the situation, it is necessary to make a chronological and detailed statement of the factual background of the proceedings in this case in the lower court, and the proceedings in several other forums in which other issues were raised between the same parties in connection with the proposed merger.
On March 4, 1953, the Board of Directors of Lanston Monotype Machine Company, hereinafter called Lanston, voted in favor of a merger with Lanston Industries, hereinafter called Industries. Code, | 13-43. Industries was organized and incorporated for the purpose of the proposed merger.
On March 27, 1953, stockholders of Lanston were given notice that the merger agreement would be submitted to them at a special meeting to be held on April 24, 1953. A proxy form and a proxy statement, including a copy of the merger agreement, were enclosed with the notice sent to the stockholders.
Section 11 of the agreement, pursuant to Code, | 13-43, provided that if a majority of all the votes cast at such meeting and at the meeting of the stockholders of Industries, was in favor of the agreement and merger, a certificate evidencing that fact, together with a copy of the agreement, would be presented to the State Corporation Commission of Virginia, and upon the certificate of approval by said Corporation Commission, the merger would be complete.
Section 12 of the agreement expressly provided, pursuant to Code, | 13-46, that notice of dissent by any stockholder might be served on a designated official of his corporation, at any time within sixty days of the date of the meeting of the stockholders of such corporation to act on the merger agreement, without awaiting the consummation of the merger. It also contained the following provision: *756
"This Agreement shall not be presented to the State Corporation Commission until the expiration of sixty (60) days after the date of the stockholders' meeting of Lanston or Lanston Industries, whichever is the latter called as provided in and for the purpose specified in Paragraph 11, hereof, and the Board of Directors of either Corporation may terminate this Agreement in lieu of presenting it to the State Corporation Commission, if, in the opinion of such Board of Directors, the merger, in all the circumstances, including the dissents, is impracticable or undesirable, (Code, | 13-46), and if such Board of Directors shall terminate this Merger Agreement, it shall become wholly void and of no effect, and there shall be no liability on the part of either Lanston or Lanston Industries or the Board of Directors or stockholders of either of them".
Prior to April 24, 1953, Security Banknote Company, hereinafter called Security, then owner of 30,691 shares or about 12% of Lanston's stock, and a number of other stockholders voiced opposition to the merger agreement. Security organized and sponsored a Stockholders Protective Committee, and made a vigorous solicitation of proxies to be voted against the merger. However, at the special meeting on April 24, 1953, the stockholders of Lanston approved the merger by a vote of 116,882 shares, 47% of the outstanding shares of Lanston, in favor of the merger; while 102,427 shares, or 41% of said stock voted in opposition. The merger agreement was approved by stockholders of Industries on May 25, 1953.
Subsequent to the stockholders' approval of the merger, Security and the Stockholders Protective Committee continued to attack the merger and urged stockholders to file dissents in an effort to dissuade the management of Lanston from proceeding to consummate the merger. As a result, more than 500 stockholders, owning approximately 100,000 shares, filed notices of dissent, between April 24th and June 24th, 1953, requesting the payment of the fair cash value of their stock, pursuant to Code, | 13-46, et seq. However, *757 the Board of Directors of Lanston refused to terminate the merger agreement.
Prior to May 5, 1953, the by-laws of Lanston provided that its Directors should be elected at the annual meeting of the Corporation to be held on the first Thursday in June of each year. In 1953, that day fell on June 4th, a date prior to the expiration of the sixty-day period, that is, July 25th, after which the merger agreement could, by its terms, be presented to the State Corporation Commission. On May 5, 1953, the Board of Directors of Lanston, at a special meeting, amended the by-laws, changing the date for the annual meeting to the last Thursday in July (July 30, 1953), a day subsequent to the date on which the agreement could, by its terms, be presented to the State Corporation Commission.
On or about June 16, 1953, Security and another stockholder filed a bill of complaint in the Circuit Court of the City of Alexandria against the two merging corporations and the Board of Directors of Lanston, alleging that the proposed merger was illegal and fraudulent. They prayed for an injunction restraining its consummation pendente lite. The bill averred that Security, subsequent to March 27, 1953, had purchased 26,000 shares of Lanston, 13,000 of which had voted for the merger on April 24, 1953, and that if it had been allowed to vote its stock on June 4, 1953, the date originally fixed for the regular annual stockholders' meeting, a new board of directors of Lanston opposed to the merger would have been elected, and the proposed agreement would not then be presented to the State Corporation Commission.
On June 18th, the Circuit Court entered a temporary order restraining the two merging corporations and the directors of Lanston from consummating the merger agreement and also enjoined the Board of Directors of Lanston from extending the date of the annual meeting of its stockholders beyond July 30, 1953. The order was effective to July 15, 1953. Lanston and the other defendants in that proceeding then moved to dismiss the temporary injunction; *758 but no other matter was considered. The motion was argued and on July 1, 1953, the court enjoined all parties from calling or holding any meeting of stockholders until it should determine whether or not to grant the motion to dismiss the order of June 18th. On July 15, 1953, the Circuit Court extended the temporary injunction and the restraining order of July 1, 1953. This action of the court prevented the holding of the annual stockholders' meeting proposed to be held on July 30, 1953, under the amended by-laws, for the election of directors.
On August 4, 1953, the Circuit Court granted the motion to dissolve the injunction order of June 18th, and the orders of July 1st and July 15th were also vacated as of August 11th. The cause was continued for trial on its merits and is still pending. Thereafter no meeting was called by the directors of Lanston for the election of directors. Code, | 13-204.
On August 11th and 14th, 1953, the directors of the merging corporations voted to submit the merger agreement to the State Corporation Commission, and that agreement was presented to that Commission on August 17, 1953, pursuant to Code, | 13-43.
In the meantime, during July, 1953, Security, having failed in its efforts to have the directors of Lanston reject the merger agreement, undertook further steps to obtain proxies from stockholders of Lanston opposed to the merger. It advised them that it would call a special meeting of the stockholders for the purpose of cancelling the agreement and for the election of directors opposed to the merger. Security was then, and at all times, the owner of more than one-tenth of the capital stock of Lanston. Code, | 13-190.
On August 18, 1953, Security, on behalf of itself and other stockholders of Lanston, filed a petition with the Corporation Commission, wherein it alleged that the merging corporations had not complied with the requirements of law, and that the proposed merger was illegal and unlawful. The Commission being of opinion that a public hearing should be held upon the application for merger, set the *759 hearing for October 19, 1953. In view of the litigation pending in the Circuit Court, the Commission, on the latter date, postponed its hearing until a future day.
On August 26, 1953, Security, then the owner of 53,490 shares of the capital stock of Lanston, acting through the Stockholders Protective Committee, called a special meeting of the stockholders for September 23, 1953, pursuant to Section 2 of Article 1 of the by-laws of Lanston and Virginia Code, | 13-190, for the purpose of electing eight directors and acting upon certain other specified matters. It is not disputed that the meeting was called for the purpose of electing directors who would be opposed to the merger. Both the management of Lanston and the Stockholders Protective Committee issued statements and solicited proxies from all stockholders for that meeting. In its statement to stockholders, Lanston contended that the special meeting was illegally called for an unlawful purpose, and that its solicitation of proxies was made only as to shares eligible to vote at that meeting.
On August 28, 1953, Lanston Industries, and another stockholder applied to the Circuit Court, in the suit therein pending, for a preliminary injunction forbidding the holding of any stockholders meeting until the Corporation Commission had heard the application for the merger. They also filed cross-bills in the pending Circuit Court action alleging that the actions of Security constituted a conspiracy between it and its associates to defraud Lanston and its stockholders of the benefit of the merger. The motions were denied, without respect to the merits of the legal questions involved. No appeal was taken.
Lanston then sought to prevent the September 23rd meeting by instituting a proceeding before the Securities and Exchange Commission, under the Federal Securities Exchange Act of 1934. The injunction requested was denied by the Commission. It next obtained from the United States District Court for the Southern District of New York an order directing Security and the Stockholders Protective Committee to show cause why they should not be restrained and *760 enjoined from violating | 14(a) of the Securities Exchange Act of 1934, relating to the solicitation of proxies, and from voting all proxies with respect to the stockholders meeting called to be held on September 23, 1953. On September 21, 1953, upon hearing the order to show cause, the court denied the application. The order, however, directed the adjournment of the special stockholders' meeting from September 23rd to September 25th, and complainants were given leave to appeal to the United States Court of Appeals for the Second Circuit. No appeal was taken.
The special stockholders' meeting called for September 23rd began on September 25th, 1953, and the question immediately arose as to the right of certain stockholders to vote. Lanston challenged all proxies offered on behalf of Security's candidates for membership on the Board of Directors of Lanston, with respect to those shareholders who had filed formal written dissents from the merger, upon the ground that a dissenting stockholder, as a matter of law, had no right to vote at said election. The inspectors of election sustained Lanston's challenges. Under this ruling, the candidates proposed by the management of Lanston received a majority of the votes allowed to be cast.
On September 26, 1953, during the progress of the balloting, Bernard Fein, hereinafter referred to as appellant, instituted this proceeding against Lanston Industries, seven of the eight Lanston directors, including its President and its Secretary, and George A. Wood and Sidney P. Howell, Jr., inspectors of election. Appellant charged that the election was being conducted in an unfair and illegal manner, and prayed the court to enter an order directing the inspectors of election to tabulate the votes and proxies cast and report to the court all the proceedings and all the challenges made; that full effect be given to the votes cast by the petitioner, and other stockholders similarly situated, at the meeting then in progress; and that an officer of the court be appointed to supervise the stockholders' meeting. He prayed that the defendants and all persons acting for or in concert with them be restrained from exercising any of the functions or *761 duties of their respective offices until the court should make an appropriate order governing their conduct at the stockholders' meeting. Code, | 13-205.
Thereupon, the Corporation Court entered an order directing the inspectors of election to tabulate the votes and proxies cast, and report to the court all the proceedings and all challenges made. It further restrained all persons from claiming or representing themselves to have been elected as directors of Lanston at such meeting. The stockholders' meeting was then recessed to October 13th, and the court proceeding continued until October 5, 1953.
On October 5th, pursuant to the above order, the inspectors of election reported to the court that 249,918 shares of common stock of Lanston were issued and outstanding as of the date the stock transfer books were closed; that 229,298 shares were represented at the meeting in person or by proxies; that after giving effect to the rulings of the inspectors on specific challenges, 105,336 were cast for Lanston's, that is, management's proposed directors, and 25,460 for the Stockholders Protective Committee's proposed directors; and that dissenting stockholders present at the meeting voted 6,511 shares for management's proposed directors and 92,091 for the Committee's proposed directors. Thus, had no challenges been offered there were 111,847 cast for management's proposed directors, and 117,551 for the nominees of the Protective Committee. The inspectors also filed with their report a recapitulation of the specific challenges, and their rulings thereon.
In explanation of their position, the inspectors made the following statement:
"The [Protective] Committee did not challenge shares of dissenting stockholders voting for Management, but called attention to the fact that, if the Management challenge to dissenting votes be sustained eventually, the same ruling should apply to shares of dissenting stockholders voting for Management."
"Disposition: The Inspectors sustained the challenge, upon advice of counsel. The Inspectors applied the ruling *762 to all votes of holders who had made valid dissent, whether such votes were for Management or for the Committee. A separate tabulation was made of such dissenting votes, showing those for Management and those for the Committee, and is set forth in the summary."
On October 5th, Lanston filed its cross-petition, in which it alleged that the meeting of stockholders begun on September 23 was a nullity and of no effect for various reasons, including fraud and illegality in the solicitation of stockholders' proxies. The issues raised were argued and taken under advisement by the court, and the stockholders' meeting was ordered to be further recessed until December 1st, 1953.
On October 27, 1953, the court entered a final order, which, in its pertinent provisions, decreed that the meeting which began on September 23rd was a nullity, and that no stockholders of Lanston were entitled to vote at that meeting. The stockholders' meeting was then ordered to be adjourned until further order of the court.
In its written opinion, the court said it appeared "at this point in this proposed merger that the rights of all are held in abeyance until the main issues of whether or not the agreement was fraudulent in its inception and whether or not the provisions of the merger law have been complied with are decided, and those issues now rest in other forums."
The question of the legality of the merger is, therefore, no before us. The charges of fraud and illegality, the conduct of Lanston and its directors, of Industries, of Bernard Fein, of Security and the other parties, and the right of the Lanston directors to file with the State Corporation Commission the application for a certificate of merger, were also expressly excluded from determination by the trial judge.
The question for our determination are (1) whether, under the circumstances recited, the stockholders of Lanston holding more than one-tenth of its capital stock had the right normally accorded by | 13-190 of the Code to call the *763 special meeting of September 23, 1953, and (2) whether dissenting stockholders were entitled to vote at that meeting.
Appellant contends that the answer to both questions should be in the affirmative. He argues that his right to vote is inherent in and incidental to his ownership of the corporate stock, and that he cannot be deprived of that right without his consent. He further argues that the importance of the meeting of September 23, 1953, arises from the relationship of that meeting to the terms of the merger approval voted by the stockholders on April 24, 1953. He points out that the merger agreement provided that it should not be presented to the State Corporation Commission for a period of sixty days, and that at the end of the sixty-day period for dissenting, the directors would, in the light of the circumstances, including the dissents received, review the practicability and desirability of the merger. Since the by-laws of Lanston, at the time of the stockholders' approval of the merger, provided that directors would be elected on June 4, 1953, he claims that the decision as to the presentation of the merger agreement to the Corporation Commission was required to be made by the directors elected on that date, and not by the directors holding office on April 24, 1953, and that the change of the date for the annual stockholders' meeting was for the purpose of preventing the election of a board of directors who would have been opposed to the merger agreement.
The appellees, on the other hand, contend that after stockholders have once approved a merger agreement, the sixty-day period for filing dissents has elapsed, and the board of directors of their corporation has certified the approval and filed a copy of the agreement with the State Corporation Commission, the rights and status of all stockholders with respect to the merger become fixed, and stockholders are not entitled to a second vote on the merger; and that pending action by the Corporation Commission, intra-corporate relationships formerly created cannot be altered or disturbed. They further claim that a vote for or against a merger, and an election to dissent or not to *764 dissent, create two distinct classes of stockholders, each with rights and purposes antagonistic to the other; and that stockholders' approval of a merger agreement results in the suspending of or holding in abeyance the rights of all stockholders until the State Corporation Commission concludes its action on the application for the merger. They argue that to permit dissenting stockholders to vote in the interim between the stockholders' approval of the merger and its consummation would allow them to harmfully participate in the affairs of a corporation in which they no longer have an interest, except to receive the fair cash value of their stock at a certain date in the event of a consummation of the merger. They conclude that the statutes, and charter and by-law provisions of corporations fixing the voting right of stockholders apply only when stockholders meet on an equal basis, and thus under the circumstances present in this case no stockholder had a right to vote his stock at the special meeting in question.
The status of stockholders subsequent to stockholders' approval of a merger and prior to the consummation of the merger has not received much attention in the cases or from law writers. We have been referred to no case in this court, and we know of none, in which the precise question here presented has arisen. It is of first impression in this Commonwealth.
Some States have statutes which expressly provide that a dissenting stockholder, in the event of a merger, ceases to be a stockholder upon making demand for payment of his stock. Johnson Baldwin, 221 S.C. 141, 69 S.E.(2d) 585, 592. In other States there are statutes which provide that the dissenter does not lose his right as a stockholder until he has received the ascertainable value of his stock. * Cole Wells, 224 Mass. 504, 113 N.E. 189, 191.
* In a note on the subject of "Corporations -- Rights of Dissenting Stockholders Pending Satutory Appraisal Proceedings," Volume 21, Virginia Law Review, (1935) page 825, the author, advocating express statutory provisions as to the rights of such stockholders, lists Arkansas, Florida, Michigan, Nevada, North Carolina, South Carolina, Tennessee, and the Philippine Islands, as having statutes providing that a dissenting stockholder loses his status as a stockholder as of the date fixed by statute for the determination of the value of his shares. He then says that a few of the States have statutes, such as those of New York and Virginia, citing Virginia Code, (Michie, 1930) | 3822, (now Virginia Code, 1950, | 13-51), which provide merely that upon payment of the agreed or determined value of the shares, the stockholder shall cease to have any interest in the merging corporation. He refers to an Indiana statute expressly providing for the cessation of the right of the dissenting stockholder upon the effective date of the merger or consolidation of his corporation, Ind. Gen. Corp. Act (1929) | 37. *765
Nothing in Lanston's charter or by-laws bears specifically on the question, or indicates any loss of rights by any class of stockholders. To the contrary, section 7 of Article A of the by-laws of Lanston provides that, "each person in whose name stock shall stand on the books of the Company at any date fixed by or pursuant to section 6 of Article V of these by-laws shall be entitled to one vote in person or by proxy for each share of stock appearing in his or her name on said books." (Section 6 of Article V relates to the fixing of a date for closing the stock transfer books of the corporation). This section is in accord with Code, | 13-193.
Section 2 of Article 1 of the same by-laws provides that, "A meeting of the stockholders other than the annual meeting may be held at any time upon the call of the Board of Directors, or of stockholders holding together at least one-tenth of the capital stock." This accords with Code, | 13-190.
The commonly accepted and basic concepts of the nature of corporate stock and of the rights its ownership confers would indicate that stockholders -- whether assenting or dissenting -- lose no rights pending consummation of an approved merger.
Shares of stock in a corporation constitute proprietary rights. They represent the proportion to which the respective shareholders are severally entitled in the distribution of the profits arising from the corporate business, and in the final distribution of the estate of the corporation, if it should cease to exist. All stockholders of the same class stand on *766 equal footing, both as to rights and liabilities, and those rights cannot be changed except in the manner provided by law. The right of voting stock at corporate meetings is an incident of ownership; it is a part of the stockholder's property inherent in him by virtue of his title. Carnegie Trust Co. Security Life Ins. Co.,
111 Va. 1, 27, 68 S.E. 412, 31 L.R.A.(N.S.) 1186, 21 Ann Cas. 1287; 13 Am. Jur., Corporations, | 412, page 465; 18 C.J.S., Corporations, | 482, page 1156.
The holders of the majority of the shares of a corporation have the right and the power, by the election of directors and by the vote of their stock, to determine the policy of their corporation and to manage and control its action. Time, places, and notices of meetings of stockholders are matters of secondary importance, because the presence, the vote, and the protest of the holders of the minority of the stock are unavailing against the will of the holders of the majority. 13 Am. Jur., Corporations, Sec. 422, pages 474 et seq. It is not unusual to find a conflict of personal interest between a majority and minority of stockholders. Self-interest is not a disqualification of the right to vote, in the absence of fraud or other disqualification. 5 Fletcher Cyclopedia Corporations, Permanent Edition, Section 2031, pages 144, et seq.,
and cases cited.
In his excellent Cyclopedia Corporations, Judge Fletcher further sets out the nature of the stockholders' right to vote as follows:
"Speaking generally, the right to vote is a right which is inherent in and incidental to the ownership of corporate stock, and as such is a property right, and it follows that the stockholder cannot be deprived of it, and that the right cannot be essentially impaired, either by the legislature or the corporation, without his consent, through amending the charter or by-laws. This is equally true though be is given what others might regard as a better right by way of substitute. The legislature cannot indirectly impair such right by authorizing the directors, with the consent of only a *767 majority of the stockholders, to so amend the charter as to have that effect." Section 2025, page 119. (Italics added.)
In Walsh State, 199 Ala. 123, 74 So. 45, 2 A.L.R. 551, 554, this is said:
"The right to hold annual elections for directors of a corporation, and to vote at such elections, is a right that is inherent in the ownership of stock in a corporation; and the stockholder, who appears by the books of the corporation to be such, cannot be deprived of this right upon the allegation that he proposes to use his legal rights for purposes which other stockholders may think not to the best interest, or even to the detriment, of the corporation. (Citing cases.)"
* * *
"Where the charter of a corporation provides that annual meetings of stockholders shall be held for the election of officers and directors, the directors cannot, by a change in by-laws, so change the time of holding the annual election as to have the effect of continuing themselves in office, against the will of the majority of stockholders." (Citing cases.)
The right to vote for directors is a right to protect property from loss, and to make its possession beneficial. To deprive a stockholder of his right to vote is to deprive him of an essential attribute of his property. Lord Equitable Life Assurance Society, 194 N.Y. 212, 228, 87 N.E. 443.
See Lawrence I. N. Parlier, 15 Cal.(2d) 220, 100 Pac.(2d) 765, 770; Brown McLanahan, et al., (4 C.C.A.) 148 Fed.(2d) 703, 708; In Re: Giant Portland Cement Co., 26 Del. Ch. 32, 21 Atl.(2d) 697; Outwater
Public Service Corp. 103 N.J.Eq. 461, 143 A. 729, 731.
Code, | 13-43 deals with the manner of consolidating or merging corporations. While it provides that the fact of a favorable stockholders' vote upon an agreement for a merger "shall be certified" to the State Corporation Commission along with a copy of the agreement, it fixes no definite period as to the time within which it shall be certified. The word "shall" merely relates to the necessity of *768 the certification and presentation of the merger agreement to the State Corporation Commission before the merger can become effective. The time of presentation may be dependent on business judgment and other factors, including circumstances similar to those present in this case. This section of the Code provides an essential of procedure but not of time. Code, | 13-44 deals with recordation of agreement and certificate, and | 13-45 with the consummation of the merger.
Section 13-46 was enacted in 1946, Acts of 1946, page 375. It was entitled "An Act to amend the Code of Virginia by adding a new section 3822(b) so as to provide for service of notice of dissent for mergers or consolidations of corporations before presentation of the agreement to the State Corporation Commission in certain cases," and reads as follows:
"| 13-46. Dissent of stockholders prior to consummation of merger or consolidation and abandonment of proposal. -- An agreement of merger or consolidation may provide that notice of dissent by any stockholder may be served on the president, secretary or treasurer of his corporation, either within or without the State, or on the statutory agent thereof if such agent has been appointed, at any time within three months of the date of the meeting of the stockholders of his corporation to act on the agreement, without awaiting the consummation of the merger or consolidation. In such case notices of dissent shall be so served and when so served shall be valid for all purposes and the boards of directors of the several corporations need not present the agreement to the Commission until the expiration of the period for dissent provided in | 13-47 and such boards of directors may be authorized by the stockholders to terminate the agreement in lieu of presenting it to the Commission if of the opinion that the merger or consolidation is, in all the circumstances, including the dissents, impracticable or undesirable."
Sections 13-47, 13-48, 13-49, 13-50 and 13-51 had their origin in "An Act concerning corporations," Acts 1902-3-4, *769 Chapter 270, page 437, et seq.,
which became effective May 21, 1903, and prior to 1950 were embodied in Sections 3822 and 3822 (a), Code of Virginia, Michie, 1946, as amended. These sections deal with the remedy of dissatisfied stockholders, and fix their rights against the merged or consolidated corporation. They apply only when a merger has been consummated.
Section 13-51 provides that upon payment or tender of payment by the merged corporation of the value of his stock ascertained under | 13-50, the dissenting stockholder shall deliver his certificate of stock to the merged corporation, if any has been issued, and if none has been issued shall make a due assignment to the merged corporation of all his rights in respect thereto and mark satisfied any judgment, entered under | 13-50, for its value, and if he refuses to receive payment or tender of payment, or refuses or fails to deliver his stock, or to mark the judgment satisfied, the merged corporation may deposit to the credit of the court, in which the proceeding is pending, the value of the stock and the court shall enter an order declaring the judgment satisfied, and, "Thereafter the right of the stockholder under his stock in the consolidating or merging corporation shall cease and determine and his sole right shall be to receive the cash so deposited upon surrender to the consolidated or merged corporation of the certificate or certificates representing same if any were issued to him, and the consolidated or merged corporation may issue and dispose of the stock to which the dissenting stockholder would have been entitled under the agreement of consolidation or merger had he not dissented therefrom."
Sections 13-46 and 13-47 were amended in 1950, Acts of 1950, page 461, and the three-months period for filing dissents was changed to sixty days. The provision in | 13-46 that notice of dissent by any stockholder may be served on designated officers "of his corporation," without awaiting the consummation of the merger, and when so served shall be valid "for all purposes," manifestly means that the dissenter *770 has the right to the appraisal provided in subsequent sections, without again serving notice of dissent on an officer of the merged corporation, as required by | 13-47.
The provision in | 13-46, incorporated in the present agreement itself, that boards of directors may be authorized by the stockholders to terminate the agreement in lieu of presenting it to the Commission, if termination is deemed advisable under the circumstances mentioned, expressly authorizes a consideration of the views of all stockholders expressed by their votes, their dissents, or other circumstances, subsequent to an approval of the merger by them. While the period for filing dissents is prescribed, there is no limitation of the time within which the stockholders may give the directors authority to terminate the agreement. So far as the statute is concerned, the authority may be given either before the stockholders' approval of the merger or subsequent to such approval.
Until consummation of the merger, Lanston and Industries remained separate and distinct, and no stock could be issued by the corporation into which it was proposed they be merged. The stockholders of the merging corporations remained stockholders of their respective corporations, with a continuing equity and interest in such corporations, subject to the contingency that the proposed merger be consummated. Upon consummation of a merger, the assenting stockholders lose all their rights in the merging corporations, and in exchange obtain stock in the merged corporation. Dissenting stockholders become entitled to receive from the merged corporation the fair cash value of their stock, ascertained in accordance with the statute, and upon payment or provision for payment, their rights in their stock in the merging or consolidating corporation cease and determine. Code, | 13-51.
Neither the merger agreement, the statutes involved, nor the charter or by-laws of the Corporation required the directors of Lanston in office at the time of the stockholders' approval of the merger to continue as such until the merger was consummated. They held office only for the period *771 prescribed by charter and by-laws. In the ordinary course of events, new directors could have been elected either at the annual meeting prescribed therefor, or at a meeting held as soon thereafter as might have been feasible, Code, | 13-204, in the place of directors who may have died, resigned from office, or otherwise had become disqualified to act. The power of management is vested in a board of directors, and not in the persons who hold the office of directors from time to time.
A stockholder may not be deprived of the property value of his stock or the rights inherent in its ownership, except by his consent or lawful process. So long as he is the legal owner of the shares standing in his name, he has the right to protect his corporate equity. He may join in a call for a meeting of stockholders, and vote at such meeting, unless disqualified by some express lawful provision. In Virginia, upon approval of a merger by majority vote, he may elect to assent, or dissent within a specified time. In the event he duly evidences his assent or dissent within the specified time, his rights and status as a stockholder continue, subject to be affected only by the consummation of the merger. If for any reason the merger agreement is not effected, his status remains unchanged. In the present case, the consummation of the merger, approved by the stockholders on April 24, 1953, was contingent both upon a subsequent determination of its practicability and desirability, and the approval of the State Corporation Commission.
To give effect to appellees' contention that all of the stockholders of Lanston lost their voting rights upon stockholders' approval of the merger would be to hold that corporate control was thereafter left wholly with the directors, until such time as the latter saw fit to file the merger agreement with the Corporation Commission and until the Commission approved. There would not be any power in the stockholders to meet and force the directors to file the agreement. The action of the Lanston's directors in providing that the annual meeting of the stockholders should be *772 held on July 30, 1953, three months after approval of the merger, is inconsistent with their argument.
We find nothing in our statutes relative to corporate mergers which limits or alters the fundamental right of a stockholder to vote in the interval between the stockholders' approval of the merger agreement and the consummation of the merger.
We think the provision in | 13-46 that boards of directors may be authorized by stockholders to terminate a merger agreement in lieu of presenting it to the Commission, "if of the opinion that the merger or consolidation is, in all the circumstances, including the dissents, impracticable or undesirable" shows that stockholders are not deprived of their status as such merely by a majority approval of the merger agreement once obtained, Directors are not thereafter denied the right to hold meetings, or to call stockholders' meetings. There is no limitation of time within which directors may decide to terminate a merger agreement, and none within which stockholders may not have the right to call a meeting for the purpose of directing action by the directors. Corporate action conferring authority on boards of directors can only be taken at corporate meetings, duly held according to statutory, charter and by-law provisions, and all stockholders of record are entitled to vote at such meetings, unless disqualified otherwise.
The provision of | 13-51 that not until the merged corporation has made payment of the value of his stock to a dissenting stockholder, or, where such stockholder has refused a tender of payment and the ascertainable amount has been deposited to the credit of the court in which the appraisal was made, shall his right "under his stock in the consolidated or merging corporation"
cease and determine, is most significant.
Had the legislature intended to fix the status of the dissenting stockholder during the interval between stockholders' approval of the merger and its consummation, recognizing that a stockholder's voting rights may not be taken from *773 him except by lawful process, it was fully competent to make its meaning clear by appropriate legislation in language distinctly defining his status.
We conclude that appellant and other stockholders of Lanston holding together at least one-tenth of its capital stock, were entitled to call a special meeting on September 23, 1953, for the election of directors, and that appellant and other similarly situated stockholders had the right to vote for the directors of their corporation, subject to lawful conditions provided in the charter or by-laws of the corporation.
Our conclusion determines all of the issues which were raised in the pleadings in this proceeding and were considered by the trial court. We express no opinion as to various specific challenges, made by each of the parties, to the voting of proxies, based upon any ground other than that a dissenting stockholder was not entitled, as a matter of law, to vote at the special meeting in question.
The order of the trial court is reversed and the case is remanded to the trial court for such further proceedings as may be deemed necessary and proper, in accordance with the views herein expressed.
Reversed and remanded.
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91 Ga. App. 186 (1954)
85 S.E.2d 561
ESTES, Administrator, et al.
v.
COLLUM et al.
35162.
Court of Appeals of Georgia.
Decided October 25, 1954.
Rehearing Denied November 26, 1954.
*189 Charles C. King, Sr., Kay Tipton, Newell Edenfield, for plaintiffs in error.
C. R. Vaughn, Jr., E. R. Lambert, contra.
QUILLIAN, J.
1. (a) The demurrers to the petition, the attack upon the jurisdiction of the court of ordinary, and the various grounds of the motion for new trial deal in substance with a *190 single issue whether a plaintiff heir, who has recovered and brought into the estate certain funds representing land held by the administrators adversely to it, may in a direct action, obtain an order of the ordinary having jurisdiction of the estate, granting reasonable attorney fees to her for the use of the lawyers prosecuting the actions which resulted in bringing the fund into the estate. Special grounds 5, 6, and 7 of the amended motion for new trial also assign various errors going to the point that, in any event, the plaintiff could not recover attorney fees for her lawyers on a quantum meruit basis, when the testimony shows that she had an express contract with them for a sum certain, and the testimony fails to show the amount of the contract price which she paid to them. These questions will be discussed together: first, as to the right of the plaintiff, and the jurisdiction of the court of ordinary, to grant attorney fees out of the estate under these conditions; and, second, as to the effect on this proceeding of the express contract between the plaintiff and her attorneys.
If this case were in strict parlance an equity case there would be no room for disagreement that counsel fees might properly be awarded to beneficiaries of the estate who, by their efforts, brought into the estate the fund of $29,000 which the estate would not otherwise have obtained, and which would be held as an asset of the estate for distribution among all the heirs. Ewing v. First National Bank of Atlanta, 209 Ga. 932 (76 S. E. 2d 791). The contention is, however, that, since the court of ordinary is not a court of equity, it has no jurisdiction to make such distribution of the fund brought in.
The court of ordinary, under Code § 24-1901, has "original, exclusive and general jurisdiction of the following subject matters: . . . (4) The sale and disposition of the property belonging to, and the distribution of, deceased persons' estates.. . (10) All such other matters and things as appertain or relate to estates of deceased persons. . ." Although not a court of equity, it was held as early as Greer v. Burnam, 69 Ga. 734, and as late as McDowell v. McDowell, 194 Ga. 88 (20 S. E. 2d 602) that a court of ordinary "has some equitable powers" and "may apply equitable principles" in making settlements and accounting for the assets of estates. In the present case, the *191 application for attorney fees for bringing the fund into court (not exclusively for the plaintiff's use, but in which she, as well as the defendant administrator and others shared) was properly before the ordinary, he having original jurisdiction in the matter. The question of allowing the counsel fees comprises a part of the distribution and disposition of the assets of a deceased person's estate. In such settlement and distribution the court of ordinary has some equitable powers. It is acknowledgedly equitable that, where one person goes to expense to bring in a fund for a common benefit, it is only fair and right that those who benefit thereby should pay their pro rata part of the expenses of obtaining the fund for distribution.
Code § 113-1512, which provides that, "if the administrator .. . shall decline to place any claim in suit, he may nevertheless assign the same to a distributee or creditor, who may at his own expense prosecute the same, the proceeds if recovered, after paying expenses, to be distributed by the administrator," is the only provision in the case which authorizes anyone other than the administrator to provide the services therein mentioned and to bind the estate for expenses incurred in so doing. It is also the only Code section which authorizes the heirs to sue at all if there is an administrator, except Code § 113-907 where they may sue in their own name if he assents thereto. A literal application of these Code sections would lead to the inevitable conclusion that the heirs would under no circumstances be allowed to sue in their own name where there was an administrator unless he consented thereto. But the Supreme Court has broadened the meaning of Code § 113-1512 to include a situation where the administrator refuses, and especially where this refusal is fraudulent or collusive (Harrison v. Holsenbeck, 208 Ga. 410 (1), 67 S. E. 2d 311; Edwards v. Kilpatrick, 70 Ga. 328 (1)); and in such a situation "this right of action [in the heir] exists in the same manner and to the same extent only as it does in the administrator." If it exists in the same manner and to the same extent, then it should be given the same effect.
An estate is primarily liable for the expenses incurred in its administration. One of the expenses of administration is the necessary legal expense of bringing a fund into the estate for distribution, under the supervision of the court. Ordinarily this *192 expense is borne by the estate at the instance of the administrator, for whom counsel is supplied and the fees charged back as a legitimate expense. But "the purpose of supplying executors with legal advice is for the protection of the estate he represents. The object is not to extricate him from difficulties due to his fault or misconduct." Clements v. Fletcher, 161 Ga. 21, 50 (129 S. E. 846); Armstrong v. Boyd, 140 Ga. 710 (79 S. E. 780); Ross v. Battle, 113 Ga. 742 (39 S. E. 287). And an administrator will not be allowed attorney fees out of the estate for the purpose of protecting him from his misdeeds in relation to it. The record here reveals that the deed to the administrator was set aside and that it was fraudulently obtained. Accordingly, the administrator could not collect attorney fees from the estate for opposing the equitable petition to set aside the deeds, his action being hostile to the interests of the estate.
The object of paying attorney fees of administrators and executors is to protect the estate. Where, however, the administrator is the wrongdoer, the heir who brings the action against him is performing a duty of an administrator in protecting the estate, and is placed in the administrator's shoes, and the right of action exists in him in the same manner and to the same extent as though he were the administrator. Under specific statutory authority, an heir who sued out a claim of the estate on assignment of the same to him by the administrator is entitled to recover his expenses out of the fund brought in; and without specific statutory authority an heir may sue, although the administrator does not assign the claim, or consent to the suit, if the action of the administrator is fraudulent, collusive, and unjustifiable. Why may not such heir who has done the exact thing provided for in Code § 113-1512, except that he has been unable to obtain the consent or assignment of the administrator, (which, under Supreme Court decisions, does not preclude his action) not also realize expenses out of the fund brought in, the ordinary having awarded the same in the exercise of his general jurisdiction over the disposition and distribution of the property of the estate? To hold otherwise would be to destroy the tenor and purpose of the Code section as it has been construed by the Supreme Court.
(b) Since it follows from what has been said above that the *193 ordinary had jurisdiction to consider the matter of awarding fees for the use of the attorneys whose successful prosecution of the plaintiff's action brought the fund into the estate, and that such fees were to be awarded out of the assets of the estate it is obvious that the estate would be liable for reasonable attorney fees only, and would not be liable for fees in any stated sum simply because the plaintiff, in her individual capacity, had hired the attorneys and entered into a private agreement with them as to what they would be paid. Attorney fees for counsel "according to the needs of the estate," are authorized as a legitimate expense of administration under Code § 113-1522. A contract of an administrator with attorneys to represent the estate, if made with due care, is binding upon the estate with or without an order of the ordinary. Kimball v. Casey, 169 Ga. 631 (3) (151 S. E. 372). The plaintiff here, however, made no such contract, her contract with the attorneys being made in her individual capacity. She now seeks to have the fee, on a quantum meruit basis, paid out of the estate, and we think that the estate, having been the beneficiary of these services, should pay their reasonable worth. Since no authorized representative of the estate entered into any contract on its behalf which would be binding upon it, and an order of the ordinary allowing such fees would be necessary, the ordinary properly allowed reasonable fees without regard to any contract between the plaintiff individually and the attorneys; and the jury on appeal, having the same jurisdiction as the ordinary, properly allowed fees on the same basis. And since the plaintiff sues for the use of her attorneys, what sums, if any, she has already paid them in her individual capacity, has no bearing on the issue involved here.
(c) There was sufficient evidence upon which the jury might fix an amount certain as attorney fees, since there was evidence establishing the value of the property and the amount of work done to bring about the recovery.
2. Ground 8 complains of the charge of the court, reading as follows: "I charge you, gentlemen of the jury, that if you were to believe from the evidence under the instructions given you by the court that the plaintiff in this case and the defendants at or after the death of their father, that the defendants had deeds to this property which the plaintiff claimed belonged to the estate *194 and they refused to turn over these deeds or declare them void, and you believe that it was necessary that the plaintiff employ counsel and proceed with litigation in order to declare the deeds void, and you further believe that they were declared void and that the money derived from her efforts was turned into the estate, then I charge you that you would have a right under the law to award her such sum of money as you believe would be fair pay or compensation as counsel fees."
The first complaint of this ground is that there was no evidence showing a refusal of the defendants to turn over the deeds or to declare them void, but that, on the contrary, the evidence affirmatively showed that no demand was ever made upon them by the plaintiffs or by any other persons that the deeds be turned over by them to the administrator, or that the defendants in the instant case were among the defendants in the former suit. The record completely disclosed who the defendants were in that suit and the jury could not have been confused or misled by the charge complained of in this special ground of the amended motion for a new trial.
The case was considered by the whole court pursuant to the provisions of Ga. Laws 1945, p. 232.
Judgment affirmed. Gardner, P. J., Townsend, Carlisle, and Nichols, JJ., concur. Felton, C. J., dissents.
FELTON, C. J., dissenting. 1. Code § 113-1522 authorizes an administrator to provide an estate with necessary competent legal services. I know of no provision of law which authorizes anyone else to provide such services and bind an estate other than Code § 113-1512. There was no assignment to the heirs in this case. If there is a legal representative, the right to recover realty is in him. If there is none, the heirs have a right to sue, but must do so in their own names and not acting in the name and place of a representative. Code § 113-901. Again, if the legal representative consents, heirs may sue for realty in their own right. Code § 113-907. The two Code sections provide statutory authority for heirs to sue for real estate but only in their own names and right. The Supreme Court has declared an exception to the statutory rule, which is that heirs may sue in their own names where an administrator is insolvent, unwilling to collect assets, or is in collusion with others to defraud the *195 estate and refuses to sue. Harrison v. Holsenbeck, 208 Ga. 410, and cases cited. We note in some of the cases cited in the Harrison case that the language is to the effect that the heirs may sue to protect their interests, which we construe to mean that an action in such cases is an individual action and not one brought in the place and stead of an administrator. It therefore follows that, since the administrator did not employ counsel to set aside the deeds, and the actions were not instituted by authority of law in the place and stead of an administrator so as to give rise to a promise to pay, either express by the heirs suing, or implied by law from the heirs suing in the place of the administrator, on the above two last-named theories the petition for fees did not set out a cause of action. In Edwards v. Kilpatrick, supra, cited by the majority, the expression used by the court, to the effect that the right of action in the heirs exists in the same manner and to the same extent only as it does in the administrator, does not mean that such an action by the heirs is not an action by them individually to protect their own interests. This statement from the Edwards case refers in that case only to the question of venue. In Harrison v. Holsenbeck, supra, it was held that such an action as this one is an exception to Code § 113-907. If it were an exception to Code § 113-1512, as the majority holds, I would be inclined to agree with them on this phase of the case.
2. The petition did not set out a cause of action for fees under the theory that the action was by some of a class on behalf of the whole of the class and for the benefit of all, and under the theory that a fund or property belonging to all was recovered for the benefit of the class, because not all of the heirs would have benefited from the action brought. See 142 A. L. R. 1459, and 79 A. L. R. 521, for the general rule in administration of estates. It would seem that, if it was an equitable class action, the attorneys' fees would have had to be awarded by the court wherein the actions were filed. Georgia Veneer &c. Co. v. Florida National Bank, 198 Ga. 591 (3) (32 S. E. 2d 465). Since the actions filed by the plaintiff were not class actions, the only way in which the plaintiff could have compelled the defendants therein to pay any of her attorneys' fees would have been to have charged the defendants with bad faith and recover the *196 judgment for fees in those actions. I think that the general demurrer to the action for fees should have been sustained. I am also of the opinion that the plaintiff was not entitled to recover the amount awarded. Even if it can be said that the plaintiff had authority to employ counsel for the estate and pay them a reasonable fee, whatever contract she made which was reasonable inured to the benefit of the estate. The plaintiff is not entitled to any sum for her personal use. She can only recover such sums as she needs to discharge her liability for fees. She has paid her attorneys and the most she can recover, if she is entitled to at all, is the amount she has paid out, if it is reasonable. She cannot either recover a larger sum than a reasonable sum she has paid and put it in her pocket or repay herself what she has expended and make her attorneys a present of the excess over what she herself has paid. She has settled with the attorneys in full and, if the amount is reasonable, the law will require her to pay no more, and any promise on her part to pay more is nudum pactum. Since the plaintiff failed to prove and the evidence fails to disclose that she had paid her attorneys fees amounting to $2,500, a verdict for that amount was not authorized.
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333 S.E.2d 708 (1985)
STATE of North Carolina
v.
Billy Don WILLIAMS.
No. 272A84.
Supreme Court of North Carolina.
September 5, 1985.
*712 Lacy H. Thornburg, Atty. Gen. by Guy A. Hamlin, Sp. Deputy Atty. Gen., Asheville, for the State.
David Belser, Asheville, for the defendant-appellant.
MEYER, Justice.
We note at the outset of our discussion that defendant has abandoned Assignments of Error Nos. 1 through 8, 12, 16, 21, and 22 by failing to advance any argument in his brief to support them. N.C.R.App.P. 28(a). On the basis of his ten remaining assignments of error, defendant contends that the trial court erred by (1) denying his motion to suppress certain evidence, (2) by improperly charging the jury, and (3) by allowing prejudicial statements in the State's closing argument. We find each of these contentions meritless.
I.
Defendant was arrested at his fiancee's home in Swannanoa, North Carolina, at approximately 2:30 p.m. on 9 September 1983. Shortly thereafter, Officer Donald R. Cole of the Buncombe County Sheriff's Department arrived at the scene carrying the warrant for defendant's arrest that had been issued earlier that day. Officer Cole, who was familiar with the defendant from a prior criminal matter, advised defendant of his Miranda rights, including his right to remain silent and his right to have counsel present during questioning. Defendant orally waived those rights and before questions were asked of him, stated to Officer Cole, "I need some help." Officer Cole told defendant that he needed his cooperation and further informed him that the District Attorney would be made aware of that cooperation. Defendant then signed a written consent to search form, obtained the keys to his car, and opened its trunk. In the trunk of defendant's car, Officer Cole found two knives.
After the search, defendant was transported to the Buncombe County courthouse, where he was questioned by Officers W.K. Ingle and Margaret Mull of the Buncombe County Sheriff's Department. At that time, defendant requested the assistance of counsel, and all questioning ceased. Officer Cole was then informed of defendant's request.
Some thirty minutes after defendant invoked his right to counsel, Officer Cole delivered to defendant an inventory of the items seized from his automobile. The two spoke briefly. As a result of that discussion, Officer Cole agreed to return the next morning, if defendant still so desired, and discuss the events leading to defendant's arrest.
*713 The next day, Officer Cole obtained a generally inculpatory written statement from the defendant. The statement contained a detailed account of the actions of the defendant and co-defendant, McClintick, on the night in question. Essentially, defendant admitted his participation in the acts for which he was indicted and tried, but stated that he believed that the victim was McClintick's girlfriend and implied that their actions were, therefore, consented to.
In apt time, counsel for defendant moved to suppress all statements that defendant may have made, oral and written, and the knives obtained as a result of the warrantless but consensual search of his car. The trial court conducted an extensive voir dire hearing on defendant's motion to suppress in the absence of the jury and made findings of fact and conclusions of law. At the conclusion of that hearing, the trial court denied defendant's motion to suppress. Defendant's statement was introduced at trial by the State through the testimony of Officer Cole.
Defendant first assigns error to the trial court's denial of his motion to suppress certain statements made by him and physical evidence seized during the search of his car. Specifically, defendant contends that there was no probable cause for his arrest, that the consent to search his car and waivers of counsel were not voluntarily and knowingly made, and that his written statement was given in violation of his right against compelled self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution.
Defendant initially argues that the information Officer Cole presented to the magistrate was insufficient to establish probable cause and that the warrants issued for his arrest were therefore invalid, citing Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (evidence obtained by the exploitation of an arrest unsupported by probable cause must be suppressed).
Although the trial judge did not specifically state in his findings what evidence was presented to the magistrate, he did find that "certain" evidence was presented. The record is clear in this regard.
Probable cause refers to those facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information which are sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); State v. Zuniga, 312 N.C. 251, 322 S.E.2d 140 (1984).
The trial judge found as fact that "certain information" was furnished to the magistrate by Officer Cole. The record reveals that this information included a statement made by co-defendant McClintick in the presence of Officer Cole's colleagues. That statement was, "If I did what you say, Billy Don Williams was with me when I did it." Additionally, Officer Cole showed the magistrate a photograph of defendant and the composite of the perpetrator prepared by Luanne Odom the morning of her rape. "It is well recognized that a description of either a person or an automobile may furnish reasonable ground for arresting and detaining a criminal suspect." State v. Jacobs, 277 N.C. 151, 154, 176 S.E.2d 744, 746 (1970) (citations omitted).
We hold that defendant's arrest was supported by probable cause to believe that defendant had committed the crimes for which he was later convicted.
Defendant next argues that the knives taken from his car following the consent search should have been suppressed because that consent was not given freely, voluntarily, and understandingly but was instead "the product of promises and inducements of hope." Defendant bases this contention on the alleged trust relationship which defendant perceived to exist between himself and Officer Cole. Defendant further argues that this perception, combined with Officer Cole's repeated statements to defendant that his cooperation would be made known to the District Attorney, created *714 strong "suggestions of hope" which render his consent involuntary. We cannot agree.
Evidence seized during a warrantless search is admissible if the State proves that the defendant freely and voluntarily, without coercion, duress, or fraud, consented to the search. State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977). In determining whether consent is free and voluntary, the Court must look to the totality of the circumstances which were present at the time of the search. Id.
While testifying on voir dire, both defendant and Officer Cole admitted knowing each other as a result of previous criminal matters involving the defendant. Both also stated that in one of those matters a charge of common law robbery was reduced to larceny and as a result, defendant received a suspended sentence. Officer Cole testified that he arrived at the scene of the arrest pursuant to a request from defendant. Once there, he had defendant's handcuffs removed because of his familiarity with him. Officer Cole then told defendant that he had been truthful with him regarding previous criminal matters and that he expected defendant to be truthful in this case, too. However, Officer Cole denied having reminded defendant of the specifics of any previous case. Finally, Officer Cole admitted to having stated to defendant several times that he would advise the District Attorney's office of his cooperation.
To some extent, defendant's testimony on voir dire was inconsistent with that of Officer Cole's. Defendant readily acknowledged Cole's promises to advise the District Attorney of his cooperation. However, according to defendant, it was not he who asked for Cole but Cole who asked if defendant wished to speak with him. Defendant further stated that before he gave his consent, Officer Cole reminded him that he had helped him before and that he would do everything he could to help him in this instance.
The trial judge made the following findings of fact pertinent to the issue of defendant's consent to search his car:
That the Defendant has been previously arrested, based upon his testimony, approximate [sic] six times, and has been incarcerated or confined at the Buncombe County Sheriff's Department and understands their procedure as to booking and lockup and that he understood the use of the phone and further understood and had experience with having been advised of his Constitutional Rights; that no promises, offers of reward or inducements by any law enforcement officer were made to the Defendant to make any oral or written statement or to consent to the search of his vehicle; that the allowance of the officer for the Defendant to have his handcuffs removed from his back and placed on his hands in front and to smoke, nor the statement made by officer Donnie R. Cole that he would advise the District Attorney's Office of his cooperation were sufficient to constitute an inducement on behalf of the Defendant to make a statement;....
That there is lack of evidence in regard to the Defendant's statement that he trusted the officer and that the officer had helped him on a previous occasion, there being a mere dropping of the charges of common law robbery to larceny by the District Attorney, and there being insufficient evidence in regard to this officer causing said lesser included offenses to be accepted as pleas for the offenses against the Defendant on prior occasions, or a prior occasion.
Based on these findings, the trial court concluded as a matter of law that:
[T]he consent given by the Defendant to the officer on the afternoon of September 9th, 1983, was given freely, voluntarily, understandingly and without any coercion, duress or fraud upon the Defendant; that based upon the totality of the circumstances at the time, the Court concludes that the search was a valid search, with the consent of the Defendant, and that the objects taken from the *715 vehicle as a result of the search are such as to come within the purview of the search; ... that there was no threat or suggest [sic] of violence or show of violence to persuade or induce the Defendant to ... sign any consent form to search; ....
Findings of fact that are supported by competent evidence are binding on appeal. State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (1982). However, the conclusions of law drawn from those findings are reviewable by the appellate courts. Id.
Having resolved any conflicts in the voir dire testimony against the defendant, the trial court specifically found that there was no evidence to support defendant's subjective perception that Officer Cole had "helped" defendant on a previous occasion and would, therefore, "help" him with this matter. This finding of fact is supported by competent evidence and is binding on appeal. The trial court made a further "finding," more in the nature of a conclusion, that Officer Cole's express promise to defendant that the District Attorney would be informed of any cooperation was not sufficient to constitute an inducement to the defendant to make a statement and that "no promises, offers of reward or inducements were made to the Defendant to make any oral or written statement or to consent to the search of his vehicle."
Defendant relies on State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68 (1967), to argue that Officer Cole's promise created strong "suggestions of hope" of aid which rendered his statement and his consent to search involuntary in light of all the circumstances. In contrast to the situation in this case, the defendant in Fuqua was told by a police officer that the officer would testify as to the defendant's cooperation if the defendant would give a statement. Accordingly, we held that such a statement by a person in authority gave the defendant a clear hope for lighter punishment if he confessed, which rendered his confession involuntary and inadmissible. Fuqua, 269 N.C. at 228, 152 S.E.2d at 72. Thus, Fuqua is clearly distinguishable from the case under discussion, and defendant's reliance upon it is misplaced.
More to the point is our fairly recent holding in State v. Branch, 306 N.C. 101, 291 S.E.2d 653 (1982). In Branch, police officers promised the defendant "that we would talk with the District Attorney if he made a statement which admitted his involvement." 306 N.C. at 109, 291 S.E.2d at 659. We held that the defendant's inculpatory statement was not rendered involuntary by any suggestion of hope reasonably induced by the interrogating officers' comment, and further stated that:
[T]his statement by Lieutenant Turner could not have aroused in the defendant, a man 29 years of age and of sound intellect, any reasonable hope of reward if he confessed. Instead, we think that any suspect of similar age and ability would expect that the substance of any statement he made would be conveyed to the District Attorney in the course of normal investigative and prosecutorial procedures. The statement by Lieutenant Turner in no way hinted that the defendant could expect easier or preferred treatment if he confessed to the crime under investigation. The absence of any such indication that preferential treatment might be given in exchange for his confession makes the present case easily distinguishable from Fuqua.
Branch, 306 N.C. at 109-10, 291 S.E.2d at 659.
Similarly, in this case, the record does not reveal the slightest hint that the defendant was led to believe that he could expect any easier or preferred treatment in exchange for his consent to search his automobile. The trial court made detailed findings as to defendant's age and experience with police practices and procedures and his resulting understanding of all of his constitutional rights. As was true of the defendant in Branch, the defendant in this case certainly knew, as a result of his age and experience, that the District Attorney would be made aware of his cooperation as a matter of routine practice. Accordingly, we hold that the trial court correctly *716 determined that Officer Cole's statement to the defendant did not constitute an inducement to defendant to consent to the search of his automobile as a matter of law, and correctly denied the defendant's motion to suppress the evidence discovered during the course of that search.
We find no error in the trial court's conclusion that the promise by Officer Cole, that the District Attorney would be informed of any cooperation, was not such an inducement as to render defendant's statements and his consent to have his automobile searched involuntary.
Defendant also contends that his oral and written waivers of counsel were the product of the same promises and inducements which allegedly vitiated his consent to the search of his automobile. The test for determining the voluntariness of a waiver of counsel is similar to that for determining the voluntariness of a consent to search. Prior to any questioning, the suspect must be warned of his constitutional rights, including his right to remain silent and his right to have an attorney present during questioning. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). "The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." Id. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707; see State v. Dampier, 314 N.C. 292, 333 S.E.2d 230 (1985). The voluntariness of a waiver must be based on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979).
The trial court made one set of findings of fact with respect to the alleged inducements to support both its conclusion that the consent was voluntarily given for the search and its conclusion that defendant was in full understanding of his constitutional rights when he "freely, knowingly, intelligently and voluntarily waived each of those rights," including the right to counsel. For the reasons stated above, we hold that the trial court's findings of fact on this issue are supported by competent evidence and that they, in turn, support its conclusion of law that defendant voluntarily waived his right to counsel at the time of his questioning.
Finally, defendant contends that his written statement was taken in violation of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh. denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981). In Edwards, the United States Supreme Court held that once a suspected criminal invokes his right to counsel, he may not be questioned further until counsel is provided unless the suspected criminal himself initiates the dialogue, at which time he may waive his right to have an attorney present. Defendant argues that both Officer Cole's delivery of the inventory form and his subsequent contact with the defendant the following morning constituted the initiation of conversation by someone other than defendant.
In Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983), the defendant had already invoked his right to counsel when, while in transit from the police station to a jail, he asked of an officer, "Well, what is going to happen to me now?" The Supreme Court held that the defendant's question "evinced a willingness and a desire for a generalized discussion about the investigation...." Bradshaw, 462 U.S. at 1045-46, 103 S.Ct. at 2835, 77 L.Ed.2d at 412. In so holding, the Court reasoned that:
While we doubt that it would be desirable to build a superstructure of legal refinements around the word "initiate" in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to "initiate" any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized *717 discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards.
Bradshaw, 462 U.S. at 1045, 103 S.Ct. at 2835, 77 L.Ed.2d at 412.
For similar reasons, we conclude that Officer Cole's delivery of the seizure inventory form to defendant was not an "initiation" of conversation as that term was used in Edwards. Indeed, law enforcement authorities are required "to make a list of the things seized, and ... deliver a receipt embodying the list to the person who consented to the search...." N.C.G.S. § 15A-223(b). The fact that delivery of the receipt was made after a request for the presence of an attorney does not alter the routineness of such a delivery nor does it thereby constitute the initiation of questioning.
We also conclude that Officer Cole's return to the jail the next day did not constitute an initiation of conversation in violation of Edwards, but was instead a continuation of the conversation begun by defendant on the evening of his arrest. The trial judge found that on 9 September 1983 Officer Cole handed defendant the inventory receipt and turned to walk away; that defendant indicated his desire to "tell his side of the story" after he had some sleep and a shower; that Cole told defendant he would return the next morning; and that when Cole returned on the morning of 10 September, he had a jailer contact defendant and ask him whether he still desired to speak with Officer Cole. The record fully indicates that it was defendant who, on the evening of his arrest, initiated the discussion which led to the making of his written statement the following morning. Defendant's desire to rest and bathe merely delayed the carrying out of his desire to tell Officer Cole "his side of the story." By so doing, defendant simply postponed finishing the conversation already begun by him. We hold that the return of Officer Cole on the morning after defendant asserted his right to counsel was merely a continuation of the conversation initiated by defendant the previous evening and did not violate the rule in Edwards.
Having found no violation of the Edwards rule, we must next determine whether under the totality of the circumstances, defendant's written statement was voluntarily and knowingly made. Dampier, 314 N.C. 292, 333 S.E.2d 230 (1985); State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968). That is, we must determine whether defendant's waiver of counsel was "knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Edwards, 451 U.S. at 486, n. 9, 101 S.Ct. at 1885, n. 9, 68 L.Ed.2d at 387.
The trial court found that defendant was re-advised of his Miranda rights upon his being brought down to an interrogation room following Officer Cole's inquiry. There, defendant expressly waived these rights in the written statement of waiver which he signed. Having already concluded that this waiver was not induced and that defendant himself initiated the conversation following the assertion of his constitutional rights, we further conclude that defendant's waiver was knowingly and intelligently made under the totality of the circumstances.
On defendant's motion to suppress, the trial court concluded "that none of the Constitutional Rights, either Federal or State, of the Defendant were violated by his arrest, detention, interrogation or statements made on September 9th to Officer Cole, nor his statement written or oral statements made to Officer Cole on September 10th, 1983." We find that this conclusion is supported by the findings of fact which in turn are supported by the evidence. We hold that defendant's motion to suppress the evidence in question was properly denied.
*718 II.
Defendant next assigns as error the failure of the trial court to instruct the jury on certain lesser-included offenses of rape in the first degree. The jury was instructed to find defendant guilty of first-degree rape or not guilty. Defendant contends that the evidence as to the essential element of penetration was equivocal and, therefore, additional instructions on attempted first-degree rape and assault on a female were required. We find no merit in this contention.
It is well established that the trial judge must declare and explain the law arising upon the evidence. N.C.G.S. § 15A-1232. Where there is evidence to support a charge upon a lesser-included offense, the judge must so instruct even absent a special request. State v. Wright, 304 N.C. 349, 283 S.E.2d 502 (1981). "However, when the State's evidence is clear and positive with respect to each element of the offense charged and there is no evidence showing the commission of a lesser included offense, it is not error for the trial judge to refuse to instruct on the lesser offense." State v. Hardy, 299 N.C. 445, 456 263 S.E.2d 711, 718-19 (1980). "Instructions on the lesser included offenses of first-degree rape are warranted only when there is some doubt or conflict concerning the crucial element of penetration." State v. Wright, 304 N.C. 349, 353, 283 S.E.2d 502, 505. Evidence of the slightest penetration of the female sex organ by the male sex organ is sufficient for vaginal intercourse and the emission of semen need not be shown to prove the offense of rape. State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984).
In support of his contention that the trial court erred in refusing to instruct on the lesser-included offenses, defendant relies on his written statement, the trial judge's summation of defendant's evidence elicited on cross-examination, and the trial court's alleged improper reliance on State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983). Defendant's written statement reads in pertinent part as follows:
I embarrassingly removed my pants to my knees, and without touching her elsewhere, struggled to penetrate without an erection. At this the girl began a muffled laugh, so I got up and dressed as Shannone was going through her purse. (Emphasis added).
Defendant argues that when this excerpt is read in the context of his entire written statement, it is essentially a denial of penetration. The trial judge apparently agreed with defendant's interpretation since he reiterated this portion of the statement in his summation of the evidence. However, we find no evidence in the record to support such a conclusion.
The simple fact that a person struggles to accomplish some feat, taken by itself, implies neither success nor failure. The fact that defendant "struggled to penetrate" is far from equivocal and in no way negates a completed act. A careful reading of defendant's statement as a whole fails to alter this observation. While penetration is best achieved when there is an erection, by no means can penetration to the degree necessary to satisfy the penetration element of rape be excluded because there is no erection. See State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984). Luanne Odom testified unequivocally that defendant inserted "his penis ... into my vagina." Though we find the trial judge's interpretation of defendant's statement unfortunate, we hold that Luanne Odom's testimony and defendant's failure to deny penetration compelled the instruction given by the trial court.
Although the trial court's instructions on first-degree rape were proper, there is some indication in the record that language from Strickland, 307 N.C. 274, 298 S.E.2d 645, inappropriately provided the basis for those instructions. In Strickland, the defendant was convicted for first-degree murder although he alleged an alibi and thereby denied having committed any offense. We stated:
The determinative factor is what the State's evidence tends to prove. If the evidence is sufficient to fully satisfy the *719 State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial court should properly exclude from jury consideration the possibility of a conviction of second degree murder.
Strickland, 307 N.C. at 293, 298 S.E.2d at 658.
Where a defendant denies having committed a complete offense, such as murder, but there is evidence as to every element which negates that denial, application of Strickland would indeed be proper. In that situation, the jury would be correctly charged to find the defendant guilty of murder or not guilty. However, in a case such as rape, where the only evidence of the defendant's innocence as to a particular element may rest solely on the defendant's denial, then reliance on Strickland would be misplaced. Had the defendant unequivocally denied the essential element of penetration, it would have been incumbent upon the trial judge to have placed that issue before the jury. This would have necessarily included an instruction on some lesser-included offense of first-degree rape. However, as we stated earlier, defendant's statement simply failed to constitute a denial of the element of penetration in this case. We merely take this opportunity to caution our trial judges against the reliance upon Strickland in giving jury instructions where the defendant denies only an element of the offense as opposed to denial of the complete offense.
Defendant similarly assigns as error the trial court's failure to instruct the jury on a lesser-included offense of burglary in the first degree. The trial judge instructed the jury to find defendant guilty of either first-degree burglary or not guilty. Defendant contends that a rational trier of fact could find, based on his written statement, that he did not intend to commit the specified felonies of first-degree rape and armed robbery upon entering the Odom's mobile home; therefore, an instruction on misdemeanor breaking or entering was required. We find this contention meritless.
The statement which defendant gave to Officer Cole is as follows:
On August 5th I was leaving McKell's to return to my fiancee's in Swannanoa when I met an old friend, Shannone Sherlin Brackett, in the parking lot. After becoming reacquainted he mentioned that someone in Fairview owed him some money and wanted a ride there to get it. I was hesitant in agreeing, since I was already late, but I did. Upon leaving we rode around and drank a beer, then headed to Fairview, where he told metold where me [sic] to pull over and park. After getting out of the car, I noticed that he had a large knife in his belt. He started walking up the hill and motioned for me to be quiet. I followed him to a trailer where he tried to open the door and walked quietly around the window and motioned for me to do the same. I found that he was looking in the window at a girl lying in bed reading a book. Then he motioned for me to wait there and again be quiet. I stood silently as Shannone walked around toward the front of the trailer. Then I heard a loud noise, and so did the girl, but she went back to reading, and I looked around the corner of the trailer to see Shannone going in the window. This puzzled me, but being under the impression that this was his girlfriend, I thought he was going to surprise her. I soon learned different. Then I returned to the window and observed and observed [sic] Shannone wearing a stocking over his head and holding the swordlike knife in his hand. He walked from the bedroom door and started toward her with the knife. He held his hand over her mouth so she wouldn't scream and in a low voice started threatening her with the knife. He had her turn over face down on the bed and placed a pillow over her head. He then threatened to kill her if she screamed or moved and got up and motioned for me to come in. At this point I was in a state of shock and panic. I *720 went around the trailer and tried the door, but it was locked, so I went in the window and noticed an object on the floor. I stepped over the object and proceeded toward the bedroom. When I entered the room, Shannone was struggling with the girl, and she scratched his back with her long nails. He began to tie her up and realizing what was going on I said audibly, "No, Shannone." He then turned to me with the knife and started to get up when the victim got her head out from under the pillow and stared directly into my face. Shannone then covered her face and continued to restrain her arms and legs when she started kicking and in the fury kicked at me and stared at me again. He then began to threaten her with the knife and she relaxed totally, and I released her leg, ankle. Shannone then asked for my bandana which he used to blindfold her and began removing her undergarments. The girl remained totally relaxed as Shannone began to orally seduce her and snicker and giggle at me. It wasn't until Shannone tried to penetrate her through intercourse that she began to struggle and tried to scream. Shannone kept insisting that she liked it and that he had done it before. I wanted nothing to do with any lewd act of this nature. Shannone's continuing insistency led me to believe this was really his girlfriend. Her minimal struggle reassured me this was really his acquaintance. I embarrassingly removed my pants to my knees, and without touching her elsewhere, struggled to penetrate without an erection. At this the girl began a muffled laugh, so I got up and dressed as Shannone was going through her purse. I started toward the door, and he began to untie her. I continued to the back door, where I waited outside. Shannone came out and said, "Let's go," in his usually excited voice and began running back to the car. Upon leaving he showed me her bank card and said he had to get to a Wachovia to get some money for her. I drove to Wachovia in Beverly Hills, and he went to the Teller II and withdrew $180. He then wanted to go to Patton Avenue and gave me some money for gas, so I took him. We stopped at another Wachovia Teller at Patton Avenue. I then took him to LaMancha and proceeded to my girlfriend's house in Swannanoa.
Common law burglary is defined as the breaking and entering of a dwelling house of another in the nighttime with the intent to commit a felony therein. State v. Cooper, 288 N.C. 496, 219 S.E.2d 45 (1975). Burglary in the first degree occurs when the crime is committed while the dwelling house or sleeping apartment is actually occupied by any person. N.C.G.S. § 14-51 (1981). If at the time of a breaking and entering a person does not possess the intent to commit a felony therein, he may only properly be convicted of misdemeanor breaking or entering. State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985).
In his statement, defendant indicated that he agreed to go to the mobile home so that co-defendant McClintik could collect some money which his girlfriend owed to him. According to defendant, he watched as McClintick entered the mobile home through a window, thinking that his friend was going to "surprise" the girl; and, once McClintick was inside, defendant watched as McClintick threatened the girl with a knife. Defendant was then motioned to come in, and he entered the mobile home "in a state of shock and panic." Defendant contends that this evidence was sufficient to justify a charge on non-felonious breaking or entering.
Instead of supporting his contention, it is defendant's own written statement that undermines it. Defendant admits having watched McClintick enter the mobile home wearing a mask and wielding a "swordlike knife." He then watched as McClintick threatened the girl. At that point, it was amply clear to defendant that McClintick was not intending to merely "surprise" the girl. In spite of this, defendant entered the mobile home through a *721 window after having failed to gain entrance through the door. This action negates any assertion on defendant's part that he did not possess the intent to commit the felonies specified in the indictment when he entered the mobile home. We, therefore, find that the evidence was clear and positive on the intent element of burglary at issue here and hold that because there was no evidence of the commission of a lesser-included offense than first-degree burglary, the trial court correctly charged only on that offense. See State v. Hardy, 299 N.C. 445, 263 S.E.2d 711 (1980).
Defendant next contends that the trial court erred by instructing the jury that defendant must have intended "to commit rape or robbery with a dangerous weapon, or both" at the time of the breaking and entering and that such instruction violated defendant's right to a unanimous jury verdict.
This Court has held that where an indictment is phrased in the conjunctive, e.g., rape and robbery, it is proper for the trial court to instruct the jury that it may convict for the indicted offense if it finds that defendant committed either or both of the particular felonies alleged to support the indictment. State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975), death sentence vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976). On 14 September 1983, defendant was charged in an indictment, proper in form, with the first-degree burglary of the home of Nina and Luanne Odom. In pertinent part, the indictment states that "defendant broke and entered the dwelling house with the intent to commit a felony therein: first degree rape & armed robbery." In its final mandate, the trial court instructed the jury that its verdict must be unanimous. Therefore, we find no merit in this contention.
III.
By his final assignments of error, defendant contends that the District Attorney's closing argument to the jury resulted in prejudicial error which denied him a fair trial. At the charge conference, defendant moved the trial court "to prohibit the State from arguing to the jury that the Defendant's confession is not, in fact, truthful." Following closing arguments, defendant moved for a mistrial based upon alleged improper remarks made by the State during closing. The trial court denied both of these motions.
In support of his contention, defendant relies on the following pertinent portions of the State's final argument:
If it were true that I had to be bound by this man's words when I put them into evidence, I never would have, because I would never stand in front of you and vouch for that man's credibility.
....
I contend to you, ladies and gentlemen, if you listen to this statement, that it's so far fetched and incredible in and of itself that it's not worthy of belief.
....
... I submit to you the truth has been in this courtroom and it came from the lips of that young lady sitting over there, ladies and gentlemen, and you can put your faith and trust in it. She is credible, and the other evidence presented to you corroborates her and validates her and substantiates her in every respect. You think about the evidence that does that, ladies and gentlemen, and when you do that and you contrast her credibility with the credibility of that man over there, I want you to put them on an imaginary scale of morality and character, and I guarantee you that that man over there wouldn't even begin to register on that scale.
The introduction of an exculpatory statement by the State does not preclude it from showing facts concerning the crime to be different. State v. May, 292 N.C. 644, 235 S.E.2d 178, cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288 (1977). The State is entitled to comment during closing argument on any contradictory evidence as the basis for the jury's disbelief of the defendant's story. State v. Brock, 305 N.C. 532, 290 S.E.2d 566 (1982). *722 The record here plainly exhibits plenary evidence introduced by the State to contradict defendant's written statement. During her closing argument, the District Attorney indeed commented on the untruthfulness of that statement. This the law allowed her to do. We, therefore, hold that defendant's motion in limine at the charge conference and his motion for mistrial at the close of the evidence were both properly denied.
Defendant also contends that the trial court erred in failing to sustain timely objections to other alleged improper remarks by the District Attorney during closing argument. Defendant specifically argues that the prosecutrix "repeatedly disparaged the truthfulness of the defendant" and that such comments "culminated in direct, highly improper attacks on both his credibility and his morality and character." The law in this area is well settled:
We have consistently held that counsel must be allowed wide latitude in the argument of hotly contested cases. He may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his side of the case. Whether counsel abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury. Even so, counsel may not employ his argument as a device to place before the jury imcompetent and prejudicial matter by expressing his own knowledge, beliefs and opinions not supported by the evidence[.] It is the duty of the trial judge, upon objection, to censor remarks not warranted by the evidence or the law and, in cases of gross impropriety, the court may properly intervene, ex mero motu. (Citations omitted.)
State v. Covington, 290 N.C. 313, 327-28, 226 S.E.2d 629, 640 (1976).
Although we find the District Attorney's aforementioned commentary as to defendant's "morality and character" inappropriate, we do not find that such comments so exceeded the bounds of permissible argument as to require the trial court to sustain defendant's objections. The prosecutrix's entire argument indicates that the disputed comments were primarily directed towards defendant's written statement and the lack of credibility derived therefrom. We also note that when the District Attorney came close to commentary on defendant's failure to testify, the trial court interrupted ex mero motu and instructed the jury to ignore any such comment. Therefore, we hold that the trial court did not err in failing to sustain defendant's timely objections during closing argument.
Finally, defendant argues that the trial court erred in failing to grant a motion for mistrial based on these alleged improper remarks by the State in its final argument. Having already concluded that there were no prejudicial remarks, we hold that the trial judge correctly denied defendant's motion.
We conclude that defendant received a fair trial, free from prejudicial error.
NO ERROR.
BILLINGS, J., did not participate in the consideration or decision of this case.
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217 Va. 84 (1976)
BONNIE BELO ENTERPRISES, INC., ET AL., ETC.
v.
COMMONWEALTH OF VIRGINIA.
Record No. 750652.
Supreme Court of Virginia.
June 11, 1976.
Present, All the Justices.
Sunday Closing Laws have found their justification in the police power under the rationale that the purposes of such acts are to provide a day of rest for persons and to prevent physical and moral debasement from uninterrupted labor. Rules of statutory construction are conceived and applied to give effect to legislative intent -- not to defeat it. All rules are subservient to that intent. Under current law the General Assembly has seen fit to permit one whose principal business is selling food, incidental to the operation of his business on Sunday, to sell such non-food items as are sold in the normal and ordinary course of his business.
Error to a judgment of the Circuit Court of the City of Portsmouth. Hon. Henry W. MacKenzie, Jr., judge presiding.
E. Ralph James; David K. Sutelan (James A. Howard; Breeden, Howard & McMillan; James, Richardson, James, Sawyer & Quinn, on brief), for plaintiffs in error.
Gilbert W. Haith, Assistant Attorney General; Jim L. Chim, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
HARMAN
HARMAN, J., delivered the opinion of the court.
The defendants, Bonnie BeLo Enterprises, Inc. (Bonnie BeLo), and Commonwealth Foods, Inc., trading as Farm Fresh Supermarkets (Farm Fresh), were convicted and fined by the trial court for violating Code | 18.1-363.1 [1] (Acts, 1974, c. 330), commonly referred to as the Blue Law or Sunday Closing Law.
Blue Laws or Sunday Closing Laws go far back into American history, having been brought to the Colonies with a background of English legislation dating to the thirteenth century. McGowan Maryland, 366 U.S. 420, 431 (1961). In Mandell Haddon, 202 Va. 979, 121 S.E.2d 516 (1961), Mr. Justice I'Anson, now Chief Justice, traced the legislative history of these laws in Virginia from 1610, when they were of a religious character, to their evolution into laws of a clearly secular character following the Revolution. Id. at 988, 121 S.E.2d at 523.
The facts here are not in dispute. The defendants are substantial merchants engaged in operating supermarkets selling food and non-food products in Portsmouth and the Tidewater area of Virginia. Defendants' Portsmouth stores were operating on Sunday, November 10, 1974, and were selling their entire line or inventory of goods, including non-food as well as food items. Defendants were charged with a Blue Law violation after a city policeman purchased paper plates and paper cups from Bonnie BeLo and another officer purchased a paper back novel entitled "The Day of the Jackal" from Farm Fresh.
Code | 18.1-363.1 then provided, in pertinent part:
}"(a) On the first day of the week, commonly known and designated as Sunday, no person shall engage in work, labor or business or employ others to engage in work, labor or business except in the following industries and businesses:"
* * *
}"(15) Sale of food;"
* * *
}"This section shall not be applicable to works of charity conducted solely for charitable purposes by any person or organization not organized or engaged in business for a profit."
}"(b) Any person violating the provisions of this section shall be guilty of a misdemeanor."
}"(c) Nothing contained herein shall be construed to permit any fine or penalty against any employee or agent who has been caused, directed or authorized by his employer to violate any provision of this section, in which case the employer shall be subject to the sanctions prescribed by this section."
While the defendants challenge the constitutionality of the law on several grounds, we do not reach those questions because of the *86 construction which we place upon the statute. Here, as in the court below, the defendants point out that the evidence establishes that their principal business is the sale of food, a business which may legally operate on Sunday under the "industry and business exemption" provided by paragraph (a)(15) of the Act. They argue that this exemption allows them to sell all merchandise, including non-food items, normally sold in the ordinary course of their businesses and which are incidental thereto.
The Attorney General takes the position that paragraph (a)(15) exempts the sale of a commodity, i.e., food, rather than exempting a business, i.e., the operation of a food store or supermarket, so that only food, the exempt commodity, could be legally sold by the defendants on Sunday.
Prior to adoption of Code | 18.1-363.1 in 1974, it was unlawful for any person to engage in work, labor or business or to employ others to engage in work, labor or business on Sunday except in household or other works of necessity or charity. Certain businesses and commodities were specifically exempt under this earlier version of the statute which also contained a list of 30 items, the Sunday sale of which would not be deemed a work of necessity or charity. The text of the 1960 version of our Blue Law, Code | 18-329, is set forth in full in footnote 2 in Mandell Haddon, supra, 202 Va. at 982-83, 121 S.E.2d at 520.
Among the proscribed commodities under the 1960 statute were: ". . . farm produce (excluding sales of farm produce grown by the seller and sold at roadside stands or at the place where grown) or fresh, frozen or salt meats, poultry or seafood customarily inedible without further cooking or preparation (excluding smoked or cured hams). . . ." Acts, 1960, c.c. 267, 358. In 1964 the proscription dealing with farm produce in the statute was amended to read: ". . . fresh fruits and vegetables (excluding sales of fresh fruits and vegetables and other edible products which are both grown by the seller in this State and sold either at roadside stands or at the place where grown), . . ." and the exclusion of amoked or cured hams was deleted. Acts, 1964, c. 394.
The next significant amendment occurred in 1973 when fruits and vegetables and fresh, frozen or salt meats, poultry or seafood were all dropped from the proscribed list. Acts, 1973, c. 427.
In 1974 the General Assembly completely rewrote the Blue Law. In doing so it dropped all reference to household work and other *87 works of necessity. It continued to exempt works of charity, but only those which were conducted solely for charitable purposes by a person or organization not organized or engaged in business for a profit. Nowhere in this act does there appear, as in the earlier statutes, a list of commodities whose sale is prohibited on Sunday.
While it can be argued that the language in paragraph (a)(15) of the 1974 act might be construed as a commodity exemption, to do so would require us to ignore the stated purpose of the General Assembly to permit the Sunday operation of the enumerated "industries and businesses". The rules of construction are conceived and applied to give effect to legislative intent -- not to defeat it. All rules are subservient to that intent. Mandell Haddon, supra, 202 Va. at 984, 121 S.E.2d at 521; Shackelford Schackelford, 181 Va. 869, 877, 27 S.E.2d 354, 358 (1943).
While Sunday Closing Laws were originally of a religious nature, such acts, since adoption in 1776 of Virginia's Declaration of Rights, 9 Hening's Statutes of Virginia 109, 111-112, and the adoption of the First Amendment to the United States Constitution, have historically found their justification in the police power under the rationale that the purposes of such acts are to provide a day of rest for persons and to prevent physical and moral debasement from uninterrupted labor. Rich Commonwealth, 198 Va. 445, 448-449, 94 S.E.2d 549, 552 (1956); Pirkey Bros Commonwealth, 134 Va. 713, 114 S.E. 764, 29 A.L.R. 1290 (1922).
The General Assembly has seen fit to permit those engaged in the business of selling food, food dealers -- whether they be called a grocery store, convenience store or supermarket, to operate their business on Sunday. The operation of such a business on Sunday will necessarily entail the labor of persons employed there.
Under an earlier version of the Blue Law, we held that if the primary activity is permitted as an exception under the act, then whatever labor, work or business which is a necessary adjunct to such primary activity is also permitted. Williams Commonwealth, 179 Va. 741, 746, 20 S.E.2d 493, 494 (1942). We conclude therefore, that under paragraph (a)(15), a food dealer, one whose principal business is the "sale of food", is permitted, incidental to the operation of his business on Sunday, to sell such non-food items as are sold in the ordinary and normal course of his business.
Reversed and dismissed.
NOTES
[1] This statute, as amended, is now recodified as Code | 18.2-341. *85
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35 Cal. 2d 26 (1950)
215 P.2d 921
Estate of CLARA ROOD AKELEY, Deceased.
RUSSELL LEMMON, as Executor, etc., et al., Respondents,
v.
STATE OF CALIFORNIA, Appellant.
Docket No. L.A. 20939.
Supreme Court of California. In Bank.
March 21, 1950.
*27 Fred N. Howser, Attorney General and Elizabeth Miller, Deputy Attorney General for Appellant.
Sidney N. Bachtell, B. Dean Clanton and Newby, Holder & Newby for Respondents.
SHENK, J.
This appeal from the decree of final distribution presents for consideration the question of the correctness of the probate court's interpretation of the residuary clause in the will of the decedent.
Clara Rood Akeley died on November 1, 1947. She left an holographic will dated November 14, 1946, declaring that she was unmarried and had no living relatives of any degree of kindred. She made several specific bequests to individuals, appointed Russell Lemmon executor, and provided for further distribution in the following words:
*28 "Fifth, all the rest, residue and remainder of my estate I give and bequeath as follows
25 per cent to the Childrens Home Society of Calif
25 per cent to the Mary Martha Home for Girls 632 Brittania Street, Los Angeles Calif
25 per cent to Los Angeles Society for the Prevention of Cruelty to animals, 3612 11th Ave Los Angeles, In the event the total of the bequests to the above named Charitable organizations shall exceed the portion of my Estate that I may legally give for charitable purposes, then all such bequests shall be proportionately reduced to the extent, that the total of such bequests shall not exceed the maximum amount that I may legally give to Charity, and in such event, I give devise and bequeath to Russell Lemmon the Executive named, all the residue of my estate, free from Trust, But with the request that he shall distribute the same in such manner, as I shall have indicated to him."
In his petition for distribution the executor alleged an uncertainty as to the proper distribution of the residue of the estate, and raised the question whether in accordance with the manifest intention to dispose of all of the residue it should be distributed one-third to each of the named charitable organizations; or whether the testatrix died intestate as to one-fourth of the residue in which event such portion would escheat to the State of California.
The State of California, through the attorney general, filed a statement of claim by escheat to one-fourth of the residue of the estate. After a hearing the court found that it was the intention and purpose of the testatrix to dispose of all of the residue of her estate to the three named organizations in equal shares and so ordered distribution of the residue which amounts to $41,023.19.
The State of California appealed, asserting that there is no ambiguity or uncertainty in the language of the will but that the specific residuary bequests require a finding that the testatrix failed to dispose of one-fourth of the residue of her estate which is distributable to the State of California as escheated property pursuant to section 231 of the Probate Code.
[1] The controlling rule is stated in section 101 of the Probate Code which provides that a will is to be construed according to the intention of the testator. All other rules of construction are subordinate to this cardinal rule and in its *29 application presumptions are to be indulged which will prevent entire or partial intestacy. (Estate of Blake, 157 Cal. 448, 458-459 [108 P. 287].) [2] Presumptions against intestacy are especially applicable in construing residuary clauses, since generally they are employed for the purpose of making complete disposition of the testator's property. [3] Constructions leading to intestacy either in whole or in part are not generally favored but will be rejected when the language is reasonably effective to dispose of the entire estate; and liberal interpretation is employed to that end. (O'Connor v. Murphy, 147 Cal. 148, 153 [81 P. 406]; Estate of Hoytema, 180 Cal. 430, 432 [181 P. 645]; Estate of Beldon, 11 Cal. 2d 108, 111 [77 P.2d 1052]; Estate of Northcutt, 16 Cal. 2d 683 [107 P.2d 607]; Estate of Lawrence, 17 Cal. 2d 1, 7 [108 P.2d 893].)
[4a] Words denoting percentages have a technical meaning and "25 per cent" mathematically equals one-fourth of the whole. The attorney general assumes that the probate court was bound by the mathematical percentages specified by the testatrix and that the use of any other language could not be deemed to create ambiguity with the specified percentages. However, there is no rule of construction which would prevent the court from applying the language of a will in accordance with the manifest intention of the testatrix even though to do so would require an interpretation not in accord with the technical meaning of words used. [5] On the contrary it is the duty of the court so to construe the language that it will conform to the testatrix' intention as disclosed by the will rather than to defeat such intention by strict adherence to the technical sense of particular words. Especially in cases where the will is not drawn by an attorney words which are repugnant to the clear intention disclosed by other parts of the instrument may be regarded as surplusage or restricted in application since to do otherwise would be to defeat the intention. (Estate of Wood, 36 Cal. 75.)
[6] The attorney general relies on the rule stated on page 112 of Estate of Beldon, supra (11 Cal.2d) namely: That a testator has the right to make a will which does not dispose of all of his property but which leaves a residue to pass to his heirs under the laws of succession; that such a will is not the usual one but when the language clearly leads to that result it must be given effect accordingly. The statement is not applicable in the present case because the testatrix left *30 no surviving heirs. The will on its face shows that the unmarried testatrix was fully aware of the fact that she had no heirs or relatives, and that she intended to dispose of all of her estate. The words of gift of "all the rest, residue and remainder of my estate" to the three named organizations, and in the event the bequest was in excess of that permitted by law then to Russell Lemmon free of trust for distribution by him as she would privately indicate, discloses an intention to dispose of all of the residue to the organizations named unless there were legal restrictions limiting the amount she could leave to charity. It is conceded that there were no applicable limitations and no relatives have appeared to claim any part of the estate.
[4b] The language showing a purpose and intention to dispose of the entire estate, and the use of the specified percentages aggregating less than the whole, created an ambiguity which it was necessary to resolve before distribution could be ordered. The language of the will and the surrounding circumstances, namely that the testatrix was unmarried, that she had no relatives of any degree of kindred, that this condition was contemplated by the testatrix, and that she drafted the will herself, are deemed to have been considered by the court in arriving at the interpretation which would conform to the testatrix' intention as expressed by her will. The ambiguity was reasonably resolved in accordance with the court's finding by the language of the will in the light of the circumstances disclosed (Prob. Code, § 105; Estate of Seay, 180 Cal. 304, 306 [181 P. 58]); and the mathematical figures were properly disregarded as surplusage when a different intention appeared by the language of the will drafted solely by the testatrix. (Prob. Code, § 106; Estate of Northcutt, supra, 16 Cal. 2d 683, 688.)
As indicated by this court's decision in Estate of Northcutt (at pp. 690-691 citing many cases), where the construction placed on the language of the will by the probate court is reasonable and appears to be consistent with the testatrix' expressed intention the appellate court will not substitute another although equally tenable interpretation.
The foregoing rules of construction and review are determinative of the questions relating to interpretation of the fifth provision in the will. The rules and decisions relied on by the attorney general are inapplicable to control a different result considering the particular facts of this case.
[7] The respondents who are the distributees named in the *31 decree of distribution contend that the state was not an aggrieved party and was not entitled to take the appeal. The contention is based on the assertion that the state in no event could become a distributee since, so it is claimed, Russell Lemmon was named as the residuary legatee to take any portion not distributable to the named organizations. It was assumed on the hearing before the probate court that the alternate residuary legatee would take only if the bequest to the organizations was in excess of that permitted by law and, that condition not obtaining, any undistributed portion would escheat to the state. It is here also assumed that the State of California would be a distributee as to one-fourth of the residue had the court made a contrary finding on the particular issue of interpretation presented by the executor. In any view of the case, however, the state had a possible interest depending on the interpretation of the fifth provision of the will, and it was a party aggrieved by the decree distributing the property otherwise. It was therefore entitled to appeal.
The decree is affirmed.
Gibson, C.J., Carter, J., Schauer, J., and Spence, J., concurred.
TRAYNOR, J., Dissenting.
In the fifth clause of her will, the testatrix made three bequests, each representing 25 per cent of her residuary estate. Twenty-five per cent thus remained unbequeathed. It is immaterial whether the omission of a fourth beneficiary was intentional or inadvertent; obviously the court cannot add a beneficiary. Likewise it cannot increase the amount of the bequests; the will specifies 25 per cent and there is no evidence that 33 1/3 per cent was intended. The introductory clause, "all the rest, residue and remainder of my estate I give and bequeath as follows," designates the fund from which the bequests were to be paid. The legatees and quantum thereof were specified "as follows"; there were three legatees, and each was to receive one-fourth of the fund. There is no evidence that testatrix intended that they should also receive proportionate shares of the remaining one-fourth of the fund.
In reading such an intention into the will the majority opinion relies on the presumption against intestacy. There is, however, "no room for the application of the rule [against intestacy] if the testator's language, taken in the light of surrounding circumstances, will not reasonably admit of more *32 than one construction. A court's inquiry in construing a will is limited to ascertaining what the testator meant by the language which he used. If he used language which results in intestacy, and there can be no doubt about the meaning of the language which was used, the court must hold that intestacy was intended." (Estate of Beldon, 11 Cal. 2d 108, 112 [77 P.2d 1052]; Estate of Hoytema, 180 Cal. 430, 432 [181 P. 645]; Estate of Lyons, 36 Cal. App. 2d 92, 95 [96 P.2d 1018]; Estate of Sullivan, 31 Cal. App. 2d 527, 529-530 [88 P.2d 225]; Estate of Maloney, 27 Cal. App. 2d 332, 336 [80 P.2d 998].)
I cannot agree that this court is bound under applicable rules of appellate review to affirm the trial court's interpretation of the will. The will clearly prescribes the disposition of only 75 per cent of the testatrix' residuary estate. It is not for the trial or appellate court to rewrite her will by enlarging her bequests on the conjecture that the failure to bequeath 25 per cent was unintentional and that had it been pointed out to the testatrix, she would have divided it equally among the three specified beneficiaries rather than have given it to a fourth beneficiary.
The majority opinion relies on Estate of Northcutt, 16 Cal. 2d 683 [107 P.2d 607], for the proposition that "where the construction placed on the language of the Will by the probate court is reasonable and appears to be consistent with the testatrix' expressed intention the appellate court will not substitute another although equally tenable interpretation." It is conceded that the trial court's interpretation of the will was based solely on its terms, without the aid of any extrinsic evidence. The dictum of the Northcutt case is not applicable to the interpretation of a document when there is no extrinsic evidence. "Whatever confusion might have existed in the law on this subject prior to 1942 was set at rest by the decision in Estate of Platt, 21 Cal. 2d 343 [131 P.2d 825]. Since the decision of that case it is settled law that the interpretation of a document, including a will or a decree, is a question of law, and that it is the duty of an appellate court in such cases to interpret the document independent of the construction given to it by the trier of the fact, and to make a final determination in accordance with the applicable principles of law." (Estate of Norris, 78 Cal. App. 2d 152, 159 [177 P.2d 299]; Estate of Platt, 21 Cal. 2d 343, 352 [131 P.2d 825]; Western Coal & Mining Co. v. Jones, 27 Cal. 2d 819, 826-827 [167 P.2d 719, 164 A.L.R. 685]; Union Oil Co. v. *33 Union Sugar Co., 31 Cal. 2d 300, 306, 318 [188 P.2d 470]; Estate of Pearson, 90 Cal. App. 2d 436, 438[203 P.2d 52].)
The only evidence of testatrix' intention is her will. It offers no support for the construction placed upon it by the trial court and by the majority opinion herein. I would therefore reverse the decree of distribution and direct the escheat to the State of California of 25 per cent of the residuary estate.
Edmonds, J., concurred.
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91 Ga. App. 443 (1955)
85 S.E.2d 814
LAWLER
v.
LIFE INSURANCE COMPANY OF GEORGIA.
35100.
Court of Appeals of Georgia.
Decided January 28, 1955.
Robert L. Royal, E. J. Clower, for plaintiff in error.
J. Lon Duckworth, C. T. Culbert, contra.
FELTON, C. J.
1. The Supreme Court, on certiorari, in Life Insurance Company of Georgia v. Lawler, 211 Ga. 246 (85 S.E.2d 1), reversed the judgment of reversal rendered by this court for the two reasons given by the court. In the judgment of reversal the Supreme Court ordered that "such further action be taken by the Court of Appeals as may be necessary to give effect to the opinion filed in the case." In compliance with such order we now rule that the evidence of the good character of the insured alone was not sufficient to overcome the positive testimony of a witness for the insurance company, to the effect that the insured wilfully made a misrepresentation of a material fact in *444 an application for the reinstatement of an insurance contract, under the ruling in Henderson v. Jefferson Standard Life Ins. Co., 39 Ga. App. 609 (2) (147 S.E. 901), and that the court did not err in admitting in evidence the testimony referred to in division 3 of this court's first opinion in this case.
2. We adhere to the first headnote in our first opinion. If there was a misrepresentation, it was a material one. See Lawler v. Life Ins. Co. of Ga., 90 Ga. App. 481 (83 S.E.2d 281).
3. The next question is whether this court is foreclosed from reversing the trial court for a reason not considered heretofore. In reversing judgments of this court the Supreme Court has followed two practices. It has reviewed the judgment of this court and affirmed it for a reason not decided by this court (Central of Georgia Ry. Co. v. Yesbik, 146 Ga. 769, 778, 92 S.E. 527); and it has reversed the judgment of this court for the reason that this court's reason or reasons were wrong and has left this court free to render any judgment not controlled by the particular rulings by the Supreme Court in reversing the judgment of this court. Slaton v. Hall, 168 Ga. 710 (148 S.E. 741, 73 A. L. R. 891). And this court, upon return to it of cases reversed on certiorari, has ruled on questions remaining in the case which were not covered by Supreme Court rulings. Patellis v. King, 52 Ga. App. 118 (182 S.E. 808); Hall v. Slaton, 40 Ga. App. 288 (149 S.E. 306). Since the adoption of certiorari rule 45 the Supreme Court has almost universally followed the provision that only the rulings of the Court of Appeals upon which error is assigned will be considered (Drewry v. State, 208 Ga. 239, 65 S.E.2d 916, and citations), though the rule was not followed in Dye v. Richards, 210 Ga. 601 (81 S.E.2d 820). See Patellis v. King, supra, division 1. See also Georgia Power Co. v. City of Decatur, 181 Ga. 187 (182 S.E. 32). This court has the jurisdiction and authority to decide the question whether the trial court erred in directing a verdict for any other reason than the ones dealt with in our first opinion.
It is quite clear from the Supreme Court's decision, especially in view of the dissenting opinion, that the court reversed the judgment of this court solely on the basis of the reasons given by this court for its judgment. The contention that this court is without jurisdiction other than to put the judgment of the *445 Supreme Court into effect because the remittitur from the Supreme Court was returned to this court during the last fifteen days of the second term in this court is without merit. During the last fifteen days of a term this court cannot render any judgment in a case except on a rehearing. This court had no authority to put the Supreme Court judgment into effect at the term the remittitur was returned to this court or to render any other judgment in the case. When a case is carried to the Supreme Court by certiorari, the term in the intermediate court is tolled. McRae v. Boykin, 54 Ga. App. 158 (187 S.E. 271), and citations.
4. In this court's first opinion in this case we held that the trial court erred in directing a verdict for the two reasons we advanced. The assignment of error was a general one, comparable to the exception to the ruling on a general demurrer or motion for a new trial on the general grounds, and this court is not restricted to the arguments of the parties in these circumstances. On general assignments of error such as we have in this case, to wit, that a verdict by the jury would have been authorized for the plaintiff, the appellant does not waive correct reasons for reversal because she overlooks or neglects them. So long as she insists on and argues her assignment, she cannot by waiver of reasons or arguments require bad law to be made. In our first opinion in this case we did not rule on the question whether the evidence authorized the jury to find for the plaintiff for the reason that the insurance company did not prove that it relied on the fraudulent misrepresentations. The proposition was not argued, and we were so engrossed in making what to us was a fascinating ruling, all to no avail, that the matter was probably overlooked for that reason. Anyway, it was overlooked. But because the minority opinion of the Supreme Court calls attention to the matter, this court will not be reversing the Supreme Court in reversing the trial court on the ground that a verdict would have been authorized for the plaintiff for the reason last stated. After our first opinion, this court could have withdrawn its opinion and could have reversed the trial court on rehearing on the above ground, and it may now reverse the trial court's judgment for any reason not foreclosed by the opinion and instructions from the Supreme Court. We now hold that *446 the trial judge erred in directing a verdict for the insurance company because there was no evidence whatever to the effect that the insurance company relied on the fraudulent misrepresentations in reinstating the policy of insurance. There is no presumption and no required inference that the company relied on the misrepresentations contained in the application for reinstatement made by the insured from the mere fact that the application was filed and the policy reinstated. The company may have known the truth about the insured from some other investigation, doctor's examination, etc. "A misrepresentation not acted on is not ground for annulling a contract." Code § 96-202. The law on this subject is so well settled as not to require citation of additional authority.
The court erred in directing a verdict for the defendant.
Judgment reversed. All the Judges concur except Nichols, J., who is disqualified.
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226 S.C. 421 (1954)
85 S.E.2d 744
THE STATE, Respondent,
v.
J.C. BURNETT, JR., Appellant.
16930
Supreme Court of South Carolina.
November 16, 1954.
*422 Messrs. R.B. Hildebrand, of York, and H.R. Swink and Harry L. Cline, of Gaffney, for Appellant.
J. Allen Lambright, Esq., Solicitor, of Spartanburg, for Respondent.
November 16, 1954.
STUKES, Justice.
Upon an indictment which in another, the first, count charged him with assault with intent to ravish, appellant was convicted of assault and battery of a high and aggravated nature. He has presented three questions on appeal which will be discussed in the order followed in the brief. The first is there stated as follows: Did the trial court err in the admission of testimony as to the appellant's marriage and divorce status?
At the time of the crime appellant was twenty-three years old and in the army. The prosecutrix was a college sophomore and out on a Sunday date with appellant in his Cadillac *423 automobile. They had been acquainted only about a week. She testified over objection that appellant represented himself to her as being single and having never been married. He offered in evidence the record of a divorce which he had previously obtained in Florida. In turn, the State offered the record of a divorce obtained in Spartanburg County in the suit of his former wife subsequently to the assault upon the prosecutrix.
The judgments of divorce were admitted by the court solely upon the contention of the State that appellant was married at the time of the assault and the competency of them was expressly so limited. The following is from page 107 of the transcript:
"Mr. Watt: I would like to offer this in evidence.
"Mr. Hildebrand: Your Honor, I object to that on cross-examination. It can't have any relevancy here in this case. Testimony has already been permitted to be offered on the subject and we do not think it would be competent, to put a raft of documents into the record.
"The Court: Let me see the record.
"Mr. Hildebrand: It may have certain other incompetent testimony. He has been cross-examined on it.
"The Court: Mr. Hildebrand, it is competent for one purpose, and one purpose only. And I have to admit it on the ground that in view of his testimony here, he said he thought he was divorced, he didn't think he was a married man. I will have to admit the record because of the contents of his answer. On that question.
"Mr. Watt: I might state, Your Honor, the State has no other desire to put anything in except for the sole purpose, to show when the divorce was granted.
"The Court: All right."
However, the entire judgment roll of the Spartanburg court, which included the complaint of appellant's former wife containing allegations of various wrongdoings on the part of appellant and the decree based thereupon, were included. *424 The instant record negatives publication of the contents to the jury during the trial, but at the conclusion of the judge's charge he said to them in open court, "You may have all the exhibits in the case." Presumably, although the record does not affirmatively show, the jury took the records of the divorce proceedings with them to their room.
The brief concedes, in effect, that the judgments of divorce were competent because the marriage status of appellant at the time of the assault was pertinent upon the question of appellant's intent, but contends and we agree that the contents of the pleadings and decree of the Spartanburg divorce action were irrelevant and incompetent. Appellant was adjudged in the decree to be the father of a child which was conceived before his marriage to the mother whom he soon afterward deserted and failed to support.
As said above, the court properly restricted the reception in evidence of the divorce proceedings to prove the existence and results of them and not the contents. When the judge followed the usual course and told the jury at the end of his charge to them that they might have the exhibits, it was incumbent upon counsel (who are able and experienced) to object, which they did not do in any manner. They have been expressly asked for requests for further instructions and they replied in the negative. It was a palpable inadvertence on the part of the court to which attention should have been called and a ruling then obtained. If adverse to appellant, it would have been subject to his appeal. In the absence of timely objection, it is not.
A defendant may not reserve vices in his trial, of which he has notice as here, taking his chances of a favorable verdict, and in case of disappointment, use the error to obtain another trial. State v. Simon, 126 S.C. 437, 120 S.E. 230.
In State v. Ballew, 83 S.C. 82, 63 S.E. 688, 690, 64 S.E. 1019, the jury were taken to the scene of the jail escape, for aid in which the defendants were on trial, and were *425 accompanied by the counsel. They made improper experiments and the error was assigned. New trial was refused because of the failure of counsel to bring the misconduct to the attention of the court. In the affirming opinion, by Mr. Justice Woods, it was said: "But defendants' counsel was himself present for the very purpose of seeing that there was no unfairness towards the defendants, and, if he felt aggrieved by the action of the jury, he was bound to exercise his right to complain as soon as practicable. The defendants with full knowledge of the misconduct of the jury, having chosen not to complain to the court, but rather to take the risk of a verdict in their favor, could not afterwards, because the verdict was against them, have a new trial on this ground. The general principle that a party cannot take his chances of a successful issue, reserving vices in the trial, of which he has notice, for use in case of disappointment, is universally recognized and obviously just."
"The general rule, subject to certain limitations and exceptions hereinafter noted, is that an appellate court will consider only such questions as were raised and reserved in the lower court. This rule is based upon consideration of practical necessity in the orderly administration of the law and of fairness to the court and the opposite party, and upon the principles underlying the doctrines of waiver and estoppel. Obviously, the ends of justice are served by the avoidance of the delay and expense incident to appeals, reversals, and new trials upon grounds of objection which might have been obviated or corrected in the trial court if the question had been raised. There would be no assurance of any end to the litigation if new objections could be raised on appeals. Where a party has the option to object or not, as he sees fit, the failure to exercise the option when the opportunity therefor presents itself must, in fairness to the court and to the adverse party, be held either to constitute a waiver of the right to object, or to raise an estoppel against the subsequent exercise thereof." 3 Am. Jur. 25, Appeal and Error, sec. 246.
*426 "It cannot be asserted for the first time on appeal that the court erroneously restricted the purpose for which evidence was admitted. Also, conversely, the failure of the court to limit the consideration of evidence to a particular purpose or issue cannot be complained of on appeal in the absence of any request in the trial court that it be so limited." Ibid, p. 96, sec. 351.
The trial court in the case at bar was not advised of appellant's objection to the submission of the exhibits to the jury even on his motion after verdict. In stating grounds for new trial, it was simply said at the end: "* * * * and another ground, based upon the admissibility of the court record which involved the divorce proceeding which was offered in evidence by the State."
We do not think available to appellant the point of his first question on appeal.
Moreover, appellant was not convicted upon the count of the indictment which charged him with intent to ravish, but only of assault and battery of a high and aggravated nature. Concededly, the facts contained in the divorce proceedings pertained to appellant's intent and, it is contended, prejudiced him in that respect. The argument loses its force in the light of the verdict which did not convict him of the intent with which he was charged in the first count of the indictment. We purposely refrain from recounting the lurid details of the evidence, under which there can be no reasonable doubt of appellant's guilt of the crime of which he was convicted.
It logically follows the last observation that there is another consideration which strongly militates for affirmance of the conviction and sentence. Under all of the unquestioned evidence, leaving aside the records of the divorce actions, no honest jury with any regard for their oaths could have done less than this jury did that is, convict of the lesser crime charged; indeed, they were remarkably merciful not to convict of the greater degree, *427 which, upon a new trial, with the same evidence adduced, the jury might well do.
This principle was reiterated and applied in State v. Evans, 202 S.C. 463, 25 S.E. (2d) 492, 495, where it was said by a unanimous court:
"After a thorough examination of the whole record, we are convinced that the testimony (which was objected to) did not affect the result of the trial, and its admission did not invade a substantial right of the defendant. In the light of the testimony in this case, we do not believe that an intelligent and honest jury could be impaneled who, with a due regard for their oaths and the testimony, could legitimately come to any conclusion other than that the appellant was guilty. Where guilt is conclusively proved by competent evidence, and no other rational conclusion could be reached but that the defendant is guilty, a judgment of conviction should not be set aside because of unsubstantial errors not affecting the result. State v. Ford, 3 Strob. 517, 526, [note], 34 S.C.L., 517, 526; Wigmore on Evidence, 3rd Ed., Volume 1, Section 21.
"The rule approved by this Court was clearly stated by Judge O'Neall in State v. Ford, supra, as follows: `According, however, to a well settled rule in criminal cases, if the prisoner's guilt were clearly made out by proper evidence, in such a way as to leave no doubt in the mind of a reasonable man, his "conviction ought not to be set aside because some other evidence was received which ought not to have been." This rule is, I know, to be tenderly and cautiously applied; and I would be the last man on earth to apply it where there was room to doubt. But when I know that the prisoner's guilt is as plainly made out by the other evidence, as it is possible to be done, I should feel that I was literally straining at a gnat, while, in fact, I was swallowing a camel, if I hesitated in applying it to this cause'."
The rule was similarly applied to objectionable argument to the jury in State v. Gilstrap. 205 S.C. 412, 32 S.E. (2d) 163, 164, where it was said:
*428 "The rule followed in this State, and we think in most jurisdictions, is that if upon the whole case, it appears to the Court that the defendant was prejudiced by the language used, as the result of which he did not have a fair and impartial trial it would be the duty of the Court to reverse the case and remand it for a new trial. However, as was said in State v. Duncan, 86 S.C. 370, 68 S.E. 684, 685, Ann. Cas. 1912A, 1016: `If the record shows that no other verdict could have been found upon any reasonable view of the evidence, we are safe in concluding that no harm was done'."
Again it was said in State v. Hariott, 210 S.C. 290, 42 S.E. (2d) 385, 389:
"Whether the error in a given case shall be regarded as harmless on appeal may often depend on the circumstances of the particular case, rather than on any definite rules of law; the materiality and prejudicial character of the alleged error being determined in its relation to the entire case. Accordingly, as heretofore stated, appellate courts are disposed to regard as harmless intervening errors, where it appears from the record that the conviction is clearly correct on the merits, that the accused had a fair trial, and where no other verdict could reasonably have been returned on the evidence."
And finally, in this long line of decisions, reference is had to State v. Maxey, 218 S.C. 106, 62 S.E. (2d) 100, 107, from which the following is quoted:
"It is likewise a principle of practically universal recognition, that a conviction will not be reversed because of the admission of improper evidence unless the accused was prejudiced or harmed thereby; or unless it appears that there was a miscarriage or justice. The appellate court will consider the record as a whole in determining whether there was prejudice."
Appellant's second question imputes prejudicial error in the cross examination of him which is claimed to have been unfair and improper. It has been read and reread with the clear conclusion that, while rigorous, it was *429 not unfair or prejudicial. There need only be cited State v. Maxey, supra, 218 S.C. 106, 62 S.E. (2d) 100, 107, from which we quote:
"The general range and extent of cross examination is within the discretion of the trial judge, subject to the limitation that it must relate to matters pertinent to the issue, or to specific acts which tend to discredit the witness or impeach his moral character. The discretion of the trial court in allowing cross examination is not subject to review except in cases of manifest abuse or injustice. State v. Steadman, 216 S.C. 579, 59 S.E. (2d) 168; State v. Corn, 215 S.C. 166, 54 S.E. (2d) 559; State v. Shumpert, 195 S.C. 387, 11 S.E. (2d) 523."
The final assignment of error is as follows: Did the trial court err in not permitting appellant to prove by the witness, Peake, the reluctance of the prosecuting witness to attend court and testify?
As his last witness appellant called an officer, quoting counsel, "to show the difficulty in subpoenaing Miss _____ (the prosecutrix) * * * to show her unwillingness to appear in court, to go to her attitude." The court excluded the evidence upon the ground that if admissible at all it should have been the subject of cross examination of the prosecutrix. There was no error. The prosecutrix, whose home is in Columbia, attended the trial, testified fully and freely and was subjected to long and searching cross examination. If she was not inclined to undergo the ordeal, it is perfectly understandable. No prejudice to appellant is apparent; on the contrary, it might be reasonably inferred that her testimony was more reliable because she was reluctant to give it certainly no less so on that account. Counsel cite no precedent for their position which we think is untenable.
The exceptions are overruled and the judgment affirmed.
TAYLOR, OXNER, and LEGGE, JJ., and G. BADGER BAKER, Acting Associate Justice, concur.
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96 Cal. App. 2d 34 (1950)
MANUEL M. ORTIZ et al., Respondents,
v.
PACIFIC STATES PROPERTIES, INC. (a Corporation) et al., Defendants; A. F. EWALD, Appellant.
Civ. No. 17312.
California Court of Appeals. Second Dist., Div. Two.
Feb. 9, 1950.
Robt. E. Rosskopf for Appellant.
Miller, Beck & Stillwell for Respondents.
WILSON, J.
Defendant Ewald has appealed from a judgment in favor of plaintiffs quieting title to real property, plaintiffs' title being based on adverse possession for more than five years. (Code Civ. Proc., 324, 325. [fn. *]) Mr. Gil, *36 predecessor of plaintiffs in the title, testified that in 1939 he had an oral agreement with Mr. Bustamente and was buying the property from him. Later he testified he was buying it from Mrs. Bustamente and paid her part of the purchase price. He completed his payments in 1944 and received a deed from Juan Bustamente.
Gil went into possession of the property in March, 1939, and immediately rented it to Mrs. Acedo who occupied the premises until May, 1941. Upon her removing from the property Gil rented it to Mrs. Macon, who remained there until April, 1946, when plaintiffs moved into and resided in the house on the property until the date of trial. Both Mrs. Acedo and Mrs. Macon paid rent to Gil.
[1] Defendant did not object to the evidence of Gil's conversation with Mr. Bustamente but did object to the conversation with Mrs. Bustamente and also to introduction of the deed. The objections were overruled and the evidence was received subject to a motion to strike. Such motion was not made and the objection is therefore waived. While the deed might be considered as furnishing a basis of title, plaintiffs do not rest their claim of ownership of the property upon the deed or upon any color of title but assert ownership solely through adverse possession. Hence the evidence was harmless even though the objection had been well taken, a question not necessary to be decided.
[2] Five elements are necessary to be proved by a claimant in order to establish title by adverse possession: (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner; (2) possession must be hostile to the owner's title; (3) the holder must claim the property as his own, either under color of title or claim of right; (4) possession must be continuous and uninterrupted for five years; (5) the possessor must pay all taxes levied and assessed upon the property during the five-year period. (West v. Evans, 29 Cal. 2d 414, 417 [175 P.2d 219] and cases cited.)
[3a] Plaintiffs and Gil, their predecessor in interest, were in possession of the property by actual occupation continuously for five years prior to the commencement of the action. The property consists of two 25- foot lots, at about the center of which there was a house 25 feet wide with a driveway along the side of the house. The land was fenced on two sides and the rear. Gil went into possession of the property, rented it and collected the rents until he sold it to plaintiffs who occupied it after the last tenant departed. Mrs. Acedo and *37 Mrs. Macon corroborated Gil's testimony as to their payment of rent and each one testified that during her occupancy no one made any claim to the property. This constituted actual, open, notorious, continuous, uninterrupted and exclusive possession, with a claim of right, hostile to the true title, and was such constructive notice as would place the owner on inquiry, satisfying the requirements stated in Yuba River Sand Co. v. City of Marysville, 78 Cal. App. 2d 421, 429 [177 P.2d 642]. [4] To constitute a hostile claim there need not be open aggression or combat, neither need a notice to the owner be given other than the claimant's occupancy.
The property was sold to the state in 1932 for nonpayment of the taxes of 1931. Defendant contends that since the state was the owner of the property plaintiffs could not have acquired title by adverse possession. [5] Where land is held by the state or any of its subdivisions and has been actually reserved for or dedicated to any specific public use no adverse holding thereof will give title to the adverse claimant, but "if land held by the state or any of its subdivisions is neither reserved for nor dedicated to some public use and may be alienated by its owner, title may be wrested from it by adverse possession." (Henry Cowell Lime & Cement Co. v. State, 18 Cal. 2d 169, 172 [114 P.2d 331]; Fresno Irr. Dist. v. Smith, 58 Cal. App. 2d 48, 60 [136 P.2d 382]; Richert v. City of San Diego, 109 Cal. App. 548, 553-4 [293 P. 673] and cases cited.)
To defendant's fatuous argument that because Gil was a real estate broker he might have been renting the property for the real owner and not for himself it need only be said that there is no evidence to this effect and nothing from which such an inference may be drawn. On the contrary, Gil's evidence was that he bought the property, paid the purchase price, took possession of it and collected the rents for himself.
[3b] Defendant maintains that there has not been a showing of the payment of taxes for a period of five years preceding the commencement of the action on March 29, 1948. On December 4, 1944, plaintiff's grantor paid the taxes for the fiscal year 1944-45 and in October, 1945, redeemed the property from delinquent taxes for the fiscal years 1931 to 1943, inclusive. Thereafter plaintiffs paid before delinquency the taxes levied and assessed for the fiscal years 1945, 1946 and 1947. Since plaintiffs' payment of taxes for current years was sufficient to comply with section 325 of the Code of Civil Procedure defendant's contention that the redemption of taxes does not constitute payment within the meaning of that *38 section need not be discussed. Taxes levied as of the first Monday in March, 1944, and all taxes levied and assessed thereafter had been paid as above noted. We need consider only the taxes for the tax year 1948-49. The law in force during that year required (1) that property be assessed to the persons owning or claiming it on the first Monday in March (Rev. & Tax. Code, 405); (2) that the assessment roll be completed on or before the first Monday of July (Rev. & Tax. Code, 616); (3) that the taxes be levied by the board of supervisors not later than the first day of September. (Gov. Code, 29120.) The action having been commenced on March 29, 1948, the five-year period of continuous adverse possession began on March 29, 1943. The tax for the year 1948-49 had been "assessed" as of the first Monday of March, 1948, or on some date prior to the first Monday in July ( 405 and 616, supra), but had not been "levied" at the time the action was commenced since the date on which that act could have taken place had not then arrived. The levy could not have been made until after the assessor had completed his assessment and delivered the assessment roll to the clerk of the board of supervisors. (Rev. & Tax. Code, 617.) Since the taxes for the year 1948-49 had not been levied they could not have been paid by plaintiffs, and that fact did not prevent the perfection of their title by adverse possession. In Allen v. McKay & Co., 120 Cal. 332, 334 [52 P. 828], this point is determined adversely to defendant's contention. The court held that a fair construction of section 325 of the Code of Civil Procedure is that "the word 'levied' refers to the act of the board of supervisors in making the levy, and the word 'assessed' refers to the act of the assessor in making the assessment. ... [B]oth the assessment and levy must be made while the occupant is in possession, or he is not called upon to pay the tax." The court further stated that although such construction might result in the creation of an adverse title by the payment of taxes for only four years, a compliance with the demands of the statute is all that can be asked and the important question is what those demands are and not the results to follow from a compliance with them.
In Brown v. Clark, 89 Cal. 196 [26 P. 801], the action was brought by the record owner to quiet title against the claimant by adverse possession. It was commenced on March 25, 1889, hence in order to establish the defendant's title his adverse possession must have dated from not later than March 25, 1884. The plaintiff had paid the taxes assessed as of *39 the first Monday in March, 1883, and the defendant had paid all taxes assessed in each year as of the first Monday of March, 1884 to 1888, inclusive. The plaintiff contended that his payment of the taxes assessed in 1883 was a payment of all taxes due to June 30, 1884, the end of the fiscal year, that the defendant could not claim the benefit of the statute until July 1, 1884, and that his payment of the 1884 assessment was not sufficient to cover the five-year period. The court rejected the plaintiff's contention, holding that the plaintiff's payment of the taxes levied in 1883 did not bar the defendant's title and that the latter's payment dated from the first Monday in March, 1884, more than five years prior to the commencement of the action.
[6] If the person claiming title by adverse possession pays all taxes "levied and assessed" against the land during his term of continuous occupation he can maintain his possession against the person who would otherwise be the owner of the land. [7] The commencement of adverse possession is not required to coincide with the beginning or end of a fiscal year and payment by the record owner of the property of taxes which were levied, assessed and paid during the calendar year preceding the adverse occupation will not postpone the running of the time of adverse possession until the end of the fiscal year. There is nothing in the statute stating directly for how many years taxes shall be paid, the only requirement being that taxes be paid which have been "levied and assessed" during the statutory period. (Brown v. Clark, supra.) An adverse claimant to real property will not be denied acquisition of title by adverse possession for nonpayment of taxes when taxes have not been both levied and assessed for one or more years during his occupancy. (Allen v. Allen, 159 Cal. 197, 200 [113 P. 160]; City of Santa Clara v. Ivancovich, 47 Cal. App. 2d 502, 511 [118 P.2d 303]; Brown v. Bachelder, 214 Cal. 753, 757 [7 P.2d 1027].)
Judgment affirmed.
Moore, P. J., and McComb, J., concurred.
Section 325: "For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:"
1. Where it has been protected by a substantial inclosure.
2. Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be considered established under the provisions of any section or sections of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land.""
NOTES
[fn. *] *. Section 324: "Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied and no other, is deemed to have been held adversely."
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85 S.E.2d 876 (1955)
241 N.C. 491
Arthur NEBEL and wife, Marie Nebel,
v.
William NEBEL, Marion Nebel, J. A. Baker and William H. Abernathy, Directors of Nebel Knitting Company, and Nebel Knitting Company, a Corporation.
No. 522.
Supreme Court of North Carolina.
March 2, 1955.
*881 Bell, Bradley, Gebhardt & DeLaney, Charlotte, for plaintiffs.
Pierce & Blakeney, Charlotte, for defendants.
DENNY, Justice.
The plaintiffs bottom their right to a writ of mandamus to compel the directors of the defendant corporation to declare immediately a dividend of the whole of the accumulated profits of the corporation, up to and including 31st December, 1952, on the ground that these accumulated profits have not been set aside and reserved as working capital in the manner prescribed by G.S. § 55-115. Therefore, there is no allegation in the complaint which raises the question of bad faith or arbitrariness with respect to setting aside such accumulated profits for working capital. The gravamen of the complaint is to the effect that the defendants William Nebel and Marion Nebel have at all times since the incorporation of the corporate defendant under the laws of North Carolina, controlled and directed the policy of the corporation with respect to the payment of dividends and have pursued a policy of paying inadequate dividends in order to minimize the Federal income taxes upon their own personal incomes, and that such policy has resulted in depressing the market value of the plaintiffs' stock so that it cannot be sold in the open market at any figure approaching its true value.
On the other hand, the defendants, after denying the withholding of the payment of dividends for the reasons alleged in the complaint, aver in their further answer and defense that except for the amounts which the defendant corporation has paid out in dividends, the bulk of the corporation's yearly profits has been used in "expanding and modernizing its plant, machinery, equipment and business," etc., and that the "plaintiffs have been fully aware and continuously informed as to such use and have acquiesced therein and are now estopped to contend that such profits should have been instead paid out in dividends." They also allege that for all practical purposes the stockholders and directors have complied with the provisions of G.S. § 55-115 in that *882 all the profits, not paid out as dividends, have been from time to time set aside as "capital or working capital" for the purposes enumerated above.
The plaintiffs filed no reply to the defendants' further answer and defense. But, since the allegations therein do not amount to a counterclaim, they are deemed denied. G.S. § 1-159; Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16.
Conceding that the allegations in the further answer and defense of the defendants raise an issue as to whether or not the stockholders and directors substantially complied with the provisions of G.S. § 55-115 in setting aside the bulk of the profits for the purposes alleged, it likewise raises the question as to whether or not these plaintiffs are estopped by reason of their approval of and acquiescence in the action taken from time to time by the stockholders and directors with respect to the enlargement of the plant of the corporate defendant, the purchase of additional machinery needed to carry out the program of expansion, as well as the purchase of new and modern machinery to replace outmoded or obsolete equipment, from asserting any right to have the funds so expended now declared as dividends. 18 C.J.S., Corporations, § 524, p. 1208 et seq.; Fletcher Cyc., Corporations, Per.Ed., Vol. 13, Chapter 58, section 5862, page 209, and cited cases, including Dimpfel v. Ohio & M. Ry. Co., 110 U.S. 209, 3 S. Ct. 573, 574, 28 L. Ed. 121, where it is said: "Objections now come with bad grace from parties who knew at the time all that was being done by the company, and gave no sign of dissatisfaction."
In light of the issues of fact raised by the pleadings in this action, it is proper to consider the function and purpose of a mandamus. It is a writ issuing from a court of competent jurisdiction, commanding an inferior tribunal, board, corporation, or person to perform a purely ministerial duty imposed by law. The party seeking such writ must have a clear legal right to demand it, and the tribunal, board, corporation, or person must be under a present clear legal duty to perform the act sought to be enforced. St. George v. Hanson, 239 N.C. 259, 78 S.E.2d 885; Board of Managers of James Walker Memorial Hospital v. Wilmington, 235 N.C. 597, 70 S.E.2d 833; Hamlet Hospital & Training School v. Joint Committee, 234 N.C. 673, 68 S.E.2d 862; Steele v. Cotton Mills, 231 N.C. 636, 58 S.E.2d 620; Poole v. Board of Examiners, 221 N.C. 199, 19 S.E.2d 635; Harris v. Board of Education, 216 N.C. 147, 4 S.E.2d 328; 55 C.J.S., Mandamus, § 125, p. 213.
When minority stockholders seek to obtain a writ of mandamus to compel the directors of the corporation to pay dividends out of the accumulated profits of the corporation and the pleadings raise issues of facts, such minority stockholders are not entitled to such writ until the issues raised by the pleadings have been finally adjudicated on their merits. Hospital v. Wilmington, supra.
The plaintiffs state in their brief that the trial judge announced in the course of the trial that he would direct a verdict on the first issue because in his opinion the resolution passed by the stockholders on 13th March, 1953, was proper as to form and would therefore effectively bar the plaintiffs' right to recover if such action was taken in good faith. That the trial court in taking this position relied upon the opinion of this Court in Amick v. Coble, 222 N.C. 484, 23 S.E.2d 854.
In Amick v. Coble, supra, the plaintiff in his complaint sought to have all the accumulated surplus prior to the year 1940 declared as a stock dividend and to have the profits for the years 1940 and 1941 paid out in cash dividends. When the case was called for trial, a jury trial was waived and it was agreed that the court might hear the evidence, find the facts, draw its conclusions of law and enter judgment accordingly. No working capital had ever been formally set aside by the stockholders of the corporation as contemplated by G.S. § 55-115. It is disclosed by the record in the case that in the course of the hearing the *883 court suggested it might be well for the stockholders to have a meeting and consider setting aside working capital pursuant to the provisions of the statute. A special meeting was held and the majority stockholders, over the protest of the plaintiff, purported to set aside all the accumulated profits as working capital. The court then permitted the defendants to amend their answer by alleging that the stockholders had set aside all the accumulated profits as working capital, and by alleging that it had been the policy of the stockholders and directors of the corporation, since its organization, to consider the profits of the company as working capital except the actual amount voted each year to be paid out as a dividend; and further to plead such policy as an estoppel against the plaintiff from claiming such funds were available for the payment of dividends. The plaintiff filed a reply and admitted that from the organization of the company until he was voted out of office as secretarytreasurer and general manager in early 1940, it was by mutual consent the practice to keep all the profits for the purpose of expanding the business, except those amounts actually authorized to be paid out in dividends. The plaintiff, however, alleged in his reply that the action of the stockholders in attempting to set aside all the profits for the years 1940 and 1941 as working capital, was done arbitrarily and in bad faith for the purpose of doing directly what they had already done indirectly, that is, to destroy the value of his stock, or to force him to sell it to the defendants at a greatly depressed figure.
The trial court, among other things, found as a fact that prior to the year 1940 the stockholders and directors, by mutual consent, each year turned all net earnings of the corporation, as the same were earned, except the amount declared as a dividend, back into the business of the corporation. The court also found in effect that the action of the defendants as majority stockholders, in setting aside all the earnings for the years 1940 and 1941 as working capital, was not done in good faith, and rendered judgment directing the payment of dividends to the extent of the profits for the years 1940 and 1941, less certain deductions. This Court directed that all the profits for those years be declared as dividends without any deductions. Winborne, J., in speaking for the Court, said [222 N.C. 484, 23 S.E.2d 858]: "That this may be done without impairing the capital structure of the corporation is, on this record, patent."
In the instant case, the pleadings raise no issue with respect to setting aside working capital except in the manner alleged in the further answer and defense. Neither do the pleadings raise any issue as to bad faith in connection with the setting aside of working capital, but, on the contrary, as we have heretofore pointed out, the plaintiffs are asking for mandamus on the ground that no working capital has ever been set aside by the stockholders and directors out of the accumulated profits of the corporation.
The appellees urgently contend that the defendants insisted upon a jury trial and that it was upon their theory of the case that the issues under consideration were framed and submitted to the jury. Even so, issues arise upon the pleadings only, and not upon evidential facts. Miller v. Miller, 89 N.C. 209; Fortesque v. Crawford, 105 N.C. 29, 10 S.E. 910; Howard v. Early, 126 N.C. 170, 35 S.E. 258; Wells v. Clayton, supra.
In Miller v. Miller, supra, the Court said: "Parties cannot agree upon improper issues; issues arise upon the pleadings, and these alone must be tried." Likewise in the case of Shelton v. Davis, 69 N.C. 324, Chief Justice Pearson said: "* * * the idea of giving the plaintiff judgment upon a state of facts not alleged in the complaint and entirely inconsistent with it * * * is a proposition which no member of this Court can for a moment entertain." McLaurin v. Cronly, 90 N.C. 50; Willis v. Branch, 94 N.C. 142; Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147; McIntosh, Practice and Procedure, section 508, page 541.
*884 In Featherstone v. Glenn, 225 N.C. 404, 35 S.E.2d 243, during the course of the trial a stipulation was entered into and a tender made and accepted. In light of the acceptance of the tender, the issue submitted to the jury was improper and not determinative of the question left for adjudication and this Court remanded the case for a new trial. See also King v. Coley, 229 N.C. 258, 49 S.E.2d 648; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785, and cited cases.
In the case of Tucker v. Satter-thwaite, 120 N.C. 118, 27 S.E. 45, 46, it does not appear that an exception was entered to the issues submitted; nevertheless, this Court said: "We are not inadvertent to the long line of decisions laying down the rule that the refusal of the court to submit an issue tendered by either party cannot be reviewed by this court unless exception is taken in apt time; nor do we wish to be understood as reversing or modifying it. That rule, when reasonably construed, does not conflict with the one herein laid down. What we now say is, that section 395 of the Code [now G.S. § 1-200] is mandatory, binding equally upon the court and upon counsel; that it is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings, and that in the absence of such issues, or admissions of record equivalent thereto, sufficient to reasonably justify, directly or by clear implication the judgment rendered therein, this court will remand the case for a new trial." Mitchell v. Carolina Cent. R. R., 124 N.C. 236, 32 S.E. 671, 44 L.R.A. 515; Strauss v. City of Wilmington, 129 N.C. 99, 39 S.E. 772; Griffin v. Atlantic Coast R. R., 134 N.C. 101, 46 S.E. 7; Holler v. Western Union Telegraph Co., 149 N.C. 336, 63 S.E. 92, 19 L.R.A.,N.S., 475; Brimmer v. M. H. Brimmer & Co., 174 N.C. 435, 93 S.E. 984; Chapman-Hunt Co. v. Haywood County Board of Education, 198 N.C. 111, 150 S.E. 713; Griffin v. United Service Life Insurance Co., 225 N.C. 684, 36 S.E.2d 225.
The plaintiffs allege in effect (1) that all of the accumulated profits of the corporation are available for the payment of dividends, and (2) that the action of the directors in paying grossly inadequate dividends from 1945 through 1950, and no dividends for the years 1951 and 1952, was due to the domination and control of William and Marion Nebel in order to minimize their Federal income taxes, which action resulted in virtually destroying the market value of the plaintiffs' stock and depriving them of a fair return on their investment. When these allegations are considered, as they must be in light of the allegations in the defendants' further answer and defense, issues are raised which should be determined in order for the matters and things involved in this controversy to be equitably adjusted.
As we interpret the record, the court's instruction on the first issue was based solely on the action of the stockholders on 13th March, 1953, and no consideration whatever was given to the defendant's further answer and defense with respect to the investment of the corporate profits or to the evidence bearing thereon. Moreover, on the second issue, which is not raised on the pleadings, the court submitted to the jury for its consideration the expenditures made by the corporation to expand its plant and for the purchase of new machinery, etc., as bearing on the question of bad faith on the part of the stockholders in setting aside the entire surplus of the corporation as working capital on 13th March, 1953. It may well be that the defendants acted in bad faith on 13th March, 1953 in purporting to set aside all the accumulated profits as working capital, but this does not mean necessarily that through the years the stockholders have acted in bad faith in using corporate profits for the expansion of plant facilities and for the purchase from time to time of new and up-to-date machinery to replace obsolete equipment. In fact, such practice is so common and considered so essential to the normal growth and development of corporate enterprises, expenditures for such purposes will be presumed to have been made in good faith in the absence of fraud or proof of bad faith. We think, if it be conceded that no action was ever taken by the stockholders of the corporation with the specific intent *885 to set aside any profits as working capital prior to the institution of this action, pursuant to the provisions of G.S. § 55-115, the plaintiffs are estopped from claiming any portion of the profits of the corporation as being available for the payment of dividends, which has been invested in plant expansion, new machinery, etc., with their full knowledge and approval. And there is nothing in the record to indicate that when such expenditures were considered and discussed from time to time in the stockholders' meetings, that these plaintiffs, or either of them, interposed an objection thereto at any time. Furthermore, the plaintiff Arthur Nebel was a director of the defendant corporation during the entire period complained of, except for the year 1945, and there is no evidence that he ever opposed, protested, or voted against the expenditure of funds for plant expansion or for the purchase of new machinery. The evidence on this record will not support a finding that the expenditures for plant expansion and the purchase of new or additional machinery from time to time were made in bad faith.
Moreover, if an issue of estoppel, with respect to the investment of profits in plant expansion, machinery, etc., had been submitted in the trial below, the defendants would have been entitled on the present evidence to have the jury instructed to the effect that if it believed such evidence to answer the issue in favor of the defendants. Even if it be conceded that the plaintiffs are estopped from claiming the funds invested in plant expansion, etc., there is still an ample amount of quick assets available out of which the plaintiffs are entitled to a reasonable dividend if such dividends were withheld during the period complained of, for the reasons alleged in the complaint. And the mere fact that the officers and directors of the corporation may have substantially all the quick assets invested in inventories, consisting of raw materials, stock in process and finished but unsold goods, is not a bar per se to the declaration of a dividend. Indeed, it is not unusual for a corporation in such a situation to declare a dividend, borrow the money with which to pay it, and then to liquidate the loan by disposing of finished goods, reducing its inventory of raw materials, and collecting receivables. 13 Am.Jur., Corporations, section 660, page 657.
It seems clear that the provisions contained in G.S. § 55-115 were enacted for the purpose of protecting minority stockholders. In pertinent part this statute reads as follows: "The directors of every corporation created under this chapter shall, in January of each year, unless some specific time for that purpose is fixed in its charter, or bylaws, and in that case at the time so fixed, after reserving, over and above its capital stock paid in, as working capital for the corporation, whatever sum has been fixed by the stockholders, declare a dividend among its stockholders of the whole of its accumulated profits exceeding the amount reserved, and pay it to the stockholders on demand."
Certainly a minority stockholder, upon a proper showing, is entitled to a writ of mandamus to compel the majority stockholders to set aside working capital as contemplated in the above statute. Likewise, when a private corporation ascertains the amount of its accumulated profits, in excess of the part thereof which has been set aside as working capital, in the manner provided in G.S. § 55-115, such profits, upon demand of the stockholders, must be paid out in dividends as required by the statute, and mandamus will lie to compel such distribution. Cannon v. Wiscassett Mills Co., 195 N.C. 119, 141 S.E. 344. Even so, where a corporation has inadvertently, or from lack of knowledge of the existence of the provisions of G.S. § 55-115, failed to take action with respect to setting aside working capital, such statute may not be invoked to compel the distribution of all the accumulated profits as dividends, irrespective of the facts and circumstances under which the profits were accumulated and reinvested in plant facilities, and without regard to the financial needs of the corporation. In such a situation, a court of equity may issue a mandatory injunction to compel the stockholders to set aside a reasonable portion of the accumulated *886 profits as working capital, to the end that the corporation may not be crippled as a going concern, and the amount of funds available for the payment of dividends may be determined. 18 C.J.S., Corporations, § 473, p. 1141, and cited cases, including Wabash R. Co. v. Barclay, 280 U.S. 197, 50 S. Ct. 106, 107, 74 L. Ed. 368, 67 A.L.R. 762, in which the Supreme Court of the United States said: "When a man buys stock instead of bonds he takes a greater risk in the business. No one suggests that he has a right to dividends if there are no net earnings. But the investment presupposes that the business is to go on, and therefore even if there are net earnings, the holder of stock, preferred as well as common, is entitled to have a dividend declared only out of such part of them as can be applied to dividends consistently with a wise administration of a going concern."
This cause should be tried de novo upon issues raised by the pleadings as now cast, or as they may be amended in the meantime. In the event the case is tried anew on the present pleadings, an issue should be submitted to determine whether or not dividends have been withheld improperly as alleged in the complaint. Likewise, an issue should be submitted to determine to what extent the profits of the corporation have been invested in permanent equipment with the approval or acquiescence of the stockholders, including these plaintiffs.
In the event the jury should find the defendant directors have improperly withheld the payment of dividends as alleged in the complaint, then the trial court, in the exercise of its equitable jurisdiction, should issue a mandatory injunction to the stockholders and directors of the defendant corporation, directing the stockholders to meet and to set aside in good faith such portion of the accumulated profits of the corporation as may not have been heretofore invested in plant expansion, machinery and equipment with the approval or acquiescence of the stockholders, as may be reasonably necessary for working capital, and ordering the Board of Directors of the defendant corporation to declare a dividend of all the excess of the accumulated profits up to and including 31st December, 1952, not set aside as working capital, and to report their respective actions to the court. Whether the court will find it necessary to interfere with the action of the stockholders and directors taken pursuant to the injunction, will depend upon whether or not they act in good faith. 13 Am.Jur., Corporations, section 708, page 725, et seq.; Gaines v. Long Manufacturing Co., 234 N.C. 331, 67 S.E.2d 355, and the cases and authorities cited therein; Gibbons v. Mahon, 136 U.S. 549, 10 S. Ct. 1057, 1058, 34 L. Ed. 525. In the last cited case, the Court said: "Acting in good faith and for the best interests of all concerned, the corporation may distribute its earnings at onceto the stockholders as income, or it may reserve part of the earnings of a prosperous year to make up for a possible lack of profits in future years, or it may retain portions of its earnings and allow them to accumulate, and then invest them in its own works and plant, so as to secure and increase the permanent value of its property."
The contention of the defendants to the effect that the defendant corporation is not in financial condition to pay any dividend at this time does not appeal to the conscience of the Court. This is particularly true, since, in addition to making a profits of $1,491,330.17, after depreciation and taxes, during the period complained of, the defendant William Nebel, who owns only 454 shares of stock in the defendant corporation, has received $361,591.55 as salary, bonuses, commissions, and royalties; and his wife Marion Nebel, who owns 694 shares of stock, has received $55,200 in salary. While, in the meantime, the plaintiffs, who own 673 shares of stock in the corporation, or 29.6 per cent thereof, have received no compensation in salary or otherwise except their pro rata part of the $77,282 paid in dividends, which amounted to approximately $22,000. This is a rather insignificant return over a period of eight years on stock admitted to have a book value of about $673,000, and during a period in which the corporation paid in compensation to two of its principal stockholders, William and Marion *887 Nebel, who control the corporation and own a majority of its stock, a total of $416,791.55.
The defendants' assignment of error for failure of the court below to sustain their motion for judgment as of nonsuit is overruled. A discussion of other exceptions and assignments of error, in view of the conclusion we have reached, is unnecessary.
This cause must be heard and judgment entered on the issues raised by the pleadings, in accord with this opinion. To that end the cause is remanded for a
New trial.
JOHNSON, Justice (dissenting).
My study of the record leaves the impression that the variance between the form of the second issue and the allegations of the defendants' further defense, on which the issue is based, is not of sufficient moment to necessitate overthrowing the verdict and trial, particularly so in view of the apparent agreement of the parties on the form of the issue and of the full and complete charge delivered by the presiding Judge thereon. Here it is to be noted that the defendants admitted failure to comply formally with the requirements of G.S. § 55-115 prior to the commencement of the action. The question sought to be presented by the second issue as submitted, i. e., the bona fides of controlling management and the legal sufficiency of the means employed by such management in setting aside as capital the bulk of accumulated profits after dividends, was raised, as was the companion question of acquiescence or estoppel of the plaintiffs, not by the plaintiff's complaint but rather by the defendants' affirmative defense. Therefore the burden of the issue was on the defendants to show good faith of controlling management. The issue as framed submitted the question of bona fides in reverse: whether the defendants acted arbitrarily and in bad faith, rather than in good faith. Moreover, the burden of the issue was placed on the plaintiffs. All this was favorable to the defendants. This being so, they are not in position to challenge the form of the issue or the verdict rendered thereon. The theory of the trial should prevail. General Finance & Thrift Corp. v. Guthrie, 227 N.C. 431, 42 S.E.2d 601.
However, it would seem that the judgment should be vacated and the cause remanded for further hearing on the question of the extent to which the plaintiffs should be bound, on the ground of acquiescence or estoppel, by the action of controlling management in investing accumulated profits in equipment and permanent improvements. This question does not appear to have been properly determined before judgment. Therefore, my vote is to uphold the verdict and trial, with direction that the judgment be vacated and a further hearing ordered to determine the extent, if any, to which accumulated profits were invested in equipment and permanent improvements or otherwise capitalized with the approval and acquiescence of the plaintiffs.
The findings of the jury, or of the presiding Judge sitting as chancellor in the exercise of his equity powers, in respect to this question would determine whether controlling management has improperly withheld payment of dividends in the past; and, if so, then mandatory injunction should issue directing payment of a proper dividend, the amount thereof to be fixed and determined by the court on the basis of the facts found on the issue of acquiescence or estoppel. The jury verdict on the second issue is sufficient to justify retention of the cause on the equity side of the docket, 13 Am.Jur., Corporations, section 708, and I am inclined to the view that such retention will be more conducive to an expeditious final determination of the cause.
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236 Ga. 799 (1976)
225 S.E.2d 302
ROWLAND
v.
KELLOS et al.
31014.
Supreme Court of Georgia.
Argued April 13, 1976.
Decided May 5, 1976.
Harrison, Roper & Garrett, D. Landrum Harrison, for appellant.
Nixon, Yow, Waller & Capers, John D. Capers, Richard E. Miley, Thomas W. Tucker, McGahee, Plunkett, Benning & Fletcher, Jack E. McGahee, David E. Hudson, for appellees.
Arthur K. Bolton, Attorney General, Robert S. Stubbs, II, Chief Deputy Attorney General, Richard L. Chambers, Deputy Attorney General, J. Robert Coleman, Senior Assistant Attorney General, Verley J. Spivey, Assistant *802 Attorney General, amicus curiae.
HALL, Justice.
Crestview Subdivision in Richmond County was developed in 1938 with restrictions limiting the land to residential uses until January 1, 1978. In 1973, lots four through nine, which fronted on Washington Road, were rezoned for general business. At the time, Georgia Donuts, Inc. had attempted to build on lot nine, but had been stopped by an interlocutory injunction sought by a residential lot owner, Mittie Rowland, who is also the defendant-appellant in this action. The present owner of lots four through nine is plaintiff-appellee, Kellos, who now seeks a declaratory judgment that the restrictive covenants are unenforceable under Code Ann. § 29-301. The trial court granted his motion for summary judgment. Mrs. Rowland has appealed. We reverse.
1. Code Ann. § 29-301 provides that restrictive covenants may run with the land for only twenty years in municipalities (1935 Ga. L. p. 112) and counties (1962 Ga. L. p. 540), where zoning ordinances have been enacted. In House v. James, 232 Ga. 443, 445 (207 SE2d 201) (1974), we held this limitation applies to restrictive covenants existing prior to the enactment of the statute, saying, "[w]e hold today that restrictive covenants which have run more than twenty years within a municipality or county in which zoning laws have been in effect for more than twenty years are rendered unenforceable under *800 Code Ann. § 29-301." (Emphasis supplied.) Kellos contends that since the zoning laws and restrictive covenant in the present case have also existed for over 20 years, House is determinative; Rowland urges that the emphasized language is dictum, and that in order to decide this issue, we must reconcile House with two earlier cases, Smith v. Pindar Real Estate Co., 187 Ga. 229 (200 S.E. 131) (1938) and Dooley v. Savannah Bank & Trust Co., 199 Ga. 353 (34 SE2d 522) (1945). All three of these prior decisions involve the 1935 statute applicable to municipalities. This case involves the 1962 amendment making the twenty-year limitation applicable to counties having a zoning law.
In Smith and Dooley, we held that "the Act of 1935 was not intended to operate retrospectively, and would not have the effect of terminating a covenant that was already in existence as a valid and binding contract between the parties," before its enactment. Dooley v. Savannah Bank & Trust Co., supra, p. 365. However we distinguished these cases in House where the statute had been in effect for over twenty years: "What we hold here is not contrary to any holding in those [Dooley and Smith] cases since they were decided within twenty years of the effective date of the 1935 Act..." House v. James, supra, p. 444.
Since the present case, like Smith and Dooley, was brought within twenty years of the statute as amended in 1962, making its terms applicable to counties with zoning ordinances, our decision is controlled by them. Therefore, we hold that restrictive covenants in existence prior to the 1962 amendment are rendered unenforceable under Code Ann. § 29-301 (House v. James, supra), beginning twenty years after the enactment of the applicable statute (Smith v. Pindar Real Estate Co., supra; Dooley v. Savannah Bank & Trust Co., supra). It thus follows that the trial court erred in granting summary judgment to the appellee Kellos. The restrictive covenant is enforceable until it expires by its own terms in 1978.
2. There is no merit to appellant's enumeration of error number one asserting that this is an improper case in which to seek a declaratory judgment. A concrete legal issue is presented by adverse, opposing parties. See *801 Pilgrim v. First National Bank, 235 Ga. 172 (219 SE2d 135) (1975); Brown v. Lawrence, 204 Ga. 788 (51 SE2d 651) (1949).
3. Similarly, there is no merit to appellant's second enumeration contending that the trial court erred in denying her plea in abatement since this defense, if any, was not properly proved by presentation of certified copies of the record in the earlier case between her and Georgia Donuts, Inc. Altman v. Florida-Georgia Tractor Co., 217 Ga. 292 (122 SE2d 88) (1961); Watts v. Kundtz, 128 Ga. App. 797 (197 SE2d 859) (1973).
4. The challenge to Code Ann. § 29-301 as violative of the federal and Georgia constitutions for impairment of contracts was decided adversely to appellant by this Court in House v. James, supra.
5. Appellant's fifth enumeration cites the trial court for failure to set out findings of fact and conclusions of law in its order. Although this writer has always urged that such a requirement would be beneficial to the appellate courts, Code Ann. § 81A-152 does not demand it: "Findings of fact and conclusions of law are unnecessary on decisions of motions under Section 81A-112 or 81A-156 or any other motion except as provided in Section 81A-141(b)." See Doyal Development Co., Inc. v. Blair, 234 Ga. 261 (215 SE2d 471) (1975).
Judgment reversed in part; affirmed in part. All the Justices concur, except Undercofler, P. J., who concurs in the judgment only.
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70 Ariz. 35 (1950)
215 P.2d 1020
PALMER et ux.
v.
APPERSON.
No. 5153.
Supreme Court of Arizona.
May 4, 1950.
*36 Terrence A. Carson, of Phoenix, for appellants.
Stahl & Murphy, of Phoenix, for appellees.
PHELPS, Justice.
Cecil H. Apperson, doing business as Apperson Construction Company, plaintiff, brought this action against Ralph E. Palmer and Bernice Palmer, defendants therein, on an oral contract in which plaintiff had agreed to construct a trailer court for defendants on property owned by them. The complaint alleged that a labor and materialmen's claim of lien against said property had been filed in the office of the county recorder of Maricopa County and prayed for judgment for a sum certain against defendants, declaring it to be a lien against defendants' property and for a foreclosure of said lien. The First Federal Savings & Loan Association was joined as a party defendant because of certain mortgages held by it against defendants' property here involved upon which no issue is presented for our consideration.
Plaintiff went to trial before a jury on the original complaint, the pertinent allegations of which will be hereinafter related.
Defendants, answering the complaint, denied the material allegations thereof and in addition thereto filed a cross-complaint setting forth their version of the oral contract between plaintiffs and defendants and alleging a breach thereof and prayed for damages in the sum of $3,037.83 against plaintiff. An answer was filed by plaintiff to the cross-complaint and upon the issues thus formed the cause proceeded to trial.
At the close of plaintiff's case he presented a motion to amend his complaint to conform with the evidence produced by him. The court overruled defendants' objection thereto and permitted the filing of the amended complaint. The defendants then proceeded to put on their testimony and at the conclusion of the trial the jury returned a verdict in favor of plaintiff on his complaint in the sum of $3,706.62, and a verdict in favor of defendants on their cross-complaint in the sum of $501. Thereupon the court ordered the entry of a money judgment only in favor of plaintiff and against defendants for the sum of $3,205.62. The labor and materialmen's claim for a lien was held void and of no effect. From this judgment and the order of the trial court denying defendants' motion for a new trial, defendants prosecute this appeal.
*37 Defendants presented several assignments of error but asserted both in their briefs and in their argument to this court that these assignments resolve themselves into one proposition of law, viz., "That it was error for the court to permit the plaintiff to file and (an) amended complaint and change his theory of the case and to set up a new cause of action."
Let us examine the original and the amended complaint and by comparison ascertain whether defendants' contentions are well founded. The original complaint alleges in substance that:
The defendants were the owners of certain real property located in the county of Maricopa, State of Arizona; that on or about the 14th of December, 1946, plaintiff entered into an oral agreement with defendants for the performance of certain work and to furnish certain materials for the construction of a tourist court and for the alteration and repairs of certain buildings located upon the premises and that defendants agreed to pay therefor the cost of labor, materials and other expenses connected with the work, plus 5% of said sum for overhead and 10% for profits to the plaintiff; that there was to be added thereto the Arizona sales tax on the materials. The payment by defendants to plaintiff was to be made upon the completion of the work, and that the work was completed on April 24, 1947, but that defendants did not pay to plaintiff the amount due under the contract and that he, on June 13, 1947, duly filed in the office of the county recorder of Maricopa County his notice and claim of lien against said property which notice for claim of lien was attached to the complaint.
That at the time the notice and claim of lien was filed there was due and owing from defendants to plaintiff the sum of $3,892.78; that thereafter $223.48 was paid by defendants to a subcontractor and that there remained due to plaintiff the sum of $3,669.30.
Plaintiff asks for judgment in the sum of $3,669.30 with interest at 6% per annum from April 24, 1947; that judgment for said amount should be declared to be a lien upon the property of the defendants described in the complaint and for a foreclosure of said lien, and that special execution issue thereon.
The amended complaint describes the same property as that described in the original complaint and alleges defendants to be the owners thereof.
It alleges that on or about the 14th day of December, 1946, plaintiff entered into a contract with defendants for the performance of certain work, furnishing of certain materials for the construction of a trailer court and the alteration and repairs of certain buildings located upon the premises, and that he performed certain additional work and furnished certain additional materials at the request of defendants *38 and that defendants agreed to pay him for the construction of said court and for alteration and repairs, the cost of the labor and materials and other expenses connected therewith plus a fee of $1,251; that the payment therefor was to be made upon being billed as the work progressed and the balance upon the completion of the work; that the work was completed on April 24, 1947, except certain portions thereof which defendants requested and directed the plaintiff not to do or perform; that plaintiff expended for the cost of labor and materials in the performance of his work $9,013.62 and has been paid therefor the sum of $5,307; that there remained due and unpaid from defendants to plaintiff the sum of $3,706.62; that defendants did not pay plaintiff and on the 13th of June, 1947, plaintiff filed in the office of the county recorder of Maricopa County his verified notice and claim of lien against the property, a copy of which is annexed to the amended complaint; that the amount stated in the notice and claim of lien of $3,892.78 was in error and that it had since been ascertained that the true amount was $3,706.62.
Plaintiff asked judgment against defendants for the sum of $3,706.62 with interest thereon at 6% per annum from April 24, 1947; that the judgment for said sum be adjudged and declared to be a lien upon the real property described in the amended complaint and for a foreclosure of said lien, and for special execution to issue thereon.
In the light of the above comparative allegations it is difficult to understand how counsel for defendants can claim that there has been either a change in the theory of the case or in the cause of action. The allegations parallel each other almost identically with one exception. In the original complaint plaintiff claims that under the oral contract defendants were to pay him for the cost of labor and material and other expenses plus 5% overhead and 10% profit to be paid on completion of the work whereas in the amended complaint he alleges that defendants were to pay the cost of labor and material plus a fixed fee of $1,251. Plaintiff testified upon the witness stand emphatically that this amount of $1,251 was arrived at on a basis of 10% of the estimated cost of construction and that this flat fee was to be paid regardless of whether the cost was more or less than the estimated amount. The only other material difference in the pleadings is that in the original complaint plaintiff alleged that the amount due him was to be paid upon completion of his work. In the amended complaint he alleged it was to be paid when billed as the work progressed.
The causes of action are identical based upon the same work upon the same contract with minor modifications and upon the same allegation of breach. The *39 claim that plaintiff changed his theory of the case is wholly without merit. Counsel neither in his briefs nor in his argument to the court pointed out, or was able to point out, in what manner plaintiff changed his theory of the case. In both the original and amended complaint he asked for a judgment in a specific amount, that the judgment for said sum be declared a lien against the premises described in the complaints, and for a foreclosure of the labor and materialmen's claim of lien. The court therefore did not err in permitting the amendment to be made at the close of plaintiff's case. Rule 15(b) being section 21-449, A.C.A. 1939, expressly provides for such an amendment. Aiken v. Protis, 59 Ariz. 101, 123 P.2d 169, 171, cited by plaintiff is not in point and does not sustain his position. In that case the plaintiff sought to amend his complaint, basing his cause of action upon an entirely different contract from that relied upon in the original complaint. In his complaint he alleged upon a contract between Protis and Bakery Service Company and by the company assigned to him. By the proposed amendment he sought to set up a contract between himself and Protis directly. This request the court refused and properly so. The court said in that case:
"* * * It is urged that it has always been the rule in Arizona that amendments should be allowed liberally in the interest of justice, so that cases should ultimately be tried on their merits and not on technical questions of procedure.
"The general rule of law is unquestionably as stated by plaintiff. * * * It is evident from this testimony that to permit the amendment would necessarily have completely altered the entire theory of the case, would have required a reformation of a written contract, and have destroyed a perfect defense going to the validity of the contract itself, regardless of whether it was assigned or not. * * *."
In Town of Holbrook v. Girand, 52 Ariz. 291, 80 P.2d 695, 698, 118 A.L.R. 1203, where an action was brought upon an express contract and in fact tried upon a quantum meruit the court said: "* * * But under our modern practice it is generally held that a complaint seeking to recover upon an express contract may be amended so as to ask for a recovery on quantum meruit, providing that it adheres to the same transaction in both cases. * * *."
Defendant argues that under the law plaintiff may not recover a personal judgment against a defendant where, as here, a labor or materialmen's claim of lien has been declared invalid. There are some authorities that support this contention but the great weight of authority is to the contrary and certainly is based upon the sounder reasoning. 36 Am.Jur., page *40 172, Par. 283; Volker-Scowcroft Lumber Co. et al. v. Vance et al., 36 Utah 348, 103 P. 970, 24 L.R.A.,N.S., 321, Ann.Cas. 1912A, 124. We have held that where the owner personally contracts with the materialman, a personal judgment may be rendered against the owner for the materials furnished. Harbridge v. Six Points Lumber Co., a corp., 17 Ariz. 339, 152 P. 860; Lanier v. Lovett, 25 Ariz. 54, 213 P. 391. But where the owner contracts with a contractor and not with the materialman, the materialman is entitled only to a lien against the property of the owner, not for the contract price, but only for the reasonable value of the materials furnished; Id. The same rule is, of course, equally applicable to one who performs labor under like circumstances. In the instant case the contract was directly between Palmer and Apperson. Therefore under the rule laid down in our former decisions plaintiff is entitled to a personal judgment against defendants.
No question is raised on this appeal as to the correctness of the respective amounts awarded by the jury on the amended complaint and on the cross-complaint.
Judgment of the lower court is therefore affirmed.
LA PRADE, C.J., and UDALL, STANFORD and DeCONCINI, JJ., concurring.
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211 Ga. 286 (1955)
85 S.E.2d 514
COX et al.
v.
GENERAL ELECTRIC COMPANY.
18791.
Supreme Court of Georgia.
Argued November 9, 1954.
Decided January 10, 1955.
*287 Cohen, Roberts & Kohler, for plaintiffs in error.
C. Baxter Jones, Jr., Sutherland, Asbill & Brennan, contra.
Powell, Goldstein, Frazer & Murphy, F. M. Bird, Charles J. Bloch, John H. Boman, Jr., A. G. Cleveland, Jr., William H. Schroder, Jr., Henry B. Troutman, Jr., Spalding, Sibley, Troutman & Kelley, James M. Sibley, Robert B. Troutman, Herman T. Van Mell, Eugene Cook, Attorney-General, Robert H. Hall, Assistant Attorney-General, Rogers, Hoge & Hills, George M. Chapman, for parties at interest not parties to record.
WYATT, Presiding Justice.
1. It is contended that the plaintiff in the court below (the defendant in error here) is entitled to the relief sought in so far as counts one and two are concerned irrespective of the Fair Trade Statute for the reason as contended, that the petition seeks to protect property rights, and that the petitioner is entitled to have these property rights protected irrespective of the Fair Trade Act. This contention can not be sustained. The Supreme Court of the United States in Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, (71 Sup. Ct. 259, 95 L. ed. 219), in dealing with a scheme similar to the one here involved, and certainly controlled by the same legal principles, said: "Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se."
In Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (31 Sup. Ct. 376, 55 L. ed. 502), where the scheme under consideration was essentially the same as the one here under consideration, and where the contentions of the medical company were in general the same as those alleged in the petition in the instant case, the Supreme Court of the United States said (at p. 399): "The bill asserts complainant's `right to maintain and preserve the aforesaid system and method of contracts and sales adopted and established by it.' It is, as we have seen, a system *288 of interlocking restrictions by which the complainant seeks to control not merely the prices at which its agents may sell its products, but the prices for all sales by all dealers at wholesale or retail, whether purchasers or sub-purchasers, and thus to fix the amount which the consumer shall pay, eliminating all competition. . . That these agreements restrain trade is obvious." The court then held the scheme under consideration to be in violation of the Sherman Act.
In the instant case the plaintiffs in error are non-signers, or parties with whom the manufacturer has no contract. Clearly the above rulings as to the violation of the Sherman Act by schemes such as the petition discloses in this case are controlling.
The defendant in error further contends that it is entitled to the relief sought by virtue of a valid act of the General Assembly of the State of Georgia, the so-called "Fair Trade Act." In view of the above rulings of the Supreme Court of the United States, of course, if plaintiff in the court below is entitled to any relief, it must be by virtue of a valid act of the General Assembly of Georgia. This contention will be dealt with in the following division of the opinion.
2. Count three of the petition contends that the plaintiff in the court below is entitled to the relief sought by virtue of and under the provisions of the Georgia Fair Trade Act (Ga. L. 1953, Nov.-Dec. Sess., p. 549). As appears from the authorities cited in division one of this opinion, after the Supreme Court of the United States had declared schemes such as is here under consideration to be in violation of the Sherman Act (26 Stat. 209; 15 U.S. C. A., § 1), the Congress of the United States in the Miller-Tydings Act (50 Stat. 693, 15 U.S. C. A., § 1), attempted to delegate to the States the right to enact these Fair Trade Statutes. The Supreme Court of the United States in construing this act held that it could not be made to apply to persons who had signed no contract or agreement. Schwegmann Brothers v. Calvert Distillers Corporation, 341 U.S. 384 (71 Sup. Ct. 745, 95 L. ed. 1035). Thereafter, the Congress enacted the McGuire Act (66 Stat. 632, 15 U.S. C. A., § 45), attempting to delegate to the States the right to enact Fair Trade Statutes applicable to all dealers or retailers whether they had signed contracts or not.
This attempt by the Congress to delegate to the States this *289 power seems to be in the reverse of the power of delegation as we have always understood this subject under our system of government and under the provisions of the Constitution of the United States. However, that is the situation with which we have to deal.
The defendants in the court below had signed no contract or agreement of any kind. We are, therefore, not here concerned with what the situation would have been if there had been a contract between the parties because that question is not now before us. Clearly, it follows, if the scheme here under consideration is valid and if the plaintiff in the court below is entitled to the relief sought, it must be by reason of a valid law of Georgia making legal the scheme of doing business described in the petition under consideration. That the legislature attempted to make legal the scheme and method of doing business described in the petition, is clear from a reading of the act of 1953, supra. The question remains, however, is this law a valid law?
This court has very recently in two cases dealt with the question of fixing prices by statute. In Harris v. Duncan, 208 Ga. 561 (67 S.E.2d 692), this court was dealing with a statute purporting to give to a board the right to fix the price of milk. We there said (p. 563): "Before the General Assembly can authorize price fixing without violating the due process clause of our Constitution, among other requirements, it must be done in a business or where property involved is `affected with a public interest,' and the milk industry does not come within that scope." Certainly, if milk is not "affected with a public interest," electrical appliances are not.
Again in the Harris case, supra, we said (p. 564): "The right to contract and for the seller and purchaser to agree upon a price is a property right protected by the due process clause of our Constitution, and unless it is a business `affected with a public interest' the General Assembly is without authority to abridge that right."
In the Harris case, supra, Chief Justice Duckworth wrote a very full and complete special concurring opinion. All that is said there by the Chief Justice is applicable here. We therefore, without the necessity of copying in this opinion what is there said, adopt that special concurring opinion as a part of this opinion. *290 It is contended that the Harris case, supra, differs from the instant case for the reason that the court was there dealing with the power of the General Assembly to authorize a board to fix prices, while here the court is dealing with an attempt by the legislature to authorize an individual to fix the price of its own product. The clear answer to this contention is that, if the General Assembly can not authorize a board created by the State to fix prices, certainly it can not give this right to an individual.
In Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613 (75 S.E.2d 161), this court was dealing with a situation almost identical with that now under consideration, and there this court said (p. 619): "Moreover, and for the reasons stated in Harris v. Duncan, 208 Ga. 561 (67 S.E.2d 692), Georgia's Fair Trade Act of 1937 offends article I, section I, paragraph III of our Constitution of 1945, which provides that `No person shall be deprived of life, liberty, or property except by due process of law.' Code (Ann.) § 2-103. And for that reason the act is null and void." It is contended that this ruling was obiter dictum for the reason that the case had already been disposed of on the theory that the act violated the provisions of the Sherman Act. We do not agree with this contenton. However, to remove any doubt in the future, and since the language is so applicable to the act of the General Assembly now under consideration, we adopt that language as a part of this opinion as applied to the subsequently enacted Fair Trade Act now under consideration. It is argued that the Fair Trade Act of 1953, supra, is not a price-fixing statute, but is a statute enacted for the purpose of protecting the property right of the manufacturer in his trade name and trademark, and that the price-fixing feature is simply incidental. We can not agree with this argument. A mere reading of the act discloses that the purpose of the act is to authorize a manufacturer to regulate and fix the price of its product down through the channels of trade to the ultimate consumer and into the hands of persons with whom he has no contractual relation. If the price-fixing provisions are stricken from the act, the act is destroyed. Surely a provision so vital is not merely incidental.
It is further argued that this court is bound to sustain the validity of the act because of certain findings of fact by the General Assembly. We do not think that the recitals contained in *291 the act amount to findings of fact, but are simply arguments presented by the General Assembly as to the reasons why they considered the act necessary, and their conclusions as to the effect of the act. We are convinced that any findings of fact in conflict with what has been held in this opinion would be an attempt by the General Assembly to find a fact that does not exist, and, of course, no court is bound by that sort of finding of fact by a legislative body. Of course, a manufacturer has a property right in his trade-mark and trade name, but that does not give to him the right and power to strike down the Constitution of this State and interfere with the freedom of the right to contract.
It is argued that this court can not hold the Georgia Fair Trade Act unconstitutional without questioning the motives of the legislature and imputing dishonesty to that body. We reject this fallacious argument in its entirety. We simply disagree with the General Assembly for the reasons pointed out in this opinion.
It is earnestly argued that a number of the supreme courts have upheld the validity of their Fair Trade Acts, which were almost, if not entirely, identical with the Georgia statute under consideration, and our attention is called to a number of decisions by the Supreme Court of the United States. We are aware of the fact that a number of the State supreme courts have upheld these acts, a number have not passed upon them, and others have held them invalid. We are also familiar with the conflicting decisions on this question by the Supreme Court of the United States, as pointed out in the special concurring opinion of Chief Justice Duckworth in Harris v. Duncan, supra. We are here, however, dealing with the statutes of this State and with the question of whether or not they violate the Constitution of the State of Georgia. What the courts of other States have decided is not controlling, and this is one of the few powers left to States to decide for themselves regardless of what the Supreme Court of the United States may or may not have decided. We are also familiar with the modern trend to allow the government to encroach more and more upon the individual liberties and freedoms. So far as we are concerned, we will not strike down the Constitution of our State for this purpose; neither will we follow the crowd. The scheme described in the *292 petition now under consideration permits a manufacturer, under the guise of protecting his property rights in a trade name and trade-mark, to control the price of his product down through the channels of trade into the hands of the ultimate consumer, and into the hands of persons with whom he has no contractual relation whatever. This statute clearly violates the provisions of the due-process clause of the Constitution of the State of Georgia.
From what has been said above, it follows, the judgment of the trial court was error.
Judgment reversed. All the Justices concur, except Almand, J., who dissents.
ALMAND, Justice, dissenting. Neither the case of Harris v. Duncan, 208 Ga. 561 (67 S.E.2d 692), nor that of Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613 (75 S.E.2d 161), is conclusive on the questions raised in the instant case. In the Harris case, we were not concerned with the question of the right of an individual to fix a minimum selling price of a commodity, but were dealing solely with the authority of the State in enacting a statute authorizing the State Milk Control Board to fix the selling price of milk as sold by individual distributors; and we held that such statute violated the due-process clause of the State Constitution. In the Grayson-Robinson case, we had before us the validity of the Fair Trade Act of 1937. That act was declared unconstitutional, as being contrary to and inconsistent with the provisions of the Sherman Antitrust Act as it existed at the time of the passage of the statute, and was void ab initio as offending the supremacy clause as well as the commerce clause of the Federal Constitution. In the third division of the opinion, citing Harris v. Duncan, it was held that the act was null and void as offending the due-process clause of the State Constitution. This latter ruling was unnecessary, for the reason that the court had already held the act to be void ab initio, and the statute having already been stricken by the mortal blow given in the first division of the opinion, and being "dead," was not subject to be again stricken by a second blow, even though the second blow might have been mortal. In addition to the foregoing reason, the Grayson-Robinson case is not controlling in the instant case, because we are now dealing with an entirely new fair trade statute containing provisions which *293 were not present in the former statute, and these new provisions compel us to re-examine the constitutional questions raised in the instant case by the defendant's demurrer.
The Fair Trade Act of 1937 contained no declaration of public policy as a basis for enactment of the statute. The caption of the Fair Trade Act of 1953 provides that the act has for one of its purposes "to declare the public policy of Georgia with respect to property rights, trade-marks, good will, and the right and freedom to contract, and to exercise the police power of the State of Georgia so as to forbid the conduct of business in such manner as to infringe the equal rights of others, and to protect the general public against practices which may have the effect, or be intended to have the effect, of defeating or lessening competition or encouraging monopoly, by authorizing contracts stipulating minimum resale prices on commodities bearing trade-marks, brands or names, and defining as unfair competition and making actionable knowingly and wilfully to advertise for sale, offer for sale, or sell such commodities at less than the minimum prices established or stipulated in or under the contracts authorized by this Act, whether the person so advertising for sale, offering for sale or selling is or not a party to such contracts."
Section 1 (F) of the act of 1953 provides: "Trade-marks, brands, or names of commodities, and the good will associated therewith constitute property entitled to the protection afforded by this Act." Section 1 (G) provides that "Wilfully and knowingly advertising for sale, offering for sale, or selling a competitive commodity bearing a trade-mark, brand or name of the producer or distributor thereof contrary to the provisions of this Act and contracts entered into pursuant thereto of which the seller of such commodity has knowledge constitutes a wrongful interference with the property rights of the parties to such contracts."
It is thus to be seen that the act of 1953 creates a property right in the manufacturer or distributor of a commodity, whereby, when the owner of the commodity makes a contract as to the minimum price at which the commodity is to be sold, it is a breach of such property right for any person to sell or offer to sell such a commodity at less than the price stipulated in the contract, whether he signed the contract or not. We know of *294 no provision in the Constitution that would prohibit the General Assembly from making valid such a contract between the producer or distributor as to the minimum price at which such commodity should be sold. A contract between a manufacturer and retailer against price-cutting unless the trade-mark or trade name was detached from the commodity sold would be valid at common law. Ingersoll v. Hahne, 89 N. J. Eq. 332 (108 A. 128). The question, then, comes down to this: whether or not the General Assembly can give to a producer or distributor a right of action against one not a party to a contract fixing a minimum price of sale, without violating the right of the non-signer to sell the commodity as his own, at a price he may determine, without violating the due-process clause of the Constitution, which protects his ownership and property and his right to make private contracts. The act of 1953 does not forbid one who buys a commodity which bears a trade-mark or brand of the producer or distributor from selling or disposing of the same, but simply says that, if one purchases for resale in the open market such commodity, with the trade name of the owner or producer thereon, knowing that such commodity has been originally sold under a contract or agreement that the original purchaser would not sell at less than the stipulated price, he, the non-signer, must remove the trade-mark, brand or name from the commodity. The act does not forbid him from selling his own property, but simply forbids his reselling the commodity with the trade-mark, brand, or name of the owner for less than the minimum price.
As was said in Old Dearborn Distributing Co. v. Seagram Distillers Corp., 299 U.S. 183, 193 (57 Sup. Ct. 139, 81 L. ed. 109, 106 A. L. R. 1476): "Appellants here acquired the commodity in question with full knowledge of the then-existing restriction in respect of price which the producer and wholesale dealer had imposed, and, of course, with presumptive if not actual knowledge of the law which authorized the restriction. Appellants were not obliged to buy; and their voluntary acquisition of the property with such knowledge carried with it, upon every principle of fair dealing, assent to the protective restriction, with consequent liability under § 2 of the law by which such acquisition was conditioned. . . The ownership of the good will, we *295 repeat, remains unchanged, notwithstanding the commodity has been parted with. Section 2 of the act does not prevent a purchaser of the commodity bearing the mark from selling the commodity alone at any price he pleases. It interferes only when he sells with the aid of the good will of the vendor; and it interferes then only to protect that good will against injury. It proceeds upon the theory that the sale of identified goods at less than the price fixed by the owner of the mark or brand is an assault upon the good will, and constitutes what the statute denominates `unfair competition.' See Liberty Warehouse Co. v. Burley Tobacco Growers' Assn., 276 U.S. 71, 91-92, 96-97. There is nothing in the act to preclude the purchaser from removing the mark or brand from the commodity thus separating the physical property, which he owns, from the good will, which is the property of another and then selling the commodity at his own price, provided he can do so without utilizing the good will of the latter as an aid to that end."
The Supreme Court of North Carolina, dealing with a similar fair trade statute, in discussing the question of whether there was an unreasonable restriction placed upon a dealer in the commodity, stated: "The restriction is not imposed after the acquisition of the property, and is not in derogation of an existing or established right. Under the statute it was a condition that had already attached to the property. It was known to the prospective purchaser, and he was under no obligation to assume it. Morally and legally he is presumed to have accepted the condition by his voluntary act of purchase. . . Such a restriction is not confiscatory unless it is unreasonable or contrary to the principles of the Constitution reasonably interpreted; and one who invokes the aid of the Constitution in this respect must show that he has a title free from condition, at least with respect to the supposed invasion." Ely Lilly & Co. v. Saunders, 216 N. C. 163, 176 (4 S.E.2d 528).
The General Assembly, in the enactment of the 1953 Fair Trade Act, made the following declaration of public policy: "The public interest and general well being of the State of Georgia will best be served by the maintenance of resale prices of trade-marked, branded or named commodities which are in free and open competition with commodities of the same general class"; *296 and this statement is supported with a recitation of the grounds of this conclusion. From public records, of which we can take judicial notice (see appendix to Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 Sup. Ct. 745, 95 L. ed. 1035); U. S. House of Representatives, Publication No. 1292 (1952), No. 1437 (1952)), these conclusions are fully warranted. It is not for us to question the wisdom or propriety of the legislature in creating a right of action in favor of a producer or distributor of a commodity bearing a trade-mark, name, or brand against one who knowingly sells such commodity at a price less than that fixed in a contract between the producer or distributor and the original purchaser. The defendant in the instant case being under no obligation to buy the commodity bearing a trade-mark, name or brand (he having acquired no right to sell the trade-mark, name or brand separate from the commodity), I cannot see how he can complain that his right to sell his own property, or to contract under the due-process clause of the Constitution, has been violated. His freedom to buy is unhampered. His freedom to sell is limited only by the requirement that he must not intentionally violate the contract rights of the owner of the trade-mark, name, or brand.
The act being valid, the third count of the petition clearly alleges a case which, as against the general demurrers, entitles the plaintiffs to the equitable relief sought.
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https://www.courtlistener.com/api/rest/v3/opinions/2260505/
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124 Cal.Rptr.2d 877 (2002)
101 Cal.App.4th 1180
Jean Daniel ROULIER, Plaintiff and Appellant,
v.
CANNONDALE et al., Defendants and Respondents.
No. B145607.
Court of Appeal, Second District, Division Four.
September 9, 2002.
Review Denied December 18, 2002.[*]
*878 Law Offices of Berglund, Johnson & Sommer and Daniel W. Johnson, Woodland Hills, for Plaintiff and Appellant.
Haight, Brown & Bonesteel, Jules S. Zeman, Los Angeles, and Kevin M. Osterberg, Riverside, for Defendants and Respondents.
EPSTEIN, J.
Jean Daniel Roulier appeals from a judgment of dismissal based on forum non conveniens. He contends that Switzerland is not a suitable alternative forum, and that the balance of private and public interest factors weighs in favor of retaining jurisdiction in California. While we agree with the trial court that Switzerland is a suitable forum, in the context of the unusual procedural history of this case, we also conclude the trial court did not abuse its discretion in its original holding that the balance of private and public factors favors trial in California. We therefore reverse the judgment entered by the trial court in compliance with the alternative writ issued by this court.
FACTUAL AND PROCEDURAL SUMMARY
Jean Daniel Roulier is a resident of Switzerland.[1] In 1998, on a visit to California, *879 he purchased a Cannondale bicycle from defendant Two Wheels One Planet (Two Wheels). On July 15, 1998, he was seriously injured in Switzerland while riding the Cannondale bicycle.
Defendant Cannondale designs and manufactures bicycles. It is incorporated in Delaware, with its principal place of business in Connecticut. Its products are manufactured in Pennsylvania and Connecticut. Two Wheels is a dba for Mulrooney, Inc. It is a retail bicycle shop located in Artesia, California.
On December 2, 1998, plaintiff filed a complaint in the Los Angeles Superior Court alleging causes of action for strict product liability, negligent product liability, and breach of warranty. He named Cannondale and Two Wheels as defendants.[2] He alleged that the bicycle contained design or manufacturing defects that caused his accident. Plaintiff sought general damages, medical and related expenses, loss of earnings, property damage, consequential damages, interest and costs.
Cannondale answered the complaint in February 1999, including an affirmative defense that the action should be dismissed on the grounds of forum non conveniens. Two Wheels answered the complaint and filed a cross-complaint in March 1999. It did not raise forum non conveniens as an affirmative defense. According to the docket, Cannondale answered the cross-complaint and filed its own cross-complaint. Two Wheels answered the Cannondale cross-complaint.
In March 1999, Cannondale propounded over 50 form interrogatories to plaintiff. Plaintiff responded to the interrogatories the following month. Experts for the defendants examined the bicycle in 1999. Plaintiff made himself available for deposition in August 1999, but counsel for Cannondale was unavailable. Plaintiff attempted to arrange for his deposition and a medical examination in the week prior to a mediation scheduled for November 1999. Plaintiff filed two motions to compel based on defendants' failure to respond to form and special interrogatories.
In October 1999, Cannondale filed a motion to dismiss or stay the action on the grounds of forum non conveniens. Two Wheels' attempt to join in the motion was denied as untimely. Cannondale argued that plaintiffs case should be tried in Switzerland because it is a suitable alternative forum since Cannondale had offered to stipulate to jurisdiction in that forum and to waive the statute of limitations. It also contended that the second prong of the test, the weighing of private and public interest factors, favored trial in Switzerland. It noted that Swiss law would apply even if the matter were tried in California. Plaintiff opposed the motion and it was denied.
In its well-reasoned findings, the trial court concluded that Switzerland is a suitable alternative forum. But it also found that Cannondale had not met its burden of demonstrating that the action should be stayed or dismissed. The court recognized that the accident occurred in Switzerland and that plaintiff received his medical treatment there. It held: "However, the site of the accident is collateral to the issues raised by products liability and breach of warranty actions. Having the matter heard in California will ease the access to evidence regarding the design and manufacture of the subject bicycle, both of which took place in the United States. Unlike in the Stangvik [v. Shiley Inc. (1991) 54 Cal.3d 744, [1 Cal.Rptr.2d *880 556, 819 P.2d 14]] case, the action here involves a single injury due to an alleged manufacturing defect. Allowing the case to ... go forward will not burden the California court system or otherwise offend the public interest."
Cannondale filed a petition for writ of mandate (Cannondale v. Superior Court (Dec. 2. 1999, B137134) [nonpub. opin.]). We issued an order directing it to lodge the joinder filed by Two Wheels and any other documents relating to an offer by Two Wheels to submit to personal jurisdiction in Switzerland and to waive all statute of limitations defenses. After these documents were lodged, plaintiff filed a reply in which he argued that Two Wheels' joinder was untimely, and that Two Wheels had failed to stipulate to Swiss jurisdiction and to waive the statute of limitations defenses. Cannondale then lodged a declaration by Michael Mulrooney, president of the bicycle retailer business, stating that it would stipulate to Swiss jurisdiction and would waive the statute of limitations defense. Plaintiff objected to consideration of this declaration.
On March 13, 2000, we issued an alternative writ of mandate ordering the trial court to hear a motion by Cannondale for reconsideration, pursuant to Code of Civil Procedure section 1008, subdivision (b), of the order denying the forum non conveniens motion. We provided that the motion was to be heard "if such motion is based on the new and different circumstance that co-defendant Two Wheels One Planet has stipulated to submit to personal jurisdiction in the courts of Switzerland and will waive all statute of limitations defenses it might assert to an action by plaintiff in Switzerland; ..." Alternatively, we directed the trial court to show cause why a peremptory writ of mandate should not issue.
In response, the trial court set a hearing on a motion for reconsideration. Cannondale renewed its motion to dismiss on the grounds of forum non conveniens. It argued there were new circumstances as required for reconsideration under Code of Civil Procedure section 1008, including the facts that Cannondale's insurer had accepted the tender of defense by Two Wheels, and that Two Wheels had stipulated to Swiss jurisdiction and had waived any statute of limitations defense.
Plaintiff opposed the motion to renew, arguing that the court properly exercised its discretion when it denied the original motion. He argued that the new facts relied upon by Cannondale did not justify a different result because they related only to the first prong of the test for forum non convenienswhether jurisdiction was proper in Switzerlandwhich the trial court had originally resolved in Cannondale's favor. He also contended that Cannondale was dilatory in bringing the motion nearly one year after the complaint was filed, and after it had engaged in discovery.
The trial court once again held that Switzerland was a suitable alternative forum, but that Cannondale had not shown that the balance of public and private factors favored litigation in Switzerland.
Cannondale filed a second petition for writ of mandate in this court in June 2000, which was opposed by plaintiff (Cannondale v. Superior Court (June 13, 2000 B142046) [nonpub. opin.]). We issued an alternative writ on July 7, 2000, requiring the trial court to "vacate the order entered May 10, 2000, which denied petitioner's motion for reconsideration of the November 3, 1999 order denying its forum non conveniens motion, and make a new and different order granting that motion and staying the action to permit plaintiffs claim to be litigated in Switzerland; ..."
The trial court complied with the alternative writ, vacating its order denying the renewed motion and granting the motion *881 to dismiss on the grounds of forum non conveniens. The action was dismissed and judgment of dismissal was entered. Plaintiff filed a timely appeal.
DISCUSSION
I
In Stangvik v. Shiley Inc., supra, 54 Cal.3d 744, 1 Cal.Rptr.2d 556, 819 P.2d 14 (Stangvik), a leading case on forum non conveniens, the Supreme Court explained the rule "is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. [Citation.]" (Id. at p. 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.)
The defendant has the burden of proof. (Stangvik, supra, 54 Cal.3d at p. 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.) The first step in the analysis is whether the alternative forum is "a `suitable' place for trial." (Id. at p. 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.) "A forum is suitable if there is jurisdiction and no statute of limitations bar to hearing the case on the merits. [Citation.] `[A] forum is suitable where an action "can be brought," although not necessarily won.' [Citation.]" (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1036-1037, 68 Cal.Rptr.2d 427, quoting Shiley Inc. v. Superior Court (1992) 4 Cal.App.4th 126, 131, 6 Cal.Rptr.2d 38.) We review a determination of this issue de novo. (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 436, 104 Cal.Rptr.2d 670.)
Both Cannondale and Two Wheels have stipulated to jurisdiction of the Swiss courts and to waive any statute of limitations defense. Despite these stipulations, plaintiff argues that Switzerland is not a suitable forum because the defendants did not stipulate to the enforcement of the judgment as the defendants did in Stangvik and Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534, 82 Cal.Rptr.2d 202. Plaintiff asserts that neither defendant has assets in Switzerland.
Defendants point out that there is no support in the record for plaintiffs assertion that they have no assets in Switzerland. Furthermore, the Stangvik court did not make enforceability of the judgment in the forum state a requirement. Instead, the court concluded: "The Judicial Council Comment makes it clear that the question of a suitable alternative forum depends not on the factors relevant to the convenience of the parties and the interests of the public, but on whether an action may be commenced in the alternative jurisdiction and a valid judgment obtained there against the defendant. [Citation.]" (Stangvik, supra, 54 Cal.3d at p. 752, fn. 3, 1 Cal.Rptr.2d 556, 819 P.2d 14, italics added.) Similarly, the court of appeal in Campbell v. Parker-Hannifin Corp., supra, 69 Cal.App.4th 1534, 82 Cal.Rptr.2d 202, did not make enforceability of the judgment in the alternative jurisdiction a requirement. Rather, the parties stipulated to satisfaction of a judgment or settlement. (Campbell v. Parker-Hannifin Corp., supra, 69 Cal.App.4th at p. 1540, 82 Cal.Rptr.2d 202.)
Plaintiff may seek enforcement of a Swiss judgment by filing an action in California under the Uniform Foreign Money Judgments Recognition Act (Code Civ. Proc, § 1713 et seq.). (Ahart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2001) ¶ 6.1850 et seq., p. 6J-19.)
Plaintiff also argues that Switzerland is not an available forum because he might not have a meaningful remedy there. He cites article 135 of the Swiss Federal International Private Law Act: "`Article 135 *882 (product liability). [¶] 1. Claims based on a defect in a product or in its description shall, at the choice of the injured party, be governed by: [¶] (a) The Law of the State in which the perpetrator [or the defective act] is established or, where there is no such establishment, where he has his habitual residence, or [¶] (b) The Law of the State in which the product was acquired unless the perpetrator can prove that the product has been marketed in that State without his consent. [¶] 2. the claims based on a defect in a product or in its description are governed by foreign Law, no compensation can be awarded in Switzerland other than that which would have been granted for such a prejudice under Swiss Law.'" (Italics added.)
Plaintiffs position is contrary to Stangvik. The Supreme Court rejected the argument that less favorable law in the alternative jurisdiction is a basis for denying a motion based on forum non conveniens. It held: "In our view, the fact that an alternative jurisdiction's law is less favorable to a litigant than the law of the forum should not be accorded any weight in deciding a motion for forum non conveniens provided, however, that some remedy is afforded. [Citation.]" (Stangvik, supra, 54 Cal.3d at p. 754, fn. 5, 1 Cal. Rptr.2d 556, 819 P.2d 14.)
We are satisfied that Switzerland is a suitable alternative forum.
II
We turn to the balance of private and public interest factors. Once again, the Stangvik court set out the relevant principles: "[T]he next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. [Citations.]" (Stangvik, supra, 54 Cal.3d at p. 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.) These factors are to be applied flexibly, without giving undue emphasis to any one element. (Id. at p. 753, 1 Cal.Rptr.2d 556, 819 P.2d 14.)
The trial court's balancing of these factors is entitled to substantial deference. (Chong v. Superior Court, supra, 58 Cal. App.4th 1032, 1037, 68 Cal.Rptr.2d 427.) In denying the original motion the trial court noted that other than the plaintiff, there is only one percipient witness to the accident in Switzerland; that defendants did not arrange a physical examination while plaintiff was in California for two months the previous summer; and that litigation in California would not burden the defendants. The court observed: "We're dealing with products liability, warranty, all arising here in the United States. The bicycle was purchased here. California has an interest in products which are sold in California as so far as their safety and use." The court expressed concern about whether Swiss or California law applies, and about the delay in bringing the motion.
At the hearing on the renewed motion, the trial court said that the new facts about Two Wheels' stipulating to Swiss jurisdiction and waiving the statute of limitations went only to whether Switzerland is a suitable alternate forum. The court *883 agreed that it was. But as to the balancing of public versus private interests, the court found no new evidence. It said: "[A]pplying the test the court must apply, I believealthough there is an alternative jurisdiction where the case could have been filed, and no doubt the plaintiff did forum shopping, which is not unlike what the moving party is attempting to do in this case, I do believe that inwithin the public interests of the State of California, the product sold in California, that there is substantial interest and that the case should continue here." The court repeated that the difference in remedies available in Switzerland did not factor into its decision.
Plaintiff relies heavily on Brown v. Clorox Co. (1976) 56 Cal.App.3d 306, 128 Cal. Rptr. 385, a case decided before Stangvik, supra, 54 Cal.3d 744, 1 Cal.Rptr.2d 556, 819 P.2d 14. In Brown, residents of the state of Washington filed a products liability action in California, where the product was manufactured. It was purchased in Washington, the injury occurred there, and all medical treatment was rendered there. The Court of Appeal reversed the trial court's order staying the action in California in favor of Washington as an abuse of discretion.
The court in Brown held that the plaintiffs choice of forum should not be disturbed. (Brown v. Clorox Co., supra, 56 Cal.App.3d at p. 311, 128 Cal.Rptr. 385.) Assuming this reasoning is valid, it does not apply where the plaintiff is not a resident of the United States. (Stangvik, supra, 54 Cal.3d at p. 755, 1 Cal.Rptr.2d 556, 819 P.2d 14; Campbell v. Parker-Hannifin Corp., supra, 69 Cal.App.4th at p. 1543, 82 Cal.Rptr.2d 202.) In addition, all three defendants had principal places of business in California, two were incorporated in California, and the third was a subsidiary of a California corporation. (Brown v. Clorox Co., supra, 56 Cal.App.3d at pp. 311, 313-314, 128 Cal.Rptr. 385.) Here, while Two Wheels is located in California, Cannondale is incorporated in Delaware with its principal place of business in Connecticut. Brown is not helpful to plaintiff.
Plaintiff argues that private interests favor retention of the case in California. As we have discussed, these are factors "that make trial and the enforce-ability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses." (Stangvik, supra, 54 Cal.3d at p. 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.)
He asserts that Two Wheels is a California corporation, but his citations to the record to support this assertion do not bear him out.
There are relevant witnesses and documents available in both Switzerland and California. Plaintiff points out that the percipient and expert witnesses and documents regarding the design, production, testing, warranty, and sale of the bicycle are in California or may be compelled to testify or to be produced here. He has provided defendants his medical records, made himself available for medical examination here, and has stipulated to video depositions of any medical witnesses in Switzerland.
Defendants point out that the surviving percipient witness, the treating physicians, and the medical records are in Switzerland. But, as we have seen, plaintiff has suggested an efficient method for making that evidence available for trial in California. The private factors weigh in favor of trial in California.
We turn to the public interest factors aspect of the balancing test. The *884 "public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. [Citations.]" (Stangvik, supra. 54 Cal.3d at p. 751, 1 Cal.Rptr.2d 556, 819 P.2d 14.)
We first dispose of the court congestion factor. Stangvik is distinguishable from our case. In Stangvik, there were 235 actions brought in California, with one million pages of documents and hundreds of witnesses. Thus, trial in California would have imposed a significant burden on California's already congested courts. (Stangvik, supra, 54 Cal.3d at p. 758, 1 Cal.Rptr.2d 556, 819 P.2d 14.) Here, we have a single plaintiff with two defendants, represented by the same counsel. As the trial court concluded, little or no impact on court congestion may be expected to result from a trial in this state.
Defendants create a straw man in arguing that court congestion is a factor that should weigh in favor of trial in Switzerland. They assert that the ability of foreign nationals to bring actions in California courts, even one at a time, "would seriously burden our already congested courts." Defendants acknowledge plaintiffs argument that only a single action is involved here, as opposed to the 235 actions in Stangvik, a circumstance posing far less of a threat of court congestion. Then defendants posit a position by plaintiff which he does not take: "The plaintiffs contention on this point [the minimal impact on court congestion here], if correct, would prevent dismissal unless the case were a class action or involved a large number of cases. This contention is plainly incorrect, as shown by the many cases involving singular plaintiffs where the court dismissed on grounds of forum non conveniens. [Citations.]" (Italics added.)
As we read plaintiffs briefing, he does not take the extreme position defendants describe. We understand plaintiff to argue simply that Stangvik is distinguishable because the significant court congestion posed by the hundreds of actions in that case is not presented here. We agree with plaintiff.
Plaintiff argues that the local community has a concern about the case because Two Wheels sold and continues to sell Cannondale bicycles in southern California. He contends that California has a strong interest in preventing the production and sale of defective products in this state, as the trial court found. The Stangvik court described this as an interest in deterring negligent conduct; "the likelihood of a substantial recovery against such a manufacturer strengthens the deterrent effect." (Stangvik, supra, 54 Cal.3d at p. 759, 1 Cal.Rptr.2d 556, 819 P.2d 14.) In contrast, plaintiff asserts that Switzerland has little interest in this case.
He also argues that defendants' conduct is adverse to public policy because they "waited nine months to bring the motion which could have been brought based on the allegations of the complaint; they played games with discovery; ignored a mediation date; refused to answer interrogatories and then had the audacity to tell the court that the reason they waited so long and wasted so much time was to conduct discovery to `bolster' their motion."
Counsel for Cannondale told the trial court that the forum non conveniens motion was delayed to allow time to conduct discovery relevant to that issue. But the form interrogatories propounded by Cannondale *885 went beyond the forum non conveniens factors, by inquiring into the substance of plaintiffs claims for medical and lost wages damages. In an analogous case, Groom v. Health Net (2000) 82 Cal. App.4th 1189, 98 Cal.Rptr.2d 836, we discussed cases that have held that prejudice can be established when a party uses judicial discovery procedures for an unfair advantage, e.g., using discovery procedures not available in arbitration to discover plaintiffs strategy and evidence before moving to compel arbitration. (Id. at p. 1196, 98 Cal.Rptr.2d 836.)
In Stangvik, the Supreme Court concluded that the balance of private and public interests favored trial in a Scandinavian nation. The private factors weighed somewhat in favor of trial in Scandinavia. The defendants promised to supply evidence relating to the design and production of the heart valves in Scandinavia, eliminating any burden on plaintiffs. The court found that both parties would suffer some disadvantage related to the availability of witnesses. (Stangvik, supra, 54 Cal.3d at pp. 762-763, 1 Cal.Rptr.2d 556, 819 P.2d 14.)
The Supreme Court in Stangvik found that the public interest factors "clearly" favored defendants' position. (Stangvik, supra, 54 Cal.3d at p. 763, 1 Cal.Rptr.2d 556, 819 P.2d 14.) The court was influenced by the great burden that trying numerous complex actions in California would impose on the courts. (Ibid.) Defendants cite Stangvik in arguing that California's interest in deterring future improper conduct (i.e., producing and selling defective bicycles in California) would be vindicated in similar actions brought in the future by California residents. But the balance of factors is different here. The Stangvik court placed considerable weight on the fact that there were 235 actions pending in California relating to the heart valve, and it assumed that plaintiffs in some of those actions were California residents. The court concluded: "The burden imposed on defendants in trying these cases by California residents in the California courts, and the damages that defendants might be required to pay if they are found liable, would provide sufficient deterrence to prevent wrongful conduct in the future even if the suits filed by nonresident plaintiffs were tried elsewhere." (Stangvik, supra, 54 Cal.3d at pp. 759, 763, 1 Cal.Rptr.2d 556, 819 P.2d 14.)
Here, there are no other known actions against Cannondale or Two Wheels alleging defects in the same model of bicycle. Therefore, California's interest in deterring negligent design, production and sale of products would not be vindicated in any other way. The public factors weigh in favor of trial in California.
Similarly, Campbell v. Parker-Hannifin Corp., supra, is distinguishable. That case involved 20 separate plaintiffs in multiple wrongful death actions arising from the crash of an airplane in Australia. The plane was manufactured in Kansas, operated for 19 years by a Georgia-based company, and was modified for the long-distance flight to its new owners in Australia by a California company. Equipment used in the modification was purchased from a California corporation. The Court of Appeal found that the private factors were evenly weighted, since evidence of damages was in Australia, and evidence relating to the design and manufacture of the aircraft was in the United States. But the court held that the public interest favored trial in Australia because the trial of 20 separate wrongful death claims would contribute to court congestion and California's interest in the case was "not sufficient to justify the commitment of judicial time and resources that would be required if the case were tried here. [Citation.]" (69 *886 Cal.App.4th at p. 1542, 82 Cal.Rptr.2d 202.)
As we have discussed, the specter of significant court congestion which weighed so heavily in Campbell is simply not presented here.
On balance, we find no abuse of discretion in the trial court's decision denying the original and renewed motions for a dismissal based on forum non conveniens. The private factors, balanced with the public factors which favor trial in California, support the trial court's decision to exercise its discretion in favor of trial in California. We recognize that the trial court entered the judgment of dismissal appealed from as a result of our alternative writ. We have fully considered the factors that bear on this issue and, giving appropriate deference to the trial court's careful exercise of discretion, we conclude that the trial court properly exercised its discretion in the first instance, and reverse the judgment of dismissal.
DISPOSITION
The judgment of dismissal is reversed. Each side is to bear its own costs on appeal.
We concur: CHARLES S. VOGEL, P.J., and CURRY, J.
NOTES
[*] Kennard, J., dissented.
[1] The parties all treat plaintiff as a resident of Switzerland. They overlook an allegation in the complaint that he is a resident of France. In his answer to Cannondale's interrogatories, plaintiff stated that he was born in Switzerland, that he has a Swiss drivers' license, and lives in Switzerland. We take the parties at their word, and treat plaintiff as a resident of Switzerland, noting that if he were, indeed, a resident of France, there is even less reason to try the case in Switzerland.
[2] Another defendant, Headshock Forks, is no longer a party to this action.
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85 S.E.2d 140 (1954)
241 N.C. 249
Dan THORMER, T/A Don Thormer Advertising Art,
v.
LEXINGTON MAIL ORDER COMPANY.
No. 674.
Supreme Court of North Carolina.
December 15, 1954.
*142 Phillips & Bower, Lexington, for plaintiff, appellee.
DeLapp & Ward, Lexington, for defendant, appellant.
BOBBITT, Justice.
When the complaint and evidence are considered, it appears that the controversy posed by the first issue is whether the advertising matter prepared by plaintiff and furnished to defendant was in accordance with their agreement; and the core of this controversy is whether the agreement related solely to hand-drawn art illustrations rather than to retouched photographs.
If the advertising matter was in accordance with their agreement, in the absence of stipulation as to price, the defendant was obligated to pay the reasonable value thereof; for it is well established that when services are rendered under an agreement that compensation therefor is to be paid, the measure of recovery is the reasonable value of the services rendered. Turner v. Marsh Furniture Co., 217 N.C. 695, 9 S.E.2d 379, where Devin, J. (later C. J.) sets forth the elements to be considered in determining the reasonable value of such services.
The first issue having been answered, "No," the defendant, nothing else appearing, was under no obligation to accept and pay for the advertising matter prepared and furnished by plaintiff. Goldston Brothers v. Newkirk, 233 N.C. 428, 64 S.E.2d 424.
*143 With reference to the third issue, the court instructed the jury, in part, as follows: "Now, recovery on the quantum meruit is allowed in an action for work and labor founded on an implied promise on the part of the defendant to pay the plaintiff as much as he reasonably deserves to have for his labor and what the defendant reasonably deserves depends upon the reasonable and fair value of the plaintiff's services in the trade in which the defendant was engaged and the value of such services for one situated as was the plaintiff in his trade."
And, bearing upon the third issue, the court instructed the jury that plaintiff contended: "that the work was good and of a high quality; that plaintiff is a fine and skilled artist and * * * is entitled to the value of his time and the cost which he paid out; * * * that this represents the reasonable value of his services in the trade and to the plaintiff; * * * that this represents the amount which he deserves, regardless of whether or not there was any contract; * * * that the value of his time and what he put out to do this job for the defendant represents the reasonable value of his services and time * * *" etc. The instructions given convey the idea that the plaintiff was entitled to recover on quantum meruit the reasonable worth of all materials and services, including expenses incurred, tendered by plaintiff to defendant.
It would seem that, had the jury answered the first issue, "Yes," these instructions would have been appropriate if directed to the second issue. However, since the jury answered the first issue, "No," we are constrained to hold that they are incorrect; for plaintiff's right to recover for materials and services rendered, not in accordance with contract, is restricted to such materials and services as were accepted and appropriated by defendant. As to these, and these alone, defendant must pay, on the basis of quantum meruit; and the basis of liability therefor is quasi contract, i. e., unjust enrichment. Restatement of the Law, Restitution sec. 1. "The basis of this recovery is not the original contract, but a new implied agreement deducible from the delivery and acceptance of some valuable service or thing." 12 Am.Jur., Contracts, sec. 353. As stated by Hoke, J. (later C. J.): "The action of indebitatus assumpsit, as stated, is dependent largely on equitable principles. Mitchell v. Walker, 30 N.C. 243, and, in the absence of a special contract controlling the matter, and unless in contravention of some public policy, it will usually lie wherever one man has been enriched or his estate enhanced at another's expense under circumstances that in equity and good conscience call for an accounting by the wrongdoer." Sanders v. Ragan, 172 N.C. 612, 615, 90 S.E. 777, 778, L.R.A. 1917B, 681. It appearing that defendant accepted and appropriated at least one of the illustrations prepared and furnished by plaintiff, plaintiff was entitled to an issue relative thereto.
Where plaintiff sues to recover for services rendered to defendant, failure to prove the alleged special contract to pay therefor precludes recovery thereon; but, where services so rendered are accepted by defendant, plaintiff may recover therefor upon quantum meruit. Stokes v. Taylor, 104 N.C. 394, 10 S.E. 566; Morrison v. New Haven & Wilkerson Mining Co., 143 N.C. 250, 55 S.E. 611; Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477. The measure of such recovery, predicated on implied assumpsit, is the reasonable value of the services so rendered by plaintiff and accepted by defendant. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R. 2d 1325, and cases cited. Thus in Moffitt v. Glass, 117 N.C. 142, 23 S.E. 104, a contractor sued to recover on special contract for building a house for defendants. The jury found that the defendants did not make the contract as alleged. The defendants went into possession, not accepting the house as in conformity with the contract but accepting it as it was for occupancy and enjoyment. Faircloth, C. J., says: "The plaintiff's right to a quantum meruit inquiry does not depend solely upon the contract, but upon the ground that he rendered service, in work and labor performed, the fruits of which were received by the defendants; * * *. Then, the quality of the material and work and the value thereof could be ascertained." *144 While the more orderly method of pleading would be to allege the express contract and the implied contract separately, our decisions do not so require. McIntosh, N.C.P. & P., sec. 410. The complaint here seems broad enough to support a recovery on quantum meruit within the principles here stated without amendment. Jamerson v. Logan, supra.
In Harris v. Buie, 202 N.C. 634, 163 S.E. 693, cited by appellant, Clarkson, J., says: "When there is an express contract for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for quantum meruit on an implied assumpsit." The evident meaning is that, when a special contract is admitted or established, and by its terms the compensation is stipulated, plaintiff's recovery must be in accordance with its stipulated terms and not otherwise.
The court properly overruled the defendant's motions for judgment as of involuntary nonsuit; but, in view of the negative answer to the first issue, the instructions relating to the third and fourth issues were in error and entitle defendant to a new trial. It is so ordered.
New trial.
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211 Ga. 273 (1955)
85 S.E.2d 422
BOROUGHS
v.
BELCHER.
18785.
Supreme Court of Georgia.
Argued November 9, 1954.
Decided January 10, 1955.
Durwood T. Pye, for plaintiff in error.
Stephens Mitchell, Mitchell & Mitchell, contra.
DUCKWORTH, Chief Justice.
1. A fraudulent or reckless representation of facts as true, even if the party may not know them to be false, if intended to deceive, is equivalent to knowledge of the falsehood. Code § 105-302. Whether or not a party who misrepresents a fact knows it to be false is immaterial, for the affirmation of what is not known to be true, or believed to be true, is equally, in morals or law, as unjustifiable as the affirmation of what is positively known to be false. Smith v. Mitchell, 6 Ga. 458; Beavers v. Williams, 199 Ga. 113 (33 S.E.2d 343); Bass v. Seaboard Air Line Ry. Co., 205 Ga. 458, 467 (53 S.E.2d 895).
2. An exception to the general rule, that the several superior courts of this State have no extraterritorial jurisdiction enabling the court of one county to set aside a judgment rendered by that of a different county, is the rule which provides that a court having jurisdiction of the person of one who has obtained a judgment by fraud may invalidate and set aside such judgment. Jordan v. Harber, 172 Ga. 139, 154 (157 S.E. 652); Johnson v. Peoples Bank, 173 Ga. 250 (1) (160 S.E. 235); Whiteley v. Downs, 174 Ga. 839 (7), 843 (164 S.E. 318).
3. Where, as here, the petitioner sued a resident of DeKalb County in DeKalb Superior Court, alleging that the defendant obtained a land-registration certificate and decree of title in Fulton Superior Court to certain real property owned by the petitioner by failing to disclose in the petition for title registration the death of petitioner's husband, who was her immediate predecessor in title, the filing of his will, the probate thereof, the subsequent litigation as to matters of a year's support and construction of the will, and the decree of the court which vested title in the petitioner, all of which were of record in Fulton County records and which gave full notice to the defendant that her husband was dead and that she was the owner of the property sought to be registered, *274 and she was not legally served or named as a defendant all of which resulted in a fraud upon the court, since the petition for registration positively alleged that the defendant was the owner and the abstract of title attached failed to disclose the above in the chain of title; and the prayers are that the decree and certificate of title be declared null and void and of no effect, the defendant be required to cancel same and the cancellation entered of record on the certificate, and this decree be entered of record in the land records of Fulton County, and the defendant be restrained from transferring, selling, assigning, or encumbering the property described in the certificate pending the outcome of this case the petition states a cause of action for the relief sought, and the court did not err in overruling the general demurrers thereto. See Smith v. Mitchell, 6 Ga. 458, supra; Couey v. Talalah Estates Corp., 183 Ga. 442 (188 S.E. 822); Beavers v. Williams, 199 Ga. 113, supra.
Judgment affirmed. All the Justices concur.
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178 Cal. App. 4th 1249 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
DANIEL McROBERTS, Defendant and Appellant.
No. C060485.
Court of Appeals of California, Third District.
November 2, 2009.
*1251 Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Judy Kaida and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
NICHOLSON, J.
Shortly before the scheduled parole date of defendant Daniel McRoberts, the district attorney filed a petition for his civil commitment as a person coming within the provisions of the Sexually Violent Predator Act, or "SVPA" (Welf. & Inst. Code, § 6600 et seq. [undesignated section references are to this code]). A jury sustained the petition. Following its denial of defendant's motion in arrest of judgment or for acquittal (which asserted his juvenile adjudication was not a qualifying offense under the SVPA because it was not sexually violent), the trial court ordered his commitment to Atascadero State Hospital for an indeterminate term of treatment and confinement.
On appeal, defendant renews his challenge to the status of his juvenile adjudication as a qualifying offense, contends the trial court abused its discretion in excluding the testimony of his lay witnesses, and argues that the court erred in refusing his request for an instruction requiring the jury to find *1252 it was necessary to keep him in a secure facility for the protection of the health and safety of others. We affirm.
FACTS
Defendant, born in August 1983, committed his first offense in May 1998. A girl whom defendant knew encountered him in her bedroom. He had items of her clothing, including a bra, in his backpack. The juvenile court placed defendant on probation for burglary. Five months later, defendant walked up to a nine-year-old girl on a playground, made a sexual remark, and penetrated her vagina with his finger. This time, the juvenile court found he had committed a sexual battery and ordered unspecified treatment.
In May 1999, defendant walked up to a 14-year-old girl whom he found attractive and brushed against her buttocks and vaginal area, leading to another finding that he had committed sexual battery. In September 1999, defendant was riding his bicycle on the way to a treatment session when he saw a 13-year-old girl standing near a soda machine on school grounds. He approached her and told her she was pretty, and then reached inside her shirt to fondle her breast. When he tried to do it a second time, she kicked or pushed him away. Calling her a bitch, he rode off. This time, the court found he had committed child molestation and ordered his placement in the (then named) California Youth Authority (CYA), where he participated in "pretty intensive treatment" for sex offenders until his release in 2004.
Two months after his release on parole, defendant was driving down the street and pulled up to a woman and her young child. As he purported to ask for directions, the woman noticed that he was masturbating. Making a vague threat about kidnapping the child, he drove off, still masturbating. He served a two-month jail term for indecent exposure. Ten days after his release from jail, defendant drove up to an 11-year-old girl who had just gotten off the school bus near her driveway. He got out of the car and offered her money for her underwear. When she retreated into her yard, he grabbed her hand. She either kicked him or fell backward, at which point defendant released her and drove off. He admitted his actions to his therapist, who contacted investigators. A jury found him guilty of attempted kidnapping and child molestation, and the court sentenced him to state prison for the term he was serving at the time of the filing of the present petition.[1]
*1253 Dr. Michael Musacco, the first psychologist who testified in support of the petition, initially diagnosed pedophilia and hebephilia, but ultimately concluded the age of the victims was not the stimulus driving defendant's behavior. Rather, he simply wanted victims he could demean, so the first psychologist believed defendant suffered from a nonspecific sexual deviance ("paraphilia") that had elements of sexual sadism. This condition would persist throughout his life even with treatment. The first psychologist believed that defendant presented a serious risk of reoffending if released to the community because of the numerous offenses he committed despite treatment and punishment that was increasingly more severe. He did not believe defendant was suitable for an outpatient treatment program because of this serious risk of reoffending.
Dr. Robert Owen, the second psychologist testifying in support of the petition, concurred in the diagnosis of a nonspecific sexual deviance. It was extremely significant that the deviance persisted despite treatment and custody, indicating highly deficient volitional control, for which reason defendant presented a substantial risk of reoffending. Because defendant had committed these offenses on release from custody, the second psychologist also concluded that he was not suitable for release into the community.
Dr. Robert Halon, the defense psychologist, who has a full-time forensic practice, asserted that the standard diagnostic manual contained a recognized error in its definitional criteria for paraphilia, which allowed psychologists to base this diagnosis only on observed behaviors without any evidence of underlying recurrent intense sexual fantasies and urges. As a result, he believed that there were repeated instances of psychologists testifying in support of SVPA petitions who diagnosed people improperly as sexually violent predators based solely on the existence of their criminal convictions. This practice was not commonly accepted in the psychiatric community. This group included the two SVPA psychologists in the present case.
In the opinion of the defense psychologist, defendant presented "a continuing danger" of impulsive, opportunistic, immature, and angry behavior,[2] acting out aggressively "in all kinds of ways, not just [sexually]," but this behavior did not have a basis in a mental disorder of recurrent sexually arousing fantasies and urges. It simply reflected antisocial attitudes compensating for a sense of inferiority.[3] The defense psychologist also did not find *1254 any evidence of sexual sadism. He had not seen any indication of defendant attempting to control this behavior. He believed the opinions of the SVPA psychologists simply pathologized defendant's criminal behavior without any evidence of a mental disorder.
Defendant expressed regret and shame for his past behavior. He could not explain why he exposed himself to the woman and her child after his release from CYA and his first outpatient treatment session or why, after his subsequent release from jail and two group sessions, he felt the need to startle or scare the girl whose underwear he had offered to buy. He believed the treatment he had received in CYA gave him the tools to help modify his behavior, and had stopped him from going any further with the girl. Now that he was four years older, he felt better equipped to deal with his feelings of inadequacy and anger, and he was committed to participating in continued treatment and complying with the registration requirements for sex offenders. He could count on the support of his extended family, and he had concrete plans for using his skills in math and science to start his own business in the electrical field.
DISCUSSION
I
The court instructed the jury that to prove defendant was a sexually violent predator, the People must establish beyond a reasonable doubt that "he has been convicted of committing a sexually violent offense against one or more victims." It then instructed, "A violation of Penal Code Section 288(a) is a sexually violent offense when the offense is committed on a child under 14 years old."
In his postverdict motion, defendant asserted there was insufficient evidence to support the finding that he had a qualifying conviction, because the People did not show that his juvenile adjudication for fondling the girl's breasts involved force, violence, duress, menace, or fear of bodily injury as required in section 6600, subdivisions (b), (g)(2). The trial court, reading section 6600 together with section 6600.1, denied the motion.
Defendant parses through the amendments to sections 6600 and 6600.1 included in an initiative approved in the November 2006 general election, along with the electorate's intent (as expressed in the information guide supplied to voters), in concluding that section 6600.1 does not apply to juvenile adjudications, nor did the voters intend it to apply. He is incorrect.
*1255 Before the 2006 initiative amendments, former section 6600 provided in pertinent part, "(a)(1) `Sexually violent predator' means a person who has been convicted of a sexually violent offense against two or more victims . . . . [¶] . . . [¶] (b) `Sexually violent offense' means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person . . .: a felony violation of Section . . . 288 . . . of the Penal Code . . . . [¶] . . . [¶] (g) Notwithstanding any other provision of law and for purposes of this section, no more than one prior juvenile adjudication of a sexually violent offense may constitute a prior conviction . . . if all of the following applies: [¶] . . . [¶] (2) The prior offense is a sexually violent offense as specified in subdivision (b). Notwithstanding Section 6600.1, only an offense described in subdivision (b) shall constitute a sexually violent offense for purposes of this subdivision." (Stats. 2006, ch. 337, § 53, italics added.) At that time, former section 6600.1 deemed any of the offenses listed in section 6600 to be a "`sexually violent offense'" if they involved "`[s]ubstantial sexual conduct'" with a child under the age of 14. (Stats. 1996, ch. 461, § 3, p. 2815.)
(1) Among other changes not pertinent to the present case, the 2006 initiative amendment of section 6600 reduced the number of necessary convictions of a sexually violent offense to one (subd. (a)(1)), deleted the now moot limitation on use of only a single juvenile adjudication (subd. (g)), and also deleted the proviso we emphasized above from subdivision (g)(2).[4] Section 6600.1's amendment eliminated the requirement of substantial sexual conduct, and therefore deemed any offense to be sexually violent if it involved a child under the age of 14. The analysis submitted to the electorate in connection with the initiative stated, "Change SVP Law. This measure generally makes more sex offenders eligible for an SVP commitment. It does this by (1) reducing from two to one the number of prior victims of sexually violent offenses that qualify an offender for an SVP commitment and (2) making additional prior offensessuch as certain crimes committed by a person while a juvenile`countable' for purposes of an SVP commitment." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, p. 44; see Arias v. Superior Court (2009) 46 Cal. 4th 969, 978-979 [95 Cal. Rptr. 3d 588, 209 P.3d 923] [principles governing interpretation of legislative enactment apply to initiative; must ascertain intent first from words, then analysis and argument in official voter materials].)
*1256 Defendant argues that, notwithstanding the elimination of the proviso in section 6600, subdivision (g)(2) specifically proscribing the application of section 6600.1 to juvenile adjudications, the retention of "Notwithstanding any other provision of law" as subdivision (g)'s prefatory phrase has the effect of continuing this proscription. He contends section 6600.1 is a general provision that the more specific subdivision (g) in section 6600 overrides, and any other interpretation would impermissibly render the prefatory proviso surplusage. He also purports to discern only a limited object in the initiative of making a single juvenile adjudication sufficient to invoke the SVPA, rather than broadening the types of adjudications that qualify.
As an initial matter, we do not believe that the prefatory proviso and the deleted proviso functioned in the same manner. The prefatory proviso is inclusionary: regardless of how some other statute might restrict the use of juvenile adjudications, they may qualify a person for treatment under the SVPA (subject to the criteria that follow). The deleted proviso, on the other hand, excludes any juvenile adjudications that do not involve the circumstances set out in subdivision (b) of section 6600. The prefatory proviso therefore cannot simply step into the shoes of the deleted proviso.
(2) Defendant's proffered harmonization, moreover, drains any meaning from the elimination of language specifically limiting the reach of section 6600.1, and we cannot deem a legislative deletion to be pointless any more than we can call a legislative addition surplusage (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal. 4th 381, 390 [97 Cal. Rptr. 3d 464, 212 P.3d 736]; Lungren v. Deukmejian (1988) 45 Cal. 3d 727, 735 [248 Cal. Rptr. 115, 755 P.2d 299]). The language we quoted above from the analysis of the initiative indicates both an intent to reduce the number of qualifying offenses (whether criminal convictions or juvenile adjudications) to one and broaden the scope of the juvenile adjudications that qualify under the SVPA.
(3) Consequently, the trial court was correct in applying section 6600.1 to defendant's juvenile adjudication for child molestation. The People therefore satisfied this element of an SVPA commitment.
II
Defendant sought to call three relatives and a lifelong family friend as lay witnesses. Rather than summarize the elements of the offer of proof as to each, we simply accept defendant's characterization in his brief on appeal of the overall purpose of these witnesses. "Counsel wanted to offer this evidence *1257 to show that [defendant] was honest and would honor his promise not to get in trouble again. This evidence was also offered to show [his] good character, his plans for the future, and his intimacy with friends and family. The evidence was also offered to show [his] character for nonviolence and how he had changed and learned over the past nine years. This evidence was relevant to show that even if [he] had a disorder, he was amendable [sic] to outpatient treatment . . . ." (Record references omitted.)
The trial court noted that the "issue . . . is whether or not [defendant] is likely to reoffend. . . . [¶] I let the Defendant testify about himself because he can testify about his [own] mental state. . . . The problem with other people coming in is that they really can't testify about that. [¶] . . . I [do not] see [any] authority that character evidence is admissible in this type of a proceeding because the problem is the issue is likelihood. . . . [¶] There's no connection between the evidence that's being offered and that particular issue. There's no reason to believe it's probative on that particular issue. At best it is speculative . . . . [¶] The Court had earlier indicated that it may allow . . . some testimony by these people if there was evidence regarding amenability to treatment. There is no evidence regarding amenability to treatment. [¶] The Defendant may . . . have testified that he is willing . . . . But . . . there has to be some demonstration by evidence of amenability to out-patient treatment. [¶] The thrust of that is that, yes, there is a mental disorder, but the [Defendant] need not be held in a locked facility; he can be treated voluntarily, without restriction. The [Defendant] hasn't met that burden. [¶] The Court allowed evidence regarding his likelihood that he has testified about. But the Court just [does not find any] relative probative value to any other witness testifying on the subject matter for which it has been offered and for which the offer of proof has been made. [¶] Even if somehow it is relevant and not speculative, the time it would take to offer that evidence [an hour or two, according to defense counsel] for whatever slight probative value it might have simply is not warranted given the issues of this case as opposed to a criminal proceeding[]."
The trial court accurately assessed the situation. These lay witnesses could not counter the opinions of the SVPA experts on the psychological issue of whether defendant was likely to reoffend if released to the community for treatment. Their opinions otherwise only served to corroborate the validity of defendant's promises to seek and abide by treatment. However, defendant's willingness to avoid recidivism has very limited probative value. It is his capacity to do so that is the central concern. In our review of its ruling for an abuse of discretion, the trial court certainly did not err in finding there would *1258 be an undue consumption of time that outweighed this minimal probative value.
III
(4) Noting the Supreme Court's repeated assertions that a person's amenability to voluntary treatment is relevant to the issue of whether that person is likely to engage in sexually violent behavior (because the need for treatment and the need for custody are not conterminous concepts), People v. Grassini (2003) 113 Cal. App. 4th 765, 776-778 [6 Cal. Rptr. 3d 662], held that where there is evidence of a defendant's amenability to voluntary treatment, the court must instruct sua sponte "that [the jury] is to determine whether custody in a secure facility is necessary to ensure that the individual is not a danger to the health and safety of others." (Id. at p. 777, fn. omitted.)
Reflecting this holding, the fourth element in the pattern jury instruction on section 6600 provides that to sustain an allegation that a person is a sexually violent predator, the People must prove it "is necessary to keep [the person] in custody in a secure facility to ensure the health and safety of others." (CALCRIM No. 3454 (2008).) The notes to the instruction explain this element is necessary where there is evidence at trial on the issue of amenability to voluntary treatment in the community.
During the discussion of instructions, the trial court stated that it was omitting this element because "I don't think there is evidence that he has a sexual or mental disorder for which he may be treated voluntarily. The evidence is either he has a mental disorder that requires treatment in an institution, as testified to by the two People's experts, or he doesn't have a mental disorder at all, as testified to by the Defense expert. But there is no evidence that he has a mental disorder for which voluntary treatment would be appropriate." Defense counsel noted for the record his preference for the inclusion of the element. Defendant asserts on appeal that this was prejudicial error, because his own testimony that he wanted to enroll in outpatient treatment, had looked into two programs, had learned from prior treatment, and was remorseful for his past acts supported the element.
We disagree. As with the previous issue, the trial court's ruling accurately summarized the evidence in finding that it did not warrant the instruction. Defendant could testify only to his own willingness to participate in voluntary outpatient treatment. As with his lay witnesses, he was not competent to express an opinion on the psychological question of whether he was capable of being successfully treated in the community. Therefore, the trial court properly omitted this element of the instruction as lacking the necessary factual predicate.
*1259 DISPOSITION
The order of civil commitment is affirmed.
Scotland, P. J., and Robie, J., concurred.
NOTES
[1] We affirmed his conviction in People v. McRoberts (Aug. 30, 2007, C049624) (nonpub. opn.). The previous incidents, other than the burglary, were part of the evidence at trial.
[2] This included defendant's admission that in his early teens he surreptitiously touched or groped other people on at least 30 other occasions.
[3] According to the reports of the SVPA psychologists, defendant had been a socially isolated student who excelled in math and science and had been a target of his fellow students.
[4] The 2006 amendment also added subdivision (a)(2)(H), which included among qualifying convictions those in which a minor was tried as an adult but "committed to the Department of the Youth Authority" under section 1731.5. Although defendant adverts to this subdivision in his argument, it is irrelevant to the analysis because it involves criminal convictions.
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168 Kan. 600 (1950)
215 P.2d 200
KATHERINE M. CARLAT, Appellee,
v.
LOUIS R. CARLAT, Appellant.
No. 37,707
Supreme Court of Kansas.
Opinion filed February 28, 1950.
Edward Curry, of Topeka, argued the cause, and was on the briefs for the appellant.
Jacob A. Dickinson, of Topeka, argued the cause, and Edward Rooney and David Prager, both of Topeka, were with him on the briefs for the appellee.
The opinion of the court was delivered by
PARKER, J.:
This was an action by a wife against her husband for divorce, custody of their minor child, division of property and other relief ordinarily involved in such a proceeding. The trial court heard the evidence, granted the plaintiff a divorce upon grounds of gross neglect of duty and extreme cruelty, divided the small amount of property owned by the parties between them, gave the wife custody of the minor son with the understanding he was to remain in the physical custody of the plaintiff's sister until further orders, directed the defendant to pay $50 per month for the child's support, awarded the plaintiff alimony in the sum of $10,000 to be paid by the defendant at the rate of $100 per month, allowed attorney fees, and decreed that defendant pay all costs of the action. Defendant appealed from the judgment in its entirety and when the case reached this court charged, by his specification of errors, that all phases of the judgment were erroneous. Later he receded from that position and abandoned every error specified except one charging the trial court with abuse of judicial discretion in the making of its alimony award.
*601 The parties were married on November 11, 1939, and lived together as husband and wife until February 28, 1948, the date on which the action was commenced. They have one child, a son, who was seven years of age when they separated. At the time of their marriage neither party had any property nor any particular training in any trade or business. The plaintiff was subject to epileptic attacks and defendant had full knowledge of that fact.
The divorce feature of the trial, with which we are no longer concerned in view of the limited appellate issue, was hotly contested. As much cannot be said for the testimony on which the trial court was required to base its judgment in determining the amount of the alimony award. The defendant failed to testify, either in person or by deposition, and a review of the evidence offered in support of his cause discloses nothing tending to throw light on his ability to pay alimony. In fact, the only pertinent evidence before the trial court on that subject was adduced by the plaintiff. It can be briefly summarized as follows: At the time of the trial plaintiff was thirty years of age, without funds, and unable to hold steady employment because still afflicted with epilepsy. Her seizures had increased in severity and frequency as the years progressed. So long as she remains in that condition, and it appears that no one can definitely predict whether she will ever improve, and if so when, she will require medicine, medical care and perhaps hospitalization. Defendant was thirty-two years of age, in good health, and employed by J.F. Pritchard and Company of Kansas City, Mo., for whom he had been working for about three years as a construction superintendent at a salary of at least $425 to $450 per month and expenses. Plaintiff testified defendant was working in Panama on the date of the trial, that his salary had been increased, and that he was then making approximately $500 or more per month. Defendant did not see fit to contradict her testimony. Defendant spent very little time at home during the three years preceding the filing of the action. During that period he contributed not to exceed $20 per week in cash for the support of his wife and child and paid house rent amounting to $34.50 per month. The tangible personal property owned by the parties, and known to the plaintiff, consisted of household effects and a 1936 Ford automobile. They owed approximately $300 in outstanding bills, incurred for the most part for medicines and medical treatment of plaintiff. The trial court gave the household goods to the wife, the automobile to the husband and directed that the latter pay the outstanding bills of the parties.
*602 The sole question appellant now presents for review, as we have heretofore indicated, is that under the facts and circumstances heretofore related the alimony award is excessive and therefore subject to revision on appeal. He concedes, as well he may, a trial court has wide discretion in the allowance of alimony in a divorce proceeding and that on appeal its action with respect thereto will not be set aside or disturbed unless there is a clear showing that discretion has been abused. For just a few of our decisions announcing this well-established rule see Walno v. Walno, 164 Kan. 620, 192 P.2d 165; Wittig v. Wittig, 151 Kan. 440, 442, 99 P.2d 750; Rumsey v. Rumsey, 150 Kan. 49, 90 P.2d 1093; Mann v. Mann, 136 Kan. 331, 334, 15 P.2d 478; Newton v. Newton, 127 Kan. 624, 274 Pac. 247; Miller v. Miller, 97 Kan. 704, 156 Pac. 695. Many other cases to the same effect will be found in West's Kansas Digest, Divorce, §§ 235, 286, and Hatcher's Kansas Digest, Divorce, §§ 50, 83. Conceding arguendo the force and effect of such rule he correctly argues (see Walno v. Walno, supra; Mann v. Mann, supra; Flautt v. Flautt, 126 Kan. 21, 266 Pac. 746; Snowden v. Snowden, 160 Kan. 291, 297, 160 P.2d 653; Stanton v. Stanton, 166 Kan. 386, 388, 201 P.2d 1076) the discretion vested in the trial court is a judicial discretion which is subject to review and will be corrected on appeal if under the facts of the particular case involved it appears the award is clearly unreasonable, unjust or oppressive.
There is no hard and fast rule in this jurisdiction for determining the amount of an alimony award where a wife is granted a divorce for the fault of her husband. Generally speaking it can be said to depend upon the facts disclosed by the evidence in the particular case involved. However, it is true we have repeatedly held that in fixing its amount a trial court is required to take into consideration the conduct of the parties, the needs of the wife, the earning capacity of the husband, the amount of property owned by the parties and, under certain conditions not here involved, how and when that property was acquired. (See Francis v. Francis, 108 Kan. 220, 194 Pac. 641; Flautt v. Flautt, 126 Kan. 21, 24, 266 Pac. 746; Mann v. Mann, 136 Kan. 331, 334, 15 P.2d 478; Black v. Black, 154 Kan. 314, 118 P.2d 533; Walno v. Walno, 164 Kan. 620, 624, 192 P.2d 165.) It may also take into account future earnings of the husband. (Watts v. Watts, 158 Kan. 59, 66, 145 P.2d 128; Blair v. Blair, 149 Kan. 3, 8, 85 P.2d 1004; Landers v. Landers, 138 Kan. 538, 27 P.2d 231; Flautt v. Flautt, supra; Francis v. *603 Francis, supra; Nixon v. Nixon, 106 Kan. 510, 188 Pac. 227; West's Kansas Digest, Divorce, § 231; Hatcher's Kansas Digest, Divorce, § 51.)
Appellant's principal complaint with respect to the judgment seems to be that the trial court did not give all matters comprehended by the foregoing rule proper consideration. He first asserts it failed to consider the possibility of appellee's re-marriage or death in fixing the amount of the judgment. Next he insists that it gave insufficient weight to the fact appellant might become incapacitated for work or his earnings decreased in the future and placed too little emphasis on the possibility of appellee's being able to rehabilitate herself within the eight years and four months in which the alimony payments were to be made. The over-all answer to each of these contentions is that the trial court is presumed to have given all matters of which appellant complains proper consideration and that he has wholly failed to clearly establish that it did not do so. But that is not all. A review of the evidence presented discloses appellee was an epileptic, thirty years of age who, under our statute G.S. 1935, 23-120, could not legally remarry until she was forty-five years old, that her life expectancy was far more than ten years and that it was improbable her physical condition would improve in that time. It also reveals appellant was an able-bodied man, thirty-two years of age, that his earnings had been increasing as the years went by, and that no attempt was made to establish there was anything wrong with him which might reasonably be expected to result in incapacity or a decrease in earning power. Under such conditions it cannot be said the court abused its discretion in requiring the appellant to pay alimony for the period of time required by the judgment.
There remains only the question whether the amount of the award was excessive. In support of his position on that point appellant cites a number of our decisions where alimony judgments were modified by this court. A lengthy analysis of the cases on which he relies would merely encumber this opinion. It suffices to say they have been examined and that no one of them reveals a factual situation such as is here involved. He insists no decision can be found in our reports which involves similar facts and circumstances and supports the instant award. We do not agree. The facts in Black v. Black, 154 Kan. 314, 118 P.2d 533, refute his contention. There the needs of the wife were no *604 greater than here and the parties had accumulated no property. The husband was fifty-one years of age, in good health, was employed by a reputable concern and was earning a salary of $149.04 per month. We held that an award of $3,600 to be paid by the defendant at $50 per month disclosed no abuse of judicial discretion by the trial court. Comparative reasoning compels the conclusion such decision is a sound precedent for approval of the instant judgment.
We fail to find anything in the record or in the arguments advanced by appellant which requires or would justify us in holding the trial court was guilty of abuse of discretion in the rendition of the award.
The judgment is therefore affirmed.
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225 S.E.2d 137 (1976)
29 N.C. App. 513
Thomas A. DILLON, III
v.
NUMISMATIC FUNDING CORPORATION.
No. 7518SC949.
Court of Appeals of North Carolina.
June 2, 1976.
*139 Dameron, Turner, Enochs & Foster, by James H. Burnley, IV, Raleigh, for the plaintiff.
Jordan, Wright, Nichols, Caffrey & Hill, by William L. Stocks, Greensboro, for the defendant.
BROCK, Chief Judge.
The sole question presented by this appeal is whether defendant, a foreign corporation with no office, agents, or regular business activity in North Carolina, is subject to the in personam jurisdiction of the North Carolina courts for purposes of a cause of action arising outside North Carolina, brought by a plaintiff who was a resident of another state at the time the action arose, and which is entirely distinct from defendant's nominal contacts with North Carolina.
First, defendant contends that the plaintiff lacks adequate statutory authority upon which to base in personam jurisdiction. Apparently plaintiff relied upon several alternative statutory grounds for in personam jurisdiction: G.S. § 55-144, G.S. § 55-145, G.S. § 1-75.4(3), and G.S. § 1-75.4(1). General Statute § 55-144, authorizes substituted service upon the Secretary of State in actions against foreign corporations transacting business within the State, provided the cause of action arises out of the business transacted in the State. This statute "provides no jurisdiction for foreign transitory causes of action." R.R. v. Hunt & Sons, Inc., 260 N.C. 717, 133 S.E.2d 644 (1963). It is clear that the cause of action for breach of contract arose at the time defendant notified plaintiff by phone in Greenville, South Carolina, that the job previously offered to plaintiff was no longer available. A cause of action for breach of contract arises at the time the breach occurs. See 5 Strong, N.C. Index, Limitation of Actions § 4, p. 235. In this case the breach occurred in South Carolina. Thus, due to the fact that plaintiff's cause of action did not arise out of business transacted by defendant in North Carolina, G.S. § 55-144 does not apply.
General Statute § 55-145 confers in personam jurisdiction over foreign corporations not transacting business in North Carolina, in special instances. Like G.S. § 55-144, this statute only applies to actions arising in North Carolina. Rendering Corp. v. Engineering Corp., 10 N.C.App. 39, 177 S.E.2d 907 (1970). Since plaintiff's cause of action arose outside of North Carolina, G.S. § 55-145 is inapplicable.
Alternatively plaintiff posits G.S. § 1-75.4(1) as an appropriate statutory basis for in personam jurisdiction in this case.
General Statute § 1-75.4(1) is entitled "Local Presence or Status." General Statute § 1-75.4(1)(d) grants in personam jurisdiction "in any action, whether the claim *140 arises within or without this State, in which a claim is asserted against a party who is engaged in substantial activity within this State. ." (Emphasis added.) Defendant argues that its business activities within the State during the past six years do not approach the magnitude of "substantial activity" as defined by G.S. § 1-75.4(1)(d). In our opinion it would serve no useful purpose to decide this case on the basis of whether defendant's activities amount to "substantial activity" within the meaning of G.S. § 1-75.4(1)(d). Due process and not the language of G.S. § 1-75.4(1)(d) is the ultimate test of North Carolina's "long-arm" jurisdiction over a nonresident, Chadbourn, Inc. v. Katz, 285 N.C. 700, 208 S.E.2d 676 (1974); and it is generally accepted that North Carolina's longarm statute (G.S. § 1-75.4) should be liberally construed in favor of finding personal jurisdiction, subject of course to due process limitations. See Trust Co. v. McDaniel, 18 N.C.App. 644, 197 S.E.2d 556 (1973). Thus we are reluctant to define and apply the meaning of "substantial activity" in G.S. § 1-75.4(1)(d) apart from considerations of due process.
Defendant contends that the trial court's finding of in personam jurisdiction in this action constitutes a violation of its rights to due process. We agree.
The test for determining whether the assertion of in personam jurisdiction over a nonresident defendant satisfies due process is well-known: "due process requires only that in order to subject a defendant to judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `the traditional notions of fair play and substantial justice.'" (Emphasis added.) International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). "It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. . But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. (Citations omitted.)" (Emphasis added.) International Shoe Co. v. Washington, Id. The underlying concern of the "minimum contacts" test is fairness: "The essence of the issue here, at the constitutional level, is one of fairness to the corporation. Appropriate tests for that are discussed in International Shoe Co. v. Washington, supra. The amount and kind of activities which must be carried on by the foreign corporation in the state of the forum so as to make it reasonable and just to subject the corporation to the jurisdiction of that state are to be determined in each case." Perkins v. Benguet Consol. Min. Co., 342 U.S. 437, 72 S. Ct. 413, 96 L. Ed. 485 (1952).
The distinguishing facts of this case can be summarized as follows: (1) The defendant has not engaged in extensive business activities in North Carolina; rather, it has made a few sporadic mail order sales of coins to North Carolina residents; the number of North Carolina residents who received defendant's mail advertising is not evident in the record, but the fact that defendant rented a special mailing list suggests that the number was relatively small. (2) The cause of action arose in South Carolina while plaintiff was living there; it is totally unrelated to defendant's nominal contacts with North Carolina; the only apparent reason plaintiff brought this action in North Carolina was that he had moved to this State since the cause of action arose in South Carolina; the preliminary negotiations, the execution of the contract, and the performance required by the contract had *141 no relation to North Carolina or defendant's nominal activities in North Carolina. (3) Plaintiff was not a resident of North Carolina at the time the cause of action arose. In short, defendant's contacts with North Carolina are casual and sporadic at best, and plaintiff's cause of action against defendant bears no relation to defendant's limited activities in the State. In view of these circumstances it would violate due process to subject defendant to the in personam jurisdiction of our courts for this particular cause of action.
Plaintiff's reliance upon McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), and Southern Machine Company v. Mohasco Industries, Inc., 401 F.2d 374 (1968), is misguided.
These cases are similar to the one before us only in the paucity of the defendant's contacts with the forum state; however, the cause of action in each of the cited cases was a direct and foreseeable outgrowth of defendant's contact(s) with the forum state. Thus in both cases it was sufficient for purposes of due process that the suit was based on a contract which had substantial connection with the forum state. There is no such substantial connection between the contract or its breach and this State in the case before us. In its dealings with the plaintiff the defendant corporation in no way invoked the protection of North Carolina laws or voluntarily exposed itself to legal proceedings in this State.
In addition plaintiff relies on Perkins v. Benguet Consol. Min. Co., supra. Plaintiff in that case was not a resident of the state in which the suit was brought (Ohio), and defendant was a Philippine corporation; moreover, the cause of action did not arise from defendant's contacts or business activities within the forum state. But the defendant's activities in the forum state were substantial: the president, general manager, and principal stockholder of the corporation was a resident of Ohio at the time suit was instituted; from an office in his home he carried on continuous and systematic supervision and direction of the corporation's activities; he used local banks for carrying company funds and as transfer agents of its stock, conducted several directors' meetings at the office in his home, and kept important files of the company there. Recognizing that there are instances in which the continuous corporate operations within a state are so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities, the Supreme Court concluded that the assertion of in personam jurisdiction over the defendant corporation would not offend due process. Obviously the defendant's contacts with North Carolina in the case before us do not approach the degree or quality of those manifest in the Perkins case. In essence, it would be grossly unfair to subject the defendant to the in personam jurisdiction of our courts in view of its limited activities within North Carolina and the absence of any connection between these activities and plaintiff's claim. Defendant's contacts with North Carolina are insufficient to satisfy due process with respect to plaintiff's cause of action against defendant.
The order of the trial court finding in personam jurisdiction over defendant is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
VAUGHN and MARTIN, JJ., concur.
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188 Or. 378 (1950)
215 P.2d 986
WHITE
v.
KELLER ET UX.
Supreme Court of Oregon.
Argued February 21, 1950.
Affirmed March 14, 1950.
*380 Larry Landgraver, of Portland, argued the cause for appellant. With him on the briefs were Norman L. Easley and Leo Levenson, of Portland.
Robert T. Mautz, of Portland, argued the cause for respondents. On the brief were Cake, Jaureguy & Tooze, Wilbur, Beckett, Oppenheimer, Mautz & Souther, and David Sandeberg, of Portland.
Before LUSK, Chief Justice, and BRAND, BELT, BAILEY and LATOURETTE, Justices.
JUDGMENT AFFIRMED.
BELT, J.
This is an action to recover damages resulting from a collision between two automobiles which occurred on Sunday, June 15, 1947, about 10:30 p.m. on highway 99-W approximately six miles north of Newberg. The cause was submitted to a jury and a verdict returned in favor of the defendants.
*381 The plaintiff was riding in an automobile driven by her husband and which she owned. Plaintiff and her husband were en route to their home in the city of Portland after having visited their grandchildren at Eugene, Oregon. The White car was traveling in a northerly direction at a speed of 45 miles per hour when the Keller car owned by the defendant, Homer H. Keller, and driven by his daughter, the defendant, Verna Keller was first seen 200 to 300 feet away approaching from the north. Verna Keller was accompanied by her friend, Eleanor Burton, and they were going to Salem, Oregon, where they had secured employment in a cannery. The plaintiff in her second amended complaint and the defendants in their answers and counter-claims allege numerous specifications of negligence, but the real question for the jury to decide in this almost head-on collision was which driver was on the wrong side of the highway. Obviously, if each driver had kept on his right side of the highway, no collision would have occurred. It is not contended that the Keller car was being driven at a high and dangerous speed. Mr. White testified in reference to its speed: "I just considered they were travelling in a normal manner * * *." It had been raining and the black-top pavement was wet and slippery. The traffic to and from Portland was heavy.
Plaintiff's husband testified that at the time of the collision the right front wheel of the White car was on the extreme east edge of the pavement and that the rear end thereof was completely off the pavement. The left front part of the Keller car collided with the right front end of the White car. In view of this undisputed evidence it is a reasonable inference that at the time of the impact the White car must have been somewhat *382 crosswise on the highway. Otherwise, the cars in all probability would not have collided in such manner. The impact was so great that the motor of the White car was thrown about ten feet east of the edge of the pavement. Both cars were badly wrecked and had value only as junk. After the collision the cars came to rest on the west side of the highway and were approximately 84 feet apart. The right front wheel of the White car which was facing north was seven feet and its right rear wheel was four feet from the edge of the pavement. The Keller car which had skidded into a ditch was headed south toward Newberg.
White said that after he first saw the Keller car, he drove 125 to 150 feet at a reduced speed of 35 miles per hour before the collision occurred. White emphasized the fact that he was troubled by the bright lights of the Keller car, but we think that matter must be disregarded since there was no charge of negligence in reference thereto. When White applied the brakes, he momentarily lost control of the car and it went into a ditch about eight feet east of the edge of the pavement. He succeeded, however, in getting out of the ditch under his own power. There was no debris on the pavement indicating where the cars came together. Mr. White's testimony is not clear concerning the point of impact. He speaks of the Keller car being "over the line," but stated, "I couldn't I wouldn't say exactly they were over in my lane or line." On the following Tuesday, Mr. White inspected the scene of the accident and observed some "gouges" in the pavement about 32 inches east of the yellow center stripe, which plaintiff contends were caused by the damaged spring or axle of the Keller car. White *383 did not observe conditions immediately after the collision as he was suffering from nausea and shock.
Mr. White was the only eye witness to the accident. The plaintiff said she heard her husband say, "Damn those lights," and that she looked up and saw them "coming right pell mell into us," and "that is the last, I can remember." Miss Burton was asleep at the time of the accident and did not awaken until she was in the hospital at Portland. The Keller girl was so shocked as a result of the collision that her mind was blank about what occurred.
Ralph Blank, a state police officer whose business was to investigate traffic accidents, arrived on the scene a few minutes after the collision and remained there over an hour. The Keller girl and her friend were still in their car in a dazed condition. The officer said he was unable to determine the point of impact. He found no debris on the highway and no skid marks on the east side thereof. He said, however, that he did find marks on the west shoulder of the highway where the Keller car "slid sideways into the ditch" and fresh tire marks leading "right up to the White car." The officer further testified that he saw no "gouges" in the pavement, referred to by Mr. White.
Carlyle Anderson, a witness called on behalf of the plaintiff and who operates a small motel near the scene of the accident, testified about seeing, on the following morning, three marks about a foot long on the east side of the pavement approximately three feet from the center line. In describing those marks, the witness said that they appeared to have been made "by some sharp instrument, somewhat similar to where you see a cultivator or a disc having run on a macadamized surface; they weren't very deep." We *384 attach no particular significance to this testimony as it is entirely speculative as to what might have caused the marks. Shortly after the accident in question, a car going toward Portland skidded into the ditch on the east side of the highway, and it was necessary for another car to pull it out of the ditch. The police officer said the car had dropped into the ditch to such an extent that when it was pulled out, its running gear dragged on the pavement. If we are going to indulge in speculation, it might just as well be argued that the marks were caused by the car which was pulled out of the ditch as it would be to contend that the marks were made by the Keller car.
1-4. Plaintiff contends that there is no substantial evidence tending to show negligence on the part of her husband and that the court erred in submitting the issue of contributory negligence to the jury. We think the evidence is sufficient to justify a jury in drawing a reasonable inference that plaintiff's husband lost control of the car and at the time of the impact was driving on the wrong side of the highway. The jury was not bound to accept the version of Mr. White as to how the accident occurred merely because he was the only eye witness thereto. This is a case where the facts and circumstances speak of negligence by the driver of the north-bound car. At any rate, the question was clearly one for the jury to decide and not for the court to determine as a matter of law. Where different reasonable inferences can be drawn from the evidence relative to the issue of negligence, the question is for the jury. It is equally well settled that negligence may be inferred from the facts and circumstances surrounding an accident. Davis v. Lavenik, 178 Or. 90, 165 P. (2d) 277; Natwick v. Moyer, 177 Or. 486, 163 P. (2d) *385 936; Greenslitt v. Three Bros. Baking Co., Inc., 170 Or. 345, 133 P. (2d) 597; 5 Am. Jur., Automobiles, 849, § 626. Negligence may be shown by indirect as well as by direct evidence.
5-7. In this jurisdiction although the authorities are in conflict elsewhere it is well settled that proof of ownership of an automobile is sufficient to establish a prima facie case of agency. When ownership of an automobile has been proven, an inference may be drawn therefrom that the driver was acting as agent of the owner and in furtherance of his interests. Summerville v. Gillespie, 181 Or. 144, 179 P. (2d) 719; Steele v. Hemmers, 149 Or. 381, 40 P. (2d) 1022; Judson v. Bee Hive Auto Service Co., 136 Or. 1, 294 P. 588, 297 P. 1050, 74 A.L.R. 944; Sather v. Giaconi, 110 Or. 433, 220 P. 740; Doherty v. Hazelwood Co., 90 Or. 475, 175 P. 849, 177 P. 432; West v. Kern, 88 Or. 247, 171 P. 413, 1050, L.R.A. 1918D 920; Houston v. Keats Auto Co., 85 Or. 125, 166 P. 531. There is a stronger inference of agency when the owner is riding in the car at the time in question. Of course, this inference of agency may be refuted or overcome by evidence showing that in fact the relationship of principal and agent did not exist. Summerville v. Gillespie, supra; Judson v. Bee Hive Auto Service Co., supra. In the instant case the ownership by plaintiff of the automobile driven by her husband was admitted in the pleadings. Furthermore, the registration of the automobile with the Secretary of State was in the name of the plaintiff. We think the ownership of the car was not an issue in the case. An offer of proof that Mr. White had the car registered in the name of his wife "for the reason that at that time he had supposed or hoped that he would be in position to get another automobile *386 and that that automobile was to go into his name and that the purpose of putting it into Mrs. White's name is merely a gesture upon his part, the same as he would give a present to his wife * * *" was properly rejected by the court. If Mr. White had made a present of the car to his wife, she certainly would be the owner thereof.
8-10. Ordinarily, whether an inference of agency has been overcome is a question for the jury to determine, but as said in Judson v. Bee Hive Auto Service Co., supra, at page 14:
"* * * if the evidence is of such character that but one reasonable deduction can be made therefrom the court may so declare as a matter of law."
It having been shown that plaintiff was riding in the car owned by her and driven by her husband on a trip for their mutual benefit and pleasure, we think the only reasonable deduction that can be made from such evidence is that plaintiff's husband was acting as her agent and in furtherance of her interests. Herzog v. Mittleman, 155 Or. 624, 65 P. (2d) 384, 109 A.L.R. 662. Plaintiff was not a guest nor was she a joint owner of the car, as in Christensen v. Hennepin Transportation Co., 215 Minn. 394, 10 N.W. (2d) 406, 147 A.L.R. 945, relied upon by plaintiff. In view of the evidence, the court did not err in instructing the jury that if the driver of the White car was negligent, his negligence could be imputed to the plaintiff. Ownership implies the right of control. There was no evidence offered by the plaintiff that she had abrogated or surrendered to her husband her right to control the operation of the car. It is true that the plaintiff, for the purpose of overcoming the inference of agency by reason of her ownership of the car, offered to show *387 that while she was riding with her husband, she did not undertake to direct him as to the "course in which she was to travel" or the manner in which he was to drive; but we think such evidence had no probative value relative to the question of agency, and the court did not err in rejecting it.
Plaintiff also relies on Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A.L.R. 280. The court in that case held that a wife riding in her own car which was being driven by her husband was not prima facie chargeable with his negligence. While the authorities are conflicting on the question, such is not the law in this state.
11. Gochee v. Wagner, 257 N.Y. 344, 178 N.E. 553, is more in keeping with the rule in this jurisdiction. In that case the negligence of the owner's wife was held imputable to him in an action by him to recover for personal injuries and for damage to his car where it appeared that his wife drove his car to get his mother and on the way home stopped at his father's house, and he got into the car and sat on the rear seat intending to ride to his home. The court said:
"It was respondent's car, he was present and had the legal right to control its operation, and the negligent conduct of the driver was imputable to him. The mere fact that he chose to sit on the rear seat and refrained from directing its operation did not change his rights or limit his liability."
We agree with the contention of the plaintiff-appellant that the mere existence of the marital relation would not in itself have the effect of imputing the negligence of the husband to the wife, the owner of the car. It is the ownership from which the inference of agency arises. We deem it unnecessary to consider the applicability *388 of the "family-car doctrine," which obtains in this state.
12, 13. Error is assigned because of the ruling of the court in refusing to receive in evidence as exhibits the front spring and axle of the Keller car. It is the contention of the plaintiff that there was some asphalt adhering to the end of the spring and axle that came from the "gouges" in the highway on plaintiff's side of the road. It appears from the evidence that several months after the accident plaintiff purchased the spring and axle of the Keller car when it was at a wrecking lot. The court rejected this evidence for the reason that it was not shown that the spring and axle were substantially in the same condition as at the time of the accident. It will be recalled that plaintiff's husband did not observe the spring and axle at the time in question nor did he have any knowledge as to how such parts were handled at the wrecking lot. The court received in evidence without objection pictures taken in November, 1947, of the Keller car showing the condition of the spring and axle. These pictures were taken before the spring and axle were purchased. We think the trial court did not abuse its discretion in sustaining the objection to the introduction of such evidence. § 2-820, O.C.L.A.; 20 Am. Jur., Evidence, 600, § 717. It is elementary that before a material object may be admitted in evidence, it must be shown that there has been no substantial change in condition since the time in issue.
Finding no reversible error in the record, it follows that the judgment is affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2445986/
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2 A.3d 73 (2010)
CRUZ
v.
STATE.
No. 63, 2010.
Supreme Court of Delaware.
August 12, 2010.
Decision without published opinion Affirmed.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1726170/
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970 So. 2d 824 (2007)
CONNOLLY
v.
STATE.
No. SC07-1354.
Supreme Court of Florida.
November 19, 2007.
Decision without published opinion. Rev. denied.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2260113/
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178 Cal. App. 4th 388 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
JAISEN LEE HENNING, Defendant and Appellant.
No. C060371.
Court of Appeals of California, Third District.
October 14, 2009.
As modified October 27, 2009.
*391 John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
*392 OPINION
SIMS, J.
After a marathon session of playing the Grand Theft Auto video game, and while hallucinating under the influence of illicit drugs, defendant Jaisen Lee Henning donned a black ski mask and wielded a sawed-off shotgun in an attempt to rob a randomly chosen business. Fleeing from the scene, Henning led police officers on a high-speed car chase before being apprehended.
A jury convicted defendant of burglary (Pen. Code, § 459),[1] attempted robbery (§§ 211, 664), assault with a firearm (§ 245, subd. (a)(2)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and possession of a sawed-off shotgun (Pen. Code, § 12020, subd. (a)(1)). On appeal, defendant argues that (1) he should have been allowed to plead not guilty by reason of insanity (NGI) because he committed his crimes while believing he was merely following the goals of the video game he had been playing, (2) his request for a second substitution of appointed counsel should have been granted pursuant to People v. Marsden (1970) 2 Cal. 3d 118 [84 Cal. Rptr. 156, 465 P.2d 44] (Marsden), and (3) CALCRIM No. 220 failed to instruct the jury that each element of the charged offenses required proof beyond a reasonable doubt.
Following precedent of the California Supreme Court, we shall conclude the trial court erred in refusing to allow defendant to exercise his personal statutory right to enter an NGI plea. The trial court further erred in failing to remove defense counsel who refused to allow defendant to enter his NGI plea. However, both of these errors are harmless in light of abundant, uncontradicted evidence in the record demonstrating there was no factual basis for a finding of NGI.
We also reject defendant's frivolous attack on CALCRIM No. 220.
We shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On the afternoon of July 7, 2007, defendant finished a 10-hour session of playing the video game Grand Theft Auto: San Andreas. Grand Theft Auto engages players in "missions" to commit murder, driveby shootings, burglary, other violent crimes, and theft. A player learns of missions from other characters in the game.
Defendant was hallucinating while playing Grand Theft Auto. He had been awake for about a week due to his use of crystal methamphetamine. Every *393 day that week, defendant used some combination of methamphetamine, alcohol, ecstasy, crack cocaine, and hallucinogenic mushrooms.
As he finished playing the video game, defendant imagined voices from a little green person telling him, "It's time to do this. You can do this. Let's do this." He got into his car and drove to a randomly chosen location.
Shortly before 3:00 p.m., defendant walked into the Rocklin Days Inn lobby wearing a black ski mask and gloves, and carrying a sawed-off shotgun. Vijay Vohra, a Days Inn employee, and Benjamin Salazar, a plumber contracted by Days Inn, were standing behind the counter. Defendant told Salazar to hang up the telephone on which he had been speaking.
Pointing the gun at Vohra, defendant ordered him to open the drawers behind the counter. Defendant then pointed the gun at Salazar, and ordered him to open the drawers. Salazar explained he could not open any drawers because he was a plumber and not an employee of the Days Inn. Vohra hid behind Salazar and stated that he worked for Salazar. Defendant seemed surprised by the responses of Salazar and Vohra, and he stopped to think. After a minute, defendant instructed them to hand over their wallets.
Salazar refused to surrender his wallet, but offered defendant the $2 it contained. Defendant then noticed his car was rolling down the inclined driveway, and ran after it without taking anything.
Placer County Sheriff's Detective Michael Davis was running an errand during his vacation when he happened to drive by the Days Inn. Davis noticed a car blocking the street in front of the Days Inn. He then saw defendant run out of the Days Inn and get into the car, still wearing a mask and holding a shotgun. Davis followed defendant as he sped away. Davis called his dispatcher and described the vehicle and its location. He was unable to relay the license plate number because it had been obscured by duct tape.
Officers in marked police vehicles took over the pursuit. Defendant led the police on a high-speed chase in which he drove erratically through heavy traffic. He was apprehended after the police forced him to turn into a parking lot.
Defendant was taken out of his car and handcuffed. He appeared calm. A search of the car yielded a backpack containing a sawed-off shotgun.
In July 2008, the Placer County District Attorney filed an amended information charging defendant with burglary (§ 459), two counts of attempted robbery (§§ 211, 664), two counts of assault with a firearm (§ 245, *394 subd. (a)(2)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and possession of a sawed-off shotgun (Pen. Code, § 12020, subd. (a)(1)). The information further alleged defendant used a firearm in committing the attempted robberies and assaults. (§§ 12022.53, subd. (b), 1203.06, subd. (a)(1).)
Defendant pled not guilty, and the matter was tried to a jury. The jury found defendant guilty on all counts and found true the arming enhancement allegations.
The trial court sentenced defendant to an aggregate prison term of 17 years four months, comprised of two years for attempted robbery, eight months for the second attempted robbery, eight months for evading police officers, a 10-year enhancement for use of a firearm in committing the first attempted robbery, and another three-year four-month enhancement for use of the firearm in the second attempted robbery. Sentences for the burglary, and two counts of assault with a firearm were stayed pursuant to section 654.
Appellant timely filed a notice of appeal.
DISCUSSION
I
Failure to Allow Defendant to Enter an NGI Plea
Defendant contends the trial court erred in disallowing him from entering an NGI plea over the objection of defense counsel. As we shall explain, a defendant has the right to personally enter the plea of his choice regardless of what his counsel thinks of the merits of an NGI plea. Although the trial court erred in failing to allow defendant to enter an NGI plea, we find the error harmless because the record affirmatively demonstrates the lack of credible evidence for an insanity defense.[2]
A
In January 2008, defendant moved to substitute his appointed attorney pursuant to Marsden, supra, 2 Cal. 3d 118. One of the grounds for defendant's motion was his dissatisfaction with defense counsel's refusal to allow him to *395 enter an NGI plea. At the conclusion of the Marsden hearing (heard by Judge Colleen M. Nichols), the court ordered a substitution of counsel.
In July 2008, defendant again made a Marsden motion (heard by Judge John L. Cosgrove). Defendant expressed a lack of trust in his attorney as well as displeasure that his attorney was a member of the same law firm as his first appointed counsel. Defendant also stated his wish to enter a plea of NGI. During the hearing, the following colloquy occurred:
"[DEFENSE COUNSEL]: Just to be clear, Your Honor, [defendant] is desirous of entering a plea [of not guilty] by reason of insanity.
"THE COURT: Okay. And so [defense counsel] is not in agreement with your desire to change your plea to what they callcommonly call NGI, not guilty by reason of insanity. Is there anything else that gives you concern about youreither your representationhis representation of you or your ability to work with him
"THE DEFENDANT: Yes.
"THE COURT:in your trial?
"THE DEFENDANT: It's just not working out.
"THE COURT: It's not working out. Okay. Can you give me any other facts to support your position?
"THE DEFENDANT: I'm sorry. Can II'd like a day with it right now. I can't.
"THE COURT: Okay.
"THE DEFENDANT: But I do believe that he is in agreement. He does not want to go along with my plea.
"THE COURT: Okay. TheI knowis it your position that you were insane at the time of the incident?
"THE DEFENDANT: Yes.
"THE COURT: Or insane at this time or continuing?
"THE DEFENDANT: At the time of the incident.
*396 "THE COURT: Okay."
The trial court invited response from defense counsel, who stated there was "absolutely no basis on which to run an NGI defense." Counsel explained that he obtained three confidential evaluations of defendant by mental health professionals as well as the advice of a substance abuse expert. All four evaluations reached the conclusion that defendant suffered no mental disease or defect supporting an NGI defense. The experts further concluded that, even if defendant had a mental problem, he still had been able to appreciate the wrongfulness of his acts at the time of the attempted robbery. Finally, defense counsel noted that the fourth evaluator opined that defendant was malingering during his psychological testing "in order to appear more crazy than he actually was . . . ."
The trial court found that defendant was receiving "full and complete representation," and denied the Marsden motion.
B
(1) In addition to entering a plea of not guilty, a criminal defendant may also enter a plea of NGI. (§ 1017.) "A plea of not guilty by reason of insanity refers to the defendant's mental state at the time of the commission of the crime, a mental state which is distinguishable from that which is required of a defendant before he may be allowed to stand trial." (People v. Hofferber (1977) 70 Cal. App. 3d 265, 269 [137 Cal. Rptr. 115].) "Insanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. (. . . § 25, subd. (b); People v. Skinner (1985) 39 Cal. 3d 765, 776-777 [217 Cal. Rptr. 685, 704 P.2d 752] [construing . . . § 25, subd. (a) as providing that defendant may be found insane if he did not know the nature and quality of his act or if he did not know the act to be morally wrong].)" (People v. Hernandez (2000) 22 Cal. 4th 512, 520-521 [93 Cal. Rptr. 2d 509, 994 P.2d 354].)
(2) When a defendant has entered simultaneous pleas of not guilty and not guilty by reason of insanity, trial must be bifurcated to first ascertain whether defendant committed the charged offenses, and, if so, whether defendant was insane at the time of their commission. Section 1026, subdivision (a), provides, in relevant part: "When a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, the defendant shall first be tried as if only such other plea or pleas had been entered, and in that trial the defendant shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of *397 insanity, then the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, either before the same jury or before a new jury in the discretion of the court. In that trial, the jury shall return a verdict either that the defendant was sane at the time the offense was committed or was insane at the time the offense was committed. If the verdict or finding is that the defendant was sane at the time the offense was committed, the court shall sentence the defendant as provided by law. If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private treatment facility . . . ."
(3) Generally, defense counsel has the right to make tactical choices regarding formulation and presentation of a defense at trial. (People v. Bolden (1979) 99 Cal. App. 3d 375, 379 [160 Cal. Rptr. 268].) However, as the California Supreme Court has explained, "the decision to plead guilty or not guilty ultimately lies with the defendant." (In re Williams (1969) 1 Cal. 3d 168, 177, fn. 8 [81 Cal. Rptr. 784, 460 P.2d 984].) To this end, section 1018 provides: "Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court."
(4) In People v. Medina (1990) 51 Cal. 3d 870 [274 Cal. Rptr. 849, 799 P.2d 1282] (Medina), the California Supreme Court addressed the issue of whether trial courts have discretion to disallow defendants to enter an NGI pleas thought to be unwise by defense counsel. (Id. at pp. 899-900.) On appeal from conviction and a failed insanity defense, the defendant in Medina contended the trial court should have rejected his NGI plea to allow defense counsel to pursue other defenses that had appeared tactically more sound. (Ibid.) The high court rejected the contention, holding that the trial court had no discretion to reject defendant's desired plea. As the Medina court explained, "[I]f a defendant cannot be compelled by counsel to present an insanity defense, he cannot be compelled by counsel to abandon one merely because counsel disagrees with the tactics of that decision. Thus, contrary to defendant's present premise, the trial court had no discretion to deny defendant's motion to reinstate his insanity plea solely because his counsel opposed that choice on tactical grounds." (Id. at p. 900.)
Here, defendant unequivocally requested to enter an NGI plea during both Marsden hearings. Both attorneys who represented defendant refused to allow him to enter an NGI plea. As a result, defendant did not receive a trial on the issue of sanity after he was convicted of the charged offenses.
(5) The trial court's failure to allow defendant to enter an NGI plea over the objection of defense counsel violated defendant's statutory right under *398 section 1018 to personally enter the plea of his choice. As the high court has explained, a defendant has the right to enter a plea that "`may in the final analysis be harmful to his case'" because "`the right is of such importance that every defendant should have it . . . .'" (People v. Frierson (1985) 39 Cal. 3d 803, 816 [218 Cal. Rptr. 73, 705 P.2d 396] (Frierson), quoting People v. Robles (1970) 2 Cal. 3d 205, 215 [85 Cal. Rptr. 166, 466 P.2d 710].)
C
(6) Upon finding a violation of a state statutory right, we must assess whether the error resulted in prejudice. (Cal. Const., art. VI, § 13; People v. Kabonic (1986) 177 Cal. App. 3d 487, 498 [223 Cal. Rptr. 41].) Errors of state statutory law are analyzed pursuant to our Supreme Court's decision in People v. Watson (1956) 46 Cal. 2d 818 [299 P.2d 243]. (People v. Epps (2001) 25 Cal. 4th 19, 29 [104 Cal. Rptr. 2d 572, 18 P.3d 2].) Under Watson, an error warrants reversal only if it "is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, at p. 836.)
(7) Defendant acknowledges the error complained of here constituted a violation of a state statute: section 1018. Nonetheless, defendant attempts to invoke the more stringent analysis of prejudice applicable to errors of federal constitutional dimension. Violations of federal constitutional rights require reversal unless we can declare the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L. Ed. 2d 705, 87 S. Ct. 824].)
(8) Citing Pennywell v. Rushen (9th Cir. 1983) 705 F.2d 355, 357, defendant argues that an arbitrary denial of a state-created right may render "trial so `arbitrary and fundamentally unfair' that it violated federal due process." In Pennywell, the record showed the defendant "received full consideration of the facts underlying his insanity claim." (Id. at p. 358.) Thus, the Ninth Circuit found no federal due process violation arising out of alleged error in the trial court's entering of an NGI plea on behalf of a defendant who wished to plead only "temporary" insanity. (Id. at pp. 357-358.) As in Pennywell, defendant in this case received full consideration of the facts regarding his desired insanity defense. Accordingly, the error in this case does not arise to a federal due process violation, and is therefore subject to Watson harmless error analysis. Simple errors of state law do not implicate federal due process guarantees. (Estelle v. McGuire (1991) 502 U.S. 62, 67 [116 L. Ed. 2d 385, 112 S. Ct. 475].)
(9) We have found no California Supreme Court decision in which a trial court disallowed a defendant to exercise his or her statutory right to enter an *399 NGI plea. Nonetheless, we find guidance in the California Supreme Court's decisions in Medina, supra, 51 Cal. 3d 870, as well as Frierson, supra, 39 Cal. 3d 803 and its progeny. As we shall explain, Medina's holding that a defendant must be allowed to enter a plea of his or her choice requires an analysis of prejudice consistent with the test for reversible error articulated in Frierson and its progeny. The Frierson test compels us to conclude that a trial court's failure to allow a defendant to plead NGI is harmless when the record affirmatively shows the insanity defense lacks evidentiary support.
In Medina, supra, 51 Cal.3d at page 899, the Supreme Court held that the trial court properly refused to allow the defendant to withdraw an NGI plea. Thus, the high court did not have occasion to engage in an analysis of prejudice arising out of an erroneous denial of the right to enter an NGI plea. (See ibid.) The Supreme Court also did not consider the effect of denying a defendant the right to enter an NGI plea in In re Williams, supra, 1 Cal. 3d 168. Although the Williams court emphasized the right of a defendant to enter the plea of his or her choice, it reversed due to counsel's failure to properly advise defendant of a meritorious defense prior to his guilty plea. (Id. at p. 177 & fn. 8.) Thus, Williams did not address prejudice arising out of the denial of the right to enter an NGI plea. (Ibid.)
In Frierson, supra, 39 Cal.3d at page 805, the Supreme Court considered a defendant's insistence on presenting a diminished capacity defense during the guilt phase of a capital trial. Defense counsel believed the better tactic was to withhold evidence until the penalty phase. (Ibid.) Thus, the defense offered no witnesses or evidence during the guilt phase. (Id. at p. 807.) On automatic appeal, a plurality of the high court held that counsel wrongly refused to present the diminished capacity defense: "Given the magnitude of the consequences that flowed from the decision whether or not to present any defense at the guilt/special circumstance phase, we do not think counsel could properly refuse to honor defendant's clearly expressed desire to present a defense at that stage. Just as a defendant in an ordinary criminal case retains the right to refuse to plead guilty to a lesser offense even if his counsel is convinced that such a plea will lead to a lesser penalty, a defendant in a capital trial must also retain the right to have his only viable defense to the guilt or special circumstance charges presented at the initial stage of the trial." (Id. at p. 815, fns. omitted.) Accordingly, the Supreme Court reversed the special circumstance findings and penalty judgment. (Id. at p. 805.)
The Frierson plurality did not address whether its holding was restricted to capital cases or to cases involving credible evidence of mental impairment. (Frierson, supra, 39 Cal.3d at p. 815, fn. 3.) As to the latter issue, Frierson noted: "[I]n this case there was evidence to support the diminished capacity defense defendant wished to present. . . . Accordingly, we have no occasion *400 in this case to determine whether a defendant has a constitutional right to insist on the presentation of a defense which has no credible evidentiary support or on which no competent counsel would rely." (Id. at p. 815, fn. 3.)
Subsequent decisions by the California Supreme Court clarified Frierson's holding by explaining that credible evidence is required to allow a defendant's desire for a defense based on mental impairment to prevail over counsel's objection to the defense. In People v. Milner (1988) 45 Cal. 3d 227, 246 [246 Cal. Rptr. 713, 753 P.2d 669] (Milner), a unanimous court rejected a defendant's "novel" assertion of prejudice arising out of the prosecution's references to the defendant's reluctance to pursue a diminished capacity defense. The Milner court found the defendant's reliance on Frierson misplaced, and explained its earlier decision as holding that "a defense counsel's traditional power to control the conduct of a case does not include the authority to withhold the presentation of any defense at the guilt/special circumstance stage of a capital case when the defendant openly expresses a desire to present a defense at that stage and when there exists credible evidence to support that defense." (Id. at p. 246, italics added.)
Most recently, the high court echoed Milner when considering a claim that counsel in a capital case had wrongly failed to keep a defendant informed of the plan to present no evidence until the penalty phase. (In re Burton (2006) 40 Cal. 4th 205, 215 [52 Cal. Rptr. 3d 86, 147 P.3d 1014].) The Burton court rejected the argument because a referee found the defendant had been adequately advised of and consented to the trial strategy employed. (Id. at pp. 215-216.) The Supreme Court also reiterated that a defendant must unequivocally request a defense having credible evidence in order to compel reluctant counsel to tender a defense during the guilt phase of a capital trial. The Burton court stated: "Thus, Frierson means that `a defense counsel's traditional power to control the conduct of a case does not include the authority to withhold the presentation of any defense at the guilt/special circumstance stage of a capital case when the defendant openly expresses a desire to present a defense at that stage and when there exists credible evidence to support that defense.' (People v. Milner[, supra,] 45 Cal. 3d 227, 246 . . . .)" (Id. at p. 213.)
(10) We see no reason why the test articulated in Frierson and its progeny should not apply to noncapital cases in which the trial court fails to heed a defendant's unequivocal request to enter an NGI plea. Although Medina holds that defendants must be allowed to avail themselves of their statutory right to plead NGI, Frierson and its progeny lead to the conclusion that a trial court's erroneous denial of that right does not warrant reversal if an insanity defense is baseless.
*401 (11) Here, the record affirmatively demonstrates the lack of credible basis for an insanity defense. As we have already explained, an insanity defense requires proof that defendant was incapable of understanding the nature of his actions or unable to distinguish right from wrong. (People v. Hernandez, supra, 22 Cal.4th at p. 520; see also § 25, subd. (b).) The defendant bears the burden of proving insanity at the time of the offense by a preponderance of the evidence. (22 Cal.4th at p. 521.)
Defendant cannot rely on the hallucinogenic effects of the drugs he ingested during the week of his crimes because section 25.5 states, "In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of . . . an addiction to, or abuse of, intoxicating substances." Here, defendant's intoxication due to illicit drugs was the sole basis of his claim of insanity. "[I]f an alcoholic or drug addict attempts to use his problem as an escape hatch, he will find that section 25.5 has shut and bolted the opening." (People v. Robinson (1999) 72 Cal. App. 4th 421, 427 [84 Cal. Rptr. 2d 832].) Thus, defendant's drug abuse offers no support for an insanity defense.
Other than defendant's nonexculpatory use of drugs, the record contains no evidence of mental defect or condition rendering him unable to appreciate the wrongfulness of his conduct at the time of his crimes. The circumstances of defendant's armed offenses and subsequent flight indicate that he understood the wrongful nature of his acts. Defendant wore a black ski mask to avoid recognition, gloves to avoid leaving fingerprints, and placed duct tape over his license plate to preclude identification. Moreover, defendant's attempt to conceal his shotgun inside his backpack while trying to evade the police further indicated he was aware of the wrongfulness of his attempted robbery. Thus, the circumstances show intentional, strategic thinking rather than insanity.
Moreover, defense counsel consulted four independent experts, all of whom concluded defendant was not insane at the time of the offenses. Thus, according to defendant's attorney, defendant was evaluated by Dr. Page Brown and Dr. Deborah Schmidt; both of whom concluded defendant to have been sane at the time of the attempted robbery. Counsel also consulted with a substance abuse expert to ascertain whether defendant's drug usage could lend any support to an insanity defense. Again, counsel was informed that there was no basis for the defense.
Defendant and his father then expressed interest in the services of Dr. Vosconian, who practices in Philadelphia. Defense counsel moved for funds to retain Dr. Vosconian, but the motion was denied due to the expense of hiring an expert to travel cross-country while numerous experts were *402 available in California. Undeterred, defense counsel sought and received approval to hire Dr. Alex Eufick, who practices in Southern California. Dr. Eufick conducted "extensive psychological testing of [defendant] and review[ed] all the records in the case." However, Dr. Eufick found no basis for an insanity defense. Instead, he concluded that defendant was "intentionally falsifying some of the answers" to appear insane.
The affirmative showing on this record that an insanity defense was baseless distinguishes it from a case relied upon by defendant, People v. Clemons (2008) 160 Cal. App. 4th 1243 [74 Cal. Rptr. 3d 248]. In Clemons, the Court of Appeal reversed in a procedurally similar case. There, the trial court denied a request to enter an NGI plea articulated during a Marsden hearing. (Id. at p. 1251.) As in this case, defense counsel in Clemons thought the insanity defense to be unwarranted. (Id. at p. 1253.) In Clemons, however, the defendant had a history of diagnoses of and hospitalizations for mental illness. (Ibid.) Moreover, the crime in that casepossessing an illegal razor blade in prisonwas discovered due to a "self-inflicted . . . wound to his arm that was deep enough to require 18 stitches and [he] grinned sheepishly at the sheriff's deputies when they discovered what he had done." (Ibid.) Concluding that insanity was not a "`futile line of defense,'" the Clemons court reversed. (Ibid.)
As we have recounted in detail, the record in this case shows that an insanity defense would have been futile. Reversal would serve no purpose other than to require the trial court to conduct a sanity trial on a doomed defense.
(12) The refusal of the trial court to allow defendant to enter an NGI plea was harmless error. It is not reasonably probable that defendant would have obtained a different result at trial if he had entered an NGI plea. (People v. Epps, supra, 25 Cal.4th at p. 29; People v. Watson, supra, 46 Cal.2d at p. 836.)
II
Denial of Defendant's Second Marsden Motion
Defendant contends the trial court abused its discretion in denying him a second substitution of appointed counsel. He argues that he was denied his federal constitutional right to effective assistance of counsel because he lacked "trust or faith" in his attorney and because his attorney refused to allow him to enter an NGI plea. Although defendant failed to show breakdown in the attorney-client relationship, counsel should have been substituted *403 when the trial court learned of counsel's refusal to allow defendant to enter an NGI plea. Even so, we shall affirm because the record demonstrates the error was harmless.
A
(13) In Marsden, supra, 2 Cal. 3d 118, 123-124, the California Supreme Court held that trial courts must give indigent criminal defendants an opportunity to state reasons in support of appointment of new defense counsel. "A defendant `may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.' [Citation.] The law governing a Marsden motion `is well settled. "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.]' (People v. Fierro (1991) 1 Cal. 4th 173, 204 [3 Cal. Rptr. 2d 426, 821 P.2d 1302].)" (People v. Memro (1995) 11 Cal. 4th 786, 857 [47 Cal. Rptr. 2d 219, 905 P.2d 1305] (Memro), first brackets added.) We review the trial court's ruling on the motion for an abuse of discretion. (People v. Welch (1999) 20 Cal. 4th 701, 728 [85 Cal. Rptr. 2d 203, 976 P.2d 754].)
B
At the second Marsden hearing, defendant claimed his newly appointed attorney had a "conflict of interest" because counsel was a member of the same law firm as his first attorney. However, defendant did not articulate any interest adverse to him that counsel may have had. On appeal, defendant still fails to identify any problem with second counsel's employment with the same law firm as his first attorney. Instead, defendant simply reiterates that he had "no trust or faith" in counsel.
Defendant's displeasure with his second appointed attorney did not warrant substitution of counsel. As the California Supreme Court has explained, "To be sure, defendant made plain that he did not like his lawyers and did not think highly of them. That, however, `was not enough [to show a conflict of interest]. "[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any *404 appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law."' (People v. Berryman [(1993)] 6 Cal.4th [1048,] 1070 [25 Cal. Rptr. 2d 867, 864 P.2d 40].)" (Memro, supra, 11 Cal. 4th 786, 857.)
We also reject defendant's claim that his attorney improperly argued against him by discussing the lack of evidence supporting an insanity defense. Here, counsel explained the difficulties with an insanity defense in response to defendant's complaints about his inability to enter an NGI plea. As is the usual practice with Marsden motions, the trial court heard from defendant and his attorney only after the courtroom has been cleared of all persons except for court personnel and the defense team. (Cf. People v. Madrid (1985) 168 Cal. App. 3d 14, 18 [213 Cal. Rptr. 813].) The cleared courtroom allowed the trial court to hear from defendant and defense counsel in a manner that preserved attorney-client privileges and avoided revealing tactical decisions to the prosecution.
(14) In a Marsden hearing, defendant's attorney has an obligation to respond when a defendant states seemingly meritorious grounds for a substitution of counsel. (People v. Hill (1983) 148 Cal. App. 3d 744, 755 [196 Cal. Rptr. 382]; People v. Munoz (1974) 41 Cal. App. 3d 62, 66 [115 Cal. Rptr. 726].) Here, defense counsel did not act improperly in responding to defendant's complaints about the lack of an insanity defense.
Defendant fails to demonstrate that his lack of trust and faith in his second appointed attorney warranted a substitution of counsel under Marsden, supra, 2 Cal. 3d 118.
C
As we explained in part IB, ante, defendant had the statutory right to enter an NGI plea over the objection of defense counsel. Even though defense counsel believed an insanity defense to be unfounded, he wrongly refused to allow defendant to enter an NGI plea. (§ 1018; Medina, supra, 51 Cal.3d at pp. 899-900.) Upon learning of defense counsel's refusal to allow defendant to exercise his prerogative to enter an NGI plea, the trial court should have substituted new counsel. (Marsden, supra, 2 Cal.3d at p. 123.)
(15) We come again to the question of prejudice. A defendant's federal constitutional right to effective assistance of counsel entitled him to a full defense availing itself of all federal and state protections. (See In re Avena (1996) 12 Cal. 4th 694, 722-723 [49 Cal. Rptr. 2d 413, 909 P.2d 1017] [considering whether defendant's federal constitutional right to effective *405 assistance of counsel was violated by his attorney's failure to pursue a diminished capacity defense that was later abolished by California statute].)
We conclude that the trial court's failure to substitute counsel was harmless beyond a reasonable doubt. Although defense counsel refused to allow defendant to enter an NGI plea, counsel nonetheless vigorously pursued evidence in support of an insanity plea as we have explained in part IC, ante. Despite the efforts, no credible evidence could be mustered for an insanity defense.
(16) Nothing would be gained by reversing and remanding for further proceedings with new counsel. Defendant has already received a vigorous and thorough attempt by two attorneys to formulate an insanity defense. We will not require defense counsel to mount a defense entirely lacking in credible evidentiary support. (See People v. Riel (2000) 22 Cal. 4th 1153, 1217 [96 Cal. Rptr. 2d 1, 998 P.2d 969] [noting that counsel have an ethical duty to avoid presenting false evidence or perpetrating fraud on the court].)
Declaring the error harmless upon affirmative showing of lack of credible evidence for an insanity defense avoids the concerns articulated by the Frierson plurality in regard to requiring defense counsel to proceed with a defense lacking any support or having ethically problematic evidence. (See Frierson, supra, 39 Cal.3d at p. 817, fn. 6.) In this case, for example, the evidence indicated that defendant was malingering during his most recent psychological evaluation. Lacking other evidence, an insanity claim would be more than baseless; it would be fraudulent.
On this record, which documents defense counsel's vigorous efforts to muster evidence for an insanity defense, we are compelled to conclude that defendant was not prejudiced by the trial court's erroneous denial of his motion to substitute counsel. The trial court's error was harmless beyond a reasonable doubt.
III
Reasonable Doubt Instruction
Defendant contends CALCRIM No. 220 failed to instruct the jury that he could not be convicted without proof beyond a reasonable doubt of each element of the charged offenses. In so arguing, defendant acknowledges that we rejected this claim (presented by the same appellate counsel) in People v. *406 Wyatt (2008) 165 Cal. App. 4th 1592 [81 Cal. Rptr. 3d 911] (Wyatt). Defendant's argument is frivolous.[3]
(17) In Wyatt, we explained, "Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [127 L. Ed. 2d 583, 590, 114 S. Ct. 1239]; People v. Cole (2004) 33 Cal. 4th 1158, 1208 [17 Cal. Rptr. 3d 532, 95 P.3d 811]; § 1096.) Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions given the jury. (Victor v. Nebraska, supra, 511 U.S. at p. 5; see People v. Cain (1995) 10 Cal. 4th 1, 36 [40 Cal. Rptr. 2d 481, 892 P.2d 1224].) [¶] Under these standards, we see no instructional error. In giving CALCRIM No. 220, the trial court told the jury: `Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.' The jury also received [instruction on each charged offense]. Each instruction states, `To prove that the defendant is guilty of this crime, the People must prove that:' and then lists the separate elements of the offense. In addition, the jury received CALCRIM No. 361, which concerns the evaluation of a defendant's failure, if any, to explain or deny adverse evidence against him, and states: `The People must still prove each element of the crime beyond a reasonable doubt.' Accordingly, CALCRIM No. 220, viewed together with other instructions, correctly informed the jury that the prosecutor was obliged to prove each element of the crimes beyond a reasonable doubt." (Wyatt, supra, 165 Cal.App.4th at p. 1601.)
Although defendant purports to articulate reasons why "Wyatt was wrongly decided and should be reconsidered," he fails to offer any analysis of our prior decision. Indeed, he fails to offer analysis of any authority more recent than a case decided by the California Supreme Court four years prior to our decision in Wyatt.
(18) Defendant asks us to reconsider our holding in Wyatt, but articulates no grounds for doing so. A good faith argument for overruling a recent decision without intervening Supreme Court authority or legislative change requires more than a recycled argument. Our message to appellate counsel is the same one we gave counsel the last time we encountered repetitive attacks on the reasonable doubt instruction: "The time has come for appellate attorneys to take this frivolous contention off their menus." (People v. Hearon (1999) 72 Cal. App. 4th 1285, 1287 [85 Cal. Rptr. 2d 424].)
Discerning no error in CALCRIM No. 220, we reject defendant's challenge to the instruction.
*407 DISPOSITION
The judgment is affirmed.
Blease, Acting P.J., and Robie, J., concurred.
NOTES
[1] Undesignated statutory references are to the Penal Code.
[2] In part II, post, we separately consider defendant's contention that we must reverse because his second appointed attorney should have been substituted after his attorney refused to allow him to enter an NGI plea.
[3] This means the taxpayers will not have to pay appellate counsel for having made this argument.
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632 F. Supp. 981 (1986)
Barbara KING, Plaintiff,
v.
TELESPHERE INTERNATIONAL, INC., Defendant.
No. 84 C 4653.
United States District Court, N.D. Illinois, E.D.
February 21, 1986.
*982 Barbara King, New York City, John L. Gubbins, Marianne O. Richardson, John Gubbins, Ltd., Chicago, Ill., for plaintiff.
John J. Verscaj, Bell, Boyd & Lloyd, George S. Kois, Chicago, Ill., for defendant.
ORDER
NORGLE, District Judge.
Before the Court are two motions: 1) Plaintiff's ("KING") motion for leave to file a second amended complaint (adding a Title VII claim); 2) Defendant's ("TELESPHERE") motion for summary judgment on Counts I through III. King's motion to file a second amended complaint is granted; Telesphere's motion for summary judgment is denied. Additionally, because Telesphere contests the validity of King's claim for relief under Title VII, the Court interprets part of Telesphere's Reply Brief as a motion to dismiss Count IV of the second amended complaint pursuant to Fed.R. Civ.P. 12(b)(6). That motion, however, is also denied.
I Motion for Leave to File a Second Amended Complaint
The charge King filed with the EEOC alleges that she asked Telesphere (by letter) for an explanation for her termination in April, 1984. She also alleges Telesphere failed or refused to answer that letter. In short, King contends she was unaware of Telesphere's reasons for firing her until Telesphere divulged an internal memo on that subject in the course of discovery in this lawsuit.
Telesphere counters with the argument that King failed to file her EEOC charge within the required 180 days and, therefore, her Title VII claim is barred. Further, Telesphere contends King may not avail herself of the equitable tolling doctrine because 1) she knew or should have known the reason for her termination on the date it occurred (March 22, 1984) and 2) with that knowledge, she failed to file a timely charge.
*983 The event which triggered the running of the 180 day period of limitation was King's firing on March 22, 1984. See Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980). Because she filed a charge with the EEOC on February 26, 1985, her Title VII claim is barred unless the equitable tolling doctrine is available to her.
Generally, the availability of the equitable tolling doctrine is dependent upon a plaintiff's reasonable efforts to obtain information which may support a discrimination claim. See e.g., Moore v. Lion Oil Co., 652 F.2d 746, 748 (CA 8 1981) (finding absence of reasonable efforts). Such a requirement is not unlike the due diligence required in fraud cases. See e.g., Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1006 (CA 7 1984). In any event, it is axiomatic that the failure or refusal of an employer to provide an employee with reasons for her termination will greatly hinder the discovery of a Title VII claim. In such circumstances it would be inequitable to deny application of the equitable tolling doctrine when the employee has explicitly requested reasons for her termination. And that is this case.
Telesphere did not provide King with reasons for her termination on March 22, 1984. Nor did Telesphere answer King's letter requesting reasons in April of 1984. In short, Telesphere fails to advance any convincing argument that King knew or should have known sufficient facts to support the filing of a charge with the EEOC. Thus, Telesphere effectively prevented King from discovering her Title VII claim when it refused to provide her with reasons for her termination.
In light of Telesphere's failure or refusal to provide King with the reasons for her termination 1) at the time of termination (on March 22, 1984) or 2) upon her request by letter (in April, 1984), it would be inequitable to strictly apply the 180 day period of limitation. Cf. Smith v. McClammy, 740 F.2d 925, 927 (CA 11 1984). Thus, the Court concludes the equitable tolling doctrine operated to suspend the period for filing a charge with the EEOC until Telesphere answered King's interrogatories on October 1, 1984 and King's filing with EEOC was timely. The Court notes, however, the matter of King's filing with EEOC is still open to attack on summary judgment or at trial: Does one letter to Telesphere constitute a "reasonable effort" to support an equitable tolling? See, e.g., Moore, 652 F.2d at 748; Hart v. J.T. Baker Chem. Corp., 598 F.2d 829 (CA3 1979). That issue need not be resolved here because neither party has briefed it. In any event, King's motion for leave to file the second amended complaint is granted. See Fed.R.Civ.P. 1, 15(a).
II Motion to Dismiss?
Telesphere also attacks the second amended complaint on substantive grounds, a Rule 12(b)(6) theory. Telesphere insists the Title VII allegations are insufficient because King fails to allege disparate treatment between similarly situated employees.
The second amended complaint alleges King was reprimanded and fired for her use of profanity in the presence of a senior vice-president. King also alleges that she witnessed a male employee, one Cohn, utter a string of profanities in the presence of the same officer. That employee was never reprimanded or fired.
Telesphere insists King and Cohn are not similarly situated because King was an employee under contract to Telesphere and Cohn was merely a "consultant." The implication, of course, is that Telesphere, for one reason or another, did not have the power to discipline Cohn the "consultant" in the same way it had the power to discipline King the "employee." But, because Telesphere fails to provide any reason why this should be the case (either legally or factually), the Court believes this issue must await resolution on summary judgment or at trial. In this context, it would seem to make little difference that King and Cohn had different titles or duties with Telesphere, or that *984 both had different duration for employment. Instead, the issue would seem to center on whether Telesphere had the same power to discipline both King and Cohn and whether it chose to exercise that power in a disparate manner. See generally Schlei & Grossman at 13-21. Accordingly, what the Court interprets as Telesphere's Rule 12(b)(6) motion to dismiss the second amended complaint is denied.
III Telesphere's Motion for Summary Judgment
Telesphere insists it is entitled to summary judgment on Counts I through III. Telesphere's motion is made with reference to the first amended complaint. But Counts I through III remain unchanged in the second amended complaint. Consequently, the Court is free to address Telesphere's motion for summary judgment as one attacking the second amended complaint. However, because the Court's examination of the briefs and materials submitted on the motion reveal genuine issues of material fact, Telesphere's motion for summary judgment is denied. The Court's ruling on the various legal theories propounded by the parties is as follows:
1) King was not an at will employee. The contract she signed with Telesphere on March 12, 1984 is the controlling instrument in this lawsuit. Rynar v. Ciba-Greigy Corp., 560 F. Supp. 619, 624 (N.D. Ill.1983) (citing cases). The Court's interpretation of that contract would allow for King's dismissal for "cause" as limited by the four definitions stated in the contract. See Deft's Ex 1.
2) Telesphere's personnel policy guidelines are advisory only and did not become a part of King's employment contract. Enis v. Continental Illinois Nat'l Bank, 582 F. Supp. 876, 878-79 (N.D.Ill. 1984) (citing cases).
3) King's acceptance of severance pay does not serve as a waiver of her right to recover in this lawsuit. Telesphere fails to cite any Illinois court which has adopted such a principle of law and the Court, in its own research, has found none. Additionally, Telesphere has failed to make a convincing argument that this Court (a federal court sitting with diversity and federal question jurisdiction) should introduce such a principle into Illinois common law. Further, the Court believes this ruling comports with the traditional principles of waiver.
4) The employment contract at issue here allowed Telesphere to fire King for "cause." One element of "cause" defined in the contract is "[u]nsatisfactory performance as determined by a majority vote of the Board." Deft's Ex 1. Telesphere is correct in its assertion that the appropriate standard (under Illinois law) is a subjective one. Deltak, Inc. v. Schwartz, 119 Ill.App.3d 119, 456 N.E.2d 187, 191-92, 74 Ill. Dec. 685, 689-90 (1st Dist.1983); Ray v. Georgetown Life Ins. Co., 94 Ill.App.3d 863, 419 N.E.2d 721, 722-23, 50 Ill. Dec. 613, 614-15 (3d Dist.1981). But Telesphere apparently ignores a fundamental and significant aspect in the exercise of its contract right to terminate King for cause: the exercise of good faith and fair dealing read into every Illinois contract. See Dayan v. McDonald's Corp., 125 Ill.App.3d 972, 81 Ill. Dec. 156, 466 N.E.2d 958 (1st Dist.1984); Criscione v. Sears Roebuck & Co., 66 Ill.App.3d 664, 23 Ill. Dec. 455, 384 N.E.2d 91 (1st Dist.1978). See also Coca-Cola Co. Foods v. Olmarc Pkg. Co., 620 F. Supp. 966, 971 & n. 3 (N.D.Ill.1985) (citing cases). And it is precisely that issue which generates a genuine issue of material fact requiring a trial of this case: Did Telesphere exercise its contract right (to terminate King for cause) in good faith?
5) The procedure followed by Telesphere in discharging King is not an issue in this lawsuit. King fails to direct the Court to any legal principle which entitles her to formal Board action prior to termination. Cf. New Founded Ind. v. Anderson, 49 So. 2d 342, 345, (La.App.1950). However, the character of the Board's action is not necessarily beyond the scope of this law-suit. The way the Board did what it did may be relevant to the issue of whether *985 Telesphere exercised its contract rights in good faith. To that extent, at least, the Board's action remains for trial.
IV Conclusion
Based on the foregoing, Telesphere's motion for summary judgment is denied. A discovery cut off in this lawsuit is set for 60 days from the date of this Order. The parties shall file a Final Pretrial Order 30 days thereafter. Upon receipt of the Final Pretrial Order, the Court will set a trial date. The parties will be informed of the trial date by minute order.
IT IS SO ORDERED.
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178 Cal. App. 4th 778 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
JAMES ROY GLENN, Defendant and Appellant.
In re JAMES ROY GLENN on Habeas Corpus.
Nos. G040608, G041245.
Court of Appeals of California, Fourth District, Division Three.
October 26, 2009.
*786 James Roy Glenn, in pro. per.; and Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb, Teresa Torreblanca and Elizabeth Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.โ
INTRODUCTION
James Roy Glenn was adjudged a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA),[1] and was placed in involuntary commitment for an indeterminate term. Glenn was 82 years old at the time of trial. He appealed, and later filed a petition for writ of habeas corpus also challenging the commitment order. We issued an order to show cause and consolidated the writ petition with the appeal. We affirm the judgment and deny the writ petition.
Glenn was committed as an SVP following initial evaluations under section 6601, subdivision (a) conducted in accordance with a standardized assessment protocol developed by the State Department of Mental Health (DMH). In 2008, the Office of Administrative Law (OAL) determined the 2007 standardized assessment protocol constituted an invalid "underground" regulation.
First, we conclude the trial court did not err by precluding one of Glenn's expert psychologists from testifying about studies and research conducted by nontestifying mental health experts concerning whether pedophilia is chronic.
Second, even assuming for sake of argument the OAL was correct in its determination the assessment protocol is invalid, we hold any error in using evaluations based on that protocol did not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition. Accordingly, we apply a harmless error analysis to use of the invalid assessment protocol and conclude Glenn received a fair trial and suffered no prejudice. His challenge *787 to the assessment protocol, and his claim his trial counsel was ineffective for not challenging the assessment protocol, therefore fail.
Third, we hold the amendments to the SVPA added in 2006 by the Legislature and by passage of Proposition 83 do not violate the due process, equal protection, ex post facto, and double jeopardy clauses of the United States Constitution and the California Constitution.
OVERVIEW OF THE SVPA
The SVPA provides for involuntary civil commitment of an offender immediately upon release from prison if the offender is found to be an SVP. (People v. Yartz (2005) 37 Cal. 4th 529, 534 [36 Cal. Rptr. 3d 328, 123 P.3d 604].) The SVPA "was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society." (People v. Allen (2008) 44 Cal. 4th 843, 857 [80 Cal. Rptr. 3d 183, 187 P.3d 1018]; see Hubbart v. Superior Court (1999) 19 Cal. 4th 1138, 1171 [81 Cal. Rptr. 2d 492, 969 P.2d 584] [SVPA proceedings are designed "to provide `treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior"].) "`[A]n SVPA commitment proceeding is a special proceeding of a civil nature, because it is neither an action at law nor a suit in equity, but instead is a civil commitment proceeding commenced by petition independently of a pending action.'" (People v. Yartz, supra, 37 Cal.4th at p. 536.)
An SVP is defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (ง 6600, subd. (a)(1).) A "diagnosed mental disorder" is defined to include "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (ง 6600, subd. (c).)
The procedure for determining whether a convicted sex offender is an SVP typically begins when an inmate is scheduled to be released from custody. (Turner v. Superior Court (2003) 105 Cal. App. 4th 1046, 1054 [130 Cal. Rptr. 2d 300].) "`Under section 6601, whenever the Director of Corrections determines that a defendant serving a prison term may be a sexually violent predator, the Department of Corrections and the Board of Prison Terms undertake an initial screening "based on whether the person has committed a sexually violent predatory offense and on a review of the *788 person's social, criminal, and institutional history." (ง 6601, subd. (b).)'" (People v. Hurtado (2002) 28 Cal. 4th 1179, 1182-1183 [124 Cal. Rptr. 2d 186, 52 P.3d 116].)
The screening is conducted in accord with an assessment protocol developed by the DMH. (People v. Hurtado, supra, 28 Cal.4th at p. 1183.) "`If that screening leads to a determination that the defendant is likely to be a sexually violent predator, the defendant is referred to the Department of Mental Health for an evaluation by two psychiatrists or psychologists. (ง 6601, subds. (b) & (c).) If both find that the defendant "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (ง 6601, subd. (d)), the department forwards a petition for commitment to the county of the defendant's last conviction (ibid.). If the county's designated counsel concurs with the recommendation, he or she files a petition for commitment in the superior court. (ง 6601, subd. (i).)'" (People v. Hurtado, supra, 28 Cal.4th at p. 1183.)
The trial court holds a hearing on the petition to determine whether "there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (ง 6602, subd. (a).) The probable cause hearing is an adversarial hearing where the person named in the petition has the right to counsel. (Ibid.) If the court finds probable cause, it orders a trial to determine whether the person is an SVP under section 6600. (ง 6602, subd. (a).) The person named in the petition must remain in a secure facility between the time probable cause is found and the time trial is completed. (Ibid.)
The person named in the petition is entitled to a trial by jury, and the jury's verdict must be unanimous. (ง 6603, subds. (a), (f).) The person named in the petition also is entitled to retain experts or professional persons to perform an examination on his or her behalf. (ง 6603, subd. (a).) At trial, the trier of fact determines whether, beyond a reasonable doubt, the person named in the petition is an SVP. (ง 6604.)
The SVPA grants the person named in the petition the right to be present at the commitment proceeding and "the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding." (ง 6605, subd. (d).) If the trier of fact determines the person named in the petition is an SVP, the person is committed for an indefinite term to the custody of the DMH for appropriate treatment and confinement in a secure facility. (ง 6604.)
*789 FACTS
I.
The People's Case
In 2005, the Office of the District Attorney of San Bernardino County filed a petition for Glenn's commitment as an SVP pursuant to section 6600 et seq. At the jury trial, conducted in January and February 2008, the deputy district attorney called Jeffery Hart and licensed psychologists Mark A. Schwartz and Dawn Starr as witnesses. Hart had been Glenn's former neighbor in North Carolina, and Schwartz and Starr had evaluated Glenn and testified he qualified as an SVP. The deputy district attorney also called Glenn to testify as an adverse witness.
A. Jeffery Hart
In 2000, Glenn purchased two acres in rural North Carolina and lived there in a mobilehome. Jeffery Hart was Glenn's neighbor. Hart and Glenn initially got along well, but they had a falling out because Glenn wandered around his property in the nude. Glenn cut down the trees on his property, and would situate himself in his yard or on his roof to make himself visible. On several occasions, Hart's mother, who lived with Hart, saw Glenn naked. Hart asked Glenn not to appear naked in front of her. According to Hart, Glenn "just got bolder and bolder every day."
One morning, Hart informed Glenn that four women were coming to look at nearby property and asked that he wear clothing when they arrived. When the women drove up the road, Glenn, wearing only fishnet underwear, blocked the road with his backhoe. Glenn got down from the backhoe and walked over to talk with the women.
Glenn twice told Hart that Glenn needed "a young boy" to help with work around the house. Hart did not recommend anyone to Glenn and testified, "by the way he was acting, I wouldn't subject any kid to that."
B. Mark A. Schwartz
Mark A. Schwartz held a Ph.D., had been a licensed psychologist for 27 years, and worked under contract for the DMH. He interviewed Glenn in 2005 and 2006 and prepared reports in January and November 2007. Schwartz considered three criteria: (1) whether Glenn committed qualifying *790 predicate offenses; (2) whether he has a mental disorder predisposing him to commit future sexual offenses; and (3) whether he is at risk of committing future sexual offenses.
Under the first criterion, Schwartz concluded Glenn had committed four predicate offenses against three victims, all of whom were under 14 years of age. In 1988, Glenn invited a nine-year-old boy and an 11-year-old boy to his house, where he gave them treats, showed them sexually explicit movies, exposed himself, and touched them. As a result, a jury convicted him of two counts of committing lewd and lascivious acts with a child under the age of 14. Also in 1988, Glenn molested a seven-year-old girl by exposing himself and masturbating in front of her, for which another jury convicted Glenn of two counts of the same crime.
Schwartz also explained that Glenn had been convicted of offenses that did not qualify as predicate offenses for an SVP determination. Glenn had been convicted of an attempt to commit lewd and lascivious acts with a child under the age of 14 for exposing himself to and masturbating in front of a boy. Glenn also had been convicted on two indecent exposure charges involving two girls. Schwartz testified he "really didn't have to" consider those incidents, but they "just hardened the fact that [Glenn] was a pedophile."
Under the second criterion, Schwartz concluded Glenn suffers from pedophilia, nonexclusive, with sexual attraction to both male and female children.[2] Schwartz based his conclusion of pedophilia on Glenn's qualifying and nonqualifying offenses, and incidents appearing in police reports that did not lead to charges. Schwartz concluded Glenn was volitionally impaired from pedophilia because he continued to engage in pedophilic behavior even after being arrested and imprisoned for sex crimes.
Under the third criterion, Schwartz concluded there was a serious and well-founded risk that Glenn would commit sexually violent criminal acts in the future. Schwartz considered Glenn's score on the Static-99, an actuarial tool used to predict recidivism in sex offenders. Although Glenn's score of seven on the Static-99 usually would place him in the high risk category, Schwartz was not certain whether Glenn would fall into that category because he was much older than all but one person in the data set on which the Static-99 was based. Schwartz testified: "We don't have a lot of data on 82-year-old-guys. When you look at the number of people in these data sets that are past 60, 75, 80, very, very few."
*791 Schwartz testified he initially did not believe Glenn qualified as an SVP because of his advanced age and because the qualifying offenses occurred a long time ago. Schwartz ultimately concluded Glenn was an SVP based on his score on the Static-99, the fact Glenn had continued to act out sexually, and Schwartz's opinion that pedophilia is a compulsive and chronic condition. Schwartz considered "the incidents in North Carolina and the indecent exposure in North Carolina as an indication that he was still ... sexually acting out and at risk." Despite studies suggesting recidivism rates for pedophiles decrease after age 60, Schwartz believed Glenn posed a risk of reoffending because he had engaged in serious acts of pedophilia at age 62.
Schwartz also diagnosed Glenn with exhibitionism.[3] Schwartz initially "wavered back and forth" on that diagnosis because it requires exposing oneself to unsuspecting strangers. Ultimately, Schwartz concluded the women in North Carolina who saw Glenn in fishnet underwear were strangers, thus satisfying the definition of exhibitionism.
C. Dawn Starr
Dawn Starr held a Ph.D. in psychology and had been a licensed psychologist for over 20 years when she testified. She served on the DMH's SVP panel of evaluators and had conducted over 1,000 SVP evaluations. She conducted an SVP evaluation of Glenn in July 2005 and conducted followup evaluations of him in August 2006 and September 2007.
Starr concluded Glenn committed qualifying predicate offenses, had a mental disorder predisposing him to commit future sexual offenses, and was likely to commit future sexually violent predatory offenses as a result of his mental disorder.
Starr diagnosed Glenn with "pedophilia, sexually attracted to male and female children, but a non-inclusive type, meaning he's had adult sexual partners." Starr testified, "[t]hat was an SVP diagnosis because I thought that he showed both volitional and emotional impairment with regards to that diagnosis." She believed Glenn was volitionally impaired because he "gets in very little trouble with the law" and "[i]s not a rule breaker," yet had serious difficulty controlling his sexual behavior. As to emotional impairment, Starr testified: "[H]e is taking advantage of these children, most of whom were either in situations where they were low income or the parents were maybe neglectful or not around very much. And he would groom them, give them candy, put on cartoons maybe and then switch over to sexually explicit *792 movies. Fix the boys' bikes. [ถ] And then he would sexually abuse them for his own personal gratification with little or no regard to the adverse consequences of these children."
Starr considered several nonqualifying crimes and victims because "under the diagnostic criteria ... we're supposed to look at whether the person has recurrent intense sexually arousing deviant fantasies or urges or behaviors towards prepubescent children. So I'm interested to see how many people or young children he's had sexual contact with over what period of time."
Starr's conclusion that Glenn committed the qualifying predicate offenses was based on his convictions in 1988 for committing lewd and lascivious acts with a child under the age of 14 involving the girl and the two boys. Starr also considered these nonqualifying crimes and victims in reaching her diagnosis:
In the 1950's or 1960's, one of Glenn's daughters reported that Glenn had sexually molested her when she was a child.
In 1976, when Glenn was 50 years old, he was arrested and charged with two counts of lewd and lascivious behavior with a child under 14 years old in violation of Penal Code former section 288. (Ultimately, he was convicted of contributing to the delinquency of a minor.)
In 1977, Glenn took a nine-year-old girl and a seven-year-old boy to Big Bear, where he exposed himself to them, bathed with them, fondled and orally copulated the girl, and had the boy use a relaxer on Glenn until he ejaculated.
In 1986, a mother left her three children with Glenn while she moved into a new home. Glenn licked the 10-year-old girl between the legs, then tried to "hypnotize" her. Glenn touched her six-year-old brother's penis.
In 1987, Glenn molested his seven-year-old granddaughter and four-year-old grandson. The granddaughter reported that Glenn carried her to the living room, put his hand over her mouth, pulled down her underwear, and touched her groin. The grandson reported that Glenn touched his penis.
Starr concluded Glenn currently suffers from pedophilia, despite his age, because it is a chronic and lifelong condition. Significant too, Starr found, was that Glenn used the victims for his own gratification, did not accept responsibility for his conduct, and showed no remorse.
Starr also diagnosed Glenn with exhibitionism, which she described as a type of paraphilia. Her diagnosis of exhibitionism was based on Glenn's *793 claim to be a nudist and a pattern of conduct in which he appeared to go out of his way to expose himself to others.
Starr concluded Glenn likely would engage in future sexually violent predatory behavior as a result of his mental disorder. Like Schwartz, Starr used the Static-99 and gave Glenn a total score of eight, placing him in the highest risk of reoffense category. She placed Glenn in the "rare group of people" who, despite advanced age, would continue to sexually reoffend. She considered Glenn's age, good health, and family history of longevity to conclude a five- to eight-year risk prediction period to be appropriate.
Starr believed Glenn's age lowered the risk of reoffense a little, but not enough to take Glenn out of the high risk category. She explained: "[H]e is exactly the same man he is today as he was when he committed the offenses in the late 1980s. His personality is the same; his attitude about them is the same. Either it was no big deal or I did not do it. [ถ] He has not done anything to try to get treatment for that in the community or now that it's available to him at absolutely no cost where he's staying. He doesn't go do that. He is in pretty good physical health. He has good mental capacity. So the only thing is, he is a little older and he is still sexually preoccupied."
D. Glenn
The deputy district attorney called Glenn as an adverse witness. He testified he was a nudist and denied committing all but one of the qualifying and nonqualifying offenses.
Glenn claimed he had been falsely accused in each instance and gave various reasons why. As to the incident in Big Bear in 1977, Glenn claimed the mother told her children to accuse Glenn of molesting them because he had kicked her out of his house. As for the incident in 1986, Glenn claimed the 10-year-old girl made obscene telephone calls to him, and falsely accused him of molestation for fear he would tell her mother about the calls. Glenn denied molesting his grandchildren, claiming his son had been "wasted on drugs."
Glenn asserted he did not commit the crimes for which he was convicted in 1989. Glenn claimed the two boys came over to his house to repair their bicycles. Glenn showered, and when he came out of the shower, the boys were on his bed watching a pornographic video and the 11-year-old boy had an erection. Glenn claimed he ran the boys out of the house. According to Glenn, the pornographic video belonged to a friend.
As for the conviction involving the girls, Glenn testified they would come into his apartment without knocking. On one occasion, he stepped out of the *794 shower to find three girls in his bathroom looking at him. On another occasion, one of the girls walked into his apartment, unannounced, and Glenn, a nudist, was naked. The girl said, "[g]et some clothes on"; Glenn replied, "you better start getting use to it if you don't start knocking."
Glenn was arrested, convicted by two separate juries, and sent to prison. He was released in 1995, and, in 1998, bought two acres of land in North Carolina, where he continued to practice nudism. He contended Hart's mother would hide in the bushes with binoculars to watch him naked. She had tried to "put the make on [him]," but he was not interested in her, and she complained to the police in anger. According to Glenn, none of the 13 people who complained to the police about his nudity had ever seen him naked. He also claimed Hart's testimony that Glenn had asked about finding a young boy to work for him was a lie.
On the day the women came by to inspect property, Glenn wore the fishnet underwear because "from a distance it just looks like regular shorts." He did not expect he would have to step down from his backhoe to see anyone.
Glenn testified he had been impotent since undergoing chemotherapy for colon cancer in 1996. He testified he loved children, and "[w]hen I see children with a problem, my heart bleeds for them."
II.
Defense Case
Glenn called licensed clinical psychologists Brian Abbott and Craig Updegrove to testify on his behalf.
A. Brian Abbott
Brian Abbott testified he was a licensed clinical psychologist, had a forensic psychological practice, and primarily evaluated sex offenders, including SVP's.
Abbott reviewed Glenn's medical and hospital records, law enforcement reports, probation reports, DMH evaluator reports, and investigative reports prepared by the district attorney's office and by the public defender's office. Abbott interviewed Glenn three times, and administered a general personality test, the Millon Clinical Multiaxial Inventory-III, The Abel Assessment for sexual interest-2, and a cognitive functioning test.
*795 Abbott concluded, "[t]here's absolutely no information to substantiate a current diagnosis of pedophilia or to substantiate a current mental disorder under the Sexually Violent Predator Act." In reaching that conclusion, Abbott observed that Glenn had displayed no symptoms of sexual interest in children for 20 years and found it critical that no reports were made of Glenn engaging in inappropriate conduct with children during the seven-year period in which he was not in custody. There was no evidence that, since Glenn had been committed as an SVP, he had engaged in the type of conduct typical of someone with a current diagnosis of pedophilia. Because Glenn interacted sexually with both adults and children, Abbott believed his conduct might be the result of sexual compulsiveness rather than pedophilia.
Abbott testified that sex drive decreases dramatically in people over 50 years old. He acknowledged pedophilia is a chronic condition for some people, but testified it was not chronic in Glenn's case. He found no indication that Glenn currently had any sexual interest in prepubescent children and was not likely to reoffend in a sexually violent manner. Abbott declined to diagnose Glenn with exhibitionism because he did not expose himself for sexual gratification or to unsuspecting strangers.
B. Craig Updegrove
Craig Updegrove held a Ph.D. in clinical psychology, was a licensed psychologist, and, since 1996, had served on the DMH's panel of SVP evaluators.
Under appointment by the DMH, Updegrove conducted an evaluation of Glenn in July 2005. Updegrove concluded Glenn did commit the qualifying offenses, had a diagnosable mental disorder within the meaning of the SVPA, but was not likely to reoffend in a sexually violent, predatory manner.
Updegrove reached the same conclusions after reevaluating Glenn in October 2006. Again diagnosing Glenn as having pedophilia, Updegrove acknowledged, "he's had this recurrent pattern of sexually aroused behavior around prepubescent children" and recognized Glenn's score on the Static-99 placed him in the high risk of reoffense category.
Updegrove concluded nonetheless that Glenn did not pose a serious and well-founded risk of sexually reoffending. In reaching that conclusion, Updegrove considered Glenn's age, the lack of evidence of offending behavior after 1988, and chemotherapy in 1996, which, according to Glenn, had left him impotent. Updegrove found it significant that Glenn had no known sexual offenses against children in the eight-year period from his release from prison to his conviction for indecent exposure. Updegrove did not diagnose *796 Glenn with exhibitionism because he found no evidence that Glenn exposed himself in North Carolina for sexual gratification.
APPELLATE AND HABEAS CORPUS PROCEDURAL HISTORY
In February 2008, the jury found Glenn to be an SVP, and the trial court ordered him committed for an indeterminate term. Glenn timely appealed from the commitment order. In October 2008, he filed a petition for writ of habeas corpus in the trial court. The trial court denied the petition stating: "Petitioner's claims are currently being adjudicated within the Court of Appeal. There is nothing contained in the Petition to substantiate Petitioner's claims. A Petition for Writ of Habeas Corpus cannot serve as a substitute for Appeal."
In November 2008, Glenn, representing himself in propria persona, filed a petition for writ of habeas corpus in this court, challenging the validity of the SVPA commitment petition on the ground the evaluations were based on an invalid standardized assessment protocol. We issued an order to show cause, consolidated the writ petition with the appeal, and invited the Attorney General to file a combined respondent's brief and return to the petition.
DISCUSSION
I.
The Trial Court Did Not Err by Sustaining Objections to Abbott's Testimony.
Glenn argues the trial court erred by precluding Abbott from testifying about studies and research conducted by other mental health experts concerning whether pedophilia is chronic. Glenn contends such testimony was admissible to establish the basis for Abbott's expert opinion. Relying on People v. Campos (1995) 32 Cal. App. 4th 304 [38 Cal. Rptr. 2d 113] (Campos), the Attorney General argues an expert witness may not testify on direct examination to the contents of reports or opinions expressed by other experts. We conclude the trial court did not err.
A. Background
During Abbott's direct examination by Glenn's counsel, the following colloquy occurred:
"A [Abbott] ... First, you have to prove the fact that they do have what they refer to as pedophiliac arousal. You have to first be able to show that the *797 individual was sexually aroused toward prepubescent children, and then if they act upon that, then you can make the diagnosis. You cannot make the diagnosis based on the number of prepubescent victims over time. In fact, one of the criteria text editorsโ
"Ms. Norman [deputy district attorney]: Objection.
"The Court: Sustained.
"Q (By Mr. Lowry [Glenn's counsel]:) Have you read documents that indicate to you that behavior alone is not enough to make the diagnosis of pedophilia?
"Ms. Norman: Objection, your Honor. May we approach?
"The Court: Yes."
The court did not immediately rule on the second objection.
Later, Abbott testified he did not subscribe to the belief that pedophilia is chronic. When he was asked to explain, the following transpired:
"A [Abbott] Because essentially when you look at the literature from which that statement is made, it goes back to I think really the early 1990's when the last major revision of the DSM Four [American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000)] happened, at least as it relates to diagnosis of pedophilia. In fact, there was an author by the name of Michael Seto who published a chapter in a book that came out three weeks ago where he states that this idea of pedophilia being tending to be chronic reallyโ
"Ms. Norman: Objection, your Honor.
"The Court: Sustained.
"Mr. Lowry: Okay.
"Ms. Norman: Move to strike.
"The Court: The testimony with regard to what the other doctor testified to would be stricken.
"Mr. Lowry: Okay.
*798 "Q (By Mr. Lowry:)... In the literature, is there an indication that there's a question as to whether or not pedophilia is chronic?
"Ms. Norman: Objection. Same objection.
"The Court: Sustained.
"The witness [Abbott]: Yes.
"Ms. Norman: Move to strike.
"The Court: The answer will be stricken."
A few moments later, the court overruled a similar objection but advised Glenn's counsel to "be careful in this area."
Outside the jury's presence, the court and counsel discussed whether Abbott could testify about studies and research conducted by other mental health experts concerning whether pedophilia is chronic. Glenn's counsel announced that, over the lunch break, he and Abbott had pared down a PowerPoint presentation to 22 "slides," all of which were graphs taken from studies, and argued Abbott should be permitted to testify about the slides as part of the basis for his opinion: "It just makes no sense for him not to be able to use at least these [P]ower[P]oint slides having to do with plotting of graphs and the statistics in order to aid his testimony." The deputy district attorney objected on the ground the material in the PowerPoint presentation had not been produced in discovery.
The trial court stated: "I still think that this is a Campos issue. If you have a graph, for instance, Graph A, and at the bottom it looks like we have `age' is the input. And on the left-hand side we have `percentages[,'] six-year rate of recidivism. [ถ] Just because something is in a graph, you're still trying to get in the opinion of this expert via a graph, it's just not coming in via Dr. Abbott testifying about it. It's still the same thing. It's still going to be hearsay that [the People] cannot cross[-]examine Doctor Milloy on this graph. So we still have the same issue." (Italics added.) The court explained Abbott could testify to his own opinions and even use the graphs prepared by the nontestifying experts, if he deleted the nontestifying experts' names. The court stated: "If it's his opinion, he can relate it, because that's his opinion based upon his training, his expertise, his evaluation, and how it relates to Mr. Glenn based upon his evaluation of Mr. Glenn. He can testify to that. [ถ] He just can't testify and throw up on the screen `this is Milloy's opinion with regards to six-year recidivism rates.' That he can't do. But he may be able to give the same information in [it] if it's his opinion in a different way."
*799 B. Case Law Regarding Admissibility of Nontestifying Experts' Studies and Opinions
(1) In Campos, supra, 32 Cal.App.4th at page 306, the defendant appealed a jury determination he was a mentally disordered offender. The defendant argued the trial court erred by permitting the prosecution's expert psychiatrist, Dr. Mertz, to testify that she relied on other medical evaluations of the defendant and that the evaluations confirmed her opinion he was a mentally disordered offender. (Id. at p. 307.) The appellate court agreed. A psychiatrist, like other expert witnesses, may rely on reliable hearsay, including the statements and reports of other treating professionals in forming an opinion, and, on direct examination, may testify the reports of the other experts were a basis for that opinion. (Id. at pp. 307-308.) However, an expert witness may not, on direct examination, reveal the contents of the other experts' reports or opinions expressed in the reports. (Id. at p. 308.) "Here, the reports of the nontestifying experts were hearsay. Doctor Mertz was properly allowed to testify that she relied upon the reports in forming her own opinions. The trial court erred, however, when it allowed her to reveal their content on direct examination by testifying that each prior medical evaluation agreed with her own opinion." (Ibid.) While doctors can testify about the basis for their opinion, they cannot disclose to the jury the opinions of out-of-court doctors. (Ibid.) The appellate court nonetheless affirmed because, it concluded, Dr. Mertz's testimony about prior medical evaluations was not prejudicial. (Id. at pp. 308-309.)
Glenn argues Campos is inapplicable because the nontestifying experts in that case had evaluated and prepared reports on the defendant. Here, in contrast, Abbott was precluded from testifying about nontreating experts' opinions on whether pedophilia in general is a chronic condition.
Campos is the product of a line of authority starting with Kelley v. Bailey (1961) 189 Cal. App. 2d 728 [11 Cal. Rptr. 448], in which the court held a testifying physician could not rely on a report of another physician as independent proof of facts, but could rely on it as part of the basis on which the testifying physician formed a diagnosis and course of treatment. (Id. at pp. 737-738.) On request, the jury should be given a limiting instruction that the hearsay is admitted as the basis for the testifying physician's diagnosis, not to prove the truth of what the patient told the original physician. (Id. at p. 738.)
(2) The California Supreme Court adopted this general rule in Whitfield v. Roth (1974) 10 Cal. 3d 874, 894-895 [112 Cal. Rptr. 540, 519 P.2d 588], stating: "It is obvious that the testimony concerning the opinion of the other doctors who were not present in court, and who had not been qualified as *800 experts was hearsay. `"The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse."' [Citations.] [ถ] Defendants contend, however, that the testimony concerning the opinions of the other doctors was admissible to show the basis of the testifying doctor's opinion under the doctrine of limited admissibility as applied in Kelley [v.] Bailey .... This rule has no application to the case at bench for two reasons. First, the opinions of the out-of-court doctors in this case were not used by either testifying doctor in the course of treatment or diagnosis of plaintiff. They were consulted as experts and then called as witnesses to offer expert opinion evidence. It is clear that doctors can testify as to the basis of their opinion [citation], but this is not intended to be a channel by which testifying doctors can place the opinion of innumerable out-of-court doctors before the jury." (Fn. omitted.) The court held the testimony concerning the opinion of the nontestifying doctors was inadmissible on the ground it was being offered as independent proof of the fact in issueโthat an X-ray of the patient's skull showed no abnormality. (Id. at p. 895.)
In People v. Coleman (1985) 38 Cal. 3d 69, 92 [211 Cal. Rptr. 102, 695 P.2d 189], the Supreme Court expressed the rule: "`While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible. [Citations.] The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. [Citation.]'"
These cases permit an expert witness to testify about the contents or details of the matters on which the expert relied, including the opinions of nontestifying experts, if those matters and opinions are otherwise admissible. If the contents or details of the matters on which the expert relied, including the opinions of nontestifying experts, are otherwise inadmissible, for example, they are offered to prove the truth of a fact in issue, they may not be disclosed.
An illustrative and analogous case is Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851 [236 Cal. Rptr. 778]. In that case, the plaintiff, the owner of a vineyard, alleged a pesticide manufactured by the defendant caused chemical burning of grape leaves leading to defoliation and crop destruction. (Id. at p. 855.) The defendant's expert testified the pesticide did not chemically burn the leaves on the plaintiff's grapevines. (Id. at pp. 856-857.) During the course of direct examination, the expert testified he had consulted with six other experts about the potential of the pesticide to cause leaf burn and had based his own opinion in part on those other experts' opinions. (Id. at *801 p. 856.) None of the six other experts testified. (Id. at p. 857.) Also on direct examination, the expert revealed those experts had concluded the defendant's pesticide could not cause more than marginal leaf burn. (Id. at pp. 857, 863.) The trial court permitted the testimony but admonished the jury the nontestifying experts' opinions could only be considered as part of the basis for the testifying expert's opinion and could not be considered as proof the pesticide did not damage the plaintiff's vineyard. (Id. at p. 857.) The jury returned a defense verdict, and the trial court granted the plaintiff's motion for a new trial. (Id. at p. 858.)
The Court of Appeal concluded the testifying expert's testimony on the opinions of the nontestifying experts was inadmissible hearsay because the opinions were offered for the truth of the matter assertedโthat the defendant's pesticide did not cause more than marginal leaf burn. "The fundamental issue that stood as the cornerstone of the entire trial was whether the plaintiff suffered a crop loss. The introduction of the hearsay opinions through [the defense expert] touched upon only one aspect of economic crop loss. Can [the pesticide] ever cause leaf burn and does leaf burn lead to a loss of production? If the leaf burn complained of by the plaintiff could only be marginal, then the probability of economic loss was remote." (Mosesian v. Pennwalt Corp., supra, 191 Cal.App.3d at p. 866.) But the Court of Appeal reversed the order granting a new trial, concluding admission of the hearsay opinions was harmless error because the opinions touched on only one issue in the case, the great weight of the evidence supported the defense verdict, and the trial court had admonished the jury. (Id. at pp. 866-867.)
In Mosesian v. Pennwalt Corp., the nontestifying experts did not opine whether the pesticide damaged the plaintiff's vineyard; rather, they opined whether the pesticide could ever cause leaf burn. Their opinions were inadmissible because they were offered to prove a disputed factโwhether the pesticide could cause leaf burn, and thus might have damaged the plaintiff's vineyard.
C. Application to This Case
(3) Here, the nontestifying experts'[4] opinions and studies related to whether pedophilia in general is chronic. The only conceivable purpose of offering the opinions and studies of Seto, Milloy, and other nontestifying *802 experts (via the PowerPoint presentation) was to prove the truth of a disputed factโwhether pedophilia is chronic, and, thus, whether Glenn could still suffer from it. Although Abbott could testify to his own opinions and describe the matters he considered in reaching those opinions, he could not testify to the opinions of the other nontestifying experts, explain or read their writings, or present graphs and charts revealing their opinions that were otherwise inadmissible.
Glenn argues, "if the testimony relating to Michael Seto as to whether or not pedophilia is a chronic disorder and the use of the graph prepared by Milloy was invalid then it was equally invalid to introduce Dr. Hanson's opinion as to [Glenn]'s likely recidivism rate thr[ough] the use of the STATIC-99." But neither in appellant's opening brief nor in appellant's reply brief, does Glenn include record citations supporting that argument. Glenn concedes nobody objected to the challenged testimony, and, therefore, any claim of error has been forfeited.
(4) In addition, "[b]ecause an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment." (People v. Montiel (1993) 5 Cal. 4th 877, 919 [21 Cal. Rptr. 2d 705, 855 P.2d 1277].) The trial court may exclude from an expert's opinion testimony any hearsay matter if its probative value is outweighed by its irrelevance, unreliability, or potential prejudice. (People v. Catlin (2001) 26 Cal. 4th 81, 137 [109 Cal. Rptr. 2d 31, 26 P.3d 357].) The trial court did not abuse its discretion in sustaining the objections to the PowerPoint presentation.
II.
Use of an Invalid Standardized Assessment Protocol Did Not Deprive the Trial Court of Fundamental Jurisdiction; Therefore, a Harmless Error Analysis Applies, and Glenn Suffered No Prejudice.
Glenn argues his commitment as an SVP was illegal because the evaluations leading to the SVPA commitment petition were based on the mental health assessment protocol later determined by the OAL to be invalid as "underground regulations." The Attorney General does not defend the challenged assessment protocol. Instead, the Attorney General argues (1) Glenn forfeited the issue by failing to object at the probable cause hearing held pursuant to section 6602, subdivision (a), and (2) any error in using the assessment protocol was harmless.
*803 Glenn did not forfeit the issue, but use of the invalid assessment protocol did not deprive the trial court of fundamental jurisdiction. Glenn therefore must show he was deprived of a fair trial or suffered prejudice as a result of the use of the assessment protocol.
A. Deficiencies in the Return to the Habeas Corpus Petition
First, we address Glenn's argument the Attorney General admitted the allegations of the petition for writ of habeas corpus by not filing a formal response admitting or denying the petition's allegations.
In People v. Duvall (1995) 9 Cal. 4th 464, 474-481 [37 Cal. Rptr. 2d 259, 886 P.2d 1252] (Duvall), the California Supreme Court thoroughly explained habeas corpus rules and procedures. The Duvall court explained the function and requirements of the return: "[W]e have required the return to `allege facts tending to establish the legality of petitioner's detention.' [Citations.] Those facts are not simply the existence of a judgment of conviction and sentence when the petitioner challenges his restraint in prison. The factual allegations of a return must also respond to the allegations of the petition that form the basis of the petitioner's claim that the confinement is unlawful. [Citations.] In addition to stating facts, the return should also, `where appropriate, . . . provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.'" (Id. at p. 476, fn. omitted.)
In County of San Bernardino v. Superior Court (1994) 30 Cal. App. 4th 378, 382, footnote 6 [35 Cal. Rptr. 2d 760], the respondents filed a document called "`responsive brief'" that did not respond to the formal allegations of the petition. The Court of Appeal noted its order issuing an alternative writ requested a formal return, meaning an answer or a demurrer. (Ibid.) By filing a responsive brief, the respondents did not follow the correct procedures. (Ibid.)
Although the Attorney General's combined respondent's brief and return does not respond to the allegations of the habeas corpus petition by admitting or denying them, that does not mean Glenn is entitled to habeas corpus relief. From the petition and the combined respondent's brief and return, we can tell the relevant facts in this case are essentially not in dispute. The contested issuesโwhether the assessment protocol is an underground regulation and whether use of the invalid assessment protocol deprived the trial court of fundamental jurisdictionโare legal ones. The return could not formally respond to issues of prejudice or deprivation of a fair trial because the habeas corpus petition made no such allegations. In the combined respondent's brief *804 and return, the Attorney General argues Glenn suffered no prejudice and received a fair trial, thus framing those issues for our review.
B. 2008 OAL Determination No. 19
A proceeding under the SVPA begins when prison officials screen an inmate's records to determine whether the inmate is likely to be an SVP. If so, the inmate is referred to the DMH for a full evaluation to determine whether he or she meets the SVP criteria under section 6600. (ง 6601, subd. (b).) Two mental health professionals designated by the DMH (ง 6601, subd. (d)) "shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health, to determine whether the person is a sexually violent predator as defined in this article. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder" (ง 6601, subd. (c)). If the evaluators agree the person meets those criteria, the director of the DMH must forward a request for a commitment petition to the county where that person was convicted. (ง 6601, subd. (d).)
The mental health evaluators who performed the section 6601 evaluations of Glenn followed the Clinical Evaluator Handbook and Standardized Assessment Protocol issued by the DMH.
Government Code section 11340.5, subdivision (a) provides: "No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in [Government Code] Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter." A regulation enacted in violation of the Administrative Procedure Act, Government Code section 11340 et seq. (APA), is invalid. (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal. 4th 324, 340 [42 Cal. Rptr. 3d 47, 132 P.3d 249].)
In August 2008, the OAL issued a determination that various challenged portions of the standardized assessment protocol used by the DMH for SVPA evaluationsโspecifically, the Clinical Evaluator Handbook and Standardized Assessment Protocol (2007)โmet the statutory definition of a regulation and, therefore, should have been adopted pursuant to the APA, Government Code *805 section 11340.5.[5] (2008 OAL Determination No. 19, supra, at pp. 1, 13.) The OAL determined that, as such, the protocol constituted an underground regulation as defined in California Code of Regulations, title 1, section 250 and is therefore invalid.[6] (2008 OAL Determination No. 19, supra, at p. 13.)
The 2008 OAL Determination No. 19 concerned only whether the assessment protocol constituted a regulation under Government Code section 11342.600 and stated, "[n]othing in this analysis evaluates the advisability or the wisdom of the underlying action or enactment." (2008 OAL Determination No. 19, supra, at p. 1.) The 2008 OAL Determination No. 19 advised that the OAL "has neither the legal authority nor the technical expertise to evaluate the underlying policy issues involved in the subject of this determination." (Ibid.)
The Attorney General does not contest the OAL's determination that the 2007 standardized assessment protocol is invalid. Given the Attorney General's position, we assume, but do not decide, that assessment protocol is invalid as an underground regulation.[7] We also will presume the assessment protocol used for Glenn's evaluations was not materially different from the one determined to be invalid by the OAL.
C. Forfeiture
Challenges based on noncompliance with statutory requirements and regulations pertaining to evaluators should be raised in the trial court. (See People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888 [119 Cal. Rptr. 2d 1, 44 P.3d 949] (Ghilotti) [challenges to SVPA commitment petition based on noncompliance with statutory requirement of concurring evaluators' opinions should be raised in trial court]; In re Wright (2005) 128 Cal. App. 4th 663, 672 *806 [27 Cal. Rptr. 3d 281] (Wright) [question whether evaluator had requisite degree in psychology was an "evidentiary issue . . . properly left to the trial court"].) In People v. Medina (2009) 171 Cal. App. 4th 805, 817 [89 Cal. Rptr. 3d 830] (Medina), the court held the defendant SVP forfeited a challenge to the validity of the assessment protocol as an underground regulation by failing to raise the issue in the trial court.
Although Glenn did not challenge the validity of the assessment protocol in the trial court, his petition for writ of habeas corpus alleges 2008 OAL Determination No. 19 is "`newly discovered' evidence" justifying habeas corpus relief. The Attorney General does not deny that allegation. (See Duvall, supra, 9 Cal.4th at p. 476.) Accordingly, we find no forfeiture.
D. Fundamental Jurisdiction
1. The Pompa-Ortiz Rule
(5) In People v. Pompa-Ortiz (1980) 27 Cal. 3d 519, 529 [165 Cal. Rptr. 851, 612 P.2d 941] (Pompa-Ortiz), the California Supreme Court held illegalities in criminal preliminary hearings that are not "jurisdictional in the fundamental sense" are not reversible per se on an appeal following the subsequent trial. Rather, such illegalities must be reviewed "under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination." (Ibid.)
Under Pompa-Ortiz, "[t]he right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities. At that time, by application for extraordinary writ, the matter can be expeditiously returned to the magistrate for proceedings free of the charged defects." (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) "In other words, a defendant who feels he has suffered error at his preliminary hearing can seek to correct that error by filing a pretrial writ petition. If he does not, and elects to go to trial, the error at the preliminary hearing can only lead to reversal of the conviction if the error created actual prejudice." (People v. Hayes (2006) 137 Cal. App. 4th 34, 50 [39 Cal. Rptr. 3d 747] (Hayes).)
The Pompa-Ortiz rule apples to denial of substantive rights and technical irregularities in proceedings, including SVPA proceedings. (Hayes, supra, 137 Cal.App.4th at pp. 50-51; Wright, supra, 128 Cal.App.4th at p. 673; People v. Talhelm (2000) 85 Cal. App. 4th 400, 405 [102 Cal. Rptr. 2d 150].)
The term "jurisdictional in the fundamental sense" means the "legal power to hear and determine a cause." (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) *807 "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 authority over the subject matter or the parties." (Abelleira v. District Court of Appeal (1941) 17 Cal. 2d 280, 288 [109 P.2d 942].) When a court lacks fundamental jurisdiction, the judgment is void and therefore 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].)
2. Analysis of SVPA and Case Authority
We hold the use of the invalid assessment protocol to conduct Glenn's evaluations did not deprive the trial court of the legal power to hear and determine the subsequently filed SVPA commitment petition. Our conclusion is based on our analysis of a recent case reaching the same conclusion, the SVPA statutory scheme, and cases addressing analogous situations involving defective SVP evaluations.
a. Medina
In Medina, supra, 171 Cal. App. 4th 805, the Court of Appeal concluded use of the invalid assessment protocol in conducting SVPA intake evaluations did not deprive the trial court of fundamental jurisdiction over the subsequently filed SVPA commitment petition. The defendant in Medina had been initially committed as an SVP in 2001. (Medina, supra, 171 Cal.App.4th at p. 810.) Years later, the defendant admitted the allegations of a recommitment petition and consented to an order of indefinite commitment. (Id. at p. 811.) The defendant appealed from the recommitment order but argued the original commitment order was void because it was based on an evaluation conducted pursuant to the assessment protocol ruled invalid by 2008 OAL Determination No. 19. (Medina, supra, 171 Cal.App.4th at pp. 810-811.)
The Court of Appeal rejected that argument, explaining: "Although [the defendant] contends that the initial trial court lacked `fundamental' jurisdiction over his petition, thereby producing a void judgment, his claim does not call into question the court's personal or subject matter jurisdiction. As to personal jurisdiction, there is no evidence to suggest, and [the defendant] does not contend, that he lacked minimum contacts with the State of California [citation] or that he was not served with the documents necessary to initiate the proceedings. [Citations.] As to subject matter jurisdiction, the superior court was undoubtedly the appropriate court to hear the commitment petition [citations], and there is no claim of untimeliness. [Citation.]" (Medina, supra, 171 Cal.App.4th at p. 816.) The argument that evaluations based on invalid assessment protocols are a procedural prerequisite to jurisdiction, was, the court stated, "an argument that the court acted in excess of its jurisdiction, rather than without fundamental jurisdiction." (Ibid.)
*808 Glenn's jurisdictional challenge likewise does not question the trial court's personal or subject matter jurisdiction. There is no question the trial court in this case was the appropriate court to hear the SVPA commitment petition, and Glenn makes no claim of untimeliness.
b. The SVPA Statutory Scheme
Nothing in the SVPA states or suggests a trial court lacks fundamental jurisdiction over an SVPA commitment petition when the underlying evaluations are based on an assessment protocol found to be invalid under the APA.[8] Under the SVPA, the DMH must "evaluate the person in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health, to determine whether the person is a sexually violent predator . . . ." (ง 6601, subd. (c).) The evaluations form the basis on which the DMH decides whether it must forward to the appropriate county's designated counsel a request to file an SVPA commitment petition. (ง 6601, subd. (d).) However, the "`requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.'" (People v. Scott (2002) 100 Cal. App. 4th 1060, 1063 [123 Cal. Rptr. 2d 253].)
The county's designated counsel decides whether to file a petition for commitment. (ง 6601, subd. (d).) The filing of an SVPA commitment petition, not the assessment evaluations, invokes the court's jurisdiction over the matter. "[N]oncompliance with the procedural prerequisites of the [SVPA], such as failure to have two written psychological examinations, did not deprive the trial court of jurisdiction." (People v. Ward (2002) 97 Cal. App. 4th 631, 634 [118 Cal. Rptr. 2d 599].)
*809 The SVPA does not require the petition to allege the existence of or append the two assessment evaluations. (ง 6600.) "Although the DMH is required to send the two psychological evaluations to the county's designated counsel, and the designated counsel is given discretion to file a petition if he agrees with the DMH's recommendation (ง 6601, subds. (h), (i)), the statute does not by its terms require that the evaluations be alleged or appended to a petition." (People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122, 1128 [105 Cal. Rptr. 2d 159] (Preciado).)
c. Cases Addressing Analogous Situations
In Preciado, the Court of Appeal rejected the argument that the failure to obtain two evaluations deprived the trial court of jurisdiction to proceed on an SVPA commitment petition. (Preciado, supra, 87 Cal.App.4th at pp. 1127-1128.) The court held the SVPA does not require the petition to allege the existence of the two assessment evaluations and, therefore, the petition was valid at the time it was filed despite the lack of two evaluations. (Preciado, supra, 87 Cal.App.4th at p. 1128.) Although the petition was subject to attack on that ground, the court concluded, "this defect was not one going to the substantive validity of the complaint" and the failure to obtain evaluations "was merely in the nature of a plea in abatement, by which a defendant may argue that for collateral reasons a complaint should not proceed." (Ibid.) "In general, where a defect impairing a litigant's right to proceed existed at the time a complaint was filed but has been cured by the time the defense is raised, the defect will be ignored." (Ibid., citing 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, ง 1058, p. 508.)
The Preciado court explained: "[N]othing on the face of the statute requires a petition to allege the existence of two psychological evaluations, and the statute does not require the People to prove the existence of such evaluations at either the probable cause hearing or at trial. . . . [O]nce the petition is filed a new round of proceedings is triggered. [Citation.] After the petition is filed, rather than demonstrating the existence of the two evaluations, the People are required to show the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior. [Citation.] In short, like many other matters subject to the principles governing pleas in abatement, the requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so." (Preciado, supra, 87 Cal.App.4th at p. 1130, fn. omitted; see also People v. Scott, supra, 100 Cal.App.4th at p. 1063.)
(6) Preciado stands for the proposition that assessment evaluations of two concurring health professionals, though a requirement for filing an SVPA *810 commitment petition, are not a condition to the trial court's jurisdiction over the petition and do not affect the petition's substantive validity. Defective evaluations, or the failure to obtain them, can be cured later by producing valid evaluations, or by establishing the defendant satisfies the statutory definition of an SVP. Similarly here, assessment evaluations based on a valid standardized assessment protocol, though a requirement for filing an SVPA commitment petition, are not a condition to a trial court's jurisdiction over an SVPA commitment petition and do not affect the petition's substantive validity.
Wright, supra, 128 Cal. App. 4th 663, presents an analogous situation in which one of two evaluations was defective. In Wright, the two evaluators selected by the DMH could not agree whether the defendant met the SVP criteria. (Id. at p. 668.) As a result, two independent evaluators were appointed, and they concluded the defendant met the SVP criteria. (Ibid.) Subsequently, an SVPA petition was filed and a jury found the defendant was an SVP. (128 Cal.App.4th at pp. 667, 669.) After obtaining information suggesting one of the two independent evaluators lacked the education and experience qualifications required by section 6601, subdivision (g),[9] the defendant filed a petition for writ of habeas corpus alleging he was deprived of due process because one of the two evaluations supporting the SVPA commitment petition was defective. (Wright, supra, 128 Cal.App.4th at pp. 667, 669, 673.)
The Court of Appeal assumed for purposes of analysis the challenged evaluator was not qualified to conduct the secondary evaluation under subdivision (g) of section 6601. (Wright, supra, 128 Cal.App.4th at p. 672.) The court concluded any defect in the evaluations was harmless and likened the defect in the evaluation to an illegality in a pretrial commitment proceeding, which is not jurisdictional in a fundamental sense. (Id. at p. 673.) Under the Pompa-Ortiz rule, reversal was not required unless the defendant could show he was deprived of a fair trial or suffered prejudice as a result of the defective evaluation. (Wright, supra, 128 Cal.App.4th at p. 673.)
(7) An evaluation based on an assessment protocol later determined to be an underground regulation is similar to an evaluation prepared by an evaluator later found to have lacked the statutorily required education and experience qualifications. In both cases, the evaluation arguably is defective. In either case, the defendant may challenge the SVPA commitment petition at the time of the probable cause hearing by motion to dismiss asserting the *811 petition was the product of defective evaluations. (Wright, supra, 128 Cal.App.4th at p. 673.) An evaluation based on an invalid assessment protocol, like an evaluation prepared by an evaluator without the requisite education and experience qualifications, does not deprive the trial court of the power to hear or determine the SVPA commitment petition.
d. Ghilotti and People v. Allen
Glenn cites Ghilotti, supra, 27 Cal. 4th 888 and People v. Allen (2007) 42 Cal. 4th 91 [64 Cal. Rptr. 3d 124, 164 P.3d 557], as supporting his argument that evaluations based on the invalid assessment protocol deprived the court of fundamental jurisdiction. In Ghilotti, the evaluations performed under section 6601, subdivisions (c) through (f) did not produce the concurrence of two designated evaluators under section 6601, subdivision (d), or of two independent professionals under section 6601, subdivisions (e) and (f), that the defendant met the criteria for commitment. (Ghilotti, supra, 27 Cal.4th at p. 905.) Notwithstanding the lack of concurring evaluations, the district attorney, at the request of the DMH director, filed a petition for recommitment. (Id. at pp. 893-894.) The trial court dismissed the petition, and the Court of Appeal denied a petition for writ of mandamus to vacate that dismissal order. (Id. at pp. 899-900.)
The Supreme Court concluded an SVPA commitment or recommitment petition cannot be filed unless two mental health professionals agree the person qualifies as an SVP. (Ghilotti, supra, 27 Cal.4th at p. 894.) The court analyzed all the subdivisions of section 6601 together and concluded, "[t]he clear import of this scheme" is the DMH's determination whether to request the filing of a commitment petition is governed by the evaluation procedures. (Ghilotti, supra, 27 Cal.4th at p. 906.) If the two designated mental health professionals do not agree the person meets the criteria for commitment, and the two independent professionals also do not agree the person meets the criteria for commitment, then "the [DMH] Director may not request the filing of a petition," and the district attorney may not file one. (Id. at pp. 907, 909.)
Glenn argues that under Ghilotti, the district attorney here could not file an SVPA commitment petition because the evaluators followed an assessment protocol later determined to be invalid. To the contrary, Ghilotti supports the proposition that legally erroneous evaluations do not deprive the trial court of fundamental jurisdiction over a commitment petition. In Ghilotti, the Supreme Court concluded the trial court may review an evaluator's assessment for legal error and, if the court finds material legal error on the face of the report, must direct "that the erring evaluator prepare a new or corrected report applying correct legal standards." (Ghilotti, supra, 27 Cal.4th at p. 895.) Consistent with that conclusion, the Supreme Court remanded the *812 matter to the Court of Appeal with directions to issue a writ of mandamus vacating the trial court's order dismissing the recommitment petition and to remand the matter to the trial court. (Ibid.) On remand, the trial court was to review the designated evaluators' reports for material legal error and, if necessary, direct the evaluators to prepare new or corrected reports under the correct standard. (Id. at pp. 895, 929.) If the legally erroneous reports deprived the trial court of fundamental jurisdiction, then the trial court would have no power to order corrected or new ones.
In People v. Allen, supra, 42 Cal.4th at pages 94-95, the Supreme Court interpreted the Mentally Disordered Offenders Act, Penal Code section 2960 et seq., to conclude the district attorney's late-filed petition for recommitment prohibited the trial court from extending the defendant's commitment period. Similarly, under the SVPA, the Court of Appeal has held the failure to file a petition for recommitment before the prior commitment period expires divests the trial court of jurisdiction. (See Litmon v. Superior Court, supra, 123 Cal.App.4th at p. 1171.) But "[i]n general, the only act that may deprive a court of jurisdiction is the People's failure to file a petition for recommitment before the expiration of the prior commitment." (People v. Whaley (2008) 160 Cal. App. 4th 779, 804 [73 Cal. Rptr. 3d 133], italics added.) There is no question the SVPA commitment petition in this case was timely.
E. Prejudice/Fair Trial
Any error in using evaluations based on the invalid assessment protocol did not deprive the trial court of fundamental jurisdiction over the petition to commit Glenn as an SVP. Thus, under the Pompa-Ortiz rule, the error was not reversible per se and Glenn must show he was deprived of a fair trial or suffered prejudice as a result of the assessment protocol to obtain relief.
Instructive on the issue of prejudice are cases concerning irregularities in the SVPA probable cause hearing because such irregularities are subject to harmless error review.[10] (People v. Butler (1998) 68 Cal. App. 4th 421, 435 [80 *813 Cal.Rptr.2d 357] (Butler).) In Butler, the defendant challenged his SVP commitment on the ground the trial court did no more than conduct a facial review of the commitment petition at the probable cause hearing. (Butler, supra, 68 Cal.App.4th at p. 435.) The Court of Appeal agreed the trial court erred by not holding a full evidentiary hearing, but held the Pompa-Ortiz rule applied. (Ibid.) The court concluded the defendant suffered no prejudice because "[h]e was found to be an SVP after a trial at which he was able to cross-examine the prosecution's witnesses and call his own witnesses." (Ibid.)
In Hayes, supra, 137 Cal. App. 4th 34, 44, the People filed a petition to recommit the defendant just as the initial term of commitment was about to expire. Due to numerous delays, the trial on the recommitment petition had not proceeded to trial by the eve of the two-year recommitment period. (Ibid.) As a result, the People filed a second petition to recommit the defendant for another two-year period. (Ibid.) The trial court consolidated and tried the two recommitment petitions. (Ibid.) The probable cause hearing on the second recommitment petition was not conducted until the conclusion of trial. (Ibid.)
The Court of Appeal concluded the trial court erred by conducting the probable cause hearing on the second recommitment petition at the conclusion of trial, but held the error was not prejudicial under the Pompa-Ortiz rule. (Hayes, supra, 137 Cal.App.4th at p. 49.) Likening the probable cause hearing under the SVPA to a preliminary hearing in a criminal trial, the court reasoned: "Defendant did not have a probable cause hearing until after the evidentiary phase of trial had concluded and jury deliberations had begun. Thus, he had no pretrial probable cause hearing at all. But like the defendant who has an improper, nonevidentiary hearingโor a criminal defendant who has a preliminary hearing without counsel, in effect no hearing at allโ defendant received a full-blown trial and had a jury conclude, beyond a reasonable doubt, that he was an SVP within the meaning of section 6600, subdivision (a)(1)." (Hayes, supra, 137 Cal.App.4th at p. 51.)
In Wright, supra, 128 Cal.App.4th at page 673, the court concluded the defendant received a fair trial because he was represented by counsel, presented his own expert witness, and was permitted to cross-examine the People's witnesses. As for prejudice, the Wright court stated: "The only possible prejudice [the defendant] could have suffered was in the fact that the petition actually proceeded to trial; however, our high court concluded that the erroneous denial of a motion to dismiss an information under Penal Code section 995 will not be reversed on appeal in the absence of a showing that the defendant was deprived of a fair trial, or otherwise prejudiced in the ability to mount a defense." (Ibid.) The fact the defendant was "compelled to `participate in an otherwise fair trial'" therefore did not establish prejudice. (Id. at p. 674.)
*814 Glenn received a fair trial. He was represented by counsel, presented his own witnesses (including two expert witnesses), and cross-examined the People's witnesses. (Butler, supra, 68 Cal.App.4th at p. 435.) After a full, public trial, a jury found he was an SVP. We have concluded Glenn's only assertion of error occurring during trialโthe limitations on his expert witness's testimonyโhad no merit.
Nor did Glenn suffer prejudice. The 2008 OAL Determination No. 19 did not suggest the assessment protocol was flawed or unreliable as an instrument for assessing whether a person might be an SVP. The 2008 OAL Determination No. 19 concerned only the issue whether the assessment protocol was a regulation and expressly stated it was not evaluating its "advisability or . . . wisdom." (2008 OAL Determination No. 19, supra, p. 1.) Once the petition was filed, the People could not rely on the evaluations but were "`required to show the more essential fact'" that Glenn is an SVP. (People v. Scott, supra, 100 Cal.App.4th at p. 1063.) At the probable cause hearing, Glenn could have challenged the evaluations and cross-examined the evaluators. (Hayes, supra, 137 Cal.App.4th at p. 43.) He does not contend the invalid assessment protocol was used at the commitment trial, harmed his ability to mount a defense, or in any way influenced the jury in finding him to be an SVP. He does not challenge the sufficiency of the evidence at either the probable cause hearing or the commitment trial.
Glenn argues, "it is very possible that the [DMH], assuming it follows a fair regulation adoption process, would adopt regulations that create a completely different protocol for the evaluation of sexually violent predators." This type of prejudice is not relevant under a Pompa-Ortiz analysis, and Glenn concedes, "it is completely impossible to predict whether [Glenn] will be found to qualify as a sexually violent predator under the new protocol."
(8) Glenn's challenge to the evaluations based on the invalid assessment protocol fails because he received a fair trial and suffered no prejudice under the Pompa-Ortiz rule. For the same reason, his claim his trial counsel was ineffective for not challenging the evaluations in the trial court also fails. (Strickland v. Washington (1984) 466 U.S. 668, 687-698 [80 L. Ed. 2d 674, 104 S. Ct. 2052].) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Id. at p. 697; accord, In re Fields (1990) 51 Cal. 3d 1063, 1079 [275 Cal. Rptr. 384, 800 P.2d 862].)
*815 III.
The 2006 Amendments to the SVPA Do Not Violate Due Process, Equal Protection, Ex Post Facto, and Double Jeopardy.
Glenn argues the SVPA, as amended in 2006, violates the due process, equal protection, ex post facto, and double jeopardy clauses of the United States and California Constitutions. We conclude the 2006 amendments are constitutional.
A. The 2006 Amendments
(9) As originally enacted, the SVPA provided for a two-year term of confinement for persons civilly committed as SVP's, subject to subsequent petitions for extended commitment. (Former ง 6604.) The Legislature amended the SVPA, effective September 20, 2006, to provide for indeterminate commitment terms for persons determined to be SVP's. (Stats. 2006, ch. 337, งง 55, 56, 62.) In the November 2006 general election, California voters approved Proposition 83 (also known as Jessica's Law), which also provided for indeterminate terms of commitment for SVP's. Proposition 83 went into effect on November 8, 2006. (Prop. 83, งง 27, 28; see Cal. Const., art. II, ง 10, subd. (a).)[11] Section 6604 now states: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement in a secure facility. . . ."
The 2006 Amendments left unchanged the requirement of section 6605 that the committed person "have a current examination of his or her mental condition made at least once every year." (ง 6605, subd. (a).) Proposition 83 did amend section 6605 to change the scope and purpose of the annual examination. Subdivision (a) of section 6605 now includes the following requirements: "The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community. The Department of Mental Health shall file this periodic report with the court that committed the person under this article. The report shall be in the form of a declaration and shall be prepared by a professionally qualified person. A copy of the report *816 shall be served on the prosecuting agency involved in the initial commitment and upon the committed person." As before, the committed person may retain, or if indigent, the court may appoint, "a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person." (ง 6605, subd. (a).)
The 2006 Amendments amended subdivision (b) of section 6605 to permit the DMH to authorize the committed person to seek conditional release or unconditional discharge. Section 6605, subdivision (b) now provides: "If the Department of Mental Health determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge. The petition shall be filed with the court and served upon the prosecuting agency responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person."
(10) The 2006 Amendments did not change the procedures and standards used for consideration of a DMH-authorized petition for release. If the trial court determines at a show cause hearing on that petition for release that there is probable cause to believe the person's diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged, then the court must set a trial on the petition for discharge. (ง 6605, subd. (c).) The committed person is entitled to demand a jury trial, be present at trial, be represented by counsel, and be evaluated by experts. (ง 6605, subd. (d).) The court must appoint counsel and experts for a committed person who is indigent. (Ibid.)
At the hearing on the petition for conditional release or unconditional discharge, "[t]he burden of proof . . . shall be on the state to prove beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." (ง 6605, subd. (d).) If the court or jury finds in the committed person's favor, *817 the person shall be unconditionally released and discharged. (ง 6605, subd. (e).)
(11) Before the 2006 Amendments, a committed person could file a petition for conditional release or unconditional discharge if the DMH declined to authorize a petition pursuant to section 6605. (ง 6608, former subd. (a).) The 2006 Amendments did not materially change the procedures followed when the DMH declines to authorize the committed person to file a petition for release. Under both former and current section 6608, subdivision (a), a committed person filing a petition for release or discharge without DMH authorization is entitled to assistance of counsel. Under both former and current section 6608, subdivision (a), when a committed person files a petition for release or discharge without DMH authorization, the trial court "shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing."
Pursuant to section 6608, subdivision (d), the trial court must hold a hearing to determine whether the committed person is likely to engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community. If the committed person prevails on the petition, he or she must spend one year in a conditional release program before the court must order a hearing on the person's readiness for unconditional release. (ง 6608, subd. (d); People v. Cheek (2001) 25 Cal. 4th 894, 902 [108 Cal. Rptr. 2d 181, 24 P.3d 1204] ["Section 6608, which provides for conditional release to a community treatment program, does not mention section 6605, and permits a defendant to be unconditionally released only after the defendant has spent a year in a conditional release program."].) The trial court retains jurisdiction of the person throughout the course of the program. (ง 6608, subd. (d).) At the end of one year, the court holds another hearing to determine "if the person should be unconditionally released from commitment on the basis that, by reason of a diagnosed mental disorder, he or she is not a danger to the health and safety of others in that it is not likely that he or she will engage in sexually violent criminal behavior." (Ibid.)
Section 6608, subdivision (i) was not amended by Proposition 83 and continues to provide that in a hearing on a committed person's section 6608 petition for release or discharge, "the petitioner shall have the burden of proof by a preponderance of the evidence." (ง 6608, subd. (i).) After the trial court *818 denies a section 6608 petition, "the person may not file a new application until one year has elapsed from the date of the denial." (ง 6608, subd. (h).)
B. Due Process
Glenn argues the SVPA and the 2006 Amendments violate the due process clauses of the United States and California Constitutions by imposing an indefinite term of commitment without any requirement that the People prove the SVP remains mentally ill and dangerous.
1. Mathews v. Eldridge Factors
(12) In Mathews v. Eldridge (1976) 424 U.S. 319, 333, 335 [47 L. Ed. 2d 18, 96 S. Ct. 893], the Supreme Court identified three factors used to determine whether a person has received due process under the United States Constitution: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional procedure would entail.
(13) The first and third factors are not in dispute here. As to the first factor, "civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]" (Addington v. Texas (1979) 441 U.S. 418, 425 [60 L. Ed. 2d 323, 99 S. Ct. 1804] (Addington).) As to the third factor, there is no question the government has a substantial interest in providing treatment to those persons suffering from mental disorders and to protect the public from those whose mental disorders make them a danger to others. (Id. at p. 426.) The government also has a substantial interest in preserving its resources by avoiding the cost of unnecessary litigation. (See U.S. v. Wattleton (11th Cir. 2002) 296 F.3d 1184, 1200-1201.)
2. United States Supreme Court Authority
Glenn's due process challenge is directed to the second factor. He argues that under the 2006 Amendments, once a person is committed as an SVP for an indefinite term, the two procedures available for obtaining release do not provide adequate protection against the risk of an erroneous deprivation. The first procedure to obtain release depends on the DMH authorizing the committed person to file a petition for release or discharge based on the annual review. If the DMH authorizes a petition, and the trial court finds *819 probable cause, then the People must prove beyond a reasonable doubt the committed person remains an SVP. In the second procedure to obtain release, the committed person brings a petition for release. If the trial court finds the petition is not frivolous, then the committed person has the burden of proving by a preponderance of the evidence he or she should be released or discharged.
Glenn's due process argument is based on a quartet of United States Supreme Court cases dealing with constitutional challenges to civil involuntary commitment: Addington, supra, 441 U.S. 418; Jones v. United States (1983) 463 U.S. 354 [77 L. Ed. 2d 694, 103 S. Ct. 3043] (Jones); Foucha v. Louisiana (1992) 504 U.S. 71 [118 L. Ed. 2d 437, 112 S. Ct. 1780] (Foucha); and Kansas v. Hendricks (1997) 521 U.S. 346 [138 L. Ed. 2d 501, 117 S. Ct. 2072] (Hendricks).
The issue in Addington, supra, 441 U.S. at pages 419-422 was whether the Texas civil involuntary commitment statute violated due process by allowing an indefinite initial commitment with proof by a preponderance of the evidence. The Supreme Court held, "the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence." (Id. at p. 427.) Due process requires proof at least by clear and convincing evidence at the initial civil commitment proceeding. (Id. at p. 433.)
The 2006 Amendments did not alter the requirement of proof beyond a reasonable doubt at the initial SVPA commitment trial. Addington did not address procedures and burdens of proof following the initial commitment.
Jones, supra, 463 U.S. 354 concerned the District of Columbia's statutory scheme for confinement of persons found not guilty by reason of insanity (NGI). The District of Columbia statute required a criminal defendant to prove an NGI defense by a preponderance of the evidence. (Id. at p. 356, fn. 1.) After acquittal by reason of insanity, the statute required the defendant's immediate and indefinite confinement to a mental hospital without a hearing. (Id. at p. 356, fn. 2.) The statute required a hearing within 50 days of commitment to determine whether the defendant was eligible for release. (Id. at pp. 356-357.) At the hearing, the defendant had the burden of proof by a preponderance of the evidence. (Id. at p. 357.) If he or she did not meet that burden at the 50-day hearing, he or she was entitled by statute to a hearing every six months at which he or she had the burden by a preponderance of the evidence to prove entitlement to release. (Id. at pp. 357-358, 359.)
*820 The Supreme Court first addressed the defendant's argument that the finding of NGI at the criminal trial was sufficient to justify commitment. (Jones, supra, 463 U.S. at p. 363.) The court concluded a verdict of NGI establishes the defendant committed an act constituting a criminal offense and the defendant committed the act because of mental illnessโfacts sufficient to support involuntary commitment for an indefinite period. (Id. at pp. 363-364.)
The Supreme Court next addressed the defendant's argument his indefinite commitment was unconstitutional because proof of insanity was based only on a preponderance of the evidence, contrary to Addington's requirement of proof by clear and convincing evidence. (Jones, supra, 463 U.S. at pp. 366-367.) In rejecting that argument, the court focused on risk of erroneous commitment: "The Addington Court expressed particular concern that members of the public could be confined on the basis of `some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable.' [Citations.] In view of this concern, the Court deemed it inappropriate to ask the individual `to share equally with society the risk of error.' [Citation.] But since automatic commitment under [the District of Columbia statute] follows only if the acquittee himself advances insanity as a defense and proves that his criminal act was a product of his mental illness, there is good reason for diminished concern as to the risk of error. More important, the proof that he committed a criminal act as a result of mental illness eliminates the risk that he is being committed for mere `idiosyncratic behavior,' [citation]." (Id. at p. 367, fns. omitted.)
Finally, the Supreme Court addressed whether the defendant was entitled to release from confinement because he had been hospitalized for a longer period of time than he would have spent incarcerated if he had been convicted. (Jones, supra, 463 U.S. at p. 368.) On this point, the court held, "when a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society." (Id. at p. 370.)
Under Jones, it is permissible in certain circumstances to shift the burden to the committed person to prove by a preponderance of the evidence he or she no longer should be subject to civil commitment. Glenn argues Jones permits this burden-shifting only when, as in the case of an NGI plea, the committed person first raised the issue of mental illness. The focus of Jones is not on who raises the issue of mental illness, but whether the statutory scheme includes sufficient safeguards against erroneous deprivation. Thus, the *821 court in Jones reasoned the concerns expressed in Addington of wrongful confinement for abnormal behavior will be satisfied whenever there are sufficient safeguards to prevent the defendant from being committed for engaging in merely idiosyncratic behavior.
(14) The SVPA and the 2006 Amendments include safeguards against erroneous deprivations at least as effective as those approved in Jones. Under the SVPA, a person charged as an SVP is entitled to appointment of medical professionals and counsel, and to a jury trial. At the commitment trial, the People have the burden of proof beyond a reasonable doubt that the committed person is an SVP. In contrast, under the District of Columbia statute at issue in Jones, a defendant asserting NGI need only prove mental illness by a preponderance of the evidence. Under the 2006 Amendments, the burden shifts to the committed person to prove he or she should be released or discharged only if the DMH does not authorize a petition for discharge or release following an annual review and evaluation by a medical professional. For the annual review, the committed person is entitled to appointment of a medical professional. These safeguards diminish the risk of error in determining the committed person is an SVP and justify shifting the burden to the committed person to prove by a preponderance of the evidence he or she should be released or discharged from commitment.
Foucha, supra, 504 U.S. 71 dealt with a person committed for an indefinite period after being found NGI under Louisiana law. The opening paragraph of the opinion explains the background and context: "When a defendant in a criminal case pending in Louisiana is found not guilty by reason of insanity, he is committed to a psychiatric hospital unless he proves that he is not dangerous. This is so whether or not he is then insane. After commitment, if the acquittee or the superintendent begins release proceedings, a review panel at the hospital makes a written report on the patient's mental condition and whether he can be released without danger to himself or others. If release is recommended, the court must hold a hearing to determine dangerousness; the acquittee has the burden of proving that he is not dangerous. If found to be dangerous, the acquittee may be returned to the mental institution whether or not he is then mentally ill. Petitioner contends that this scheme denies him due process and equal protection because it allows a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness." (Id. at p. 73.)
In Foucha, the trial court declined to release the petitioner after a hearing in which no medical professional testified he suffered from a mental illness, and the only positive evidence of dangerousness was the testimony by medical professionals who did not feel comfortable in certifying the petitioner would not be dangerous if released. (Foucha, supra, 504 U.S. at pp. 74-75.)
*822 The Supreme Court held, first, the petitioner could not continue to be confined in a mental institution because "according to the testimony given at the hearing in the trial court, [the petitioner] is not suffering from a mental disease or illness." (Foucha, supra, 504 U.S. at p. 79.) The Supreme Court held next, "if [the petitioner] can no longer be held as an insanity acquittee in a mental hospital, he is entitled to constitutionally adequate procedures to establish the grounds for his confinement." (Ibid.) What procedures are constitutionally adequate? At the petitioner's recommitment hearing in Foucha, no medical professionalโor anybody else for that matterโtestified the petitioner would be a danger to the community. (Id. at p. 82.) The only evidence at the hearing supporting recommittal was a description of the petitioner's antisocial behavior while in prison and testimony by physicians that they would not "`feel comfortable'" in certifying that the petitioner would not be dangerous to himself or other people. (Ibid.) The Supreme Court concluded such evidence was "not enough to defeat [the petitioner]'s liberty interest under the Constitution in being freed from indefinite confinement in a mental facility." (Ibid.)
Near the end of the majority opinion, the court stated: "Furthermore, in civil commitment proceedings the State must establish the grounds of insanity and dangerousness permitting confinement by clear and convincing evidence. [Citation.] Similarly, the State must establish insanity and dangerousness by clear and convincing evidence in order to confine an insane convict beyond his criminal sentence, when the basis for his original confinement no longer exists. [Citations.]" (Foucha, supra, 504 U.S. at p. 86.)
Glenn quotes that passage from Foucha as supporting his argument the 2006 Amendments violate due process by shifting the burden to the SVP seeking release or discharge from confinement. We disagree with Glenn's interpretation. Immediately after the above quoted passage, the Supreme Court stated: "However, the State now claims that it may continue to confine [the petitioner], who is not now considered to be mentally ill, solely because he is deemed dangerous, but without assuming the burden of proving even this ground for confinement by clear and convincing evidence. The court below gave no convincing reason why the procedural safeguards against unwarranted confinement which are guaranteed to insane persons and those who have been convicted may be denied to a sane acquittee, and the State has done no better in this Court." (Foucha, supra, 504 U.S. at p. 86.)
In light of this language, and the facts of the case, we interpret Foucha to mean the state must prove a person found NGI both is dangerous and has a mental disorder to justify confinement, and that mere antisocial behavior and the discomfort of a medical professional are not enough to establish dangerousness. The Louisiana statute violated due process rights by permitting the *823 trial court to order the petitioner's continued confinement despite undisputed evidence he was not mentally ill.
(15) Here, in contrast, the SVPA does not allow a court to order continued confinement when the DMH and the medical professionals who evaluated the committed person all agree the person no longer has a diagnosed mental disorder or no longer poses a danger to the health and safety of others, unless the state proves the contrary by evidence beyond a reasonable doubt. The 2006 Amendments include procedures and safeguards, including an annual review, to determine whether the committed person should remain in confinement.
Finally, in Hendricks, the Supreme Court held only (1) the Kansas SVP statute's definition of "mental abnormality" satisfied due process; and (2) the statute did not violate the United States Constitution's ex post facto and double jeopardy prohibitions. (Hendricks, supra, 521 U.S. at pp. 357, 360-361, 371.) The court did not address the constitutionality of the statute's indeterminate period of commitment or of the procedure by which the committed person may obtain release.
(16) In sum, Addington, Jones, Foucha, and Hendricks, neither individually nor collectively, support the argument the 2006 Amendments violate due process. As we have explained, the SVPA and the 2006 Amendments include procedures containing sufficient safeguards against the risk of an erroneous deprivation to satisfy the Mathews v. Eldridge test, and therefore do not violate due process.
C. Equal Protection
Glenn argues the 2006 Amendments violate the equal protection clauses of the United States Constitution and the California Constitution by treating SVP's differently and more harshly than similarly situated committed persons, including those committed under the Mentally Disordered Offenders Act, Penal Code section 2960 et seq., and the Lanterman-Petris-Short Act, Welfare and Institutions Code section 5300 et seq. (LPSA), and those committed as NGI under Penal Code section 1026 et seq. As SVP's are not similarly situated to such other persons subject to civil commitment, Glenn's equal protection challenge fails.
(17) The equal protection clauses of the United States Constitution and the California Constitution require that persons similarly situated with respect to a law's legitimate purpose receive like treatment. (People v. Guzman (2005) 35 Cal. 4th 577, 591 [25 Cal. Rptr. 3d 761, 107 P.3d 860]; Cooley, supra, 29 Cal.4th at p. 253.) The first issue in addressing an equal protection claim is *824 whether the state has adopted a classification that affects two or more similarly situated persons or groups in an unequal manner. (Cooley, supra, 29 Cal.4th at p. 253.) "This initial inquiry is not whether persons are similarly situated for all purposes, but `whether they are similarly situated for purposes of the law challenged.'" (Ibid.) "If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold." (People v. Buffington (1999) 74 Cal. App. 4th 1149, 1155 [88 Cal. Rptr. 2d 696].)
(18) If the state's classification affects two or more similarly situated persons unequally for purposes of the law challenged, then the classification is subject to judicial scrutiny. (People v. Buffington, supra, 74 Cal.App.4th at p. 1155.) Strict scrutiny is the standard for measuring claims of unequal treatment in cases of involuntary civil commitment. (People v. Green (2000) 79 Cal. App. 4th 921, 924 [94 Cal. Rptr. 2d 355].)
(19) SVP's differ fundamentally from all other persons subject to civil commitment because, by definition, SVP's represent a small number of dangerous persons who have committed specified sex crimes and suffer from any of a number of mental disorders predisposing SVP's to commission of sexually violent acts in the future. (Cooley, supra, 29 Cal.4th at p. 253.) An SVP, because of his or her mental illness, "presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (Ghilotti, supra, 27 Cal.4th at p. 922.) SVP's have very high recidivism rates; they are "`the least likely to be cured and the most likely to reoffend.'" (Historical and Statutory Notes, 47C West's Ann. Pen. Code (2008 ed.) foll. ง 209, p. 52; Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, ง 2, subd. (b), p. 127.) This heightened level of dangerousness and resistance to treatment distinguish SVP's from others subject to involuntary civil commitment.
Persons committed as SVP's are not similarly situated to persons committed as mentally disordered offenders. The Mentally Disordered Offenders Act targets persons with severe mental disorders that might be kept in remission with treatment, while the 2006 Amendments recognize that persons committed as SVP's have mental disorders that might never be successfully treated. (See People v. Hubbart (2001) 88 Cal. App. 4th 1202, 1222 [106 Cal. Rptr. 2d 490]; People v. Buffington, supra, 74 Cal.App.4th at p. 1163; compare Pen. Code, ง 2962, subd. (a) with Welf. & Inst. Code, ง 6606, subd. (b).) When enacting the 2006 Amendments, the voters acknowledged that SVP's differ from other civilly committed persons because of the likelihood they will reoffend and the likelihood they will not be cured. The voter information *825 guide for Proposition 83 stated SVP's have very high rates of recidivismโ much higher than rates for other violent felonsโand "are the least likely to be cured." (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, ง 2, subd. (b), p. 127.)
The Wisconsin Supreme Court, in rejecting a similar equal protection challenge, stated: "The legislature has determined that as a class, persons predisposed to sexual violence are more likely to pose a higher level of danger to the community than do other classes of mentally ill or mentally disabled persons. This heightened level of dangerousness and the unique treatment needs of sexually violent persons justify distinct legislative approaches to further the compelling governmental purpose of protection of the public." (State v. Post (1995) 197 Wis. 2d 279, 322-323 [541 N.W.2d 115], cert. den. sub nom. Post et al. v. Wisconsin (1997) 521 U.S. 1118 [138 L. Ed. 2d 1011, 117 S. Ct. 2507].)
Persons committed as SVP's are not similarly situated to those committed under the LPSA, which provides for evaluation and treatment of mentally ill members of the public in a wide range of circumstances and applies to persons who have not committed any crime. (ง 5300.5, subd. (b).) In contrast, the SVPA targets a narrow class of SVP's who have committed a felony, are incarcerated in state prison at the time they become the subject of a commitment petition, and have a mental disorder predisposing them to committing criminal sexual acts to a degree making them a menace to public health and safety. (Cooley, supra, 29 Cal.4th at p. 253; see ง 6600, subd. (c).)
Persons committed as SVP's are not similarly situated to those committed after being found NGI. Involuntary civil commitment as a result of being found NGI is the direct consequence of a criminal act: The commitment forms an alternative to the prison term that would have been imposed if the defendant had been found to have been sane at the time of the commission of the underlying crime. (Pen. Code, ง 1026.) No specific crime is necessary for the involuntary commitment of persons found NGI, nor is it necessary for persons committed as NGI to have a mental illness that predisposes them to commit particular crimes in the future. In contrast, an SVP is a person who has committed specific types of crimes and has a diagnosed mental disorder predisposing the person to commission of violent sexual acts in the future. (ง 6600, subds. (a)(1), (c).)
D. Ex Post Facto/Double Jeopardy
Glenn argues the 2006 Amendments are punitive rather than civil and therefore violate the ex post facto and double jeopardy prohibitions of the federal and state Constitutions.
*826 (20) Both the federal Constitution and the state Constitution prohibit ex post facto laws (U.S. Const., art. I, ง 10, cl. 1; Cal. Const., art. I, ง 9) and prohibit placing a person in double jeopardy for the same offense (U.S. Const., 5th Amend.; Cal. Const., art. I, ง 15). The ex post facto clauses prohibit only those laws retroactively altering the definition of crimes or increasing the punishment for criminal acts. (Collins v. Youngblood (1990) 497 U.S. 37, 43 [111 L. Ed. 2d 30, 110 S. Ct. 2715].) The federal and state ex post facto clauses are interpreted identically. (People v. Helms (1997) 15 Cal. 4th 608, 614 [63 Cal. Rptr. 2d 620, 936 P.2d 1230].) Under the double jeopardy provisions, "once a criminal defendant is placed on trial and the jury is duly impaneled and sworn, a discharge of the jury without a verdict is equivalent to an acquittal and bars retrial unless (1) the defendant consents to the discharge or (2) legal necessity requires it." (Larios v. Superior Court (1979) 24 Cal. 3d 324, 329 [155 Cal. Rptr. 374, 594 P.2d 491].)
(21) A two-part test is used to determine whether a statutory scheme is punitive for purposes of ex post facto analysis. (Smith v. Doe (2003) 538 U.S. 84, 92 [155 L. Ed. 2d 164, 123 S. Ct. 1140]; Hendricks, supra, 521 U.S. at p. 361.) The court first determines whether the Legislature intended to impose punishment: "If the intention of the legislature was to impose punishment, that ends the inquiry." (Smith v. Doe, supra, 538 U.S. at p. 92; Hendricks, supra, 521 U.S. at p. 361.) If the court determines the Legislature intended to enact "a regulatory scheme that is civil and nonpunitive," then the court must determine whether the statutory scheme is "`"so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil."'" (Smith v. Doe, supra, 538 U.S. at p. 92; Hendricks, supra, 521 U.S. at p. 361.)
The intent of the 2006 Amendments was not to inflict punishment.[12] The official voter information guide stated: "It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders." (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, ง 31, p. 138, italics added.) The voter information guide also stated one purpose of the amendments to the SVPA was to eliminate "unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person." (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, ง 2, subd. (k), p. 127.)
Proposition 83 stated the change to an indeterminate term is designed to eliminate automatic SVP trials every two years when nothing suggests a *827 change in the committed person's SVP condition to warrant release: "`The People find and declare each of the following: [ถ] . . . [ถ] (k) California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator. As such, this act allows California to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person.'" (Historical and Statutory Notes, 47C West's Ann. Pen. Code, supra, foll. ง 209, pp. 52, 53; Voter Information Guide, Gen. Elec., supra, text of Prop. 83, ง 2, subd. (k), p. 127; see People v. Shields (2007) 155 Cal. App. 4th 559, 564 [65 Cal. Rptr. 3d 922].)
In People v. Allen, supra, 44 Cal.4th at pages 861-862, the California Supreme Court explained the intent of Proposition 83's provisions addressing civil commitment was not to punish: "Defendant next contends that Proposition 83, which was approved by the voters in November 2006, establishes that a purpose of proceedings under the SVPA is to punish individuals found to be sexually violent predators. The trial of the allegations under the petition to extend defendant's commitment occurred in 2005, prior to the passage of Proposition 83. Moreover, defendant's reliance upon references in the preamble of Proposition 83 to `adequate penalties' and `laws that punish,' and upon the circumstance that many of the amendments made by Proposition 83 concern the punishment of sex offenders, is misplaced. Proposition 83 amended the Penal Code as well as the Welfare and Institutions Code. The intent to punish sexually violent predators through Penal Code provisions that apply to criminal prosecutions does not establish an intent to punish sexually violent predators through Welfare and Institutions Code provisions that apply to civil commitment proceedings. Although Proposition 83 made amendments to both the criminal and the civil schemes, it recognized the different purposes of these two schemes, stating in the preamble: `Existing laws that punish aggravated sexual assault, habitual sexual offenders, and child molesters must be strengthened and improved. In addition, existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved.' (Voter Information Guide, Gen. Elec.[, supra,] text of Prop. 83, ง 2, subd. (h), p. 127 . . . .) For the same reason, the argument of the proponents of Proposition 83 that `[o]ur families deserve the protection of a tough sex offender punishment and control law' (Voter *828 Information Guide, Gen. Elec., supra, argument in favor of Prop. 83, p. 46) does not establish that the provisions of Proposition 83 addressing the civil commitment of sexually violent predators were intended to punish defendants."
The 2006 Amendments were not sufficiently punitive in effect to negate the intent to deem the 2006 Amendments civil. The provision for indeterminate periods of commitment does not in itself make the 2006 Amendments punitive in effect. In Hendricks, supra, 521 U.S. at page 363, the Supreme Court rejected the argument the Kansas SVP act was punitive in effect by providing for potentially indefinite confinement. The court stated the critical factor is whether the duration of confinement is "linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others." (Hendricks, at p. 363; see also Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1176-1177.)
The 2006 Amendments provide for an indeterminate period of commitment, but the term's duration is linked to treatment of the committed person until his or her mental disorder no longer causes him or her to be a threat to others. The 2006 Amendments provide procedures for the release of a committed person who no longer is an SVP. (งง 6605, 6608.) The 2006 Amendments left unchanged the requirement of section 6605 that the committed person have an annual mental examination, and expanded the scope and purpose of the examination to include consideration whether the committed person remains an SVP. (ง 6605, subd. (a).) As before, the committed person may retain, or, if indigent, is entitled to appointment of his or her own expert. (Ibid.) As a result of the annual examination, the DMH may authorize the committed person to file a petition for release or discharge. (ง 6605, subd. (b).) Without DMH authorization, the committed person may bring a petition for release or discharge. (ง 6608, subd. (a).)
(22) In sum, the purpose and effect of the 2006 Amendments were not to punish, but to make sure the committed person is confined until the person is no longer a threat to public safety, without having to conduct unnecessary recommitment trials every two years. Annual reviews and procedures for release protect the committed person from being confined "any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness." (Hendricks, supra, 521 U.S. at p. 364.)
*829 DISPOSITION
The judgment is affirmed. The order to show cause is dissolved and the petition for writ of habeas corpus is denied.
Sills, P. J., and Moore, J., concurred.
NOTES
[1] Further code references are to the Welfare and Institutions Code unless otherwise noted.
[2] Schwartz defined pedophilia as having two components. The first is "recurrent intense sexually arousing fantasies or sexual urges or behaviors ... with prepubescent children ... over a period longer than six months." The second is "the person has acted on the urges or the fantasies ... [a]nd/or the fantasies have caused marked distress in his life."
[3] Schwartz defined exhibitionism as the tendency to expose one's genitals to unsuspecting strangers.
[4] Specifically, Abbott was precluded from testifying (1) certain text authors had concluded pedophilia cannot be diagnosed based on the number of prepubescent victims over time; (2) Seto had written a book in which he concluded pedophilia was not necessarily chronic; and (3) as shown in the PowerPoint demonstration, Milloy and other experts in the field had reached the same conclusion. Glenn also argues he should have been able to introduce a graph prepared by Milloy on six-year recidivism rates.
[5] Glenn's evaluations were conducted in 2004 or 2005, and the OAL determined the 2007 assessment protocol was an underground regulation (2008 OAL Determination No. 19 (Aug. 15, 2008) p. 1 [as of Oct. 26, 2009]). Neither party argues the assessment protocol under which Glenn was evaluated differed materially from the 2007 assessment protocol determined by the OAL to constitute an underground regulation. Glenn argues: "Very likely, based upon the timing, [Glenn] was evaluated pursuant to the 2005 version of the handbook and protocol. However, that document was not adopted in accordance with the APA and is equally invalid as the 2007 version."
[6] California Code of Regulations, title 1, section 250, subdivision (a) provides: "`Underground regulation' means any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in Section 11342.600 of the Government Code, but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA and is not subject to an express statutory exemption from adoption pursuant to the APA."
[7] The DMH apparently has not challenged 2008 OAL Determination No. 19, and, in early 2009, promulgated emergency regulations, a copy of which is included as an exhibit in the combined respondent's brief and return.
[8] In Litmon v. Superior Court (2004) 123 Cal. App. 4th 1156, 1171 [21 Cal. Rptr. 3d 21], the court listed the acts that have been held not to divest the trial court of jurisdiction over an SVPA proceeding: "[I]t has been held that the pendency of an appeal from the prior commitment order does not divest the trial court of jurisdiction over a subsequent recommitment petition (People v. Hedge (1999) 72 Cal. App. 4th 1466, 1475-1477 [86 Cal. Rptr. 2d 52]); that the unlawfulness of the SVP's underlying custody does not divest the court of jurisdiction to proceed on a recommitment petition (id. at p. 1478); that failure to complete the trial on a subsequent petition before the expiration of the prior commitment period does not divest the trial court of jurisdiction to proceed on the subsequent petition for commitment (People v. Superior Court (Ramirez) (1999) 70 Cal. App. 4th 1384, 1390 [83 Cal. Rptr. 2d 402]); that the failure to obtain a recommitment order on the second/subsequent petition before the expiration of the underlying second commitment term does not divest the court of jurisdiction (Orozco v. Superior Court (2004) 117 Cal. App. 4th 170, 178-179 [11 Cal. Rptr. 3d 573]); and that delaying trial on a recommitment petition beyond the two years of the underlying commitment term does not violate the SVP's due process rights where the SVP or the SVP's attorney is responsible for the delays (id. at pp. 179-180)."
[9] The SVPA requires that the "independent professional[s]," appointed under section 6601, subdivision (e), have "at least five years of experience in the diagnosis and treatment of mental disorders" and either be a psychiatrist or a licensed psychologist with a "doctoral degree in psychology." (ง 6601, subd. (g).)
[10] The probable cause hearing required by the SVPA is considered analogous to a preliminary hearing in a criminal case. "Under the SVPA, an individual can only proceed to a trial if `the judge determines there is probable cause,' and the petition is dismissed if `there is not probable cause.' (ง 6602, subd. (a).) The probable cause hearing, therefore, is only a preliminary determination that cannot form the basis of a civil commitment; the ultimate determination of whether an individual can be committed as an SVP is made only at trial. (ง 6604.) For this reason, based on the structure of the SVPA, a section 6602 hearing is analogous to a preliminary hearing in a criminal case; both serve to `"`weed out groundless or unsupported charges . . . and to relieve the accused of the degradation and expense of a . . . trial.'"' [Citation.] Like a criminal preliminary hearing, the only purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the SVPA petition." (Cooley v. Superior Court (2002) 29 Cal. 4th 228, 247 [127 Cal. Rptr. 2d 177, 57 P.3d 654] (Cooley).)
[11] We refer to the Legislature's 2006 amendments to the SVPA and to Proposition 83 collectively as the 2006 Amendments.
[12] In Hubbart v. Superior Court, supra, 19 Cal.4th at page 1179, the California Supreme Court held the pre-Proposition 83 version of the SVPA did not constitute an ex post facto law because it did not impose liability or punishment for criminal conduct. The court rejected the argument that involuntary commitment under the SVPA was equivalent to a prison sentence. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1176.)
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632 F. Supp. 100 (1985)
Sonia RAMIREZ-ISALQUEZ, Plaintiff,
v.
Margaret HECKLER, in her capacity as Secretary of the United States Department of Health and Human Services, Defendant.
No. 83 Civ. 5828(CES).
United States District Court, S.D. New York.
June 27, 1985.
Bronx Legal Services, (Susan Barrie, New York City, of counsel), for plaintiff.
Rudolph W. Giuliani, U.S. Atty., New York City (Paul Milmed, Asst. U.S. Atty., of counsel), for defendant.
MEMORANDUM DECISION
STEWART, District Judge:
Plaintiff's counsel seeks attorneys fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), in connection with her successful appeal of a termination of disability benefits under the Social Security Act. For the following reasons, we grant the motion.
The procedural background of the case is uncontested. Plaintiff served her complaint on September 16, 1983. In order to prepare the administrative record, the Secretary received one 30-day extension of time to answer. The answer, which was filed on December 15, 1983, denied virtually all of the legally or factually relevant allegations of the complaint. According to the Assistant United States Attorney (the "AUSA") representing the Secretary, upon further review of the record, he decided that this "was an appropriate case for a voluntary remand on various grounds, including certain significant ones not raised by the complaint." He then asked his client to consider "a voluntary remand for the purpose of reversing the earlier decision and awarding full benefits." A pretrial conference was held before us on February 3, 1984. At that time, the AUSA informed his adversary that a voluntary *101 remand was being considered. The agreement to remand and award full benefits was reached in May of 1984; on May 31, 1984, we entered an order discontinuing the case and remanding it to the Secretary.
Under the Equal Access to Justice Act (the "EAJA"),
a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). The government does not contest that the plaintiff was the prevailing party in securing a remand and full award of benefits. However, the parties differ greatly in their assessment of whether the government's position was substantially justified.
Our Circuit has clearly held that we are to assess "the government's position in litigation rather than its actions during the underlying administrative proceedings." Dubose v. Pierce, 761 F.2d 913 (2d Cir. 1985) (citing Boudin v. Thomas, 732 F.2d 1107 (2d Cir.1984). Therefore, our focus is not on the propriety of the agency's termination of benefits, but on the litigating posture of the government in defense of that termination. Further,
[t]he government bears the burden of proving that its action as a litigant was substantially justified. Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1087 (2d Cir.1983); Spencer, 712 F.2d [539] at 557 [(D.C.Cir.1983)]; Ellis v. United States, 711 F.2d 1571, 1575 (Fed.Cir.1983); Dougherty v. Lehman, 711 F.2d 555, 561-62 (3d Cir.1983); H.R. Rep. No. 1418, 96th Cong., 2nd Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad. News 4984, 4989. "The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made." H.R. Rep. No. 1418 at 10, 1980 U.S.Code Cong. & Ad.News at 4989.
Dubose, supra, 761 F.2d at 917-18. The litigation position of the government in this case was initially a total denial of the substantive allegations of the complaint, with a subsequent total retreat from that position. Plaintiff's ultimate relief was all a social security claimant could hope for, an award of benefits.
The government argues that "for all practical purposes plaintiff's position was unopposed," and that the fact that an answer was filed in no way delayed the resolution of the suit or caused the plaintiff to expend any significant additional time. We do find the actual breakdown of the fee request a bit disturbing. Plaintiff requests a total fee award of $2,793.00 for 33.25 hours of work at the rate of $84 an hour. Between the two attorneys who worked on the case, 11.25 hours were spent on the preparation and filing of the complaint, 4.5 hours were spent after the answer was served, and 16.5 hours were spent on the fee request. There is thus merit to defendant's argument that what little opposition there was to the case did not result in the expenditure of significant additional time.
Nonetheless, the government's filing of an answer was not a meaningless formality. The government took the position that the Secretary's decision terminating benefits should be affirmed. This is as clear a reading of a party's litigation position as is possible. In Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1087-90 (2d Cir.1982), the Second Circuit went so far as to assess the reasonableness of the government's stance in settlement negotiations, finding seven months of discussion to arrive at a stipulation covering a few discrete issues unreasonable. Judge Newman dissented in that case, but what disturbed him was the lack of any opposition to the plaintiff's claim on the record, such as an answer to the complaint. Id. at 1087-90.
The government does not attempt to justify its answer, but concentrates on how that answer affected the course of the litigation. This is only one of the factors to be considered in assessing the government's position. The three factors recently *102 outlined by the Second Circuit to guide us are 1) the clarity of the governing law; 2) the foreseeable length and complexity of litigation; and 3) the consistency of the government's position. Dubose, supra, 761 F.2d at 918. We consider each in turn.
The legal standards governing social security appeals have been reiterated time and time again in the recent years' explosion of litigation. See, e.g., DeLeon v. Secretary of Health & Human Resources, 734 F.2d 930 (2d Cir.1984); Bluvband v. Heckler, 730 F.2d 886 (2d Cir.1984); Eiden v. Secretary of Health, Education & Welfare, 616 F.2d 63, 65 (2d Cir.1980). We doubt that the government would seriously argue that the law was unsettled with respect to the various errors alleged in the plaintiff's complaint. This factor weighs heavily in plaintiff's favor.
As to the foreseeable length and complexity of the litigation, the government has a slight edge. That the plaintiff was not seriously prejudiced by the filing of the answer is reflected in the amount of time spent on that portion of the case, almost all of which was in connection with settlement and a conference before us. The government simply did not adhere to the position taken in its answer, and the plaintiff points to no facts indicating that the answer made settlement more difficult or protracted the proceedings in any way.
The last factor is whether the government took a consistent position, or whether the plaintiff was subjected to "atypically harsh treatment." Dubose, supra, 761 F.2d at 919-20. This element is a bit of an anomaly in this case because the government's ultimate voluntary remand and award of benefits exemplifies much better treatment than most social security claimants receive. Nonetheless, we cannot believe that the EAJA would condone or that the government should benefit from a consistently unjustifiable legal position. Other courts have observed that the pleadings in social security cases have approached a violation of Rule 11's standards for good faith. See, e.g., Zimmerman v. Schweiker, 575 F. Supp. 1436, 1441 (E.D.N.Y.1983); Ceglia v. Schweiker, 566 F. Supp. 118, 125 n. 7 (E.D.N.Y.1983). Even if the filing of this answer reflected some general policy, it is still not excusable:
[T]he government's lawyer might have been bound by bureaucratic constraints. For example, his office might have exclusive authority to represent the United States in a particular kind of suit, and departmental policy might require defense, on appeal, of all favorable decisions rendered in adversary adjudication. Such constraints, though they may excuse the conduct of individual attorneys are precisely what the EAJA was designed to change. Awards of attorneys' fees in such circumstances would have a salutary effect: agencies that at present adhere to such policies likely would alter their rules in ways designed to promote more careful evaluation of the merits of individual cases.
Spencer v. NLRB, 712 F.2d 539, 558 (D.C. Cir.1983), cert. denied, 466 U.S. 936, 104 S. Ct. 1908, 80 L. Ed. 2d 457 (1984) (footnotes omitted). An answer denying all of the plaintiff's substantive allegations, totally abandoned later, cannot be seen as a litigation position entered into after serious evaluation of the merits.
We therefore find that the government's litigation position in this case was not substantially justified. The fact that the government ultimately settled, and skipped the usual procedure of cross-motions for judgment on the pleadings, lowers its liability in terms of the amount of fees, but does not absolve it from taking the position it initially did. The Second Circuit has expressed agreement with the D.C. Circuit's view of this type of situation:
It seems clear that, if the government does not immediately accede to the plaintiff's demand, but instead initially opposes his claims and then at some later stage (e.g., in a pre-trial settlement) surrenders, the United States will be liable for attorneys' fees regardless of which theory [litigation position or underlying action] is applied. Under such circumstances, not only will [sic] government have acted unreasonably, but it will have adopted (at least briefly) a litigation position lacking substantial justification.
*103 Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081 (1983) (quoting Spencer v. NLRB, supra, 712 F.2d at 555 n. 58). The government did not capitulate immediately, but filed an answer, and then took another five months to actually agree to remand the case. In light of the clarity of the law and the clarity of the errors in this case, the filing of an answer in this case cannot be ignored, but must be taken at its face valuea statement of the defendant's legal position. That position was far from reasonable, and lacked substantial justification, both legally and factually.
Defendant does not oppose the fees requested in terms of hours or hourly rates. We find that the plaintiff has shown an adequate justification for a fee based on an hourly rate in excess of the statute's $75 rate. The plaintiff's motion for attorneys' fees is granted in the amount of $2,793.00.
SO ORDERED.
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281 Pa. Superior Ct. 69 (1980)
421 A.2d 1151
GOLD & COMPANY, INC., a Pennsylvania Corporation, Appellant,
v.
NORTHEAST THEATER CORPORATION, a foreign corporation; National Amusements, Inc., a foreign corporation; Sumner Redstone, an individual; Western Pennsylvania Company; Eugene F.P. Kelly, an individual; Howard Christner, an individual; and Theodore A. McWilliams, an individual
v.
David J. TINKHAM, an individual.
Superior Court of Pennsylvania.
Argued November 13, 1979.
Filed August 22, 1980.
*72 James A. Lewis, Pittsburgh, for appellant.
Paul F. Laughlin, Pittsburgh, for appellees.
Before CERCONE, President Judge, and MONTGOMERY and LIPEZ, JJ.
LIPEZ, Judge:
This is an appeal from a judgment of the trial court awarding appellant $50,000 for breach of contract without interest and costs.
Appellant Gold and Company, Inc. is a Pennsylvania licensed real estate broker. Gold was contacted by Tinkham, a real estate broker licensed in another state, and the two agreed to cooperate in locating and negotiating the purchase of property suitable for Redstone, a client of Tinkham. Gold, through its licensed salesman, Lebovitz, located suitable property, which was owned by appellee Western Pennsylvania Ltd., and introduced the principals of Western Pennsylvania Ltd. to Tinkham. During the initial discussions among Lebovitz, Tinkham and Western Pennsylvania Ltd., a six per cent broker's commission was discussed as being reasonable, but was never firmly agreed upon. Because of a personality clash, Gold withdrew from active negotiation of the transaction. With some assistance from Tinkham, Western Pennsylvania Ltd. and Redstone continued the negotiations. In order to facilitate agreement, Tinkham, without the prior consent of Gold, agreed to *73 reduce the brokers' commission on the transaction from six per cent, or approximately $80,000, to $50,000. Thereafter, the principals executed a lease agreement with purchase option.
Tinkham and Gold being unable to agree as to how to divide the commission, Gold brought the present breach of contract action against the principals seeking the recovery of a broker's commission based either on six per cent of the purchase price or upon "usual and customary fees." Western Pennsylvania Ltd. admitted liability for the $50,000 commission and denied that any further amounts were due.
The lower court concluded that: 1) Tinkham and Gold had entered into a joint venture;[1] and 2) there was a specific agreement between Tinkham and Western Pennsylvania Ltd., which agreement was binding on Gold, whereby the joint venture agreed to accept as a real estate commission the sum of $50,000. Based on that finding of an express contract, the court then entered an order awarding Gold, as one of the joint venturers, and as trustee for the joint venture, the sum of $50,000. The lower court declined to award prejudgment interest, and ordered each party to bear its own costs.
In this appeal, Gold contends that the lower court erred: 1) in finding that Tinkham had authority to bind Gold to a $50,000 commission in light of the fact that Tinkham was not a real estate broker licensed in the Commonwealth of Pennsylvania; 2) in finding that Western Pennsylvania's agreement to pay a six per cent commission was conditional; 3) in finding that Tinkham unconditionally agreed to accept a reduction of commission and that Gold was bound thereby; 4) in not adopting a "usual and customary" theory of damages; and 5) in refusing to allow Gold interest and costs of suit.
*74 Gold's first contention is that since Tinkham was not licensed in Pennsylvania as a real estate broker he had no authority to agree to a $50,000 commission. The only authority Gold cites for its position is the Real Estate Brokers License Act.[2] Gold argues that, under the Act, the only person who was authorized to negotiate with the principals regarding the commission was Gold's registered broker, Sanford Gold.
We disagree with Gold's interpretation of the Act. While possession of a Pennsylvania license is a condition precedent to enforcement of a commission agreement by a broker against its principal, 63 P.S. § 446;[3]Burke v. Israel, 264 Pa.Super. 286, 399 A.2d 779 (1979), a broker licensed only in another state is not prevented from negotiating a commission or otherwise acting as a broker on behalf of a joint venture which includes a licensed Pennsylvania broker. Such activities are implicitly sanctioned by section 445(a) of the Act[4] which provides that real estate brokers and salesmen licensed in other states under similar legislation may render services and do acts forbidden to other than Pennsylvania licensees and nevertheless be legally compensated for these activities. This compensation must, however, be received *75 through the agency of the cooperating Pennsylvania broker, who alone may bring an action for compensation against the principal under section 446.
Thus it does not appear that the Real Estate Brokers License Act prohibited Tinkham's actions, nor did it disable him from negotiating on behalf of the brokers' joint venture. The lower court was justified under the evidence in finding that Tinkham, as agent for the joint venture, was authorized to agree, in its behalf, to a commission of $50,000.
Gold also challenges the lower court's handling of the issues of costs and prejudgment interest. Despite judgment in Gold's favor, the lower court failed to award costs. "It is a general rule in our judicial system, stemming from the Statute of Gloucester, 6 Edw. 1, c. 1 (1275), that costs inherent in a law suit are awarded to and should be recoverable by the prevailing party. These are the costs of proceeding in court, not those of preparation, consultation, and fees generally." De Fulvio v. Holst, 239 Pa.Super. 66, 69, 362 A.2d 1098, 1099 (1976). "At law the general rule is that costs follow as a matter of course, and the court has no discretion to award or deny them." 15 Standard Pennsylvania Practice 584. We see no reason in the present case why the general rule should not have been followed.[5] Therefore, costs should be awarded.
*76 The next issue relates to the lower court's refusal to award prejudgment interest. The court below declined to award interest to plaintiff Gold, based upon the following reasoning: "Early on in the dispute between plaintiff and defendants, Western Pennsylvania Ltd., et al. admitted that it was obligated in the amount of $50,000 and offered to pay that sum to the plaintiff in full settlement of the case. Declining the proferred sum, the plaintiff demanded a total amount which this court found to be excessive and unrealistic. For these reasons the Court declined to award interest." (Addendum to Opinion of the court below.) The trial court thus apparently approached the question of the award of prejudgment interest as a matter of discretion rather than as a matter of right. In doing so, it erred. In a contract action the award of such interest does not depend upon discretion but is a legal right. Palmgreen v. Palmer's Garage, Inc., 383 Pa. 105, 108, 117 A.2d 721, 722 (1955); West Republic Mining Co. v. Jones & Laughlins, 108 Pa. 55, 68 (1884). It must be awarded despite the good faith of the party contesting the claim. For example, McCornack v. Sharples, 254 Pa. 541, 99 A. 155 (1916), involved royalty payments held due in installments under a patent license agreement. The lower court refused to award prejudgment interest on the installments on the ground that the refusal to pay had been based upon a good faith difference of opinion. The Supreme Court in reversing stated:
Even when no demand for payment has been made, it has been held that interest should be paid from the time when there should have been an accounting and payment.. . . It is a sound principle, equally applicable in equity or at law, that one who retains money, after it is justly due and payable to another should pay interest for the detention.
254 Pa. 541, 543, 99 A. 155.
This rule is applicable despite the fact that the creditor's demands were in excess of the amount due. As stated by Mr. Justice Trunkey, speaking for the Supreme Court in *77 West Republic Mining Co. v. Jones & Laughlins, 108 Pa. 55 (1884):
In this state it seems to have been long understood that where it is the duty of the debtor to pay the sum he owes, and the creditor demands a greater sum, the debtor can only relieve himself from liability by tendering payment of the debt. A bona fide dispute as to the amount of indebtedness is no bar to the accruing of interest. If a tender of payment falls short of the sum found to be due at the time of tender, interest runs on the whole.
108 Pa. 55, 69.
The lower court, in the case before us, found the existence of a contract which obligated Western Pennsylvania Ltd. to pay brokers' commissions in the specific amount of $50,000. Western Pennsylvania Ltd.'s subsequent offer to pay Gold $50,000 in full settlement of the case was insufficient to stop the accruing of interest. While a sufficient tender may stop the running of interest, the offer of settlement made by Western Pennsylvania Ltd. did not constitute sufficient tender because it did not include interest to the date of tender and because a tender must be paid into court if refused. See Englehart v. Cassatt, 305 Pa. 117, 120-1, 157 A. 256 (1931); Sun Shipbuilding & Dry Dock Co. v. U.S. Lines, Inc., 439 F.Supp. 671, 680 (E.D.Pa. 1977), aff'd without opinion 582 F.2d 1276 (3rd Cir. 1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 846, 59 L.Ed.2d 40 (1979). Defendants not having made suitable tender, plaintiff is entitled to prejudgment interest from the date payments were due under the contract.
Case remanded to the lower court for the addition of costs and interest to the verdict in accordance with this opinion. In all other respects, the order of the lower court is affirmed.[6]
NOTES
[1] "A joint venture is an association of persons or corporations, who by contract, express, or implied, agreed to engage in a common enterprise for their mutual profit." Richardson v. Walsh Const. Co., 3 Cir. 1964, 334 F.2d 334, 336. Each joint venturer is both an agent and a principal of the joint venture. 46 Am.Jur.2d, Joint Ventures § 1; See also McRoberts v. Phelps, 391 Pa. 591, 599, 138 A.2d 439, 443 (1958).
[2] Act of May 1, 1929, P.L. 1216, as amended, 63 P.S. § 431 et seq.
[3] § 446 states:
"No action or suit shall be instituted, nor recovery therein be had, in any court of this Commonwealth by any person, copartnership, association, or corporation for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act to others than licensed real estate brokers, unless such person, copartnership, association or corporation was duly licensed hereunder as real estate broker at the time of doing such act of the rendering of such service. 1929, May 1, P.L. 1216, § 16; 1945, May 25, P.L. 1023, § 1.
[4] 63 P.S. § 445(a), which states:
It shall be unlawful for any licensed real estate broker, or real estate salesman, to pay any compensation, in money or other valuable thing, to any person other than a real estate broker or real estate salesman licensed under the provisions of this act or under the laws of another state having the same or similar provisions regarding payment of compensation, for the rendering of any service, or the doing of any of the acts by this act forbidden to be rendered or performed by other than licensees.
[5] This case, while originally filed in equity, was properly transferred to the law side prior to trial. Allowance of costs in equity is within the courts sound discretion. See, Stotsenburg v. Frost, 465 Pa. 187, 194, 348 A.2d 418, 422 (1975). Pa.R.C.P. No. 1526.
The problem of costs is presently covered by a variety of statutes and rules. See 15 Standard Pennsylvania Practice 553 et seq. The Judicial Code in § 1726 has now made possible the promulgation of a comprehensive set of standards by providing that "[t]he governing authority shall prescribe by general rule the standards governing the imposition and taxation of costs, including the items which constitute taxable costs, the litigants who shall bear such costs, and the discretion vested in the courts to modify the amount and responsibility for costs in specific matters. No such standards have as yet been promulgated by the "governing authority," i.e., "(1) the Supreme Court; or (2) any agency or unit of the unified judicial system exercising a power or performing a duty pursuant to section 1721 (relating to delegation of powers)." 42 Pa.C.S.A. § 102.
[6] Since we uphold the lower court's finding that Tinkham validly contracted for a $50,000 commission on behalf of the brokers' joint venture, it is unnecessary to address Gold's other contentions.
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91 Ga. App. 125 (1954)
85 S.E.2d 85
GEORGIA LIFE & HEALTH INS. CO.
v.
GAMMAGE.
35225.
Court of Appeals of Georgia.
Decided November 26, 1954.
*126 Turpin & Lane & Mattox, Jule B. Greene, for plaintiff in error.
E. W. Maynard, H. T. O'Neal, Jr., contra.
NICHOLS, J.
1. In the first two special grounds of the motion for new trial, it is contended that the court erred in submitting to the jury the question of the defendant's bad faith in refusing to pay the plaintiff, because there was no evidence authorizing the jury to make such a finding. The evidence relied upon by the plaintiff to support her contention in this respect is that the defendant made two payments of between twenty and thirty dollars to Mr. Gammage during 1951, when he had an illness, and that the defendant knew Mr. Gammage had undergone brain surgery in 1949. The defendant refused payment on the *127 ground that the condition causing the insured's death originated in 1949, before the policy was issued.
Dr. Sam Patton testified that he and another physician diagnosed the insured's condition as an aneurism of the internal carotid artery and sent him to Atlanta for surgery in 1949. Gammage had suffered from headaches, and Dr. Patton found blood in his spinal fluid. Dr. Patton attended him before his death, and found conditions of hypertension and a stroke following the onset of a convulsion on the day before Gammage died. Dr. Patton testified: "I don't think he ever recovered completely from the condition I diagnosed the first time I saw him, because he had some damage to the muscle control of his right eye, secondary to the aneurism and the surgery which persisted, and in October, 1951, he had a blackout spell. At that time, I felt, instead of just having blackouts, it was probably and early convulsion, and he had a convulsion at the time he died. These convulsions that he had were probably secondary to his aneurism and to the surgery he had. `Course if he hadn't had the surgery, he would have died of the aneurism long before. I think the convulsion and hypertension were all secondary or part and parcel of the disease that caused the aneurism and that the aneurism and the bleeding into the brain irritated the brain and caused the convulsion and that the hypertension was part and parcel of the same disease. It was a cardio-vascular disease, or disease of the vessel. I would say that it is my professional opinion that the cause of his death resulted from this condition which arose back in 1949, or at least as far back as the first time I saw him, on July 3, 1949. He had a marked impairment of vision of his right eye and an external squint or deviation of the right eye at that time. That condition lasted for a long period of time. I saw him in July, 1950, and he still had that eye defect. This eye defect caused or was a result of this condition for which I first diagnosed him in 1949." He further testified: "I believe the cause of Mr. Gammage's death and the diagnosis, the trouble that I saw in 1949, were directly connected."
This evidence was sufficient to have authorized a finding that the death of the insured resulted from sickness or disease originating before the policy was issued, and so was not covered by the policy. That the insurance company had previously paid *128 claims of the insured for sickness does not show bad faith, as it was not shown that these illnesses were connected with the cardio-vascular disease first observed in 1949. The fact that the defendant knew of this previous condition of the insured does not effect liability under the terms of the policy for the death resulting, as the policy covered only death resulting from illness originating after the date of issue. Liberty National Life Ins. Co. v. Parrimore, 68 Ga. App. 623 (23 S. E. 2d 541). The defendant's knowledge of the insured's condition might have shown its waiver of a representation or warranty of good health at the time the policy was issued, but the policy did not contain any such representation or warranty by the insured.
It appeared that the defendant's refusal to pay was justified and was not frivolous or unfounded, as the jury could have found that the fatal disease originated before the policy was issued, and that the death resulting was not covered. The evidence did not raise an issue as to the defendant's bad faith in refusing to pay the claim, and the court erred in submitting this issue to the jury. Southern Ins. Co. v. Ray, 40 Ga. App. 262 (149 S. E. 304); Guaranty Life Ins. Co. v. Martin, 44 Ga. App. 545 (162 S. E. 288); Life & Casualty Ins. Co. of Tenn. v. Freemon, 80 Ga. App. 443, 444 (56 S. E. 2d 303).
2. The third special ground complains of the following charge to the jury: "I charge you that if the insured enjoyed such health and strength as to justify the reasonable belief that he was free from derangement of organic functions or free from symptoms calculated to cause reasonable apprehensions of such derangement and to ordinary observation and to outward appearance his health is such that he may, with ordinary safety, be insured and upon ordinary terms, the requirement of good health is satisfied. Good health is a relative term and does not mean absolute freedom from physical infirmity but only such a condition of body and mind as that one may discharge the ordinary duties of life without serious strain upon the vital powers. A policy applied for and accepted in good faith cannot be voided by proof that the malady which ultimately occasioned the death or sickness must have existed in some incipient form prior to the issuance of the policy, but unknowingly and without at that time manifesting any symptoms or effect or in any way causing *129 reasonable apprehension of any impairment or derangement of the system, even though by acceptance of the contract the insured may have warranted himself to be in good health." It is said that these principles were inapplicable, under the terms of the policy sued on, to the facts of the case, in that the existence of even an incipient and unknown disease before the policy was issued would bar recovery on the policy for death resulting from such disease, regardless of what the insured believed regarding his health at the time of issue. It is contended that the charge tended to make it appear to the jury that the insured's belief as to his health when the policy was issued was a material fact.
There was no requirement or warranty of good health in the policy sued on, but error is not assigned on the charge in this respect. We note also that the charge does not mention the insured's personal belief as to his good health. The good health of the insured at the time the policy was issued was relevant to the question of whether the disease resulting in his death originated before or after the date of the policy. The issue may be stated as being whether or not the insured was afflicted with the fatal disease when the policy was issued, or as being whether the fatal disease originated before or after the issue date. We see no material difference. The charge here complained of submitted the issue in the first form.
Under the facts of the present case, it was unquestioned that the insured suffered an aneurism of the internal carotid artery, leading to his brain, within the year previous to the date of the policy; that he then had symptoms of headache and blood in his spinal fluid, and that the aneurism was removed by surgery. While the aneurism of the artery was removed, the cardio-vascular disease producing the aneurism may have continued until the policy was issued and then until the insured died. This was the purport of Dr. Patton's opinion, as set out in the first division of this opinion. Mrs. Gammage testified that, in 1950, her husband was in good health, free of disease, and as well as ever he had been, and was making no complaints to her. If at that time he showed no observable symptoms, the jury were authorized to find, as they did, that the disease resulting in his death originated after the policy was issued, and so was covered.
As said in National Life & Accident Ins. Co. v. Martin, 35 *130 Ga. App. 1, 4 (132 S. E. 120): "The cause or causes of death are ofttimes as subtle and obscure as any fact which relates to the life of man. It is rarely as simple a proposition as the verdict of a coroner's inquest. Rather is it true, as some philosopher has said, that all life carries within itself the germ of its own dissolution, that to live is to begin to die." To permit the insurer to defeat recovery by showing that a death was not insured because it resulted from what was, when the policy was issued, an incipient and unknown disease, although it may have "originated" in a technical sense at some time previous to the date of the policy, would be to allow the insurer to frustrate the bona fide expectations of the insured, who, having reason to believe that he was free of disease when the policy was issued, would expect that any disease causing his death would be one originating later and so within the coverage of the policy. The insurer in the present case, although contending for such a construction of its policy, sought to prove that the disease "originated," in the sense that it was known and manifest to the insured, before the policy was issued, and submitted medical opinion that the disease continued and resulted in the insured's death. However, the jury was authorized to believe that the insured had recovered from such disease because he was in good health when the policy was issued. The charge complained of permitted the jury so to find, and was applicable to the facts of the case. It did not permit the jury to find for the plaintiff even though the disease had originated, or become known and manifest in its symptoms, before the policy was issued.
3. In support of the general grounds of its motion, the defendant contends only that the evidence was insufficient to show bad faith on its part, and this contention must be sustained, as indicated in the first division of this opinion. On condition that the amounts awarded for damages and attorney's fees be written off within ten days after the remittitur is received, the judgment is affirmed, otherwise reversed.
Judgment affirmed on condition. Townsend, Carlisle, and Quillian, JJ., concur. Felton, C. J., and Gardner, P. J., dissent.
FELTON, C. J., dissenting. I think that the charge treated in division 2 of the majority opinion was erroneous. In the absence of a statutory prohibition, such a contract of insurance as in this *131 case is lawful if no reason appears why it is contrary to public policy. 29 Am. Jur. 184, § 166, note 7; Liberty National Life Ins. Co. v. Parrimore, 68 Ga. App. 623. The subject matter of the charge was foreign to any issue in the case and was misleading and confusing. Under such a policy the appearance of the insured is immaterial, and such a policy cannot be said in any and every event to insure against a malady or disease which existed in an incipient form prior to the issuance of the policy, when there are no manifest symptoms or reasonable apprehension of impairment of the system. This type of policy, issued for small amounts and for small premiums, may be most advantageous for those who could not secure ordinary policies either because of physical or financial conditions. The effect of such a charge, if applied, is to change the terms of the contract. Gardner, P. J., concurs in this dissent.
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632 F.Supp. 59 (1986)
BRITISH STEEL CORPORATION, et al., Plaintiffs,
v.
UNITED STATES, et al., Defendants,
Allegheny Ludlum Steel Corporation, et al., Defendants-Intervenors.
No. 83-7-01032.
United States Court of International Trade.
March 31, 1986.
*60 Steptoe & Johnson (Richard O. Cunningham, Charlene Barshefsky, William L. Martin, II and Neil R. Ellis, Washington, D.C., of counsel), for plaintiffs.
Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, and Sheila N. Ziff, Washington, D.C., Esq., for defendants.
Collier, Shannon, Rill & Scott (David A. Hartquist and Paul C. Rosenthal, Washington, D.C., of counsel), for defendants-intervenors.
NEWMAN, Senior Judge:
Introduction
The central issue presented, having significant international trade implications for foreign governments that make "equity infusions" in state-owned enterprises in poor financial health, is: Under what circumstances are such companies "uncreditworthy" thereby making the government's investments commercially unreasonable and hence countervailable subsidies under 19 U.S.C. § 1677(5)(B)(i). On this vital aspect of the case, the present opinion is a sequel to the court's previous decision, British Steel Corporation v. United States, 9 CIT ___, 605 F.Supp. 286 (1985), remanding the action to the United States Department of Commerce, International Trade Administration (ITA) for further proceedings, discussed below. Of transcendent importance in this case are the methodologies used by ITA on remand in valuing the alleged subsidies.
This court's decision of March 8, 1985 sustained ITA's final affirmative countervailing duty determination regarding stainless steel plate from the United Kingdom, 48 Fed.Reg. 19048, April 27, 1983 (Final), finding that the British government's equity investments in British Steel Corporation (BSC) from fiscal year (FY) 1978/79 to FY 1981/82 constituted countervailable subsidies within the meaning of 19 U.S.C. § 1671. However, pursuant to the Government's request (and over plaintiff's opposition), this action was remanded to ITA for: (1) redetermination of whether the equity infusions during FY 1977/78[1] constituted countervailable subsidies; (2) supplementation of the administrative record with all information obtained and/or utilized by ITA in making its determination relative to *61 the creditworthiness of BSC in FY 1977/78; (3) revaluation and recalculation of the subsidies affected by ITA's new methodologies described in the "Subsidies Appendix" to the Final Affirmative Countervailing Duty Determinations and Countervailing Duty Order in Cold-Rolled Carbon Steel Flat-Rolled Products from Argentina, 49 Fed. Reg. 18006, 18016 (April 26, 1984) (Final).
On September 9, 1985 ITA transmitted to this court its Results of Remand Proceedings ("Remand Results"), in which ITA determined: (1) equity infusions by the British government in FY 1977/78 were made "on terms inconsistent with commercial considerations" within the meaning of 19 U.S.C. § 1677(5)(B)(i), and consequently, constituted countervailable subsidies; and (2) the benefits from the equity infusions during FYs 1977/78 to 1981/82 should, irrespective of the actual use of the funds, be amortized over a fifteen year period, representing the average useful life of renewable physical assets in the domestic steel industry.[2]
Oral argument was heard pursuant to plaintiff motion on March 11, 1986; at the conclusion, the court reserved decision.
Presently before the court is plaintiffs' motion under Rule 56.1 for judgment on the agency record in connection with the foregoing Remand Results. Seeking reversal and further remand, plaintiffs contend that the following aspects of ITA's Remand Results are unsupported by substantial evidence and otherwise not in accordance with law: (1) ITA's finding that the British government's equity infusions in BSC during FY 1977/78 were inconsistent with commercial considerations; (2) ITA's fifteen-year allocation period for amortizing the benefits associated with subsidy funds used for certain purposes other than acquisition of long-lived assets; and (3) ITA's methodology for calculating the benefits associated with the British government's loan forgiveness to BSC.
Defendants and intervenors have responded seeking affirmance of the Remand Results.
The Commercial Reasonableness of the British Government's Equity Infusions in BSC in FY 1977/78
Initially, the court addresses ITA's reevaluation of the commercial reasonableness of the British government's equity infusions in BSC in FY 1977/78.
Section 771(5) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677(5), embraces any subsidy "bestowed directly or indirectly on the manufacture, production, or export of any class or kind of merchandise" including: "[t]he provision of capital, loans or loan guarantees on terms inconsistent with commercial considerations" (emphasis added). In 605 F.Supp. 286, this court construed the "commercial considerations" test concluding that an investment is consistent with commercial considerations if a reasonable investor could expect a reasonable rate of return on his investment within a reasonable period of time. 605 F.Supp. 286, 293. In its earlier decision, this court reviewed the financial history of BSC and found that for FYs 1978/79 through 1981/82, "given BSC's deteriorating financial condition and precarious situation, no private sector investor expecting a reasonable return on his investment within a reasonable time would have given any consideration whatever to investing in BSC during the period of its restructuring." Id. at 293. On remand, ITA applied the same "reasonable investor" criterion in determining whether the British government's equity infusions in FY 1977/78the year at issue in the present reviewwere "inconsistent with commercial considerations" within the meaning of the statute.
In reevaluating the commercial reasonableness of the equity infusions by the British government during FY 1977/78, ITA reviewed BSC's financial history, commencing with its establishment in 1967. The review covered such fundamental indicia of financial condition as net income of BSC, net income before interest and taxes, cash flow from operations, coverage of interest *62 expenses, return on equity, return on sales and current assets and liabilities.
ITA also considered such additional pertinent factors as the substantial cost of forming BSC, leading to unfavorable financial results for the first few years of the company's existence; the enormous social costs borne by BSC because of the British government's policy decisions, such as keeping high-cost plants open to preserve jobs; BSC's massive losses; the extremely bleak prospects of the company expressed by its own chairman in BSC's 1976-77 annual report; and the dismal outlook for the world steel market in general.
Based on its analysis of the foregoing factors, ITA reached the following conclusion:
After considering the results for fiscal years 1975-76 and 1976-77 and the outlook for the world steel market in general, a reasonable investor in 1977 would not have considered British Steel with its large losses, poor return on equity, and other signs of structural problems, to be a reasonable commercial investment.
Record on remand, document 1 at 7.
The court finds substantial evidence in the record of the bleak financial condition of BSC in FY 1977/78 and the precariousness of any expectation of future profitability. If ITA's application of the statutory expression "commercial considerations" is reasonable and not in conflict with the expressed intent of Congress, such interpretation is entitled to the traditional deference courts pay to agency interpretation. Board of Governors, FRS v. Dimension Financial Corp., ___ U.S. ___, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986); United States v. Riverside Bayview Homes, ___ U.S. ___, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985); Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U.S. ___, 105 S.Ct. 1102, 1108, 84 L.Ed.2d 90 (1985); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 2881-83, 81 L.Ed.2d 694 (1984) and Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978). See also American Lamb Company v. United States, 4 CAFC ___, 785 F.2d 994 (1986); Smith Corona Group, Consumer Products Division, SCM Corp. v. United States, 713 F.2d 1568, 1571 (Fed.Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984); and Consumer Products Division, SCM Corp. v. Silver Reed America, 753 F.2d 1033, 1039 (Fed.Cir.1985). Furthermore, it is a cardinal principle that "[t]he court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding". Chevron, U.S.A., Inc., 104 S.Ct. at 2782 n. 11. See also Chemical Manufacturers Association, 105 S.Ct. at 1108; and Consumer Products Division, 753 F.2d at 1039.
Plaintiffs argue that ITA's "reasonable investor" test is irrelevant to the commercial reasonableness of the British government's equity infusions and contrary to law. According to plaintiffs, the British government, unlike an outside investor, could not simply abandon BSC and incur no further losses if it decided to close the firm, and therefore the steps the British government took as the sole investor in the corporation were reasonably taken to minimize its prospective losses. In short, plaintiffs contend that the overall operating results and financial ratios of a loss-incurring company are irrelevant to the issue of whether the British government's equity infusions were inconsistent with commercial considerations within the purview of the statute.
The nub of the dispute between the parties concerns the interpretation of the term "commercial considerations"specifically, whether the statutory indicium of a subsidy prescribed by section 1677(5)(B)(i) permits ITA to assess the British government's equity infusions in BSC in FY 1977/78 from the standpoint of the reasonable outside investor, as claimed by defendants and intervenor. In essence, ITA considered whether a reasonable investor seeking *63 to make a sound investment would have invested in BSC during the period in question given BSC's history, financial status and the outlook for the steel industry in general at that point in time. As stated by ITA (record on remand, document 1 at 23-24):
When determining whether an equity investment is consistent with commercial considerations, the Department first looks for the value of the stock as determined by the market place. To the extent that a government procures stock at a market price, there is no subsidy. If a government pays a premium price for the shares, its investment is inconsistent with commercial considerations. When a firm's shares are not traded publicly, there is no market-determined price. Therefore, the Department must rely on information available to it that would be available to an investor at the time of the investment as a means of determining the commercial reasonableness of investments in the company.
Such an investor will study the company's financial statements to assess the company's current health and past performance. To get an idea of what events and decisions underlie these financial results, as well as to understand management's views of the company's goals and future prospects, an investor will also examine carefully the other information contained in the company's annual reports. Then, to evaluate the company's prospects in a wider context, an investor will consider any available independent studies and forecasts of the industry in general.
In connection with the instant litigation, BSC commissioned an economic analysis by Dr. Joseph W. McAnneny of Economists, Incorporated (record on remand, document 7 (non-confidential version)).[3] Predicated on his analysis, Dr. McAnneny submitted the following arguments concerning ITA's methodology:
First, based on application of ITA's reasonable investor test to six integrated U.S. steel producers with unfavorable operating results in 1981-84, McAnneny would expect to find that none of these companies were able to attract capital. Yet, during the period 1981-84, all the producers raised debt and equity capital in significant amounts.
Second, ITA has created a per se rule that continued investment in a failing company for any reason is inconsistent with commercial considerationswhich rule conflicts with observed market behavior where frequently corporations reorganize around their profitable assets, rather than terminate all productive facilities.
Finally, ITA's reasonable investor test focuses primarily on recent and current financial performance to the exclusion of other relevant data, and neglects to consider possible remedies that a firm might take to reposition itself in a market or reduce operating costs and restore profitability.
In view of the foregoing shortcomings of ITA's test, as perceived by McAnneny, he proposes an alternative standard for determining whether investment in a loss-incurring corporation is inconsistent with commercial considerations. Specifically, McAnneny proposes application of two tests:
(1) The corporation should continue to operate (and the investor should continue to cover operating losses) for facilities where revenues exceed the variable costs of production and make some contribution to coverage of fixed expenses. Predicated on this test, plaintiffs maintain that the term "commercial considerations" permits ITA to assess the commercial reasonableness of equity infusions from the standpoint of the interest of the British government and BSC's management in minimizing its losses. Plaintiffs also posit that U.S. investors and lenders "customarily" inject funds in failing companies to minimize their losses, irrespective of any expectation of future profits.
*64 (2) The investor should undertake all new investment schemes (or fund to completion existing investment schemes) where the discounted cash flows from the investment exceed the cost of the investment (viz., the net present value or "NPV" of specific projects or ventures are greater than zero).
Based on the application of the foregoing tests, McAnneny argues that investments by the British government in FY 1977/78 in BSC were consistent with "commercial considerations".
Capital-Raising Experiences of Six U.S. Steel Companies
As underpinning for their argument that BSC was creditworthy in FY 1977/78, plaintiffs heavily rely upon McAnneny's study of the capital-raising experiences of the six largest integrated U.S. steel companies during the three year period 1982-84. In his study, McAnneny found that the three-year operating results of the six companies were as poor as or worse than those of BSC in the two years prior to FY 1977/78. Despite their unfavorable operating results, McAnneny found that each of the U.S. companies attracted significant amounts of debt and equity capital. Plaintiffs contend that under ITA's test, none of these companies should have been able to attract debt or equity capital, and consequently ITA erroneously determined that for FY 1977/78 investment in BSC was not commercially reasonable.
Defendants challenge the validity of McAnneny's conclusions on the grounds that: 1) he used a different time period, 1982-84, for his comparison of the returns on equity of the United States steel producers with those of BSC in FY 1977/78, thus failing to consider the different economic climate, different market and different investor expectations in the two time periods; 2) market and investor expectations would depend, in part, on the financial history of the domestic companies, as well as the prevailing economic conditions, which were not considered by McAnneny; and 3) McAnneny erroneously assumed that ITA looked only at BSC's performance for the two preceding FYs, 1975/76 and 1976/77, when in fact, ITA considered BSC's financial history for FYs 1973/74 to 1977/78. In short, defendants insist that the fact the U.S. companies raised debt capital in 1982-84 is irrelevant to the question of BSC's ability to obtain private investment in the different market prevailing in 1977-78; and that it is "sheer speculation to assert that, under ITA's test, the domestic companies would not have been considered commercially reasonable investments" (defendant's memorandum at 24).
The court agrees with defendants' position. The capital-raising ability of the United States firms having different financial histories and future prospects than BSC during the economic climate of 1982-84 does not refute ITA's finding that equity infusions by the British government in BSC in FY 1977/78 were inconsistent with commercial considerations.
"Variable Costs" Test
Plaintiffs further proffer McAnneny's "variable costs" test, viz., that although a firm may show an overall loss, it should continue to operate so long as it can earn at least enough to cover its variable costs. The theory is that having covered variable costs, additional revenue can defray some of the fixed costs (costs that continue to exist even if production ceases, like rent). If a firm whose revenues did exceed its variable costs were to cease production, it would be foregoing revenue that could have helped to defray fixed costs. Accordingly, even though a firm may not be earning enough to cover its total costs (fixed plus variable), it would be economically rational to continue operations so that the overall loss would be minimized by the additional revenues. McAnneny maintains that equity funds used to help cover BSC's operating losses are not subsidies if BSC was covering its variable costs at the time.
As aptly pointed out by defendants, the variable cost test may be a useful analytical tool for the owner-manager as a means of deciding whether (and for how *65 long) to continue operating a loss-incurring company, but the test is inapposite to investment decisions by private investors. Simply put, it would be unrealistic to expect a private sector investor to supply operating funds to a loss-incurring firm merely to permit the firm to continue operations to minimize its losses. Thus, while it may be perfectly rational for an owner to sustain loss-minimizing operations, it would not be commercially reasonable for an investor to provide funds for that purpose without adequate assurance of the future profitability of the enterprise and a return on his investment within a reasonable time. The record supports no such assurances for BSC in FY 1977/78. Under these circumstances, ITA properly rejected application of the variable costs test.
The court stresses here that equity infusions in loss-incurring companies do not per se confer a subsidy, and defendants have not so argued in this case. Defendants agree with plaintiffs that the sole fact a company has been incurring losses is not dispositive of whether investments are consistent with commercial considerations. On that score, defendants point out ITA found that equity investments in BSC in years prior to FY 1977/78 were consistent with commercial considerations despite the fact that the company was sustaining substantial losses.
Although not germane to the variable costs analysis, it should also be mentioned that McAnneny attempts to justify the British government's equity infusions in BSC on the theory that it is likely that "opportunity costs" in some form would have been incurred by BSC (i.e., BSC's income would have fallen) had the British government failed to make its equity infusions in FY 1977/78. Again, such rationale may be applicable to the British government and BSC, who concededly had no option but to continue operation of BSC. Nonetheless, avoidance of such opportunity costs by equity infusions are irrelevant to a reasonable investor analysis.
Net Present Value Test
Dr. McAnneny also urges that the Net Present Value (NPV) test be utilized in determining the commercial reasonableness of the British government's investments in BSC. Hence, McAnneny observes that under standard principles of economic analysis, the commercial reasonableness of capital expenditures by BSC on new projects must properly be judged against an evaluation of the NPV of each project. Thus, projects whose discounted cash flows show a positive NPV are commercially justified; projects whose cash flow show a negative NPV are not. According to plaintiffs, NPV analysis focuses upon whether investment in a new project is commercially worthwhile (positive), and it is irrelevant whether a capital project (or some combination of projects) returns the corporation to overall profitability. In support of NPV analysis, plaintiffs make reference to "concrete market examples" of private companies that had suffered heavy losses in successive years and nevertheless continued to make new capital investments.
Defendants, however, correctly observe that NPV analysis is largely predicated upon long-term earnings and interest-rate assumptions, which at best would be tenuous; and that BSC furnished analyses only of individual projects without any evaluation of those projects in terms of their effect upon BSC's overall operations and income-producing prospects.
While unquestionably NVP analyses were of importance to BSC's management, they were relevant to an outside investor only to the extent that the analyses showed how the investments in the individual projects would affect the overall operations and future profitability of BSC. Stated differently, from the investor's point of view, an investment would not be commercially reasonable if overall the company may still constantly lose money and never provide a reasonable return no matter how justifiable a company's decision respecting individual projects analyzed on the basis of NPV.
*66 As stated by ITA in its remand results (record on remand, document 1 at 24-26):
The plaintiff suggests that a better way of measuring the commercial reasonableness of investment in a company is to examine the company's decisions on specific levels of production, capital expansion, and closing of plants. The Department agrees that a profit-maximizing company should use the types of analyses suggested by the plaintiff when making its managerial decisions on these issues, i.e., managers will attempt to set production at a level where marginal revenue equals marginal cost and will select among capital projects by comparing the net present values of alternative projects. However, while the Department does not take issue with the plaintiff on the economic validity of such tests, the Department believes tests of individual project decisions present too limited an appraisal of a company's overall condition to be the bases of the Department's methodology for evaluating purchases of equity. Such purchases relate to a company's operations as a whole, not just individual activities. Analyses of individual investment (disinvestment) projects, while laudable, are often meaningless in the context of a debate over the wisdom of equity purchases in a corporation. An individual project may be expected to be highly profitable, and indeed prove to be highly profitable once completed, yet the overall losses of the rest of the corporate investments may more than offset the new source of profitability. To the extent the Department should examine individual project appraisals, it should only do so if the respondent offering the appraisal also supplies contemporary analyses of the relevance of the project to the overall health of the corporation. For example, if a company is losing a billion dollars annually on all its investments and a new project provides a positive net return of $200 million, the company overall would still be losing $800 million annually and is, therefore, probably a bad equity investment.
Continuing, ITA commented (Id. at 26): British Steel, in the several project analyses submitted in response to the draft results of the remand, has not provided any information as to the effect of these projects on the corporation's overall prospects for profitability. The Department's broader approach, which does not limit itself to an analysis of individual management decision but instead looks at the overall performance of the company in the context both of the company's views of its prospects and independent industry forecasts, gives a better picture of the overall condition of a company and the reasonableness of investment in it.
Another serious problem stressed in the Remand Results is that ITA
might legitimately find a company that loses money year after year, and yet that same company can show it has never started a project without a thorough analysis that indicates the project will be profitable. An examination of the parts does not necessarily reflect the reality of the whole. [Id. at 27.]
The court holds that ITA properly declined to judge the commercial reasonableness of investment in BSC in FY 1977/78 on the basis of an economic analysis focused simply on the NPV of individual projects.
In sum, the court finds ITA's determination that the British government's investments in BSC in FY 1977/78 were inconsistent with commercial considerations, predicated upon its reasonable investor test, is supported by substantial evidence and otherwise in accordance with law.
ITA's Methodology for Valuing the Benefits from Equity Infusions
We now turn to the difficult issues concerning ITA's revised methodologies for valuing the benefits of the British government's equity infusions.
In its final determination in 1983, ITA calculated the value of the alleged subsidy *67 benefits to BSC in accordance with the principles announced in Certain Steel Products from Belgium, 47 Fed.Reg. 39304, 39316 (1982) (Final) (Appendix 2). However, in its Remand Results, ITA followed the revised methodology announced in the 1984 proceedings involving steel imports from Mexico and Argentina ("revised methodology"). Certain Carbon Steel Products from Mexico, 49 Fed.Reg. 5142, 5148 (1984) (Preliminary); Cold-Rolled Carbon Steel Flat-Rolled Products from Argentina, 49 Fed.Reg. 18006, 18016 (1984) (Final). Under the revised methodology, ITA allocated the subsidies arising from the British government's equity infusions over 15 years, irrespective of the use to which the funds were put. Such allocation period subsumed a stream of benefits lasting the average useful life of integrated steel-producing assets, as determined by the United States Internal Revenue Service.
ITA's allocation method is explained (record on remand, document 2 at 40):
To allocate these benefits over time, the Department has considered various allocation periods including a variety of fixed time periods and the average life of long-term debt for a company or country, but has concluded that there are no economic or financial rules that dictate the choice of any one particular allocation period. Therefore, the Department has chosen a standard periodthe average useful life of a company's renewable physical assets as determined by the U.S. Internal Revenue Service. The Department has openly stated that its choice is arbitrary in the sense that there are several viable options from which it could choose. However, within the context of the countervailing duty law, which dictates a period reflecting the commercial and competitive benefit of the subsidy, the Department believes its choice is reasonable. In addition to reasonableness, this standard offers predictability in the outcome of Department proceedings and, more importantly, eliminates inconsistent results between companies and countries.
Plaintiffs vigorously object to the use of the 15-year amortization period respecting subsidy funds that were not used to acquire long-lived assets,[4] but rather were used for other purposes. Specifically, plaintiffs argue that based on generally accepted accounting principles (GAAP):
1) The benefit of funds used to purchase assets prematurely retired must be expensed in the year of retirement.
2) The benefit of funds used to cover operating losses must be expensed in the year of receipt.
3) The benefit of funds used to cover redundancy and closure costs must be fully recognized in the year the decision is made to close the facility.
It is plaintiffs' position that ITA's across-the-board application of a 15-year amortization period for valuation of these "non-capital" subsidies is arbitrary, unsupported by substantial evidence of record, contravenes GAAP, and fails to reflect the commercial and competitive benefit of the equity infusions.[5]
Preliminary to discussion of the merits of the parties' contentions, it must be recognized that judicial deference should be accorded agency construction of a statute that it is charged with enforcing, particularly with respect to the broad discretion of the agency to apply reasonable methodologies in implementing the law. American Lamb Co., supra; Consumer Products Division, SCM Corp., 753 F.2d at 1039; Melamine Chemicals, Inc. v. United States, 732 F.2d 924, 928 (Fed.Cir.1984); Smith-Corona Group, Consumer Products Division, SCM Corp., 713 F.2d at 1571; Carlisle Tire & Rubber Co., Division of Carlisle Corp. v. United States, 10 CIT ___, 622 F.Supp. 1071 (1985); and *68 Bingham & Taylor, Division, Virginia Industries, Inc., et al. v. United States, 11 CIT ___, 627 F.Supp. 793 (1986) (judicial deference inapplicable where agency interpretation is contrary to statute and Congressional intent). Further, it should be stressed that ITA's methodology need not be the most reasonable in order to be upheld by this court, nor need it be the methodology that this Court would have selected had it been the decision maker. Asahi Chemical Industry Co. v. United States, 4 CIT 120, 123, 548 F.Supp. 1261, 1264 (1982).
In a recent decision, Alhambra Foundry v. United States, 10 CIT ___, 626 F.Supp. 402 (1985), the court, while recognizing that ITA in its discretion may choose one methodology or another in calculating the benefits of bounties or grants, pointed up that "any methodology employed must reasonably accurately reflect factual information in the administrative record" (At 408). Moreover, the Federal Circuit recently cautioned that the administering authority's discretion is not "unbounded". Freeport Minerals Company v. United States, 776 F.2d 1029 (1985) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 166-68, 83 S.Ct. 239, 244-46, 9 L.Ed.2d 207 (1962). And of course, "[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress". Board of Governors, 106 S.Ct. at 686.
Challenged here is ITA's methodology of allocating the benefits of the British government's equity infusions over 15 years, across the board irrespective of the use of the funds, representing the average useful life of capital assets in the integrated steel mills in the United States.
The legislative history of the Trade Agreements Act of 1979 shows that Congress recognized the concept of allocating the benefits of subsidies over a number of years, in conformity with the commercial and competitive benefit of the subsidy to the recipient:
There is a special problem in determining the gross subsidy with respect to a product in the case of nonrecurring subsidy grants or loans, such as those which aid an enterprise in acquiring capital equipment or a plant. Reasonable methods of allocating the value of such subsidies over the production or exportation of the products benefiting from the subsidy must be used. In particular, a reasonable period based on the commercial and competitive benefit to the recipient as a result of the subsidy must be used. For example, allocating a subsidy in equal increments over the anticipated 20-year useful life of capital equipment purchased with the aid of the subsidy would not be reasonable if the capital equipment gave the recipient of the subsidy an immediate significant competitive benefit compared to what would be the situation without the capital equipment and compared to the competitive benefit the equipment would likely provide in the later stages of its useful life.
S.Rep. No. 249, 96th Cong., 1st Sess., at 85-86, 1979 U.S.Code & Ad.News at 381, 472-473 (emphasis added).
Significantly, the Senate's report states that in allocating the benefit of the subsidy "a reasonable period based on the commercial and competitive benefit to the recipient as a result of the subsidy must be used". In the present case, ITA failed to adequately explain why a 15-year allocation period is reasonable based on the commercial and competitive benefit of the subsidies in question to BSC.
After careful review of ITA's methodology for allocating the benefits of the equity infusions, the court is constrained to conclude that linking the commercial and competitive benefit of the subsidies at issue to the 15-year average useful life of capital assets in the U.S. steel industry, while administratively convenient, is unreasonable and not in accord with Congressional intent that the benefits be allocated over a period of time reflecting the commercial and competitive benefit of the subsidy to the recipient.
The court recognizes that each of the valuation methodologies ITA considered has certain financial and economic "pitfalls" *69 and an inherent element of arbitrariness. But the court fails to perceive any basis whatever in the legislative history of the Trade Agreements Act of 1979, logic or the facts of record for allocating the commercial and competitive benefit of the subsidies at issue over a period linked to the average useful life of capital assets in the integrated U.S. steel mills.
ITA itself has conceded that the life of capital assets does not necessarily relate to the economic benefits of subsidy funds:
[W]e recognize first that physical assets are often a fairly small part of the cost of doing business, and second that even in highly capital intensive industries the benefit of funds received ... has no particular relationship to the life of the machinery.
Subsidies Appendix to Cold-Rolled Carbon Steel Flat-Rolled Products from Argentina, 49 Fed.Reg. 18006, 18018 (April 26, 1984) (Final) (emphasis added).
In the foregoing decision, ITA further candidly explained:
We originally chose the average useful life of the assets because we believed the benefits of a grant somehow had a life approximating the life of the assets ... We now consider this belief wrong; the life of the benefits is not observable.
Id. at 18021 (emphasis added).
Again, in Certain Carbon Steel Products from Mexico, 49 Fed.Reg. 5142, 5150 (Feb. 10, 1984) (Preliminary) ITA frankly stated:
The "life" of the countervailable benefit is indefinitely diffused around the time that the cash benefit arises. Therefore, the average life of equipment is arguably no more accurate a measure than simply choosing a number. [Emphasis added.]
Fundamentally, "an arbitrary allocation of [the] benefit" cannot be sustained. Michelin Tire Corp. v. United States, 6 CIT ___, Slip Op. 83-136 (December 22, 1983), vacated, Slip Op. 85-11 (January 28, 1985).
As previously noted, plaintiffs maintain that the subsidies in dispute must be allocated in accordance with GAAP. Interestingly, a portion of the legislative history of the 1979 Act cited by plaintiffs indicates that Congress intended "relating the value of a subsidy for acquiring assets to their anticipated useful life, based on generally accepted accounting principles". H.R.Rep. No. 317, 96th Cong., 1st Sess. 75 (1979) (emphasis added). Hence, it is clear that Congress intended that GAAP should be used where the funds provide an enterprise with capital equipment or a plant. But, there is nothing in the legislative history of the 1979 Act suggesting that Congress expected that the value of a subsidy not used for acquiring assets be related to either the useful life of capital assets or to GAAP. Rather, in H.R.Rep. No. 317, supra, at 75, Congress stated that "[valuation] methods should include relating the benefit of the commercial advantage to the recipient" (emphasis added). The subsidies at issue herefunds used by BSC to cover its operating costs (or defray operating losses), redundancy and closure funds and funds used to purchase assets prematurely taken out of use in the course of restructuring obviously aid in keeping the recipient firm in business and making it more efficient and competitive. Undoubtedly, therefore, the commercial and competitive benefit of these subsidies continue beyond the year of receipt and into subsequent accounting periods. See Slip Op. 85-26 at 22-23.[6] While plaintiffs are correct in asserting that Michelin Tire Corp. v. United States, 4 CIT 252 (1982), vacated, 9 CIT ___, Slip Op. 85-11 (January 28, 1985), suggested reliance on GAAP under certain circumstances, the Michelin court subsequently, upon further consideration of the matter, admonished against the use of valuation techniques that do not provide "a basic *70 correspondence of the subsidy to the benefit". Michelin Tire Corp., supra, Slip Op. 83-136 at 3. "Expensing" the "non-capital" subsidies at issue in accordance with GAAP would not provide a correspondence of the subsidies to their benefit, and consequently GAAP should not be applied under the circumstances of this case.
Although previously rejected by ITA, with some justification,[7] intervenors nonetheless suggest that the benefit of the subsidies in question should be allocated on the basis that they relieve BSC of the necessity for issuing long term debt on a commercial basis. Intervenors' hypothesis is that the commercial and competitive benefit of the subsidies is not the specific uses to which the funds were put, "but rather in being able to avoid the alternative commercial cost of obtaining the funds. BSC thus gains a commercial and competitive advantage over nonsubsidied firms who must pay a commercial financing cost to get funds to carry out exactly the same purposes" (memorandum at 21).
Intervenors' proposalfor allocation of the subsidies in question on the hypothesis that long-term debt financing by BSC was the most likely commercial alternative to the government's equity infusionscomports with the following observations in Michelin Tire Corp., supra, Slip Op. 83-136, regarding the benefits of a subsidy:
The benefits which must be withdrawn by payment of duty in the case of a subsidy are the benefits which result as a direct consequence of the subsidy. For a business, the direct consequences of receiving a gift of money normally are the elimination of the necessity of looking elsewhere for those funds and paying the price required by the alternative source of funds. The normal alternative sources of funding for business enterprises are twothe sale of shares in the business, carrying with it the obligation to share the profits, or the incurring of debt, carrying with it the obligation to repay the creditor with interest.
See also: Paul W. Jameson, The Administration Of The U.S. Countervailing Duty Laws With Regard To Domestic Subsidies: Where It's Been, Where It Is, Where It May Go, 12 Syracuse Journal of International Law and Commerce, 59, 110 (1985), in which the author observes:
Despite possible objections that a company may raise money through equity issues or long-term loans, it is usually preferable to allocate the value of a grant over the life of long-term debt rather than allocate the grant over the average lifetime of assets. One cardinal principle of the countervailing duty law is that the subsidy is the money received, rather than whatever is purchased with that money. When coupled with the principle that the value of the subsidy is its value to the recipient, it is apparent that it is more consistent to view a grant as a substitute for a long-term loan rather than something somehow tied to a company's assets. If one were to compare the grant to a long-term loan that a company would have to raise as an alternative (even to use a hypothetical long-term loan for a company that has none), and state that the amount of the subsidy is the difference between what the recipient of the grant must pay on the grant (nothing) and what the recipient would have been required to pay on a loan (principal plus interest), the result would be a subsidy that could very well be larger than the amount of the grant but would not violate GATT.
In summary, while the court need not at this juncture pass upon the merits of intervenor's suggested allocation technique, based upon long-term debt financing, the court ineludably concludes that ITA's 15-year allocation methodology, which links the commercial and competitive benefit of the equity infusions to the average useful life of capital assets in integrated U.S. steel mills, is neither supported by the record nor Congressional intent. Accordingly, the court finds that ITA's methodology is unreasonable and therefore not in accordance *71 with law. Consequently, this action must be remanded to ITA for further consideration of other "viable options" that may more reasonably reflect the benefit of the subsidies in question.
British Government's Forgiveness of Indebtedness
In 1981, the British government forgave £509 million in long-term indebtedness owed by BSC to the National Loans Fund. In its Remand Results, ITA treated the loan forgiveness as an additional equity investment amortizable over 15 years.[8] For purposes of such amortization, ITA utilized an interest rate of 17.11 percent, representing the 1981 United Kingdom domestic corporate bond rate plus a risk premium. The weighted average interest rate on BSC's existing loans in 1981 was 11.57 percent.[9]
Plaintiffs contend that ITA's methodology for calculating the benefit of the loan forgiveness, predicated upon 1981 interest rates and a 15-year amortization period, is arbitrary and fails to reflect the commercial and competitive benefit to BSC of the interest and principal payments forgiven. On that score, plaintiffs urge that inasmuch as the interest rates on the existing loans were fixed, absent the British government's forgiveness BSC would have continued to pay 11.57 percentnot a rate based on what new capital would have cost BSC in 1981, viz., 17.11 percent. Plaintiffs also challenge ITA's 15-year allocation period as arbitrary since the remaining life of the loans in question was substantially shorter than 15 years and ITA inexplicably refused to use the repayment schedules associated with the forgiven loans.
The court fails to perceive any reasonable basis for ITA's action in valuing the benefit of the loan forgiveness on the basis of what it would have cost BSC to obtain new financing in 1981. BSC was incurring an average fixed interest rate of only 11.57 percent on the forgiven loans, and BSC would have been required to continue paying only that rate if the loans had not been forgiven. In evaluating the subsidy arising from the loan forgiveness, the commercial and competitive benefit to BSC is the actual financial burden that was removed by the loan forgiveness. Absent the loan forgiveness, BSC undoubtedly would have continued to pay 11.57 percent interest on its existing loans, and most assuredly BSC would not have refinanced its debt at a cost of 17.11 percent, which refinancing is implicit in ITA's methodology.
ITA's apparent predicate that but for the loan forgiveness by the British government, BSC would have relieved itself of its existing loans by new borrowing at the then current rate of 17.11 percent is, in the words of the United States Supreme Court, "economically senseless".[10]Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., ___ U.S. ___, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As previously emphasized, the commercial and competitive benefit of the subsidy to the recipient is the measure of the value of the subsidy. In the case of debt forgiveness, the commercial and competitive benefit to the recipient firm is debt extinguishment. Thus, it is logical that such subsidy should be measured by the actual interest and principal *72 repayment obligations over the remaining life of the existing loans, rather than in accordance with hypothetical refinancing at a higher rate of interest than the firm is paying on its existing loans for an arbitrary period of years.[11]
The short of the matter is ITA's methodology for valuing the benefits associated with the British government's 1981 loan forgiveness is contrary to law and unsupported by substantial evidence. Therefore, this action is remanded to ITA for revaluation of the benefits of the 1981 debt forgiveness consistent with the foregoing opinion.
Conclusion
The Remand Results are affirmed insofar as ITA determined that the equity infusions by the British government in FY 1977/78 were made "on terms inconsistent with commercial considerations" within the meaning of 19 U.S.C. § 1677(5)(B)(i), and therefore constitute countervailable subsidies.
ITA's valuation methodology in this case is unsupported by substantial evidence and otherwise is not in accordance with law because it fails to reflect the commercial and competitive benefit of the subsidies in question to the recipient.
It is, therefore, ORDERED:
1) The Remand Results are affirmed insofar as ITA determined that the equity infusions by the British government in FY 1977/78 were made "on terms inconsistent with commercial considerations" within the meaning of 19 U.S.C. § 1677(5)(B)(i), and therefore constitute countervailable subsidies.
2) This action is remanded to ITA for reconsideration of its revised valuation methodologies and recalculation of the benefits of the British government's equity infusions consistent with this opinion; and
3) ITA shall report the results of its recalculations and redeterminations to this court within 60 days after the date of entry of this order.
NOTES
[1] BSC's FY ends on March 31st. Thus, FY 1977/78 encompasses the period April 1, 1977 through March 31, 1978.
[2] The Remand Results have not been published in the Federal Register.
[3] J. McAnneny, Calculation of Subsidies Under the Countervailing Duty Law: An Economic Analysis (July 8, 1985).
[4] There is no dispute that only a portion of the subsidy funds provided by the British government during FYs 1977/78 through 1981/82 were used for the acquisition of capital assets.
[5] Plaintiffs do not challenge the 15-year allocation period as applied to subsidy funds used to acquire long-lived assets.
[6] In its prior decision, Slip Op. 85-26, at p. 23, this court expressly rejected plaintiffs' contention that capital assets confer no further benefit after they are prematurely retired, and that consequently ITA must recognize in full (expense) the undepreciated cost of the asset in the year that it is taken out of use in conformance with GAAP.
[7] See 49 Fed.Reg. at 18018.
[8] As disclosed in BSC's annual report, the £509 million in loans forgiven in 1981 represents funds received by the corporation from 1967 through 1978. A similar loan forgiveness in 1971-72 occurred during the period in which ITA considered the British government's equity infusions to be consistent with commercial considerations and thus not to confer a countervailable benefit.
[9] The interest rate on BSC's loans ranged from 6.75 percent to 16.75 percent, with a weighted average rate for all of the loans of 11.57 percent.
[10] The obvious unreasonableness of ITA's loan forgiveness methodology may be illustrated by the following hypothetical case: In 1965 a British company borrows money from the government at an interest rate of 9 percent, to be repaid in 1982. In 1980 the government forgives the loan. The prevailing interest rate for corporate bonds in Great Britain in 1980 is 15 percent. Following the methodology applied to BSC in the present case, ITA would amortize the unpaid principal of the loan forgiven at 15 percent (plus a risk premium) over a period of 15 years.
[11] As pointed up by plaintiffs, ITA offered no explanation in the Remand Results for its refusal to calculate the benefits associated with the 1981 debt forgiveness based on the actual interest rate BSC was incurring, nor for its use of a 1981 interest rate for loans to BSC during the period 1967-77, nor of its choice of a 15-year amortization period. Plaintiffs have advised the court that the interest differential between 17.11 percent and 11.57 percent based on a 1981 balance of £509 million results in an overvaluation of the loan forgiveness benefit of nearly £29 million.
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632 F.Supp. 697 (1986)
Eric M. GOFF, Plaintiff,
v.
Lee W. BECHTOLD, Defendant.
Civ. A. No. A:85-0070.
United States District Court, S.D. of West Virginia, Parkersburg Division.
April 18, 1986.
Eric M. Goff, pro se, Parkersburg, W.Va., for plaintiff.
Howard E. Seufer, Davis, Bailey, Pfalzgraf & Hall, Parkersburg, W.Va., for defendant.
MEMORANDUM OPINION AND ORDER
HADEN, Chief Judge.
Eric Goff brings this pro se action pursuant to 42 U.S.C. § 1983. He alleges that Defendant Bechtold, a former Sheriff of Wood County, denied him medical care and attention while he was incarcerated in the Wood County Correctional Center.[1] The Defendant contends that there is no genuine *698 issue as to any material fact and that he is entitled to judgment as a matter of law. Accordingly, he moves for summary judgment pursuant to Rule 56. The Plaintiff has been notified of his right to submit responsive materials and the consequences of failing to do so. See Order entered March 18, 1986. The Plaintiff has not responded. The Court deems the matter mature for decision.[2]
It is now well settled that a governmental unit, such as Wood County, "has an obligation to provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). Such care, however, need not be the best possible care; it only has to be "reasonable" care. Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir.1977); see also Blanks v. Cunningham, 409 F.2d 220 (4th Cir.1969); Edwards v. Duncan, 355 F.2d 993 (4th Cir.1966).
In Estelle the United States Supreme Court solidly gave its approval to the principle developing in the lower courts that deliberate indifference on the part of prison officials to a prisoner's serious illness or injury stated a cause of action under Section 1983. The Supreme Court cautioned, however, that it was only such indifference as would "offend `evolving standards of decency' in violation of the Eighth Amendment." Estelle, 429 U.S. at 106, 97 S.Ct. at 292. The act or omission complained of must be such as to constitute the intentional infliction of unnecessary suffering. Id. at 103, 97 S.Ct. at 290. See also Russell v. Enser, 496 F.Supp. 320 (D.S.C.1979), affirmed, 624 F.2d 1095 (4th Cir.1980).
It is self-apparent that the Estelle test is two-pronged. First, it requires deliberate indifference on the part of prison officials. Second, the injury or illness of the prisoner must be serious.[3]Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979); West v. Keve, 571 F.2d 158, 161 (3d Cir.1978). Hence, a prisoner cannot state a constitutional claim if he has only minor medical needs. Neither can he state a claim if his needs are inadvertently neglected.
In regard to the last point, the courts are in agreement that mere negligence or inadvertence in treating a prisoner will not supply grounds for a Section 1983 suit. Estelle, 429 U.S. 97, 97 S.Ct. 285; Withers v. Levine, 615 F.2d 158 (4th Cir.1980), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980); Peterson v. Davis, 551 F.Supp. 137 (D.Md.1982), affirmed, 729 F.2d 1453 (4th Cir.1984); Russell, 496 F.Supp. 320. Negligence may, of course, give rise to a medical malpractice suit, but malpractice in and of itself does not assume constitutional dimensions.
In further refinement of the law applicable to this type of case, it is noted that "claims of inadequate medical treatment which reflect a mere disagreement with prison authorities over proper medical treatment do not state a claim of constitutional magnitude." Massey v. Hutto, 545 F.2d 45, 46 (8th Cir.1976); see also Ferranti v. Moran, 618 F.2d 888 (1st Cir.1980). Neither can a prisoner sustain an action where he merely harbors a different opinion than his custodians as to the correctness of his course of treatment. Randall v. Wyrick, 642 F.2d 304 (8th Cir.1981); *699 McCracken v. Jones, 562 F.2d 22 (10th Cir.1977), cert. denied, 435 U.S. 917, 98 S.Ct. 1474, 55 L.Ed.2d 509 (1978).
Upon reflection, the Court believes that this Plaintiff's complaints fall into the last mentioned category that is, that he had at the time of his incarceration merely a disagreement with the Wood County officials over his treatment. The Plaintiff complains (1) that he was not allowed to be treated by a doctor of his own choice, and (2) that he was denied medication for pain resulting from a back injury.
It is evident from the record that the Plaintiff wished to be treated by Dr. Bunting, a local chiropractor. He asserts that he had to get a court order to see that particular doctor. The record reflects that the Circuit Court of Wood County issued three orders directing the Sheriff's Department to transport the Plaintiff to the Bunting Clinic. The Court is not convinced, however, that the actions of the state court are evidence of deliberate indifference by the Defendant. First, the orders were prepared by counsel for the Plaintiff. Second, there is no indication that the trips to the chiropractor were of an emergency nature. Third, the orders explictly require the Plaintiff to pay for the treatment. At most, the orders manifest a compromise by which the Plaintiff was able to obtain treatment of his choice. Denial of a preferred course of treatment if in fact such occurred here does not infringe a constitutional right. Layne v. Vinzant, 657 F.2d 468, 473 (1st Cir.1981); Gahagen v. Pennsylvania Board of Probation and Parole, 444 F.Supp. 1326 (E.D.Pa.1978).
The case of Randall v. Wyrick, 642 F.2d 304 (8th Cir.1981), possesses facts strikingly similar to the case at bar. The plaintiff in Randall, a prisoner, complained of back pain as a result of an automobile accident.[4] He complained that the prison staff refused to allow his access to a chiropractor. Chiropractic services, he contended, were necessary to relieve him of the pain which he suffered. The Randall court found that the plaintiff's grievance did not meet the Estelle standard of "deliberate indiffernce." The claim, said the court, "involve[d] merely a difference of opinion over desirable treatment." Id. at 308, n. 8.
The Plaintiff's allegation that he was not given medication to relieve his back pain is pierced by the record which the Defendant has compiled in support of his motion for summary judgment.[5] For instance, the inmate medication log kept for the Plaintiff contains a total of 36 pages. It details literally hundreds of entries whereby the Plaintiff was supplied with medication ranging from Tylenol and Ben-Gay to prescription drugs. The Plaintiff may yet contend that the medication was insufficient to reduce his pain. Such a contention, however, states a claim for malpractice rather than the constitutional tort of "deliberate indifference."[6]
In conclusion, the Court notes that the Plaintiff in all likelihood has suffered some pain as a result of his automobile accident. And it may be true that the medical attention which he received in the Wood County correctional facility did not meet his standards. These facts alone, however, do not state a case for deprivation of a constitutional right. The uncontroverted medical documents establish that the Plaintiff frequently received medication and that he was treated by the jail physician and nurse.[7] It must be remembered that the *700 "Constitution does not require that sentenced prisoners be provided with every amenity which one might find desirable." Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978), reversed on other grounds, sub nom Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
Therefore, the Court finding that the Defendant has established that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, it is ORDERED that judgment shall be entered in favor of the Defendant and against the Plaintiff on the Plaintiff's complaint.
The Clerk is directed to send a certified copy of this Memorandum Opinion and Order to counsel of record and to the pro se Plaintiff, Eric M. Goff.
NOTES
[1] The Plaintiff, in essence, is charging the Defendant with violating the Eighth Amendment's guarantee against cruel and unusual punishment. Implicit in his action is the contention that the Defendant was acting under color of state law.
[2] In considering this motion, the Court is mindful that the pleadings of pro se prisoners are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Such liberality, however, can only be extended so far. If the Plaintiff had chosen to respond to this motion, the Court would have evaluated his efforts with appropriate leniency. The Plaintiff, however, has chosen to remain silent and rests upon his pleadings albeit pleadings which are liberally construed. As a result, the Court now addresses a record replete with uncontroverted facts.
[3] With regard to the seriousness of the Plaintiff's medical needs, the Court notes that when the Plaintiff's dorsal spine, lumbar spine and pelvis areas in which the Plaintiff complained of pain were x-rayed, the results were negative. This outcome does not, of course, disprove the legitimacy of the Plaintiff's complaints, but it does provide one objective aspect of the Plaintiff's health.
[4] The Plaintiff in this case also contends that his back pain can be traced to a recent automobile accident.
[5] The Defendant relies upon the exhibits which were appended to his answer. Those exhibits include "speed letters" from the Plaintiff, notes from treating physicians, releases from custody for medical appointments and medication logs. These documents may properly be considered by the Court. Rule 56(c) allows the Court to scrutinize the pleadings, inter alia, in reviewing a summary judgment motion and Rule 10(c) makes an exhibit to a pleading "a part thereof for all purposes."
[6] Naturally, the Court does not express an opinion as to whether medical malpractice in fact occurred.
[7] Insofar as the Plaintiff attacks the professional judgment of Dr. Avery, the jail physician, this Court cannot grant the Plaintiff relief under the guise of a Section 1983 suit. It is generally accepted that a Court will not second-guess the judgment of a physician. Zaczek v. Hutto, 642 F.2d 74 (4th Cir.1981); Bowring v. Godwin, 551 F.2d 44 (4th Cir.1977).
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632 F.Supp. 1177 (1986)
WILMINGTON FIREFIGHTERS LOCAL 1590, et al., Plaintiffs,
v.
CITY OF WILMINGTON, et al., Defendants.
Civ. A. No. 84-400-JJF.
United States District Court, D. Delaware.
April 4, 1986.
*1178 Sheldon N. Sandler, and Barry M. Willoughby, of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiffs.
*1179 Frederick H. Schranck, City Solicitor's Office, Wilmington, Del., for defendant City of Wilmington Fire Dept.
Gary W. Aber, of Heiman & Aber, Wilmington, Del., for defendant Wilmore.
OPINION
FARNAN, District Judge.
Plaintiffs brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction over plaintiffs' claims is conferred by 42 U.S.C. § 2000e-5 and by 28 U.S.C. §§ 1331 and 1343. Venue is proper under 28 U.S.C. § 1391, and 42 U.S.C. § 2000e-5(f). Plaintiff, Dennis M. Kirlin, alleges that the Defendant City of Wilmington (hereinafter "the City") unlawfully denied him and other white firefighters the opportunity for promotion on account of their race, by altering its 1984 promotion testing procedures for the race-based purpose of increasing the number of minority firefighters on the promotion list, in order to comply with the City's interpretation of the consent decree entered in Wilmore, et al. v. City of Wilmington, Civil Action No. 80-76 (D.Del. June 14, 1983). Currently before the Court are Plaintiffs' and Defendants' Cross Motions for Summary Judgment.
BACKGROUND
Plaintiff, Dennis M. Kirlin, is an employee of the Defendant City and currently holds the rank of Firefighter in the City's Fire Department. Plaintiff Wilmington Firefighters Local 1590, International Association of Firefighters (hereinafter "Local 1590"), is the collective bargaining representative of the uniformed employees of the Wilmington Fire Department. Both Kirlin and Local 1590 filed timely charges of employment discrimination with the Equal Employment Opportunity Commission, and received notices of right to sue. Second Amended Complaint, Docket Item ("D.I.") 59. Kirlin is the representative plaintiff of the class of all present and future uniformed employees of the Fire Department whose position on the 1984 promotion list or on future lists was or may in the future be adversely affected by the City's interpretation of its obligations under the Wilmore consent decree.[1]
The Defendant City of Wilmington is an incorporated municipality in the State of Delaware, and the Fire Department is a department within the City. Defendant James Wilmore, et al. (hereinafter "the Wilmore class"), is the Plaintiff class in Wilmore, et al. v. City of Wilmington, Civil Action No. 80-76.[2]
In their Second Amended Complaint, Plaintiffs requested this Court to: (1) preliminarily and permanently enjoin the City from using the 1984 promotion testing procedures to award promotions, and to direct the City to promote candidates based on the procedures originally outlined in the City's general notices 84-2 through 84-8; (2) award Plaintiffs general and compensatory damages including but not limited to lost salary and compensation, as well as any other benefits accruing to Plaintiffs *1180 and members of the Plaintiffs' class as a result of the City's actions; and (3) award Plaintiffs prejudgment and post-judgment interest, attorneys fees and costs.
THE WILMORE CONSENT DECREE
In Wilmore, a class of Black and Hispanic firefighters challenged the Wilmington Fire Department's 1978 and 1980 promotional examinations.[3] This Court found that the Plaintiffs had not shown that the 1978 and 1980 tests had a disparate racial impact. 533 F.Supp. at 859. On appeal, the Third Circuit reversed, stating:
We hold that the racially discriminatory assignment of `administrative jobs' affected the results of the 1978 and 1980 promotional tests in favor of white firefighters and to the detriment of minority firefighters. Therefore, we find that these tests significantly contributed to the disparate impact of the 1978 and 1980 promotion procedures in violation of Title VII of the Civil Rights Act of 1964, and 42 U.S.C. §§ 1981 and 1983.
699 F.2d 667, 668 (3rd Cir.1983).
The Third Circuit remanded the case to this Court, with instructions to grant Plaintiffs' Petition for declaratory relief, injunctive relief, and damages. Id. at 675. However, prior to the scheduled relief hearing, the Wilmore plaintiffs and the City entered into settlement discussions. A settlement was reached, resulting in a proposed Consent Decree. Paragraph 16 of this Consent Decree, at issue in this litigation, provides as follows:
16. Future Promotional Examination. The City of Wilmington, hereby agrees and certifies that all future promotional exams and procedures shall afford all minority members of the City of Wilmington Fire Department full, complete, fair and equal promotional opportunities in keeping with 42 U.S.C. §§ 1981, 1983, and 2000(e), et seq., and the Wilmington Charter, and that such promotional exams and procedures shall not result in a disparate impact on minorities. Disparate impact shall, for the purposes of this compromise and settlement be considered to have occurred if the minority test taker promotional rate shall at any time be less than 80% of the white test taker promotional rate, as disparate impact is defined by the `Uniform Guidelines and Employment Selection Procedures' (1978); 29 C.F.R. § 1607.4(d). Alternatively, disparate impact will be considered to have occurred if the probability of the distribution of minority members, on any promotional lists, of the City of Wilmington Fire Department shall be less than 5%, when compared to the distribution of white firefighters (notwithstanding the above, disparate impact will not be assumed if the comparison of promotional rates results yield an expected number of minority promotions less than one whole promotion without rounding up).
A fairness hearing on the Consent Decree was held on June 6, 1983. In a Memorandum Opinion dated June 14, 1983, this Court approved the proposed Consent Decree.
THE CITY'S PROMOTIONAL EXAMINATIONS
On March 28, 1984, the City issued General Notices 84-2 through 84-8, outlining procedures for the first Fire Department promotion tests following the Wilmore Consent Decree. General Notice 84-3 described the following examination procedure and scoring process:
2. All eligible candidates who desire to participate in the promotion process will take two (2) components:
Administrative/Management Task Analysis (AMTA)
Problem Analysis and Presentation (PAP)
These are described in separate General Notices.
3. Based on the performance of candidates as per point 2, the board of examiners will certify candidates as per the following groups:
*1181 (a) Well qualified for further consideration.
(b) Qualified for consideration.
(c) Not qualified at this time.
4. All candidates certified by the board of examiners in the top category (well qualified for further consideration) will have an interview and record appraisal with the Chief of Fire. This component would include job-related questions and a review of the candidate's record up to the interview date.
The Chief of Fire, as in previous years, will not have knowledge of anyone's performance on the PAP and AMTA.
5. After completion of the Chief's interview phase, the board of examiners will calculate candidates' scores using this framework:
PAP (60%)
AMTA (25%)
Interview/Record Appraisal (15%)
6. In the event of ties, a candidate's experience factor will be used. See General Notice 84-8 for the method used to calculate one's experience factor. This is identical to the method used in previous years.
7. The promotional process is subject to the requirements of the Consent Decree approved by U.S. District Court Judge Walter K. Stapleton on June 14, 1983, in Wilmore, et al. v. City of Wilmington, Local 1590, I.A.F.F. The board of examiners will see to it that the promotional process will be carried out in accordance with the terms of the Decree.
Second Amended Complaint, Exhibit C, D.I. 59. General Notice 84-4 outlines the scoring process employed by the board of examiners:
A. They shall calculate the component scores of each candidate on the problem analysis and presentation component, and the administrative/management task analysis component. From this will be derived an alphabetical listing of candidates in each of three groups: (a) Well qualified for further consideration; (b) Qualified for further consideration; (c) Not qualified for consideration at this time. Candidates will be notified by the board of examiners as to their classification in these groups.
B. Candidates in the top group (well qualified for further consideration) will have a job-related interview and record appraisal with the Chief of Fire. Results from this component will be tabulated by the board of examiners with scores on the previous components yielding a certified list of eligibility for promotion for the ranks of lieutenant, captain and battalion chief.
C. The board of examiners will be responsible for compliance with the Consent Decree in Wilmore, et al. v. City of Wilmington, Local 1590, I.A.F.F. approved June 14, 1983.
D. The certified list of eligibles will be used for filling promotions until the list is exhausted or until two years from the date of filing the certified list.
Second Amended Complaint, Exhibit C, D.I. 59.
The AMTA and PAP components of the 1984 examinations were administered in May and June, 1984. After the results were computed, the Board of Examiners met to determine which candidates would be in the Well Qualified group, and thus be eligible to move on to the interview component of the exam. The board considered and rejected a "top down" scoring system, under which a numerical rank would be assigned to each candidate for promotion based on the total of his PAP and AMTA scores combined. Deposition of Deputy Chief William Maichle, D.I. 22, at 51. Instead, the board adopted a "threshold" scoring system, based on a minimum threshold score on each of the two components. Under this system, each candidate had to receive a minimum score of 6.0 on the PAP and the minimum of 2.0 on the AMTA in order to advance to the interview. Second Amended Complaint, Exhibit D, D.I. 59. One of the reasons put forward by the Board for adopting a threshold scoring system and rejecting top down ranking was that a top down ranking of the test scores reflected a significant disparate impact on minority firefighters, as defined in paragraph *1182 16 of the Wilmore Consent Decree. Maichle Deposition, D.I. 22, at 51-52.[4] Under the threshold system adopted, test takers with scores falling below either of these minimum scores were excluded from the Well Qualified group, and thus did not proceed to the Chief's interview, regardless of their combined PAP and AMTA scores.
The City's testing expert, Dr. Barry R. Morstain, had "no explanation" for the lower average PAP and AMTA scores of minority candidates for promotion to lieutenant since, in his opinion, the tests were valid and job related. Dr. Morstain developed the tests by performing a job analysis, in which Fire Department officers answered questionnaires dealing with the various tasks they performed on the job. Dr. Morstain noted two major categories of job functions. The first involved knowledge of correct procedures in fire fighting situations, while the second category involved knowledge of administrative and management procedures. Dr. Morstain designed the PAP and AMTA components to test for the types of knowledge the officers considered to be important in these two categories. Morstain Deposition, D.I. 29, at 22-23. Dr. Morstain stated that the threshold ranking system that he adopted was the only ranking system that was able to satisfy the minority pass rate requirement and still was valid and job related. Id. at 87.
THE FINAL PROMOTION RANKINGS
Candidates in the Well Qualified group went on to the interview stage. At the completion of all the interviews, the Board met again on June 14, 1984, to determine the final promotion list rankings. Dr. Morstain concluded that, if the list were calculated based on the framework outlined in General Notice 84-3, there would again be a significant disparate impact on minority candidates, as defined in paragraph 16 of the Consent Decree.[5] Morstain Deposition, D.I. 29, at 94. Therefore, the City decided to abandon the original top down ranking system in favor of a minimum threshold system, similar to that used to determine the Well Qualified group. Under this framework, the City set up three "eligible categories" within the Well Qualified group, based on scores from the interview and PAP. The AMTA results were abandoned entirely, and a total of 18 possible points were assigned to the interview. Placement of candidates within the eligible categories was made based upon the following minimum threshold scores:
1. First Eligible CategoryPAP: 7.0; Interview: 16.
2. Second Eligible CategoryPAP: 6.0; Interview: 14.
3. Third Eligible CategoryPAP: 6.0; Interview: 8.
Morstain Deposition, D.I. 29, at 95-100; Second Amended Complaint, Exhibit D, D.I. 59. According to Dr. Morstain, the AMTA score was not used at this stage because it had already been incorporated in determining the Well Qualified group, and *1183 because the PAP score was considered to be a more important measure of the test takers' abilities. Morstain Deposition, D.I. 29, at 96; Maichle Deposition, D.I. 22, at 68-70.[6] In the first eligible category, the threshold score of 16 on the interview was chosen because it approximated 90% of the possible points available on that component, while the score of 7.0 on the PAP was considered to be between "good and excellent" on that component. In the second eligible category, the minimum interview score of 15 approximated 80% of possible points available, while 6.0 on the PAP denoted "good performance". Morstain Deposition, D.I. 29, at 99-100. Candidates were then ranked within each grouping based on their PAP scores. Id. at 99.
Dr. Morstain determined that this ranking system did not result in disparate impact on minority test takers. He determined this by comparing white and minority membership in the three eligibility categories. He determined that 44.4% of all white well qualified candidates were placed in the first eligible category, while the ratio for minorities was slightly higher, at 46.7%. The second eligible category contained 38.1% of white well qualified candidates, compared to 33.3% of the minorities. The third eligible category contained 17.5% of white well qualified candidates, compared to 20% of minority candidates. Morstain Deposition, D.I. 29, at 101.
THE EFFECTS OF THE REVISED SCORING PROCESS
As a result of the City's alteration of the procedures outlined in General Notice 84-3 for determining the final promotion rankings, members of the plaintiff class rank lower on the final promotion list than they would have under a top down ranking based on total score. Appendix to Plaintiffs' Opening Brief in Support of their Motion for Class Certification, D.I. 66A, at 54-61; Maichle Deposition, D.I. 22, at 105-106. For instance, plaintiff Kirlin correctly answered twenty out of a possible twenty-one questions on the AMTA, and received the highest possible score on the PAP. However, because he received an interview score of only 13, under the City's revised process, Kirlin was placed in the third eligible category. Thus, he ranks only forty-first overall on the promotion list. Kirlin alleges that had the ranking of candidates been based on the sum of weighted PAP, AMTA, and interview scores at both stages of the scoring process, his computations indicate that he would have been ranked seventh. Appendix to Plaintiffs' Opening Brief in Support of their Motion for Class Certification, D.I. 66A, at 56.
DISCUSSION
I. SUMMARY JUDGMENT.
Plaintiffs and defendants have filed cross motions for summary judgment. Summary judgment, under Rule 56(c), is appropriate only where there is no genuine issue of material fact, and the moving parties are entitled to judgment as a matter of law. Federal Laboratories, Inc. v. Barringer Research Ltd., 696 F.2d 271, 274 (3rd Cir.1982). The parties are in agreement as to the above stated facts, and that no other material facts are in dispute.
II. FIREFIGHTER'S LOCAL UNION NO. 1784 v. STOTTS.
Plaintiffs' first argue that the City's actions in revising the test scoring procedures are impermissible under Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). Plaintiffs argue that Stotts forbids a public employer, such as the City, from affording a race based preference to anyone other than specific, individual victims of discrimination. They argue that the revised, threshold scoring system adopted by the City benefits minority employees as a group, and not specific victims, as required *1184 by Stotts. Thus, they argue that the threshold scoring system is impermissible under Title VII, whether or not authorized by the Consent Decree.[7]
In Stotts, black employees of the Memphis, Tennessee, Fire Department brought suit in 1977 charging the Fire Department with discrimination in hiring and promotion decisions, in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. In 1980, prior to trial, a Consent Decree was entered requiring the City of Memphis to grant back pay and promotions to certain individuals, and to implement an affirmative action plan to increase the proportion of minority employees in its Fire Department. However, the City did not admit that plaintiff's allegations of discrimination were true.
In 1981, the City announced that layoffs would be required because of fiscal problems. These layoffs were to be conducted under the City seniority system's "last hired, first fired" rule. At plaintiff's request, the District Court entered an injunction preventing the City from applying the "last hired, first fired" rule to the extent that it would decrease the percentage of blacks then employed in certain positions. The court ordered this action as a result of its conclusion that the City's seniority system was not bona fide, and that the proposed layoffs would have a discriminatory effect on blacks. 104 S.Ct. 2576, 2582.
On appeal, the Sixth Circuit affirmed, but disagreed with the District Court's finding that the City's seniority system was not bona fide. 679 F.2d 541, 551 n. 6 (6th Cir.1982). The Court of Appeals held that the District Court's injunction enforced the terms of a valid consent decree and, in any event, was a valid modification of that decree. Id. at 561-64.
The Supreme Court reversed. At issue in the case, according to the Court, was "whether the District Court exceeded its powers in entering an injunction requiring white employees to be laid off, when the otherwise applicable seniority system would have called for the layoff of black employees with less seniority." Stotts, 104 S.Ct. at 2585 (footnotes omitted).
The Court first rejected the Sixth Circuit's holding that the District Court was merely enforcing the terms of the consent decree. The Court stated that "the scope of a consent decree must be discerned within its four corners", and that the decree here made no mention of layoffs or demotions, and contained no express provision stating any intention to depart from the seniority plan. Id. at 2586. The Court also rejected the Sixth Circuit's conclusion that the injunction was a proper modification of the consent decree, even though the modification conflicted with a bona fide seniority system. The Court noted that Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), immunizes a bona fide seniority system from challenge under Title VII, absent proof of an intention to discriminate. Stotts, 104 S.Ct. at 2587. Citing Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), and Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), the Court stated that: (1) individual members of a class may be awarded competitive seniority if they have been actual victims of discrimination; and (2) even where an individual has been discriminated against, he is not automatically entitled to the displacement of a non-minority employee to make room for him. Stotts, 104 S.Ct. at 2588. The court stated that since there was no finding in that case that the blacks protected from layoff had been victims of discrimination, and that since no blacks had *1185 been awarded competitive seniority, the Sixth Circuit had "imposed on the parties as an adjunct of settlement something that could not have been ordered had the case gone to trial and the plaintiffs proved that a pattern or practice of discrimination existed." Id. at 2588.
The Court also stated that the Teamsters holding, that competitive seniority can be awarded only to actual victims of illegal discrimination, was consistent with the policy behind Section 706(g), 42 U.S.C. § 2000e-5(g), which limited "make-whole relief only to those who have been actual victims of illegal discrimination." Stotts, 104 S.Ct. at 2589.
Under the interpretation given Stotts by the Third Circuit, as well as by other circuits, Stotts does not apply to this case. Each circuit that has considered the scope of Stotts has read that case narrowly to prohibit courts from modifying consent decrees, entered without a judicial finding of discrimination, in a manner which overrides a bona fide seniority system. See Commonwealth of Pennsylvania v. Local Union 542, International Union of Operating Engineers, 770 F.2d 1068, opinion reported at 38 F.E.P. Cases 673, 675 (3rd Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 803, 88 L.Ed.2d 779 (1986); Kromnick v. School Dist. of Philadelphia, 739 F.2d 894, 911 (3rd Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985); Turner v. Orr, 759 F.2d 817, 824 (11th Cir.1985); E.E.O.C. v. Local 638 ... Local 28 of Sheet Metal Workers Int'l Assoc., 753 F.2d 1172, 1186 (2nd Cir.), cert. granted, ___ U.S. ___, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985); Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 486-93 (6th Cir.), cert. granted, ___ U.S. ___, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985); Diaz v. American Telephone and Telegraph Co., 752 F.2d 1356, 1360 n. 5 (9th Cir.1985); Grann v. City of Madison, 738 F.2d 786, 795 n. 5 (7th Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 296, 83 L.Ed.2d 231 (1984); Deveraux v. Geary, 765 F.2d 268, 271-75 (1st Cir.1985).
Unlike Stotts, this case involves judicial findings of intentional discrimination. In Wilmore v. City of Wilmington, 699 F.2d 667 (3rd Cir.1983), the Third Circuit reversed this Court's judgment that the City's Fire Department promotion procedures did not discriminate against minorities. The Court found that the City's promotion tests "significantly contributed to the disparate impact of the 1978 and 1980 promotion procedures in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §§ 1981 and 1983." Wilmore, 699 F.2d at 668. The Consent Decree was then entered as a remedy for the violations of statutory rights found by the Third Circuit.
Cases such as this, where there has been intentional discrimination, stand on a different footing from cases such as Stotts, where race conscious action is taken without any such finding. As noted by Justice Powell in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978):
After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.
Id. at 307-08, 98 S.Ct. at 2757 (Opinion of Powell, J.).[8]
Where such a finding is present, race conscious relief will often be necessary to remedy the effects of the violation, even though in the absence of the violation, such relief would appear to be merely a preference of one race over another. See EEOC v. American Telephone and Telegraph *1186 Co., 556 F.2d 167, 179-80 (3rd Cir.1977). For these reasons, the Third Circuit has specifically refused to apply Stotts to cases such as this where there has been a finding of intentional discrimination. Local 542, Operating Engineers, 770 F.2d 1068, 38 F.E.P. Cases at 675-76. See also Grann, 738 F.2d at 795 n. 5.
Also, unlike Stotts, Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), is not implicated by the City's actions here. In pertinent part, Section 703(h) provides that it is not unlawful:
To give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results, is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.
42 U.S.C. § 2000e-2(h).
Section 703(h) thus prohibits the Court from ordering the override of a bona fide merit or seniority system, or ability test, in the absence of a finding that the system itself was designed or intended to discriminate. Stotts, 467 U.S. 561, 104 S.Ct. at 2587. However, nothing in Section 703(h) forbids an employer, such as the City, from voluntarily altering an ability test.[9] Although, as discussed infra, plaintiffs' statutory or constitutional rights might be otherwise infringed by the City's action, Section 703(h) is irrelevant. Therefore, Stotts, which dealt only with the authority of a court to override a bona fide seniority plan in light of 703(h), is inapplicable.[10]
III. THE CITY'S OBLIGATIONS UNDER THE WILMORE CONSENT DECREE.
The City argues that the terms of the Consent Decree, as well as Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), required it to revise its test scoring procedures when disparate impact on minorities was shown.
Under the terms of ¶ 16 of the Consent Decree, the City agreed that future promotion testing procedures in the Fire Department "shall not result in a disparate impact on minorities," with disparate impact defined as a minority test taker promotional rate of less than 80% of the white rate. Consent Decree, ¶ 16. In interpreting its obligations under ¶ 16, the City relies on Albemarle Paper Co. v. Moody, in which the Supreme Court set forth the analysis to be used in disparate impact cases under Title VII:
In Griggs v. Duke Power Co., 401 U.S. 424 [91 S.Ct. 849, 28 L.Ed.2d 158] (1971), this court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets `the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.' Id. at 432 [91 S.Ct. at 854]. [Footnote omitted]. This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 [93 S.Ct. 1817, 1824, 36 L.Ed.2d 668] (1973). If an employer does then meet the burden of proving that its tests are `job related,' it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would *1187 also serve the employer's legitimate interest in `efficient and trustworthy workmanship.' Id. at 801 [93 S.Ct. at 1823]. Such a showing would be evidence that the employer was using its tests merely as a `pretext' for discrimination. Id., at 804-05 [93 S.Ct. at 1825-26].
Albemarle Paper Co., 422 U.S. at 425, 95 S.Ct. at 2375.
Here, the City determined that disparate impact was shown under a top down ranking method at both the point where the "Well Qualified" group was chosen, as well as the point where the final promotion list was compiled.[11] In both instances, the City itself then derived alternative scoring methods, which the City admits served its interest in promoting only qualified candidates, but which did not result in disparate impact on minority candidates. Under the City's interpretation of Albemarle Paper Co., the continued use of a scoring system with disparate impact on minorities when such a non-discriminatory, job related alternative system was available would have necessarily meant that the City was employing the original system as a "pretext" for discrimination against minorities. Albemarle Paper Co., 422 U.S. at 425, 95 S.Ct. at 2375. Thus, the City argues that it was "compelled" to adopt the revised scoring system.
This argument is based on a misinterpretation of Albemarle Paper Co. In the portion of that case cited by the City, the Supreme Court clarified the three part analysis first outlined in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), for determining when use of a particular employment test violates Title VII. This three part analysis is as follows:
To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that `any given requirement [has] a manifest relationship to the employment in question' in order to avoid a finding of discrimination. Griggs, supra, at 432 [91 S.Ct. at 854]. Even in such a case, however, the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination. See Albemarle Paper Co., supra, [422 U.S.], at 425 [95 S.Ct. at 2375]; Dothard, supra, [433 U.S. 321] at 329 [97 S.Ct. 2720 at 2726-2727, 53 L.Ed.2d 786 (1977)].
Teal, 457 U.S. at 446-47, 102 S.Ct. at 2530.
In the quoted portion of Albemarle Paper Co., the Supreme Court merely stated that, even when an employer shows that a test with a disparate impact on minorities is job related, a plaintiff still has the opportunity to show that other job related tests without such an impact are available. Such a showing by a plaintiff "would be evidence that the employer was using its tests merely as a `pretext' for discrimination". Albemarle Paper Co., 422 U.S. at 425, 95 S.Ct. at 2375. However, the court did not state, as the City seems to suggest, that availability of such tests would raise a conclusive presumption of a pretext for discrimination. Rather, such tests are merely evidence of pretext, which the court would consider along with other evidence in determining whether such pretext existed. Id. Therefore, upon discovering such alternatives in this case, the City was not in any way compelled, as a matter of law, to adopt them.
The City also misinterprets the provisions of ¶ 16 of the Consent Decree.[12]*1188 Paragraph 16 does not, in explicit terms, provide that the City must revise testing procedures when disparate impact on minorities is shown. Rather, the City argues that this authority is derived from the provision in the Decree that "promotional exams and procedures shall not result in disparate impact on minorities." Consent Decree, ¶ 16. The City interprets this provision as a directive to unilaterally alter testing procedures at any time such impact is shown.
Ordinarily, in interpreting a Consent Decree, a court may not depart from the "four corners" of the Decree itself. United States v. Armour & Co., 402 U.S. 673, 681-682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). However, where the terms of the Decree are ambiguous, the court may look to the surrounding circumstances of the Decree's formation to determine the Decree's purpose. See United States v. I.T.T. Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975); Brown v. Neeb, 644 F.2d 551, 562 (6th Cir.1981).
Here, the discussion between Judge Stapleton and counsel for the City and the Wilmore plaintiffs at the fairness hearing on the Decree belies the City's interpretation of ¶ 16's provisions. At that hearing, the following colloquy took place:
THE COURT: Let me ask you for a clarifying comment. ...
I am unclear what the parties contemplate if, heaven forbid, a situation should arise in which those formulas light up and say, disparate impact, in other words, the agreement does not specifically identify the consequences if there sometime in the future being an exam which doesn't meet the criteria set forth in the agreement....
MR. ABER: It was our intention, based upon consultation with other attorneys in the field, that, obviously, any injunctive relief had to include any injunction that you shall not discriminate in the future. That left us open.
Let's say in the future we got another result such as the '78 with no minority promotions. We are right back, let's say, in 1990 where we were in '78 and we have got to start a whole new litigation all over again.
You want to try and eliminate that. Hopefully, that won't happen. And the City is fairly confident that it won't, given the numbers of increasing minorities. But if in the unfortunate circumstance it did, the plaintiff class, in the same way in the City desegregation suits, they didn't want to have to be right back where we started in '78 all over again in 1990.
The purpose of this paragraph is that it sort of short cuts the litigation process. In the typical Title VII or even S1983 litigation, you have a three step analysis. First is there disparate impact, then is there reasonable explanation why, and then it goes back to the plaintiff, is there a less onerous method. This merely eliminates the first hurdle that the plaintiff must overcome, as in this very litigation.
Your Honor, in the initial Opinion, said we didn't meet that first test, we did not prove disparate impact. Here we are setting specific numbers which the City and the plaintiffs are agreeing to that if this occurs, there is disparate impact, and then the burden would fall upon the City to explain why it happened.
So I guess what it does, if this test is met in the future, and disparate impact, we would come to the Court, since it is our anticipation that this will be an Order of the Court, say, Your Honor, we are now in the middle of a law suit, we have proven disparate impact, the City must explain away the reasons for that disparate impact.
*1189 THE COURT: All right. So the answer to my question is the parties contemplate that there will be further judicial proceedings, and that in that judicial proceeding the Court would have to take it as given that there was a disparate impact of the exam?
MR. ABER: Exactly.
THE COURT: All right. Thank you. Mr. Schranck, that conforms to your understanding of the intent?
MR. SCHRANCK: It does, Your Honor. Not only, heaven forbid, but if the City has anything to do with it, the City will forbid it to happen. There is protection for us in the parenthetical statement in paragraph 16 that if the expected number of minority promotions is less than one whole person, without rounding up, that would be in the instance where there are so few openings that there are very few promotions made, and it just turns out that there were three white promotions, say, and no Hispanic promotions and no black promotions, it does not eliminate the opportunity of the City to justify the validity of the testing system that it uses at that time. It merely, again, as Mr. Aber said, sets up the given that there is impact. And plaintiffs still have the same opportunity as they would have in any other case to prove a less onerous, yet feasible, alternative to whatever system that we have come up with.
So, to that extent, it's a little bit better, on behalf of the plaintiffs, than simply our statement that we would no longer violate Title VII. It gives them one potential leg in the Courthouse door toward any potential problems in the future, which we do not contemplate happening.
Fairness Hearing Transcript, Wilmore v. City of Wilmington, C.A. 80-76, at 26-30. (Emphasis added).
As is clear from this interchange, ¶ 16 of the Consent Decree is meant simply to relieve the Wilmore class of the burden of proving a prima facie case of discrimination in future litigation over promotional tests. Counsel for the City and for the Wilmore class both agreed that ¶ 16 contemplated such future litigation, should disparate impact be shown on promotion tests. As counsel for the Wilmore class stated, ¶ 16 merely "short cuts the litigation process." Disparate impact is defined as a minority test taker promotion rate of less than 80% of the white rate. If, in any promotional test, this level is not achieved, then, in any litigation it should initiate, the Wilmore class will be deemed to have met its prima facie burden of showing disparate impact, and the burden will be shifted to the City to show that the test is job related. If the City meets this burden, then of course the Wilmore class would still have the burden of showing pretext. As the parties to Wilmore understood, paragraph 16 does not require the City to unilaterally change the testing procedures in mid-stream, even where, as here, the City determines that disparate impact will result pursuant to the announced testing procedure, and an alternative testing procedure is available.
This interpretation might, on a cursory reading, appear too narrow; however, it is compelled in view of the remedial purposes of the Consent Decree and the continuing responsibility of this Court to insure that the terms of the Decree are effectuated. See Stotts v. Memphis Fire Dept., 679 F.2d 541, 562-63 (6th Cir.1982), rev'd on other grounds, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). As the City itself correctly notes, the Consent Decree at issue is entered for the benefit of the Wilmore class, who had successfully challenged the City's past promotional practices. The City's obligation under the Decree is merely to administer its promotion tests, under its announced procedures. Once the test is administered, its only obligation is to announce the results. This obligation does not change, even if disparate impact is shown. If such impact is shown, however, the Wilmore class, as discussed above, has the option of instituting suit against the City, receiving the benefit of a prima facie case as provided by ¶ 16. Thus, since the procedure provided for remedying the discrimination is such a lawsuit by the Wilmore plaintiffs, this Court will retain its authority to approve appropriate remedies. *1190 Also, since the Court's participation is necessary under ¶ 16, the remedial process will be more orderly than if the City undertakes unapproved, unilateral action.
IV. THE EFFECT OF THE CITY'S ACTIONS UNDER TITLE VII.
Given that the City's actions in altering the test scoring procedures were not authorized by the Consent Decree, the Court must still determine whether these actions in any way infringed plaintiffs' rights.
The question to be decided in any Title VII case is whether the employer intentionally discriminated against the plaintiffs; that is, whether it treated the plaintiffs less favorably because of their race, color, religion, sex or national origin. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1977). The plaintiff bears the ultimate burden of persuasion on this issue. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. In this case, since the material facts are not in dispute, this ultimate issue is now properly before the Court. United States Postal Service v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983).[13]
At issue in this case is the City's action in revising its test scoring procedures once it was apparent that disparate impact on minorities would result if the announced testing procedures were maintained. This action was performed at two separate stages in the scoring processfirst, at the determination of the "Well Qualified" group and, secondly, at the final ranking. At the first stage, the City had not announced that scoring would be conducted according to any specific procedure. At this stage, the City considered a scoring procedure involving top down ranking, but finally adopted the threshold system outlined supra. At the scoring stage, the City previously announced in its General Notices that, in determining the final rankings, a top down scoring system involving different weights for each test component would be used. This original system was abandoned in favor of the threshold system when it became apparent that the original system would result in disparate impact at this stage, as well.
It is undisputed that, at each stage, the City scored the tests in the way it did for the specific purpose of avoiding disparate impact on minority test takers, and that, but for such disparate impact, the final rankings would be determined by adding the three components together and scoring the candidates in top down, rank order. It is also undisputed that the members of the plaintiff class ranked lower on the City's final promotion list under the revised method than they would have under a top down, total score ranking, and that their chances of promotion were thereby reduced.
Since these actions were not authorized by the Wilmore Consent Decree, they are best characterized as voluntary, race conscious, affirmative action. In United Steel Workers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Supreme Court held that such race conscious affirmative action plans are not prohibited by Title VII.[14] The court held *1191 that, in light of the legislative history of Title VII, such race conscious plans are permissible as a reasonable measure "designed to eliminate conspicuous racial imbalance in traditionally segregated job categories." Id. at 209, 99 S.Ct. at 2730. See also Bakke, 438 U.S. at 307-08, 98 S.Ct. at 2757.[15]
Although the Weber court declined to define "the line of demarcation between permissible and impermissible affirmative action plans", 443 U.S. at 208, 99 S.Ct. at 2729-30, it did identify certain criteria for determining whether a race conscious plan is permissible. First, the plan must be designed to "break down old patterns of racial segregation and hierarchy." Id. Secondly, the plan must not "unnecessarily trammel" the interests of non-minorities. Id. Finally, the plan must be a temporary measure, "not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance." Id. If the plan meets these criteria, then the defendant's action pursuant to that plan, though racially conscious, will not result in Title VII liability. Id. at 204, 99 S.Ct. at 2727-28.[16]
Here, it is clear that the City's action was designed to "break down old patterns of segregation and hierarchy." Weber, 443 U.S. at 208, 99 S.Ct. at 2730. As discussed supra, the City was found to have intentionally discriminated against minority firefighters in its Fire Department promotion practices, and its action in revising the test scoring procedures to prevent disparate impact on these minorities was clearly aimed at eliminating this past practice of discrimination.
It is also clear that the City's action is temporary in nature. The promotion lists at issue here expire June 15, 1986, at which time new tests will be administered. Defendant's Opening Brief in Support of Their Motion for Summary Judgment, D.I. 95, at 72. Also, it is unlikely that the City will similarly misinterpret the requirements of the Wilmore Consent Decree in the future.
However, the City's action here "unnecessarily trammels" the interests of the individual non-minority plaintiffs. The candidates for promotion were informed that the promotion testing procedures were to be conducted according to the guidelines outlined in General Notice 84-3. The candidates, having served the required number of years to become eligible for promotion, have a reasonable, legitimate expectation *1192 that the City will deal fairly with them in administering these tests. They have a legitimate expectation that the tests and promotion rankings will be conducted according to the fair and presumably valid procedures announced. The members of the plaintiff class, who would rank higher on a promotion list compiled according to these procedures than on the City's revised list, have been treated unfairly by the City's actions in unilaterally altering these procedures in the middle of the testing process, for the race based purpose of avoiding disparate impact on minority firefighters.
It is of course true, as the City argues, that the non-minority plaintiffs here cannot have a reasonable expectation of promotion according to a list that violates the Wilmore Consent Decree. However, whether a promotion list compiled under the originally announced procedures would in fact violate the Wilmore Decree is not a decision for the City to make unilaterally. As discussed supra, the Wilmore Decree was entered with specific devices designed to insure its enforcement by the Court after a full and fair review. When the Decree was approved, the parties indicated to the Court that, should a situation arise such as in this case, the parties would return to Court with a prima facie case of discrimination against the Wilmore plaintiffs proved. The parties did not indicate to the Court that unilateral action by the City was contemplated. It was this understanding of the Decree's remedial procedures that this Court approved. The City's obligations under ¶ 16 are merely to administer a racially blind testing procedure, not to guarantee the promotional ranking of the Wilmore plaintiffs to the degradation of the rights of non-minority firefighters. Thus, until such time as the Wilmore plaintiffs act to enforce their rights under ¶ 16, and a determination is made that the City's testing procedures discriminate against those plaintiffs, the City's testing procedures are presumably valid, and the test takers have a reasonable expectation of promotion according to those procedures. See Hammon v. Barry, 606 F.Supp. 1082, 1098 (D.D.C.1985).
These considerations also demonstrate why the City's action unnecessarily trammels the interests of non-minority firefighters. Weber, 443 U.S. at 208, 99 S.Ct. at 2729-30. The Wilmore Consent Decree provides procedures through which the Wilmore plaintiffs can protect their rights. Since these judicially approved procedures already exist, there is no need for the City to take additional action, unauthorized by the Wilmore Decree or this Court, to promote those rights. Although one reason expressed by the City for taking such action was its desire to avoid a law suit by the Wilmore plaintiffs, the Wilmore Decree in fact specifically contemplates that such a lawsuit may be brought. In fact, litigation was the planned and approved mechanism provided by the Decree for insuring that this Court could exercise its supervisory responsibilities over the actions taken by the parties to remedy the intentional discrimination found in Wilmore. Thus, in view of the provisions of Wilmore, the City's actions were unnecessary to protect the interests of minority firefighters. However, had action been truly necessary to remedy discrimination, this Court would have countenanced even harsher measures. See Weber, 443 U.S. at 200-08, 99 S.Ct. at 2725-29. See also Bakke, 438 U.S. at 308, 98 S.Ct. at 2757.
This Court has merely treated defendants' actions as what they arevoluntary, race conscious acts not required and not envisioned by the Wilmore Consent Decree. Thus, the Court concludes that these actions are not part of a valid affirmative action program, because they are not envisioned by the Wilmore Consent Decree, and because they unnecessarily trammel the rights of non-minorities. As a result of the Court's action today, all the parties are in the position they should be in, as contemplated by the Wilmore Decree. The City administered a valid promotion test. Candidates for promotion will be ranked according to the procedures originally outlined by the City in General Notice *1193 84-3. The Wilmore plaintiffs can challenge the 1984 list because of its disparate impact, receiving the benefit of a prima facie case in their favor as outlined in ¶ 16 of the Consent Decree. And, in the event the Wilmore plaintiffs bring such an action challenging the promotional list as discriminatory, and a judgment, consent decree, or other remedy is entered in their favor, the resulting remedy would be immune from challenge since neither a bona fide consent decree nor a valid affirmative action program can be the basis of a claim under Title VII. See Bratton v. City of Detroit, 704 F.2d 878, 887 (6th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984); E.E.O.C. v. McCall Printing Corp., 633 F.2d 1232, 1237-38 (6th Cir.1980); Stotts, 679 F.2d at 558 (6th Cir.), rev'd on other grounds, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). This Court's approach will insure the integrity of the remedies provided in the Consent Decree presently and in the foreseeable future, while at the same time protecting the rights of all firefighters employed by the City.[17]
CONCLUSION
Plaintiffs' Motion for Summary Judgment shall be granted consistent with the Court's Opinion in this case. The City shall not promote any firefighters based on its revised 1984 promotion list. The parties shall submit a Proposed Order outlining a final ranking list compiled in accordance with the Court's Opinion. The defendants' Motion for Summary Judgment is denied.
NOTES
[1] On December 10, 1985, this Court certified the following class of Plaintiffs, under Rule 23(a) and Rule 23(b)(2):
All present or future uniformed employees of the City of Wilmington Fire Department who took the 1984 promotional exam or, who are eligible for future promotional exams, whose position on the 1984 promotion list or on any future promotion lists was or may in the future be affected by the City of Wilmington's interpretation of its obligations under the consent decree in Wilmore v. City of Wilmington, Civil Action No. 80-76, to require alteration of the scoring system of promotional examinations for the purpose of increasing the number or percentage of minority promotions. The Plaintiff class, however, shall not include members of the Wilmore class in Civil Action No. 80-76.
[2] The Wilmore class was joined by Order of this Court dated October 16, 1984. Memorandum Opinion, D.I. 26. This joinder was ordered so that the Wilmore class might have the opportunity to protect any interests it claims in this action, and to avoid any risk of inconsistent obligations to the City. Plaintiffs seek no relief against the Wilmore class. Second Amended Complaint, D.I. 59.
[3] This Court's decision is reported at 533 F.Supp. 844 (D.Del.1982).
[4] The statistical computations of disparate impact were performed by the City's testing expert, Dr. Barry R. Morstain of the University of Delaware. In performing his calculations for determining the well qualified group, Dr. Morstain separated the test results by the rank sought. For the firefighter to lieutenant rank, the threshold approach yielded a minority promotion pass rate of 75% of the white rate; that is, 56% of minority test takers passed, whereas 75% of white test takers passed. Dr. Morstain considered this result to be statistically close enough to the Consent Decree goal of a minority pass rate of 80% of the white pass rate to be acceptable. For the lieutenant to captain rank, the white pass rate was 76%, while the minority pass rate was 83%, somewhat higher than the white rate. In contrast, a simple summation of each test taker's AMTA and PAP scores revealed an average score of 9.76 for white test takers, and an average of 8.80 for minority test takers. Dr. Morstain considered this to be "a statistically significant difference in the average score between whites and minorities." Deposition of Barry R. Morstain, D.I. 29, at 70, 66-71.
[5] Dr. Morstain stated that he did not perform a new computer analysis of the test results at this stage. Rather, upon visual examination of the data, he determined that the results of the previous stage, reflecting a minority pass rate less than 80% of the white pass rate, would not be materially affected by the interview scores. Morstain Deposition, D.I. 29, at 94.
[6] According to Deputy Chief Maichle, the information tested in the AMTA was contained in the "Officer's Guidebook", and an officer could "always refer to this book to properly complete a form or a memo.... That was one of the reasons that we felt that we won't go back and include the AMA again ..." Maichle Deposition, D.I. 22, at 69-70.
[7] To the extent that plaintiffs challenge the legality of the City's actions under Stotts, irrespective of whether those actions are in accord with the Consent Decree, their challenge might be construed as a collateral attack on the Consent Decree, if in fact the City acted in compliance with the Consent Decree. See O'Burn v. Shapp, 70 F.R.D. 549, 552-53 (E.D.Pa.), aff'd, 546 F.2d 418 (3rd Cir.1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977); Prate v. Freedman, 430 F.Supp. 1373 (W.D.N.Y.), aff'd, 573 F.2d 1294 (2nd Cir.1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978). However, in light of the court's interpretation of the Consent Decree, infra, this issue need not be reached.
[8] The Constitutional analysis outlined in Bakke has been applied in Title VII cases as well. See, e.g., Janowiak v. City of South Bend, 750 F.2d 557, 561 (7th Cir.1984).
[9] Plaintiff Local 1590 does not allege that the City's action violated any collective bargaining agreement it has with the City. See W.R. Grace and Co. v. Local 759, 461 U.S. 757, 771, 103 S.Ct. 2177, 2186, 76 L.Ed.2d 298 (1983).
[10] The Supreme Court has granted certiorari in Wygant v. Jackson Board of Education, 746 F.2d 1152 (6th Cir.), cert. granted, ___ U.S. ___, 105 S.Ct. 2015, 85 L.Ed.2d 298 (1985), to address the propriety under Title VII of voluntary affirmative action programs adopted without a judicial finding of discrimination, a question specifically left open in Stotts. 104 S.Ct. at 2590-91. This question is not presented in this case, since here there has been a finding of discrimination under Title VII, as well as Section 1981 and Section 1983. See Bakke, 438 U.S. at 307-09, 98 S.Ct. at 2757-58.
[11] The disparate impact analysis was conducted at both points in the testing procedure pursuant to the dictates of Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). There, the Supreme Court ruled that Title VII guaranteed individuals equal employment opportunities, at any stage of the hiring or promotion process, regardless of the final "bottom line" racial composition of the relevant work force. Id. at 448-50, 102 S.Ct. at 2531-32.
[12] As discussed supra, to the extent that the issue before us is the City's compliance with the Consent Decree, this action is not a collateral attack on the Decree itself. Plaintiffs allege that the City discriminated against them because of their race. The City defends by asserting compliance with the Decree. Thus, the only issue before the Court is whether the City's actions were in fact in compliance with the Decree. To decide this, I need not alter or modify the Decree, nor do I place the City under inconsistent obligations. Harmon v. San Diego County, 477 F.Supp. 1084, 1091 (S.D.Cal.1979).
[13] Therefore, at this stage of the proceedings, the familiar three part framework outlined in McDonnell Douglas for allocating presentation of evidence need not be applied. See McDonnell Douglas Corp., 411 U.S. at 802-04, 93 S.Ct. at 1824-25; Griggs, 401 U.S. at 432, 91 S.Ct. at 854.
[14] I note that there is some dispute in the case law as to whether informal affirmative action decisions, not conducted according to an organized "plan", are permissible under Weber. See Lehman v. Yellow Freight System, Inc., 651 F.2d 520, 525-28 (7th Cir.1981); Meyers v. Ford Motor Co., 480 F.Supp. 894, 899 n. 5 (W.D.Mo. 1979); Harmon v. San Diego County, 477 F.Supp. 1084, 1089-90 (S.D.Cal.1979). In Harmon, the trial court suggested that informal, race conscious decisions could never be permissible under Weber, since Weber dealt only with "plans". 477 F.Supp. at 1089. Meyers, however, interpreted Weber to "supply an umbrella for the permissive use of a wide variety of less drastic informal goals and individual acts favoring minority employment ...". 480 F.Supp. at 899 n. 5. In Lehman, the Seventh Circuit declined to follow any single approach, but rather held that, applying the criteria outlined in Weber, the informal actions at issue "lacked sufficient substantive and procedural safeguards to insure that all employees would be treated fairly." 651 F.2d at 525 n. 10, 528.
Here, I follow the approach of the Seventh Circuit in Lehman in determining that this particular action, regardless of its "formality" or "informality", does not meet the Weber criteria. Thus, I need not decide whether informal action is impermissible per se under Weber. See Harmon, 477 F.Supp. at 1089.
[15] As noted above, I am not here concerned with the applicability of Weber to public employers in the absence of judicial findings of discrimination. Since there has been a judicial finding of discrimination here, the substantial public interest in providing a remedy for such discrimination authorizes otherwise valid, race conscious affirmative action. Bakke, 438 U.S. at 307-08, 98 S.Ct. at 2757. Thus, the Court's only concern is whether this particular action is valid.
In any event, I note that some courts have specifically held Weber applicable to public employers even in the absence of such findings. See, e.g., Bushey v. New York State Civil Service Commission, 733 F.2d 220, 227 n. 8 (2nd Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985), and cases cited therein. See also, Kromnick v. School District of Philadelphia, 739 F.2d 894, 909-12 (3rd Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985) (Weber applied to voluntary race conscious policies of public school system).
[16] Again, in the procedural context of this case, the undisputed facts are before the Court and I am concerned only with the ultimate issue of intentional discrimination, on which the plaintiffs bear the burden of persuasion. Aikens, 460 U.S. at 715, 103 S.Ct. at 1481-82. Therefore, I am not at this stage concerned with the issue of whether the plaintiff or defendant bears the burden of proving the validity or invalidity of the affirmative action plan. See Setser v. Novack Investment Co., 657 F.2d 962, 968-69 (8th Cir.), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981); Warsocki v. City of Omaha, 726 F.2d 1358, 1360 (8th Cir.1984). I decide the validity or invalidity of the plan on the undisputed facts before me.
[17] Also, plaintiffs have moved to consolidate this action with Wilmore. D.I. 98. Since the Court's decision today is in no way inconsistent with Wilmore, and does not affect any party's rights or obligations under the Wilmore Consent Decree, this Motion shall be denied.
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85 S.E.2d 398 (1955)
241 N.C. 375
STATE
v.
Ray Young RUMFELT.
No. 438.
Supreme Court of North Carolina.
January 14, 1955.
*399 Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.
Vaughan S. Winborne and Samuel Pretlow Winborne, Raleigh, for defendant, appellant.
PARKER, Justice.
The defendant assigns as error the refusal of the trial court to allow his motion for judgment of nonsuit made when the State rested its case. The defendant contends that G.S. § 20-162.1 prescribes that "any person convicted pursuant to this section shall be subject to a penalty of $1.00", and therefore does not set out a criminal act triable in the criminal courts of the State; but in specific words imposes a penalty to be recovered in a civil action.
The amended warrant upon which the defendant was tried and convicted by a jury in the Superior Court charges a violation of G.S. § 20-162. G.S. § 20-176(a) provides that "It shall be unlawful and constitute a misdemeanor for any person to violate" G.S. § 20-162; and (b) states "Unless another penalty is in this article or by the laws of this State provided, every person convicted of a misdemeanor for the violation of any provision of this article shall be punished by a fine of not more than one hundred dollars ($100.00) or by imprisonment in the county or municipal jail for not more than sixty days, or by both such fine and imprisonment: Provided, that upon *400 conviction for the following offenses * * * violation of * * * 20-162 * * * the punishment therefor shall be a fine not to exceed fifty dollars ($50.00) and not less than ten dollars ($10.00), or imprisonment not to exceed thirty days for each offense."
In reversing a conviction in the Superior Court in State v. Scoggin, 236 N.C. 19, 72 S.E.2d 54, 58, this Court said in 1952: "* * * we should not, in the absence of a legislative rule of evidence to the contrary, consider mere ownership of a motor vehicle, parked in violation of a city ordinance, and no more, sufficient to sustain a criminal conviction * * *."
It seems apparent that as a result of the decision in the Scoggin case, and the language quoted above therefrom, the General Assembly at its 1953 Session enacted the statute which is now G.S. § 20-162.1 and which is captioned, "Prima facie rule of evidence for enforcement of parking regulations", to establish "a legislative rule of evidence" in respect to "cases concerned solely with violation of statutes or ordinances limiting, prohibiting or otherwise regulating the parking of automobiles or other vehicles upon public streets, highways, or other public places." A violation of G.S. § 20-162 presents the type of case to which the prima facie rule of evidence set forth in G.S. § 20-162.1 is applicable.
G.S. § 20-176 in plain and exact words declares that a violation of G.S. § 20-162 is a misdemeanor and prescribes the punishment, which is greater than that imposed in G.S. § 20-162.1. G.S. § 20-162.1 creates no criminal offense, but prescribes that when the prima facie rule of evidence therein set forth is relied upon by the State in a criminal prosecution, the punishment shall be a penalty of $1. There can be no doubt that this action is a criminal action prosecuted by the State to punish the defendant for a violation of its criminal law. When we consider the words "fine" and "penalty" as used in G.S. § 20-176, and the word "penalty" as used in G.S. § 20-162.1, it is clear that the General Assembly considered and used the word "penalty" in G.S. § 20-162.1 as equivalent to the word "fine", and imposed the payment of $1 for a violation of its criminal law. This $1 was exacted of the defendant who was found guilty by a jury of a misdemeanor.
The word "penalty" has many different shades of meaning. In Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 227, 36 L.Ed. 1123, it is said: "In the municipal law of England and America, the words `penal' and `penalty' have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws. United States v. Reisinger, 128 U.S. 398, 402, 9 S.Ct. 99 (32 L.Ed. 480, 481); United States v. Chouteau, 102 U.S. 603, 611 (26 L.Ed. 246, 249)." See also Weideman v. State, 55 Minn. 183, 56 N.W. 688; 23 Am. Jur., Forfeitures and Penalties, Sec. 27.
"The term `penalty' in its broadest sense includes all punishment of whatever kind, and in the broad sense it is a generic term which includes fines as well as all other kinds of punishment." 36 C.J.S., Fines, page 781.
We said in State v. Addington, 143 N.C. 683, 57 S.E. 398, 399: "In ordinary legal phraseology, it is said the term `fine' means a sum of money exacted of a person guilty of a misdemeanor, or a crime, the amount of which may be fixed by law or left in the discretion of the court, while a penalty is a sum of money exacted, by way of punishment for doing some act which is prohibited, or omitting to do something which is required to be done. (Citing authorities.)"
State v. Briggs, 203 N.C. 158, 165 S.E. 339, relied upon by the defendant is distinguishable. The defendant was tried in a criminal action for violation of a statute which read: "`That no other person than said weighers shall weigh cotton or peanuts sold in said town or township, under a penalty of ten dollars for each and every offence, said penalty to be paid by the buyer *401 and applied to the school fund of said county upon connection (conviction) of the offender before any justice of the peace of said county.'" This Court held that that statute did not create a criminal act. In the instant case G.S. § 20-176 prescribes that a violation of G.S. § 20-162 is a misdemeanor.
State v. Snuggs, 85 N.C. 541, is the case of an indictment for illegally issuing a marriage licensethe defendant being a Register of Deeds. The statute prescribed that a person who violated the statute "shall forfeit and pay $200 to any person who shall sue for the same." This Court rightly held that the statute created the offense, fixed the penalty, and prescribed the method of enforcement, and that the indictment charged no indictable offense. The Snuggs case is not in point. To like effect see State v. Loftin, 19 N.C. 31. See also State v. Southern R. Co., 145 N.C. 495, at page 540, 59 S.E. 570, 13 L.R.A., N.S., 966.
We said in Board of Education v. Town of Henderson, 126 N.C. 689, 36 S.E. 158, 159: "To our minds, there is a clear distinction between a `fine' and `penalty.' A `fine' is the sentence pronounced by the court for a violation of the criminal law of the state, while a `penalty' is the amount recoveredthe penalty prescribedfor a violation of the statute law of the state or the ordinance of a town. This penalty is recovered in a civil action of debt." Commercial Finance Co. v. Holder, 235 N.C. 96, 68 S.E.2d 794 (counterclaim for recovery of penalty for alleged usury); and Smoke Mount Industries, Inc., v. Fisher, 224 N.C. 72, 29 S.E.2d 128 (counterclaim for overtime under Federal Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.) are types of civil actions to recover penalties. The judgment of the lower court that the defendant pay a penalty of $1 was a sentence pronounced by the court for the violation of a statute, which violation is specifically declared by the General Assembly to be a misdemeanor.
The trial court correctly denied the defendant's motion for judgment of nonsuit.
The defendant's only other assignment of error is that the trial court erred in taxing the defendant with the costs.
Art. IV, § 1, of the North Carolina Constitution, prescribes that "every action prosecuted by the people of the State as a party, against a person charged with a public offense for the punishment of the same, shall be termed a criminal action."
G.S. § 1-5 reads in part: "A criminal action is1. An action prosecuted by the State as a party, against a person charged with a public offense, for the punishment thereof."
The defendant was convicted of a violation of G.S. § 20-162, which violation constituted a misdemeanor by virtue of G.S. § 20-176.
G.S. § 6-45 prescribes that "Every person convicted of an offense, or confessing himself guilty, or submitting to the court, shall pay the costs of prosecution."
This assignment of error is without merit.
The charge of the court is not in the Record, and is presumed to be free from error. State v. Harrison, 239 N.C. 659, 80 S.E.2d 481.
In the trial below we find
No error.
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196 Ga. App. 667 (1990)
396 S.E.2d 557
MOORE
v.
SINCLAIR et al.
A90A1169.
Court of Appeals of Georgia.
Decided July 13, 1990.
Rehearing Denied September 4, 1990.
Walter H. Beckham III, for appellant.
Lokey & Bowden, Samuel P. Pierce, Jr., Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Bentley, Karesh, Seacrest, Labovitz & Campbell, Gary L. Seacrest, Edwin A. Tate II, for appellees.
BIRDSONG, Judge.
This appeal follows a defendants' verdict in a lawsuit arising from a car/tractor-trailer collision. Appellant Moore, the car's driver, sued Sinclair, the truck's driver, the trucking company that employed him, and the trucking company's insurer, for damages resulting from her car being struck from the rear by Sinclair's tractor-trailer. Additionally, *668 Moore sought damages from the trucking company for hiring and retaining a person with Sinclair's driving record.
The appellees admitted that Sinclair was responsible for the collision, and that the trucking company was responsible for his actions under respondeat superior, but denied liability because they contended that Moore's physical condition was not caused by the collision. Instead, they asserted that her disability was caused by pre-existing medical conditions (spina bifida, scoliosis, and a tethered spinal cord).
To prevent evidence of Sinclair's driving record relevant to Moore's claim against the trucking company for employing Sinclair from prejudicing the defense of the other claims against Sinclair and his employer, the trial court bifurcated the trial. Shortly before the scheduled start of the trial, however, the trial court allowed the appellees' counsel to withdraw from the case and then granted appellees a continuance. To prevent appellees from gaining an advantage from the delay, however, the trial court directed that only evidence reflected in the pretrial order and information provided previously regarding expert witnesses could be used at the trial. Ultimately, a defendants' verdict on liability was returned and there was no second proceeding.
Moore filed a motion for a new trial, but did not support her motion with a complete transcript of the trial. At the appellees' request, however, the trial court ordered Moore to obtain, with minor exceptions, a full transcript of the trial. Although Moore agreed to comply with the court's order, she did not, and the trial court ultimately granted the appellees' motion to dismiss her motion for new trial. Within 30 days of that decision, Moore filed a notice of appeal. Appellees moved to dismiss the appeal in the trial court because they maintained that the appeal was untimely since the motion for new trial was not properly supported by the transcript, and thus the motion was not sufficient to entitle Moore to the usual extension of time in which to file a notice of appeal. That motion was denied, but appellees have renewed their motion in this court.
Moore contends that the trial court erred by preventing her from cross-examining Sinclair about lies he allegedly told in his deposition, erred by admitting in evidence the diagnosis of a non-testifying doctor, erred by permitting two experts to give testimony which exceeded the trial court's limitations, erred by allowing Moore to be cross-examined about her marital status when her child was born, and erred by incorrectly charging the jury on the burden of proof. Held:
1. The appellees' motion to dismiss the appeal is denied. A movant for a new trial is not required to file the trial transcript in support of the motion. Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 23 (363 SE2d 265). Our law requires only that appellants file the *669 transcript within 30 days after the notice of appeal is filed. Whitton v. State, 174 Ga. App. 634, 635 (331 SE2d 10). Although OCGA § 5-5-40 (c) gives trial courts discretion to delay consideration of such motions when the transcript is necessary to decide the motion, the trial court can decide the motion without a transcript. Therefore, we do not find that Moore's motion for new trial was inherently insufficient to secure the extension of time in which to file her notice of appeal. OCGA § 5-6-38 (a). Accordingly, this case does not meet the criteria for dismissal of an appeal. See OCGA § 5-6-48 (b).
Nevertheless, the trial court did not exceed its authority by dismissing the motion for new trial. A trial court has discretion to set the time for filing of the transcript of the evidence (Diamond v. Liberty Nat. Bank, 228 Ga. 533, 535 (186 SE2d 741)), and dismissal of a motion for new trial is appropriate when the transcript is necessary to consideration of the motion, and the movant has made no reasonable effort to secure it. Miller v. Parks, 124 Ga. App. 4, 5 (183 SE2d 88). Further, after the trial court ordered the full transcript to be prepared, Moore acquiesced in that ruling and yet failed to comply with the trial court's discretion.
2. Moore contends that the trial court erred by limiting her impeachment of Sinclair. Moore alleges that Sinclair was asked "you didn't tell the truth in your deposition either, about your [traffic] citations, did you," that Sinclair objected because the court had bifurcated the trial for the sole reason of keeping Sinclair's driving record from prejudicing the jury's determination of negligence, and that the trial court sustained that objection. This allegation misstates the question asked, the objection, and the trial court's ruling.
The transcript shows that the questions actually posed were: "Right? How many traffic citations that you had there, and how many traffic citations that you had for Mr. Kallman [sic]? And you didn't tell the truth in your deposition, either, about your citations, did you?" The actual objection was: "Your Honor, I will object to that. That's highly improper. That's not proper. If he's attempting to impeach him, he's trying to do something by the back door that he cannot do directly." The actual ruling was: "He's already answered the question, saying that I'm going to sustain that objection." Then, after clarifying that "[t]he objection was that [he] shouldn't proceed along that line," Moore's attorney stated: "All right, I'll do it ... the hard way." Because Sinclair really was asked four questions, and the two questions about the number of traffic citations sought information not then admissible, the trial court did not err by sustaining the objection. See OCGA § 24-2-2. Moreover, even if the rulings were erroneous, Moore cannot complain because she waived the error by acquiescing in the ruling. See Ewing v. Johnston, 175 Ga. App. 760 (334 SE2d 703).
*670 Further, the transcript shows that after Moore asked other questions about Sinclair's driving record not whether Sinclair had lied at his deposition and Sinclair objected, the trial court ruled: "I don't think the driving record is admissible at this time. I'm going to sustain the objection." Thereafter, the trial court directed that Moore make a proffer of the evidence he sought to introduce: "Ask him ask him the questions that you intend to ask before the jury." After Moore did so, the trial court, in effect, denied Sinclair's objection, and ruled that he would allow the questions that Moore had asked in her proffer. The transcript shows, however, that despite the error asserted here, no objections were sustained to questions about Sinclair lying in his deposition. Since this issue was not raised in the trial court, Moore cannot now complain that Sinclair was not allowed to answer questions he was not asked. Ocilla Truck &c. Co. v. Nolan, 124 Ga. App. 417 (184 SE2d 48).
Moreover, although Moore argues that the trial court erred by bifurcating the proceedings, this matter was not enumerated as error and is not included within any error enumerated. Since a party may not urge an error not enumerated through shifting or mending her hold, we cannot consider this argument. City of College Park v. Georgia Power Co., 188 Ga. App. 223-224 (372 SE2d 493); Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272).
3. Moore also contends that the trial court erred by admitting in evidence the diagnosis of a physician who did not testify. The transcript shows that during the testimony of another physician, Sinclair asked him to read from Moore's medical records the diagnosis of the emergency room physician who treated Moore after the collision, and that after Moore's objection was overruled, the physician read that Moore had suffered a "back strain." Assuming this to be error, in the context of this case, we find any error harmless. There was no issue about whether Moore, in fact, sustained a back strain, and this single statement in the course of the entire medical testimony in this case could not have materially affected the verdict. OCGA § 9-11-61; Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 546 (309 SE2d 816).
4. Moore asserts that the trial court erred by allowing two experts to testify about matters which were not set forth in the information regarding experts, and thus the testimony violated the trial court's order that the appellees were "prohibited from using at trial any expert witness or expert opinion not specifically set out in their provision of information regarding experts." As appellees used no expert witnesses not so identified, the question here is whether any testimony of the two experts constituted expert opinions not set out in the information regarding the experts or the pretrial order.
The information regarding experts provided in broad terms the *671 expected testimony of the experts. In general, Moore was informed that the two experts would testify that her condition was the result of her pre-existing medical conditions and was not the result of any injury sustained in the collision. Naturally, the information did not contain each statement the experts would make in their testimony, and did not state every opinion the expert did not hold, or the reasons why the experts did not hold certain opinions. Generally, the testimony Moore complains of was statements by the experts explaining or defending their opinions, and not new opinions. Therefore, we are satisfied that the testimony of the experts did not unfairly exceed the limitations of the trial court, and we need not address whether the trial court committed harmful error by admitting evidence in violation of the limitations. These enumerations are without support in the record, and therefore enumerations of error 3 and 4 are without merit.
5. Moore also contends the trial court erred by allowing her to be cross-examined about her marital status at the birth of her second child. This allegation is also without factual support. After Moore testified on direct examination about "good" things that had happened to her recently, including the birth of a child and her marriage, one of the defendants asked her about the date of her marriage. She was not asked whether she was married when her child was born. Moore injected the topic of her marriage in the trial, and we find no error in allowing an appellee to ask when that was. If Moore's marriage was relevant, the date of the wedding was equally relevant. OCGA § 24-2-1; Weathers v. Cowan, 176 Ga. App. 19, 20 (333 SE2d 921). Moreover, we find it a far reach to suggest that this question and response caused the jury to reach the conclusion that Moore's child was born before her marriage, or if it did that the jury would have reached the verdict in this case because of it. OCGA § 9-11-61; Department of Transp. v. 2.734 Acres of Land, supra. Therefore, we find this enumeration of error also to be without merit.
6. Moore's final enumeration is that the trial court erred by charging the jury that "[a] possible cause cannot be accepted by the jury as a proximate cause, unless the evidence excludes all other causes or shows direct connection with the occurrence." We cannot consider this enumeration of error because the transcript shows that no objection was made to the charge given. OCGA § 5-5-24 (a); Morris v. DeLong, 183 Ga. App. 124 (358 SE2d 285). Moreover, we have considered whether we should consider the alleged error under OCGA § 5-5-24 (c) as a substantial error which was harmful as a matter of law (see Foskey v. Foskey, 257 Ga. 736-737 (363 SE2d 547)), and conclude that we should not.
The proposed charge was read during the charging conference in which Moore's counsel was an active participant, and, of course, *672 Moore's counsel was present when the charge was given to the jury. There was no objection to this charge on any occasion. Under these circumstances, we find that any error was induced by Moore, and that this coupled with her failure to object to the charge given precludes her from maintaining the issue on appeal. Dodd v. Dodd, 224 Ga. 746, 747 (164 SE2d 726); Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696); Nelson v. Miller, 169 Ga. App. 403, 405 (312 SE2d 867).
Further, we are mindful that OCGA § 5-5-24 (c) must be strictly construed to prevent emasculation of subsection (a) (Widener v. Mitchell, 137 Ga. App. 730, 731-732 (224 SE2d 868); Nathan v. Duncan, 113 Ga. App. 630, 638 (149 SE2d 383)), and that the instances in which the subsection applies are rare. Central of Ga. R. Co. v. Luther, 128 Ga. App. 178, 180 (196 SE2d 149); Seabolt v. Cheesborough, 127 Ga. App. 254, 260 (193 SE2d 238).
In any event, this purported error was not harmful as a matter of law. "To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial." Hamrick v. Wood, 175 Ga. App. 67, 68 (332 SE2d 367). See also National Dairy &c. Corp. v. Durham, 115 Ga. App. 420, 422-423 (154 SE2d 752). Considering the relative weakness of Moore's case in which even her own expert witness could not say with certainty that her physical condition was not the result of the expected progression of her pre-existing conditions, and the fact that the witnesses testifying for the appellees were her own treating physicians, we cannot conclude that the charge resulted in a gross miscarriage. Accordingly, this enumeration of error is also without merit.
Judgment affirmed. Banke, P. J., and Cooper, J., concur.
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225 S.E.2d 101 (1976)
29 N.C. App. 428
STATE of North Carolina ex rel. UTILITIES COMMISSION and Carolina Power and Light Company, Applicant,
v.
Rufus L. EDMISTEN, Attorney General, et al.
No. 7510UC604.
Court of Appeals of North Carolina.
May 19, 1976.
*104 R. C. Howison, Jr., and William E. Graham, Jr., Raleigh, for applicant, Carolina Power & Light Company, appellee.
Edward B. Hipp, General Counsel, and Assistant Commission Attorney Wilson B. Partin Jr., and Associate Commission Attorney Jane S. Atkins, Raleigh, for North Carolina Utilities Commission, appellee.
Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. I. Beverly Lake, Jr. and Asst. Atty. Gen. Robert P. Gruber, Raleigh, for the Attorney General, appellant.
Hovis, Hunter & Eller by Thomas R. Eller, Jr., Charlotte, for the North Carolina Textile Manufacturers Association, appellant.
U.S. Dist. Atty. Thomas P. McNamara, Raleigh, and Robert C. Hudson, Norfolk, Va., for Executive Agencies of United States of America, appellant.
Broughton, Broughton, McConnell & Boxley by J. Melville Broughton, Jr., Raleigh, for Ball Corporation, appellant.
PARKER Judge.
Appeal by the Attorney General
In its application filed 29 October 1973, CP&L asked the Commission to allow the entire 21 percent increase applied for to become effective on 1 December 1973 without suspension. In the event, however, that the Commission should deny this request and should suspend the proposed rate increases, CP&L prayed that the Commission permit it to place in effect a 11 percent interim increase. On 9 November 1973 the Commission did suspend the increased rates but did not immediately allow the 11 percent interim increase. Instead, on 25 January 1974, after notice and public hearing, it allowed an interim increase of only 5.94 percent. Later, on 1 April 1974, on CP&L's motion and after further notice and public hearing, the Commission entered its order allowing the remaining 5.06 percent of the originally requested 11 percent interim increase to go into effect, subject to undertaking and refund.
On this appeal the Attorney General contends that the Commission committed reversible error in entering its order of 1 April 1974, and in support of that contention advances three arguments as follows: (1) The only new evidentiary support for the 1 April 1974 order consisted in evidence and exhibits showing CP&L's declining per share earnings, declining returns on book equity, and deterioration in coverage of its fixed charges, and such data does not furnish a legally competent basis for the Commission's order allowing an increase in rates charged North Carolina customers, since it clearly relates to CP&L's company-wide operations which include its operations in South Carolina and its operations subject to the jurisdiction of the Federal Power Commission. (2) The findings of fact and conclusions as contained in the order entered after notice and public hearing on 25 January 1974, which allowed only 5.94 percent of the requested 11 percent increase, should *105 remain intact, since in absence of further competent evidence upon which to base the granting of the additional 5.06% interim rate increase all material issues raised by the application for the 11 percent interim rate increase were adjudicated and resolved by the 25 January 1974 order. (3) No competent evidence was presented to show a change in CP&L's circumstances such as to warrant a change in the amount of the interim rate increase allowed. We do not find these arguments persuasive.
At the outset we observe that the questions presented by the Attorney General's contention that the Commission committed reversible error by entering its 1 April 1974 order are now moot. By the final order entered 6 January 1975 the Commission found, after lengthy public hearings and after making extensive findings of fact on the basis of data relating to a test period ending on 31 December 1973, that rates permitting a 21 percent rate increase, almost twice the combined interim increases approved by the 25 January and 1 April 1974 orders, were just and reasonable. The Attorney General, who represents the using and consuming public in this proceeding, has failed to show that the rights of those whom he represents were impaired because for a period of time CP&L's customers were required to pay only approximately one-half of the increase in rates which the Commission ultimately determined CP&L was justly entitled to receive.
Quite apart from any question of mootness, we find no error in the Commission's interim order of 1 April 1974. The power granted the Commission by G.S. 62-134 to suspend a requested change in rates is a discretionary one which the Commission may, but need not, exercise. Utilities Comm. v. Morgan, 16 N.C.App. 445, 192 S.E.2d 842 (1972). In the opinion in that case we observed that nothing in the statute indicates a legislative intent that once the Commission exercises its discretionary power and suspends rates, it thereby necessarily exhausts its authority in that regard so as thereafter to be precluded from withdrawing or modifying the suspension, and we affirmed an order of the Commission, entered after a requested increase in rates had been suspended, which withdrew the suspension and allowed the new rates to become effective on an interim basis and subject to refund pending final hearing and determination. In the present case the Attorney General does not challenge the Commission's order of 25 January 1974 by which it modified its previous suspension order and permitted an interim increase of 5.94 percent to go into effect. His position on this appeal seems to be that the Commission, once having entered that order, was thereafter precluded from modifying it by a further interim order unless the further order is based on new evidence of a type competent to support a final order in a general rate case and sufficient in itself to show a material change in conditions. We find nothing in the statute which places such a limitation on the Commission's discretionary authority. On the contrary, the discretionary power granted the Commission by G.S. 62-134(b) to suspend a proposed change in rates for a period not longer than 270 days clearly includes the lesser power to suspend a portion of the change for some lesser period, and "nothing in the language of the statute suggests that the Legislature intended that the Commission could exercise the discretionary authority granted it only if it did so on an all-or-nothing, once-and-for-all basis." Utilities Comm. v. Morgan, Attorney General, supra, p. 451, 192 S.E.2d p. 846. Accordingly, we hold that the Commission had the authority, in the exercise of the discretionary power granted it by G.S. 62-134(b), to enter its order of 1 April 1974 by which it modified its earlier discretionary order of 25 January 1974. Before entering each of these orders the Commission held a public hearing, as it was authorized but not required to do. Since both orders could have been validly entered even without any public hearing, we find no merit in appellant's contention that the second order was not lawfully entered because not supported by new evidence of a type competent to support a final order in a general rate case. In deciding whether to exercise its discretion by *106 entering the second order, the Commission was entitled to look at and make a fresh appraisal of all of the evidence before it, including all data filed with the original application on 29 October 1973 and all evidence presented prior to entry of the 25 January 1974 order. The burden is on the appellants to show an abuse of the Commission's discretion in entering its interim order of 1 April 1974 by which it further modified its previously entered suspension order to permit an additional 5.06 percent increase to go into effect. On this record no abuse of the Commission's discretion is shown. Appellant's assignments of error directed to the Commission's interim order of 1 April 1974 are overruled.
In its final order dated 6 January 1975 the Commission approved new residential rate schedules which allowed no increase in basic rates for customers in the low use category and smaller than CP&L's requested increases in basic rates for customers in the medium use category. Nevertheless, the Commission expressly found all revenues collected subject to refund during the pendency of this proceeding to have been "just and reasonable," and in accord with this finding cancelled CP&L's undertaking to refund. Appellant Attorney General assigns error to this action. The precise question presented by this assignment of error has already been decided by this Court in Utilities Comm. v. Edmisten, Attorney General, 26 N.C.App. 613, 216 S.E.2d 743 (1975). On authority of that case, this assignment of error is overruled.
The Attorney General next challenges, as being arbitrary, capricious, and unsupported by competent, material, and substantial evidence in the record, the Commission's finding in its order of 6 January 1975 that CP&L was entitled to a return of 10.44 percent on fair value common equity and additional gross revenues of $11,846,000 for fair value. Consideration of the questions raised by this challenge requires that we first analyze the steps followed by the Commission in arriving at the rates finally approved in this case. As required by G.S. 62-133(b)(1), the Commission first ascertained the fair value of CP&L's property used and useful in providing retail electric service in North Carolina as of the end of the test period. The Commission determined this to be $885,355,000. (This figure was arrived at in the following manner: (1) Reasonable original cost of electric plant was found to be $891,313,000, from which there was deducted reasonable accumulated depreciation of $161,065,000 and contributions in aid of construction of $3,843,000, leaving a net original depreciated cost of $726,405,000. (2) Reasonable replacement cost was determined to be $1,026,186,000. (3) Fair value was derived by giving two-thirds weighting to net original depreciated cost of $726,405,000 and one-third weighting to replacement cost of $1,026,186,000, resulting in a fair value for electric plan of $826,332,000. To this was added an allowance for working capital, found to be reasonable in the amount of $59,023,000, resulting in a determination of the fair value rate base of $885,355,000. The Attorney General does not challenge any of these figures or the method followed by the Commission in arriving at its determination of the fair value rate base.) After estimating CP&L's revenue under its present and proposed rates and ascertaining its reasonable operating expenses, as required by G.S. 62-133(b)(2) and (3), the Commission, as required by G.S. 62-133(b)(4), fixed the fair rate of return on the fair value rate base at 8.24 percent. The Commission, as required by G.S. 62-133(b)(5), then fixed rates which permitted CP&L to earn, in addition to reasonable operating expenses, the rate of return which the Commission found to be fair on the fair value rate base as determined by the Commission. In arriving at its conclusion that 8.24 was a fair rate of return, the Commission analyzed the effect of inserting pro forma the fair value rate base as determined by the Commission into CP&L's balance sheet, and found that the result was to increase book common equity by $99,927,000. (The difference between $826,333,000, the fair value of electric plant as determined by the Commission in the manner noted above, and $726,405,000, the *107 net original depreciated cost of electric plant.) The addition of this increment to book common equity increased common equity from $250,489,000 to produce a fair value common equity of $350,416,000, and changed the ratio of equity in the capital structure from 31.89 percent to 39.58 percent. Allocating the net earnings to be derived from the new rates to the pro forma revised capital structure resulted in a rate of return on the fair value equity of 10.44 percent. The Commission found 12.5 percent to be a fair return on book common equity. It concluded that "[t]he required rate of return on fair value equity is reduced by the resulting change in capital structure, based upon the reduced risk to the equity component," and the Commission found that 10.44 percent was a fair rate of return on the resulting fair value equity. It is this finding that 10.44 percent was a fair rate of return on fair value common equity which the Attorney General now challenges as being arbitrary and capricious and unsupported by competent, material, and substantial evidence.
In his brief, the Attorney General states his contention as follows: "The approach used by the Commission was as a general proposition proper, but the error complained of arises from the fact that there is no evidence in the record to support the Commission's conclusion that the cost of equity for CP&L decreases from 12.5 percent to 10.44 percent as equity increases from 31.89 percent to 39.58 percent." We find no error.
At the outset we note that at almost every step along the way in a general rate case the Utilities Commission, in following the procedure prescribed by G.S. 62-133(b), is required to exercise a subjective judgment. For example, the weighting to be given the respective indications of "fair value", the determination of the total amount reasonably necessary for working capital, and the determination of what constitutes a fair rate of return, all require exercise of a subjective judgment by the Commission. "When the record, considered as a whole, contains substantial evidence supporting the subjective judgment of the Commission on any of these factors in the fixing of reasonable rates, the conclusion reached by the Commission may not be disturbed by a reviewing court merely because the court's subjective judgment is different from that of the Commission, nor is the Commission required to accept as conclusive the subjective judgment of a witness, even though the record contains no expression of a contrary opinion by another witness." Utilities Comm. v. Power Co., 285 N.C. 398, 415, 206 S.E.2d 283, 296 (1974). We find that the record in the present case, considered as a whole, does contain substantial evidence supporting the Commission's subjective judgment that 8.24 percent was a fair rate of return to be allowed on CP&L's fair value rate base as determined by the Commission and that 10.44 percent was a fair rate of return on CP&L's fair value equity which resulted from adding the fair value increment to the equity component in the capital structure.
The Attorney General's own witness, David A. Kosh, who was recognized by the Commission as an expert in economics, cost of capital, and fair rate of return, testified:
"The problems involved in determining the cost of capital and its major components are in substantial measure matters of judgment. Necessarily, so many factors enter into a determination of fair rate of return that many judgments have to be made. If, at each point where a judgment has to be made, or where a question has to be resolved, the benefit of any reasonable doubt is resolved in the direction of a lower cost, then the result will tend to be at, or in the direction of, the lower end of fair rate of return.
On the other hand, if most reasonable doubts, or questions, are resolved in the direction of a higher cost rate, then the end result will be at or near the upper end of the range of fair rate of return."
This testimony clearly points out the many subjective value judgments which the Commission, or anyone else, must necessarily exercise in arriving at a determination of fair rate of return. This witness, David A. *108 Kosh, testified that he had made a detailed study of the cost of capital and fair rate of return for CP&L. When he testified he did not, of course, know what the Commission would ultimately determine the fair value rate base should be. He did testify, however, that in his opinion 8.22 percent would be a fair rate of return if applied to a fair value rate base determined as being equal to 109.6 percent of depreciated original cost and that 10% Was a fair rate of return on the fair value equity. These figures from the Attorney General's witness were remarkably close to the Commission's ultimate findings that 8.24 percent was the fair rate of return when applied to the fair value rate base which, as determined by the Commission, was 108.9 percent of depreciated original cost, and that 10.44 percent was a fair rate of return on fair value equity.
The Attorney General, pointing to the fact that a 10.44 percent return on fair value common equity produced the exact amount of increased revenues for which CP&L applied, contends from this fact that the Commission must have acted arbitrarily in selecting the figure of 10.44 percent in order to accomplish a preconceived objective. The fact stated, however, does not compel the conclusion drawn. That the Commission ultimately approved CP&L's application furnishes no proof that it acted arbitrarily. No rule of law requires the Commission to presume that the rates requested in a utility's application are excessive, nor does approval of the requested rates raise any presumption that the Commission failed to comply with the procedures specified in G.S. 62-133(b) or with the mandate of G.S. 62-133(a) to "fix such rates as shall be fair both to the public utility and to the consumer." Upon appeal, the rates fixed by the Commission under the provisions of G.S. Chap. 62 "shall be prima facie just and reasonable." G.S. 62-94(e). On review of the entire record as submitted in this case, we find the Commission's findings, conclusions, and its decision in this case to be supported by competent, material, and substantial evidence, and we find that appellant Attorney General has failed to show that the Commission acted arbitrarily or capriciously.
Appeals by the North Carolina Textile Manufacturers Association, Inc., Ball Corporation, and Executive Agencies of United States of America.
In its application, filed 29 October 1973, CP&L, in addition to applying for an increase in rates, proposed to make a change in its rate structure to eliminate certain previously established customer classification schedules. Among the schedules which it proposed to eliminate were the Textile Mill Schedule (TM), the High Load Factor Schedule (HLF), and the Military Service Schedule (MS). Customers formerly in these schedules were moved to a general service classification, Schedule G-3. In its order of 6 January 1975 the Commission, with certain modifications, approved the proposed changes in CP&L's rate structure. (The modifications made by the Commission related to low and medium use residential customers and resulted in practically no increase in basic rates for residential customers using less than 300 KWH monthly and smaller than the overall increase for residential customers using less than 725 KWH monthly.) The elimination of the TM, the HLF, and the MS classifications resulted in rate increases greater than the 21 percent overall increase for customers who were formerly in those classifications. The intervenors, the North Carolina Textile Manufacturers Association, Ball Corporation, and Executive Agencies of the United States of America, previously classified in the TM, HLF, and MS schedules respectively, contend that the Commission committed reversible error in that portion of its order of 6 January 1975 which approved elimination of the previously established textile mill, high load factor, and military service customer classifications. We find no error in this regard.
When this proceeding was commenced, CP&L had 35 different rate schedules for its customers. This compared with 10 to 15 rate schedules used by the typical electric utility. This proliferation in customer classifications was not the result of comprehensive *109 planning made at any one time, but rather was the result of historical development which occurred during the period when CP&L, having an ample and growing supply of electric power available for sale, was engaged in promoting the increased usage of electric power by new as well as by its existing customers. In recent prior rate cases CP&L had applied for and been granted across-the-board increases, applying the same percentage increase to all rate schedules without changes being made in the customer schedules. The rate structure which resulted from this process favored the large-use customers by granting them lower KWH rates than charged the small-use customers. While, as noted above, the elimination of the TM, the HLF, and the MS classifications and the moving of customers from these eliminated schedules into the G-3 schedule resulted in rate increases greater than the average 21 percent overall increase for customers formerly on the eliminated classifications, such customers, even after being placed in the G-3 schedule, still enjoyed lower KWH rates than those charged small-use customers. Appellants here, although still enjoying lower rates than charged residential and other small-use customers, nevertheless contend that the Commission committed error as a matter of law in approving elimination of the customer classification schedules in which they had formerly been placed.
The gist of appellants' contention is that existing customer classification schedules, having heretofore been approved by the Commission in prior rate cases, must be deemed reasonable and cannot be changed except upon specific evidence, such as fully distributed cost studies, showing by its greater weight that existing approved rate differentials within or among customer classes or schedules are no longer just and reasonable. They further contend that in the present case there was no competent evidence showing CP&L's fully distributed costs of serving the customers formerly in the TM, HLF and MS classifications, and that absent such evidence the Commission lacked lawful authority to approve any change in customer classification schedules. We do not agree with these contentions. It is true, of course that "[t]here must be no unreasonable discrimination between those receiving the same kind and degree of service." Utilities Comm. v. Mead Corp., 238 N.C. 451, 462, 78 S.E.2d 290, 298 (1953). The governing statute, G.S. 62-140(a), expressly mandates that "[n]o public utility shall establish or maintain any unreasonable difference as to rates or services either as between localities or as between classes of service." We do not understand this to mean, however, that customer classifications, once established by a utility, must remain frozen absent a showing of change of conditions justifying a change in classifications. The question is not whether the old classifications, because of some change in conditions or of costs of rendering service, have become unreasonable. Rather, the question is whether the new classifications proposed by the utility are themselves reasonable. The simplified rate structure which resulted from the elimination of the TM, HLF, and MS schedules in the present case still provides customer classifications based upon substantial differences in conditions of service. The Commission has approved the new simplified rate structure, and on this appeal the Commission's determination in that regard must be deemed "prima facie just and reasonable." G.S. 62-94(e). There is, of course, an almost infinite variety in the ways in which customers may be classified, and experts may differ as to which is the best. To be lawful the classification need not be one which a majority of experts consider to be the best and most reasonable. It need only be one which is based on reasonable differences in conditions and in which the variance in charges bears a reasonable proportion to the variance in conditions. Review of the record before us reveals this to be true of the rate structure and schedules approved in this case.
The order appealed from is
Affirmed.
CLARK, J., concurs.
MARTIN, J., dissents.
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217 Va. 45 (1976)
EDITH DOZIER BUNN, EXECUTRIX, ETC.
v.
NORFOLK, FRANKLIN AND DANVILLE RAILWAY COMPANY, INCORPORATED.
Record No. 750872.
Supreme Court of Virginia.
June 11, 1976.
Present, All the Justices.
1. It was not error to instruct jury on maximum speed limit imposed upon trains by applicable city ordinance. Jury was further instructed, at request of appellant, on duty of train engineer to approach crossing at reasonable speed under circumstances.
2. Since there was no evidence that there was any peculiar or unusual condition surrounding crossing such as to render it unusually dangerous, it was not error to refuse to submit to jury question whether crossing was extra-hazardous.
3. Granting of instruction on tables of speed and stopping distances discouraged unless instruction is clearly supported by the evidence.
4. Evidence was clear that train was operated well within speed limit. Crossing was not extra-hazardous. Positive testimony of seven witnesses on blowing of horn and ringing of bell was contradicted only by the negative testimony of decedent driver's 15-year-old grandson. Positive testimony outweighs negative equally credible testimony. Grandson's opportunity to hear signals was limited. Overwhelming evidence is that railway company gave proper warning of its approach to crossing, that its employees were maintaining a proper lookout and that the train was proceeding at a reasonable speed.
5. At grade crossings of railroads, rights of traveler on highway and of railroad company are mutual, reciprocal and co-extensive. Generally a moving train is accorded the right of way. Traveler approaching such crossing must always exercise care proportioned to the known danger and the care must be such as one who knows the danger and of the prior right of passage would be expected to exercise. Traveler has no right to proceed across the track without looking and listening for approaching trains. Evidence is conclusive that decedent automobile driver never saw, or did not heed, approaching train until his grandson yelled. Had decedent, who was not a stranger to the area, been keeping a proper lookout, he would have had ample time and distance in which to stop.
Error to a judgment of the Circuit Court of the City of Portsmouth. Hon. R. Winston Bain, judge presiding.
Raymond H. Strople (Dennis F. McMurran; Bernard Miller; Moody, McMurran & Miller, on briefs), for plaintiff in error.
Gerard P. Rowe (Edward L. Oast, Jr.; Williams, Worrell, Kelly & Greer, on brief), for defendant in error.
HARRISON
HARRISON, J., delivered the opinion of the court.
Edith Dozier Bunn, Executrix of the estate of her husband, James A. Bunn, sought to recover damages from the Norfolk, Franklin and Danville Railway Company, Incorporated, for the decedent's alleged wrongful death. The railway denied any negligence on its part, contending that the sole cause of Bunn's death was his own negligence. Following a five-day jury trial, a verdict was returned for the railway, and the court entered final judgment thereon.
This case grew out of a collision between a 1973 model Ford LTD automobile operated by Bunn and a N.F. & D. train. The accident occurred on December 22, 1972, at 7:30 p.m. in Portsmouth, at a point where the railway's track crosses West Norfolk Road. The track of the railway runs generally northeast to southwest. For clarity, a sketch is attached to this opinion.
The train, en route to Suffolk from the Virginia Chemicals Plant in Portsmouth, had traveled in a general westerly direction a distance of approximately 1.8 miles before reaching the crossing. Bunn was on West Norfolk Road en route to the Norfolk Regional Airport and was proceeding in a general easterly direction. He was accompanied by his grandson, Gregory V. Hill, Jr., age 15.
The night was very dark, and the road was described by a witness as damp, but "not soaking wet". Numerous photographs clearly depict the crossing and its approaches. West Norfolk Road is a 2-lane, hard-surfaced road, 19.4 feet wide, with its lanes delineated by a yellow center line, and bordered on the edges by white lines. The *47 speed limit on this road is 35 mph. At a point 300 feet west of the crossing in the lane of the road in which Bunn was traveling, is painted, with white reflectorized paint, a large cross and the capital letters RR. At the crossing, and on or near the south shoulder of the highway, is a "crossbuck" or "buckboard" sign, reading "Railroad Crossing". For some distance before the crossing is reached the railroad and West Norfolk Road run roughly parallel. About 150 feet east of the crossing the railroad curves to the southwest and crosses the highway at an angle.
The railroad's right-of-way is cleared of trees and bushes on both sides. Between the railroad and a line of woods on the north side is located a utility line which parallels the railroad. The right-of-way of the utility line is also cleared of trees and bushes. Photographs show that there are trees along the north side of West Norfolk Road until the rights-of-way of the utility line and the railroad are reached. The rights-of-way run through a wooded area and are, in effect, an opening between trees. The rights-of-way and the railroad track are barely discernible to a motorist driving east on the road at a point 300 feet west of the crossing. However, beginning immediately thereafter, the rights-of-way and railroad become increasingly obvious to such motorist, and are clearly visible from 150 to 200 feet of the crossing.
The train consisted of a diesel engine pulling thirteen cars and a caboose. Its engine was equipped with a vertical double sealed beam headlight of 720,000 candlepower, described as "a combination flood and spot light", and two ground lights. A reflectorized white strip was painted around the engine. Immediately prior to the accident two automobiles headed west on West Norfolk Road had stopped on the east side of the crossing to permit the passage of the train. The headlights on both cars were burning, as were the lights on the engine of the train.
The appellant's principal witness was Gregory V. Hill, Jr. This witness testified that he and the decedent passed the 7-Eleven Store and the Texaco Service Station located to their left and shown on the sketch; that as they passed the station he recognized a friend there and turned in his seat to look; that when he turned back he saw a light which he knew "had to be a train light"; and that he told his grandfather, and the decedent then put on brakes. He estimated the decedent's speed at 20 mph as he rounded the curve located just beyond the service station, but stated that when he turned back from observing his friend, "Granddad was going 25 mph. Right here I *48 noticed the train light." He estimated they were 150 feet from the railroad crossing when he observed the train's light, and about 90 feet when he yelled to his grandfather.
Hill testified that the train's bell was not rung and that its horn or whistle was not blown. He said he was in a position that if the bell was ringing and the whistle was blowing, he would have heard them. He admitted the windows to the car were closed. While Hill testified that the brakes did not stop the automobile, he also said that when his grandfather put on brakes, "it slowed the car down and I kept going, and I put my hands up on the dashboard, and we slid or we collided with the train at the tracks". The front of the automobile hit the right front of the train engine, doing great damage to both and killing plaintiff's decedent. Hill admitted on cross-examination that he "never actually saw the train until we had collided with it. I saw the train light . . . which I knew was the train".
Keith Gordon Regelin was driving west on West Norfolk Road and stopped at the crossing because of the approaching train. He said that as he neared the crossing he heard the train horn blow and noted a continuous blowing on up to the crossing. One car ahead of him had also stopped and was awaiting the passage of the train. He observed the lights of the Bunn car as it approached the crossing at a speed of "maybe twenty-five, thirty-five miles an hour". The N.F. & D. train was to Regelin's right, "just coming into the crossing". Regelin said that he realized then that there was going to be an accident because Bunn "was coming, well, I wouldn't say fast, but he was not lessening his speed any like he was going to stop". The witness said that he saw the lights of the car up until the time of impact, and that "At the last minute, just before impact the car lights appeared like he slammed on the brakes. They dipped slightly, and then everything went black". Regelin said that the Bunn automobile at that point was just about at the crossing and that the train was crossing the highway. When asked if the bell was ringing he replied: "I couldn't hear the bell. I assume it was, but I did not hear a bell. I heard a horn."
The only other eyewitness to the accident was Jesse E. Pruden, the brakeman on the train, who was sitting on the right or north side of the engine. Pruden said that the bell had been activated and was ringing and that the train horn had been blown at least 800 feet from the crossing. Pruden testified that he noticed the Bunn car was not slowing up as it approached the crossing; that it apparently did not intend to "respect the crossing"; and that he yelled for the *49 engineer to "shoot the brakes". He said that the engineer immediately applied the emergency brakes, bringing the train to a stop shortly thereafter, "roughly three or four car lengths", but not in time to avoid the collision.
E. E. Madray, the train's engineer, did not see the accident for he was on the left or south side of the engine, and his view was obscured thereby. He testified that he was operating the train at approximately 15 mph; that he had activated the bell, and it had been sounding "ever since I left West Norfolk, that last crossing"; and that he had sounded the horn between 800 and 1000 feet prior to reaching the crossing. He said that he applied the emergency brakes approximately 50 feet before reaching the crossing and brought the train to a complete stop some 250 feet thereafter.
James R. Powell, the train flagman, was riding in the caboose on the rear of the train. He estimated the speed of the train to have been 15 mph. He did not see the accident but testified that he knew the horn was blowing -- he could hear that from the rear of the train, but that he could not hear, "that far away", sufficiently to tell whether the bell was ringing.
Mrs. Myrtle C. Dennis resides at 4707 West Norfolk Road, the second house east of the crossing and on the south side of the road. She testified positively that the train blew for the crossing to such an extent that "we stopped talking because you couldn't understand or hear what the other one was saying. The train did blow".
J. A. Roane was preparing to leave the Dennis home when he "heard the train whistle". He said that he delayed his departure because he did not want to get in a line of traffic which he knew would be occasioned by the train blocking the crossing. He described the whistle as "several blasts".
Carl Dennis resides at 4703 West Norfolk Road, on the east side of the crossing and on the south side of the road. He said that on the night of the accident he heard the rumble of the train and heard the whistle blow, which he described as two longs, a short and then a long. He said that "the sign that causes the train to blow is right in front of my house . . .".
Officer F. J. Erlbeck of the Portsmouth Police Department investigated the accident and testified that the Bunn automobile left skid marks which extended 80 feet 10 inches and "led right to the point of impact". He said that the automobile ran into the side of the train's engine. When asked if the tires got traction sufficient to leave a skid mark on the highway, he answered: "That's correct." This witness *50 was further asked: "So I take it whatever moisture there was was very light?" and he responded: "Yes. That day it was raining off and on, so it's very possible to get a skid mark."
We find no merit in appellant's assignment of error which questions the action of the trial court in instructing the jury that ". . . the ordinances of the City of Portsmouth in effect at the time of this accident impose a maximum speed limit upon trains in that portion of the City lying west of Douglas Avenue at 45 miles per hour." Churchland, the community in which and accident occurred, became a part of Portsmouth by annexation in 1968. The trial court found that the accident occurred in the newly annexed area at a point west of Douglas Avenue, and held correctly that the ordinance applied. Further, it was the duty of the train engineer to approach the crossing at a reasonable speed under the circumstances, and the jury was so instructed at the request of appellant.
Neither do we find error in the refusal by the trial court to submit to the jury the question whether the crossing was extra-hazardous. West Norfolk Road is not an arterial highway, is not congested and is not one of the principal streets of Portsmouth. In 1972 the greater percentage of the land around the crossing was wooded, in open fields or in cropland. Officer Erlbeck testified, "That particular area is more or less undeveloped. . . ". There are no activities in the immediate vicinity of the crossing that would normally distract the attention of a motorist, and there is no evidence that there was any peculiar or unusual condition surrounding this crossing such as to render it unusually dangerous. As we said in A.C.L.R. Co. v. Clements, 184 Va. 656, 668, 36 S.E.2d 553, 559 (1946).
}"Ordinary care on the part of a traveller affords both notice and protection. It was just an ordinary crossing. There was no congestion of traffic. There was an adequate view in both directions. There was absolutely no showing of such conditions as are ordinarily held to necessitate a flagman, the maintenance of a gate, or other signal devices."
The objection of appellant to the action of the trial court in submitting to the jury the tables of speed and stopping distances was well taken. The experiments made as a basis for the tables found in Code | 46.1-195 were "made with motor vehicles, unloaded except for the driver, equipped with four-wheel brakes, in good condition, on dry, hard, approximately level stretches of highway free from *51 loose material". The Bunn car was occupied by two persons. While it is generally known that a 1973 Ford LTD automobile is equipped with four-wheel brakes, there was no evidence of the condition of this car's brakes. The road was not dry. While it was hard-surfaced and its approaches to the crossing were level, there was no evidence that it was free from loose material.
Although "these tables create no presumption in law", their presence before the jury injected an element in the case which was not warranted by the evidence. We have repeatedly discouraged the granting of an instruction on the tables of speed and stopping distances unless it is clearly supported by the evidence. See Terry v. Fagan, 209 Va. 642, 166 S.E.2d 254 (1969); White v. Hunt, 209 Va. 11, 161 S.E.2d 809 (1968); Cook v. Basnight, 207 Va. 491, 151 S.E.2d 408 (1966); Shelton v. Mullins, 207 Va. 17, 147 S.E.2d 754 (1966); Beasley v. Bosschermuller, 206 Va. 360, 143 S.E.2d 881 (1965).
However, the verdict of the jury will not be set aside, for the evidence clearly exonerates the railroad of any negligence and establishes, with equal clarity, that the negligence of the decedent was the sole cause of the collision.
There is no evidence that the speed of the train had anything to do with the accident. Although its permissible speed was 45 mph, the three witnesses, Madray, Powell and Pruden, who testified regarding speed, estimated it to have been approximately 15 mph. Gregory V. Hill, Jr. simply said: "It [the train] seemed to be going faster than we were."
The crossing was not an extra-hazardous one. The photographs show the right-of-way on both sides of the track to have been cleared. No one has claimed that the train was not properly manned; that it was not in good operating condition; or that its brakes did not function. The brakeman saw the approaching Bunn car, and when he realized that its driver was not lessening his speed and was not going to "respect the crossing", he yelled for the engineer to "shoot the brakes". The engineer immediately applied the emergency brakes, and they were effective. Regelin testified that he heard the air brakes being applied and that the train stopped after the engine and two cars had passed the crossing.
Witnesses Madray and Pruden testified positively that as the train approached the crossing the bell was ringing and the horn was being sounded. Powell and four disinterested witnesses testified unequivocally that they heard the horn of the train blowing. The positive testimony of these seven witnesses was contradicted *52 only by the negative testimony of decedent's 15-year-old grandson. In Railway Company v. Barden, 200 Va. 98, 102-03, 104 S.E.2d 13, 16 (1958), we said:
{"We have repeatedly held that the positive testimony of a credible witness, who testifies that he saw or heard a particular thing at a particular time, ordinarily outweighs that of a number of other witnesses, equally credible, who, with the same opportunities, testify merely that they did not see or hear it. . . ."
This rule applies unless, as we said in National Union Fire Ins. v. Bruce, 208 Va. 595, 598, 159 S.E.2d 815, 818 (1968):
}"[There] is evidence that the one who denies a fact [1] had good opportunity to see, and [2] it is shown that he probably would have seen the matter if it had occurred, or [3] it is shown that his attention was drawn to the situation where the fact was supposed to have existed, . . ."
The mere fact that Hill said he was in a position to have heard the train signals had they been given is not necessarily sufficient to render his testimony positive in character. The facts could show otherwise. In Skinner v. Railway Company, 206 Va. 649, 655, 145 S.E.2d 170, 174 (1965), we said:
}"It is true other witnesses said that they did not hear such signals; but it is also true that their opportunity to hear was limited, and their attention was directed either to their own duties, or diverted by the fast developing tragedy immediately in front of them. . . ."
In the instant case Hill was a passenger in an automobile. The engine of the car was running, the car was in motion on a road that was wet, and the windows of the vehicle were closed. His "opportunity to hear was limited". He was twisted around in the car, looking back toward the service station, and his "attention was directed" to a friend whom he recognized. When he turned forward in the car he at once saw the train lights, realized he was faced with an impending accident, and his attention was "diverted by the fast developing tragedy immediately in front of" him. The overwhelming evidence is that the railway company gave proper warnings of its approach to the crossing; that its employees were maintaining a proper lookout; and that the train was proceeding at a reasonable speed. *53
It is unnecessary for us to cite the numerous cases outlining the duty of a motorist who undertakes to cross a railroad track. In Southern Ry Co. v. Campbell, 172 Va. 311, 317-18, 1 S.E.2d 255, 257-58 (1939), we approved the following rule:
{"'At grade crossings of railroads the rights of a traveler on the highway and of the railroad company are "mutual, reciprocal and co-extensive," but generally a moving train is accorded the right of way. A traveler approaching such crossing for the purpose of crossing must always exercise care proportioned to the known danger, and this care must be such as one who knows the danger and of the prior right of passage would be expected to exercise. The duty of looking and listening for approaching trains must be discharged in such manner as will make the looking and listening effective. The greater the danger, the greater the measure of duty. The track itself is a proclamation of danger, and the traveler has no right to proceed across the track without such looking and listening for approaching trains, . . .'". To the same effect see Skinner v. Railway Company, supra; Railway Company v. Hagy, 201 Va. 183, 110 S.E.2d 177 (1959); Railway Company v. Sykes, Adm'r, 200 Va. 541, 106 S.E.2d 734 (1959); Southern Ry. Co. v. Wilson, 196 Va. 883, 86 S.E.2d 53 (1955).
In the instant case Bunn had just traversed one crossing of the N.F. & D. and was approaching a second. Testimony introduced by the appellant convicts the decedent of negligence which was the sole proximate cause of the accident at the second crossing. Hill testified that after his grandfather rounded the curve and was approximately 300 feet from the crossing, he accelerated the speed of his car from 20 to 25 mph. At this point Bunn should have been looking and listening, and preparing to stop if necessary. He was then driving over or very near the large white reflectorized RR warning sign painted on the surface of his lane of the highway, and he was facing the crossbuck sign immediately ahead. Photographs clearly show that from a point more than 150 feet west of the crossing Bunn had an almost unlimited and unimpaired view of the approaching train. Further, the railroad track curves toward the crossing. The photographs, taken four days after the accident, show little foliage on the trees.
The evidence is conclusive that the decedent never saw or did not heed the approaching train until his grandson yelled. The grandson's attention had been directed toward the Texaco Service Station as the *54 Bunn car approached the crossing. It is significant that immediately after Hill turned in the car and looked in the direction of the crossing he saw the headlight of the train which was clearly visible to him. He said he was the first one to see the train and knew there was going to be an accident. He estimated that the car was then 150 feet from the crossing and that his grandfather applied the brakes only after he yelled.
We know that the decedent was aware of the train when he was at least 80 feet 10 inches from the crossing because his vehicle left tire marks on the highway for that distance. The time that elapsed and was lost by his inattention, and by his failure to maintain a proper lookout, was the time it took the grandson to observe the headlights of the approaching train, react to the danger that confronted them and communicate an alarm to the decedent. Additional time must also be added for the decedent to react, apply the brakes and for the brakes to take effect. Had the decedent been keeping a proper lookout he would have seen the approaching train when he was at least 150 feet from the crossing and would have had ample time and distance in which to stop. It is inescapable that the decedent was completely oblivious of the train and the crossing until he was aroused by the warning of his grandson.
Witnesses Regelin and Pruden observed the car as to approached the crossing and each man, independently of the other, concluded from the manner in which it was being operated that Bunn was not going to stop for the crossing and that there was going to be an accident.
Had Bunn exercised ordinary care and caution at a time when looking and listening would have been effective, he would have seen the headlight of the approaching train and would have heard the signals it gave. Seven persons in the immediate vicinity of the crossing did hear the signals. The warnings given by the railway, the signs painted in the road, the crossbuck sign, the white stopping line, and the powerful headlight on the engine, all went unheeded by the decedent.
It is also significant that Regelin and the operator of another automobile, both approaching the crossing from the east, stopped and yielded the right-of-way to the train. The drivers of these vehicles were not in as good a position to observe the lights of the train as was plaintiff's decedent, for the train was approaching the Bunn vehicle and its lights necessarily flooded the crossing area in front of Bunn. *55
The record offers no explanation for the inattentiveness of Bunn. He was not a stranger to the area in which the accident occurred. His daughter, whose home he had just left, resided at 5208 West Norfolk Road, and the crossing involved is located not very far distant on the same road. The grandson testified that the decedent was familiar with the road and knew the way to the airport. An exhaustive examination of the evidence discloses no explanation for this tragic accident other than a failure by plaintiff's decedent to exercise the due and ordinary care required of a normal person under the circumstances which existed the night of the accident.
For the reasons stated, the trial court erred in refusing to sustain appellee's motion to strike the evidence. However, because the conclusion we reach is consistent with the verdict of the jury and the final judgment of the trial court, we affirm that judgment.
Sketch Omitted
Affirmed.
COMPTON
COMPTON, J., dissenting.
There was credible positive evidence from the decedent's grandson that the train horn was not sounded and that the bell was not rung, Poole v. Hassell, 206 Va. 97, 101, 141 S.E.2d 707, 710 (1965); Chesapeake & Ohio Ry. v. Jacobs, 166 Va. 11, 17-18, 183 S.E. 221, 224 (1936), yet the majority decides as matters of law the issues of negligence and proximate cause. I disagree. In my opinion, these questions were pure matters of fact proper for jury determination. Therefore, and because the trial court committed prejudicial error by allowing the jury to consider the tables of speed and stopping distances, I would reverse this case and remand it for a new trial on all issues.
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138 Ga. App. 17 (1976)
225 S.E.2d 488
WADE
v.
SPORT CONCESSION ENTERPRISES, INC.
51735.
Court of Appeals of Georgia.
Argued January 13, 1976.
Decided March 8, 1976.
*19 Waldrep & Williams, Joseph L. Waldrep, for appellant.
Elkins & Flournoy, Thomas M. Flournoy, Jr., for appellee.
BELL, Chief Judge.
This is a suit to recover a balance due against several defendants on a bill of sale to secure debt and a promissory note incorporated within the bill of sale to secure debt. A *18 jury verdict was returned for the plaintiff. One of the defendants, Wade, enumerates as error the denial of a motion for directed verdict.
At trial it was shown that plaintiff sold its restaurant business and equipment located in Columbus, Georgia to the defendant corporation. At the time of sale a promissory note and a bill of sale to secure the debt on restaurant equipment was executed by the corporate defendant. Three of its officers, the other defendants, also endorsed the instrument in their individual capacities. There was a default in payment, unsuccessful demand for payment, and suit was filed in July 1973. In June 1974, and prior to trial, plaintiff, by its president, repossessed the restaurant equipment from the premises because the landlord had advised that if it were not removed it would be set out into the street as there had been a nonpayment of the rental. Plaintiff had the equipment taken to Pennsylvania where it was cleaned and stored. There was evidence that there was no market for the property in Columbus, Ga. or Pennsylvania nor a place to store it. As of the time of the trial none of the defendants made any inquiry about recovering the property. Held:
Defendant Wade contends that the repossession without notice for the purpose of selling the property and retaining it for at least nine months constitutes a rescission and satisfaction of the contract. In support of this argument he cites Bradford v. Lindsey Chevrolet Co., 117 Ga. App. 781 (2) (161 SE2d 904). In that case it was held that the act of the holder in repossessing the security (a car) under a conditional sales contract, the retention of the collateral without sale and without excuse for not selling it constituted a rescission and satisfaction of the contract. The facts here are distinguishable. The evidence would authorize the jury to find that plaintiff's retaking of possession was for the purpose of preserving the property from imminent destruction or loss. There is also evidence which authorizes a finding that there was no market for this equipment in Columbus, Ga. or in Pennsylvania.
The jury verdict was authorized by the evidence. It was not error to deny defendant's motion for directed verdict.
Judgment affirmed. Clark and Stolz, JJ., concur.
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226 S.C. 501 (1955)
85 S.E.2d 858
THE STATE, Respondent,
v.
GEORGE A. SHEA, Appellant.
16962
Supreme Court of South Carolina.
February 14, 1955.
*502 Messrs. Sam N. Burts and Thomas W. Whiteside, of Spartanburg, for Appellant.
*503 Messrs. J. Allen Lambright, Solicitor, J. Wright Nash, Assistant Solicitor, Sam R. Watt, and Chester D. Ward, Jr., of Spartanburg, for Respondent.
February 14, 1955.
STUKES, Justice.
Appellant was tried upon an indictment which contained two counts: First, assault with intent to ravish; and, second, assault and battery of a high and aggravated nature. He was convicted and sentenced upon the second count and has appealed. His motion for direction of verdict of not guilty upon the first count was refused, as was his motion to submit to the jury the issue of simple assault and battery. These rulings are the subject of exception and he has also *504 appealed upon the ground of alleged error in the charge to the jury in that it referred to the possibility of suspension of sentence and probation.
The prosecutrix was a nineteen-year-old matron at the time, and appellant was sixty-four years of age. He was a business associate of the father-in-law of the prosecutrix, married and the father of a young daughter. His and her neighboring homes were situate on U.S. Highway 29, known as the Charlotte Highway, and about five miles from the City of Spartanburg. The home of the prosecutrix and her husband is the property of appellant and closely adjacent to the highway and also on another, intersecting road. The occurrence was at about five o'clock on a Saturday afternoon when the husband of the prosecutrix was still at his work and she was at home alone. She testified that appellant was drinking. The facts stated in the following paragraph are also from her testimony, which the jury may have accepted in toto or rejected in part.
She was sweeping her porch when appellant appeared in her yard and called her to him as if to show, or tell, her something and they first engaged in innocent conversation in the backyard which was rather secluded by the adjoining buildings and peach orchard. He pulled her to him and forced a kiss upon her, holding her by the shoulders with his body against hers. He inquired when her husband would be home, which she told him and he said that would give him about an hour and he tried to get her in the house with him but she refused and asked him to leave. He asked and she showed him her rings and he inquired whether there was anything he could do for her. He saw and mentioned papers on the porch which had been torn by her dog and he offered to help her remove them and pushed on the screen door, which he could not open because it was latched inside. She jerked loose from him and ran to the highway at the front, whereupon he got in his automobile, which was parked nearby, and drove out to the highway, stopped beside her and said to her that she had better not tell and *505 that he would be back to see her. He then drove away. She made no outcry but promptly afterward telephoned her father-in-law at his Spartanburg place of business, who immediately sent another son who arrived in about ten minutes and he took the prosecutrix to his father's home. She testified on cross examination, in part as follows:
"Q. Where did he have hold of you? A. Got ahold of my shoulders.
"Q. Mrs. Lanier, were you hurt in any way? A. No, sir.
"Q. Were you bruised in any way? A. No, sir.
"Q. Were your clothes torn? A. No, sir.
"Q. Did Mr. Shea ever make an improper advance to you, such as trying to put his hand on you where it shouldn't have been? A. No, sir.
"Q. He did not? A. No, sir."
The brother-in-law of the prosecutrix, to whom she first reported the occurrence in detail, recounted the report in his testimony as follows:
"(The prosecutrix) said Mr. Shea called her and started talking to her nice and everything, so she said he called Shirley (the prosecutrix) over there where he was, and Shirley went over there, and he pulled her behind the house. And said that he was trying to kiss her and everything there behind the house, and asked her what time Sidney (the husband of prosecutrix) would be home. She said he would be home, usually gets home between 6:30 and 7 o'clock. And he looked at his watch and said, `Well, that will give me an hour then', and said `Let's go in the house.' And she said she broke loose from him and went around to the front down to the highway and started playing with her flowers, looking at her flowers."
Because of the necessity for new trial the evidence will not be further stated. However, upon consideration of all of it, we are convinced that both counts of the indictment should have been submitted to the jury, *506 as they were, and that, in addition, the issue of simple assault and battery should also have been submitted.
The following decisions are of some assistance: State v. Johnson, 84 S.C. 45, 65 S.E. 1023; State v. Sanders, 92 S.C. 427, 75 S.E. 702, 42 L.R.A., N.S., 424; State v. Kelly, 114 S.C. 336, 103 S.E. 511; State v. Wilkins, 217 S.C. 105, 59 S.E. (2d) 853. Compare State v. Wilson, 162 S.C. 413, 161 S.E. 104, 81 A.L.R. 580.
"In a prosecution for rape, or for attempt or assault with intent to rape, accused may be convicted of the offense charged or of any lesser offense embraced therein, * * * and, where the evidence, or any reasonable view thereof, warrants it, it is proper in (to?) instruct the jury that they may convict of a lesser offense included in the charge, such as attempt, or assault with intent to rape, or aggravated assault, or simple assault, and a failure or refusal to do so is error, at least where a request is made; and an instruction affirmatively excluding lesser included offenses from the consideration of the jury is likewise erroneous." 75 C.J.S., Rape, § 820 (2), pp. 588, 589.
The following is from 44 Am. Jur. 980, Rape, Sec. 124: "Unless an instruction as (is?) tendered or requested as to the lower degrees of the crime charged, no error is committed in failing to so charge * * *." Here request was made (whether necessary or not, we do not decide) and refused, and is the subject of exception.
It was plainly stated in State v. Knox, 98 S.C. 114, 82 S.E. 278, 279, in which the indictment was for assault and battery with intent to kill and the jury found assault and battery of a high and aggravated nature, the court having refused to submit assault and battery, as follows: "The rule is well settled that an indictment for a higher offense will sustain a conviction for a lower offense included in the higher, and that a jury can find a defendant guilty of an assault and battery under an indictment charging assault *507 and battery with intent to kill. 2 Enc. Pl. & Pr. 856, 857. There was testimony from which the jury might have drawn a reasonable inference, that the defendant was only guilty of assault and battery. It is not error, however, for a presiding judge to refuse to submit the question of assault and battery to the jury, under an indictment for assault and battery with intent to kill, unless there is testimony tending to show that the defendant is only guilty of assault and battery. State v. Du Rant, 87 S.C. 532, 70 S.E. 306."
We think that it may be accurately said of the evidence in this case as it was in McClain v. State, 83 Ga. App. 177, 63 S.E. (2d) 217, 218: "The evidence in the instant case, as above stated, does not demand a verdict of assault with intent to rape, but authorizes and sustains a verdict of assault and battery." Both should have been submitted to the jury and also the intermediate assault and battery of a high and aggravated nature.
The jury were instructed that conviction upon the first count of the indictment would result in sentence of death, unless the jury should recommend mercy whereupon appellant would be sentenced to not less than five years nor more than forty years, within the discretion of the court; and that conviction upon the second count would entail sentence of not less than three months nor more than ten years, within the discretion of the judge. Immediately following the foregoing, the jury were instructed as follows:
"And then insofar as either verdict is concerned, where a term of years is involved, this Court has the authority to suspend all or any portion of a sentence and place the defendant on probation under the usual terms of the act, or under any such special provisions as appear appropriate to the trial judge."
Appellant has excepted to the quoted charge and claims that it conveyed to the jury the impression that the court intended to put appellant on probation if he were found *508 guilty, whereby they were induced to more readily convict and he was thereby prejudiced.
The decided weight of authority is that a defendant may be prejudiced by an instruction such as that complained of here. The decisions are collected in an annotation in 8 A. L.R. (2d) 1001, which is summarized at the outset as follows:
"In general, it may be stated that any indication on the part of the court that may reasonably lead the jury to believe that a finding of guilt will result in a suspended sentence constitutes reversible error. The underlying principle is that an accused's right to acquittal if the jury is not convinced of his guilt is destroyed, and a skeptical minority of the jury may be less reluctant to abandon its stand, if it is thought that the consequences of conviction will be obtunded."
However, the appellant in the instant case did not make timely objection to the charge. Act No. 27 of 1953, 48 Stat. 28, now Section 10-1210 of the Supplement to the Code of 1952, is as follows:
"In all cases tried before a jury, other than cases in a magistrate's or municipal court, after the court has delivered to the jury a charge on the law in the case the court shall temporarily excuse the jury from the presence of counsel and litigants in order to give counsel and litigants an opportunity to express objections to the charge or request the charge of additional propositions made necessary by the charge, out of the presence of the jury."
In the case in hand the court complied with the statute by excusing the jury at the conclusion of the charge and inviting counsel to object to it and to request additional instructions. Counsel for appellant requested other additional instructions but entered no objection to the now questioned charge. Appellant is therefore bound by it insofar as this appeal is concerned. Munn v. Asseff, S.C. 83 S.E. (2d) 642; Hall v. Walters, S.C. 85 S.E. (2d) 729.
*509 Reversed and remanded for new trial.
BAKER, C.J., and TAYLOR, OXNER and LEGGE, J.J., concur.
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91 Ga. App. 92 (1954)
85 S.E.2d 75
McCONNELL et al.
v.
WHITE et al.; and vice versa.
35306, 35307.
Court of Appeals of Georgia.
Decided October 14, 1954.
Adhered To On Rehearing November 16, 1954.
*94 C. Winfred Smith, Brannon & Brannon, for plaintiffs in error.
Wheeler, Robinson & Thurmond, contra.
FELTON, C. J.
1. The bond for title described the land by metes and bounds, and the vendees were entitled to receive title to and possession of all the land described by such metes and bounds. McElroy v. McElroy, 142 Ga. 37, 38 (5) (82 S.E. 442); May v. Sorrell, 153 Ga. 47, 53 (111 S.E. 810); Blackwell v. Partridge, 156 Ga. 119, 130 (5) (118 S.E. 739); McCook v. Council, 202 Ga. 313 (1) (43 S.E.2d 317). If the vendors are unable to put the title to any portion of the lands so described in the vendees and put the vendees in undisturbed possession thereof, the vendees in an action by the vendors for the purchase price may set off the value of that portion to which title and possession cannot be given by the vendors. Code § 29-202; Gibson v. Alford, 161 Ga. 672 (2c) (132 S.E. 442). The defendants' cross-action is one of setoff and is not one seeking a rescission of the bond for title or a reformation thereof. The contention by the vendors that any shortage in the land is taken care of by the phrase "more or less" in the acreage description is without merit. Code § 29-201, which provides that the qualification "`more or less' . . . will cover any deficiency not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud," does not apply to sales of land by metes and bounds. Blackwell v. Partridge, supra; Dorsett v. Roberds, 172 Ga. 545, 552 (7) (158 S.E. 236). Further, description by metes and bounds controls over the quantity specified in the deed. Carswell v. Sanders, 182 Ga. 251 (185 S.E. 282). The contention that any fraud or misrepresentation by the vendors has been waived by the vendees' possession of the land for 7 1/2 years without seeking relief is without merit. The vendees' cross-action is not dependent upon fraud or misrepresentation being shown. Even if the vendees had had knowledge at the time of the execution of the bond for title that the land as described by metes and bounds did not contain the 10 1/2 acres, such knowledge would not have barred their present cross-action. Foute v. Elder, 109 Ga. 713, 714 (35 S.E. 118). It is true that in Early v. Conn, 190 Ga. 660 (1) (10 S.E.2d 177), the Supreme Court held that a vendee in "undisturbed possession" of lands cannot defeat an action by the vendor for the purchase price of *95 the lands on the ground that the vendor did not have good title to such lands. The reason for this principle was stated by Chancellor Kent in Abbott v. Allen, 2 Johns, Ch. 519 (7 Am. D. 554), as follows: "It would lead to the greatest inconvenience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts or takes any measures to assert a hostile claim, can be permitted on suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase-money, and of all proceedings at law to recover it. Can this court proceed to try the validity of the outstanding claim in the absence of the party in whom it is supposed to reside, or must he be brought into court against his will, to assert or renounce a title which he never asserted, and perhaps never thought of?" See Henderson v. Fields, 143 Ga. 547, 549 (85 S.E. 741). We also recognize that, where there is no allegation to the contrary, the vendee is presumed to be in possession under the contract of purchase. Mallard v. Allred, 106 Ga. 503 (1a) (32 S.E. 588). However, while there is no positive and direct allegation that the vendees are not in possession of the 10 1/2 acres here in dispute, the plea and answer contained allegations to show that the vendees were not in undisturbed possession of the 10 1/2 acres, and that they did not have undisputed title thereto. The vendees alleged that, in the case of W. A. White and H. J. White (the present plaintiffs) et al. v. H. G. Spahr, in White Superior Court, said Spahr obtained a final judgment and decree decreeing title to the 10 1/2 acres with the timber growing thereon to be in Spahr, and permanently enjoining the plaintiffs from going on or trespassing on said land. It was further alleged that Spahr had cut and sold certain timber contained on the 10 1/2 acres. Such allegations are sufficient to meet the rule as announced by Chancellor Kent and adopted by the Supreme Court. And see Lowery v. Yawn, 111 Ga. 61 (36 S.E. 294).
2. The defendants alleged an incorrect measure of damages. They in substance alleged the measure of damages as the resulting damage to the portion of the tract to which they got good title. Where a purchaser loses only a part of the land from a defect in title, his remedy is fixed by Code § 29-202, which provides for rescission or a reduction in price according to the *96 relative value of the land so lost. It would seem that Code § 20-1413 does not apply unless all the land is lost. Code § 29-202 has been applied when a bond for title was involved. Norris v. Coffee, 206 Ga. 759 (58 S.E.2d 812), and cases cited. We have not found where the words "relative value" as used in Code § 29-202 have been exactly defined. We conclude, after much concern and deliberation, that the expression means relative value with the purchase price as a base value of the whole, for the reason that, where rescission is not sought, the only remedy is a reduction in purchase price. Any other interpretation might result in the recovery by a purchaser of more than the purchase price, if the land lost was worth more at the time of breach of contract or bond than the whole land originally bargained for. Smith v. Kirkpatrick, 79 Ga. 410 (7 S.E. 258), confirms this conclusion, as does the case it cites.
The failure to set forth the correct measure of damages in the answer did not subject the answer to dismissal, even though a special demurrer pointed out the defect and it was sustained. The same rule applies to the answer in this case as applies to a declaration based on the breach of a contract. In such a case nominal damages may be recovered whether special damages are correctly alleged or not, and the pleadings may be amended to show the proper damages at any stage of the proceedings. Irwin v. Askew, 74 Ga. 581, 585 (2); Kenny v. Collier, 79 Ga. 743 (8 S.E. 58); Sutton v. Southern Ry. Co., 101 Ga. 776 (29 S.E. 53); Graham & Ward v. Macon &c. Ry. Co., 120 Ga. 757 (49 S.E. 75).
3. On October 13, 1953, the plaintiffs filed a renewed demurrer to the defendants' plea, answer and cross-action as amended. The renewed demurrer was sustained, and the court allowed the defendants fifteen days within which to amend the plea and answer to meet the objections of the renewed demurrer. On October 28, 1953, the defendants petitioned the court for an extension of time for the filing of the amendment, and the court passed an order allowing them until November 30 to amend. The assignment of error complains that the court was without authority to allow such extension for the time of filing the amendment, and erred in allowing such amendment to be filed. The cross-bill of exceptions is without merit. Ga. L. 1952, p. 243, *97 provides in part: "Where the court sustains any or all demurrers to pleadings, and allows time for the filing of an amendment, such judgment or order shall not be subject to exception or review, but the court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the judgment allowing time for amendment. Parties shall have the right to amend at any time prior to the rendition of such latter judgment." The defendants had the right to amend their plea, answer and cross-action at any time prior to the rendition of such a judgment. See Browning v. Hirsch, 87 Ga. App. 576 (75 S.E.2d 43). The court did not err in allowing the defendants' amendment. There is no merit in the contention that the court should have sustained the plaintiff's demurrers before additional amendments were filed.
The court erred in sustaining the demurrer to and in dismissing the plea, answer and cross-action as finally amended, and such action rendered all further proceedings in the case nugatory.
The court did not err in sustaining the special demurrer to the allegations as to the measure of damages sought, and did not err in extending the time for the defendants to file their final amendment and in allowing such amendment filed.
Judgments in the main bill of exceptions affirmed in part and reversed in part. Judgment in the cross-bill of exceptions affirmed. Quillian and Nichols, JJ., concur.
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211 Ga. 210 (1954)
85 S.E.2d 25
HUMTHLETT et al.
v.
REEVES et al.
18736.
Supreme Court of Georgia.
Argued September 16, 1954.
Decided November 9, 1954.
Rehearing Denied December 2, 1954.
*213 Raymond M. Reed, Powell, Goldstein, Frazer & Murphy, for plaintiffs in error.
Moise, Post & Gardner, Howell C. Ravan, Bryan, Carter, Ansley & Smith, J. G. Roberts, contra.
HAWKINS, Justice.
(After stating the foregoing facts.) 1. Section 1 of Ga. L. 1910, p. 131, provides: "Be it enacted, that in all counties in this State having a population of one hundred and twenty-five thousand (125,000), or more, the Board of County Commissioners, or if there be no such Board, the Ordinary of said county, shall have the power to grant or refuse permission to establish outside of the limits of incorporated towns, cemeteries, hospitals, sanatoriums, or similar institutions." Ga. L. 1911, p. 200, sec. 1, provides that, "in all cases where it is now provided by the operation of existing laws that cemeteries. . . can not be established in the rural territory of any county without the permission of the Board of County Commissioners . . . it shall be likewise unlawful to establish any such cemetery . .. in any adjoining county without the permission" of the person or persons in charge of the county business. While this court, in Herrod v. O'Beirne, 210 Ga. 476 (80 S.E.2d 684), by a majority opinion held both of these acts to be valid as against the attack that they were unconstitutional because violative of article I, section IV, paragraph I of the Constitution of 1945 (Code, Ann., § 2-401), providing that "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law," upon the theory that the classification by population makes them general and not special laws; and while, as there said, under the authorities there cited, acts which have been classified upon the basis of population have been held to be general and not special laws where population has some reasonable relation to the subject matter of the law, and furnishes some legitimate ground of *214 differentiation there can be no reason for classification of counties based upon population of an adjoining county, and to so classify a county as coming within the purview of an act because of the population of some other county is purely arbitrary. The population of one county cannot have any reasonable relation to the subject matter of a statute such as this so as to make it applicable to an adjoining county. Stewart v. Anderson, 140 Ga. 31 (78 S.E. 457); City of Atlanta v. Wilson, 209 Ga. 527 (74 S.E.2d 455); City of Atlanta v. Sims, 210 Ga. 605 (82 S.E.2d 130). The act of 1911, by its own terms, limits its operation to those counties which adjoined another county having a population in 1911 of 125,000, and makes no provision for counties that in the future would adjoin counties having a population of 125,000. In Tift v. Bush, 209 Ga. 769, 771 (75 S.E.2d 805), this court held: "In order for an act which makes a classification by population to be general, rather than special, it must not only be open to let in counties subsequently falling within the class, but must be open to let out a county which, either by increase or decrease according to the last census, ceases to have the required population." And in Stewart v. Anderson, 140 Ga. 31, 33, supra, it is said: "If the classification is sought to be made with reference to counties, and the basis of classification is legal, the law must apply to all counties within the class, or which may come within the class." The decision in Herrod v. O'Beirne, supra, being by a divided bench, and, as applied to the act of 1911, in conflict with the principle announced in the older full-bench decision in Stewart v. Anderson, supra, will not be followed here. This court did not, as contended by counsel for the defendants, hold that the acts of 1910 and 1911 were valid, in Hallman v. Atlanta Child's Home, 161 Ga. 247 (130 S.E. 814), Southview Cemetery Assn. v. Kitchens, 162 Ga. 322 (133 S.E. 919), and South View Cemetery Assn. v. Hailey, 199 Ga. 478 (34 S.E.2d 863). An examination of each of those cases will disclose that this court was there simply applying the provisions of the act of 1910, which had there been invoked, and that in none of those cases was any question raised or passed upon as to the constitutionality of either of the acts.
(a) The decision in Herrod v. O'Beirne, supra, is not the law of the case, nor res judicata of the question here presented. *215 While the defendants in that case and the defendants here are the same, and while the land in both cases is the same, the plaintiffs in the two cases are entirely different, and the petition in the Herrod case was not brought as a class action so as to bring this case within the ruling made in Walker v. Hamilton, 210 Ga. 155 (78 S.E.2d 511); but the petition was one by the plaintiffs therein, who are strangers to the present proceeding, solely on their own behalf to protect their individual rights. In 30 Am. Jur. 963, § 228, it is said: "Obviously, the doctrine of res judicata will not be applied on the theory of virtual representation where the original action is brought by a stranger to the subsequent action solely on his own behalf to protect his individual rights under a contract with the defendant." See also Code § 110-501; Bedingfield v. Moye, 143 Ga. 563 (85 S.E. 856); Browning v. Guest, 147 Ga. 400 (94 S.E. 234).
(b) Neither does the rule of stare decisis which is that a principle of law that has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases require that we follow the previous decision of this court in the Herrod case, supra. That is the first case, so far as we have been able to find, which holds that the rule announced by previous decisions of this court that reasonable classification by population renders an act general rather than special should be so extended as to make classification by population of one county the basis of applying the act to an adjoining county that does not have the required population. We are convinced that this extension of the rule is unsound, and the doctrine of stare decisis should not be followed to the extent that error may be perpetuated. See, in this connection, 21 C. J. S. 302, § 187, and p. 322, § 193; 14 Am. Jur. 283, § 59 et seq., and p. 291, § 78. Moreover, the majority opinion in Herrod v. O'Beirne, supra, did not deal specifically with the question of the act of 1911 (Ga. L. 1911, p. 200), being limited by its terms to those counties which then adjoined a county having the population specified by the act of 1910, and making no provision to let in counties thereafter coming within the classification; and evidently overlooked this question being presented by the record, and the previous full-bench decisions in Stewart v. Anderson, supra, and Sumter County v. Allen, 193 Ga. 171, 176 (17 S. E. *216 2d 567), and the more recent decision in Tift v. Bush, supra, concurred in by six Justices, Presiding Justice Atkinson not participating, all of which hold that, in order to be valid, a classification by population must open to let in counties subsequently falling within the classification. These older full-bench decisions are binding on this court, and require us to follow them in the present case notwithstanding the more recent decision in the Herrod case, supra, concurred in by only four Justice, which must yield to the older decisions. Almand v. Board of Education of Laurens County, 161 Ga. 911, 918 (131 S.E. 897); Harris v. Duncan, 208 Ga. 561, 562 (67 S.E.2d 692), and cases there cited. Since the Herrod decision was so recently rendered, and is in such direct conflict with the older full-bench decisions that no one could have been led to rely upon it as permanently fixing the law and been misled by it to his hurt and injury, there is no occasion for applying the doctrine of stare decisis. Walton v. Benton, 191 Ga. 548 (13 S.E.2d 185). Chief Justice Bleckley, in discussing the rule of stare decisis in Ellison v. Georgia Railroad Co., 87 Ga. 691, 696 (13 S.E. 809), had this to say: "Minor errors, even if quite obvious, or important errors if their existence be fairly doubtful, may be adhered to and repeated indefinitely; but the only treatment for a great and glaring error affecting the current administration of justice in all courts of original jurisdiction, is to correct it. When an error of this magnitude and which moves in so wide an orbit competes with truth in the struggle for existence, the maxim for a supreme court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but fiat justitia ruat coelum [let justice be done, though the heavens should fall]."
2. It is insisted by the defendants that, even if the act of 1911 should be declared invalid, they would still have the right to establish a cemetery on the property involved, because, as they contend, there has been no valid zoning of the property exclusively for residential and agricultural purposes. It is insisted by the defendants that every statute enacted which purports to confer upon Cobb County the right to zone property is unconstitutional. We do not deem it necessary to deal with the various attacks made upon the act of 1943 (Ga. L. 1943, p. 902), as amended by the act of 1949 (Ga. L. 1949, p. 1499), *217 purporting to confer upon the Planning Commission of Cobb County the power to zone property therein outside the incorporated cities, and creating a Board of Zoning Appeals, because, prior to either of those acts, and in 1937 (Ga. L. 1937-38, Ex. Sess., p. 790), the General Assembly passed an act conferring upon the County Commissioner of Cobb County the power to zone property outside the incorporated cities of the county. It appears from the record that, pursuant to that act, the County Commissioner did in 1939, by an ordinance adopted in conformity therewith, zone the property here involved exclusively for residential and agricultural purposes, and prohibited its use for any other purpose. Thus, conceding for the sake of argument, but not deciding, that the acts of 1943 and 1949 are unconstitutional to authorize zoning, they would likewise be ineffective to repeal the act of 1937, supra, and if that act and the zoning of the property involved thereunder be valid, the trial court should have enjoined its use for the establishment of a cemetery thereon. Hardin v. Croft, 207 Ga. 115 (3) (60 S.E.2d 395). The defendants insist, and the trial court held, that the act of 1937, supra, was void because the act approved August 15, 1921, creating a County Commissioner for Cobb County, which the act of 1937 purported to amend, was never adopted, never went into effect, and never became law, because not ratified by a vote of the people as required by its terms. While there is no contention in this case that the act approved August 15, 1921, was ever ratified or became effective, we do not agree with the conclusion reached by the trial court that the act of 1937 is void because in its caption and in the body of the act it purported to amend the act of 1921. While it does purport to amend the act of 1921, at the time of its passage there was in effect an act approved August 7, 1924 (Ga. L. 1924, p. 314), creating the office of Commissioner of Roads and Revenues of Cobb County. An examination of the act of 1937 (Ga. L. 1937-38, Ex. Sess., p. 790) will show that the caption declares a purpose to amend an act approved August 15, 1921, "and all acts amendatory thereof" creating the office of Commissioner of Roads and Revenues of Cobb County, by amending section 8 of said act relating to the jurisdiction and powers of said Commissioner "so as to authorize and empower said Commissioner to pass and enforce zoning and *218 planning ordinances," etc. By section 1 it is provided "that section 8 of the act approved August 15, 1921, as amended, creating the office of Commissioner of Roads and Revenues for the County of Cobb and defining the powers and jurisdiction of said Commissioner" be amended by adding a new section at the end of section 8 to be numbered 8-a, and to read as follows: "8-a. In addition to all other powers and authority exercised or to be exercised by the Commissioner of Roads and Revenues, said Commissioner is hereby authorized and empowered to make, promulgate and declare zoning ordinances providing for the zoning or districting of the territory of Cobb County [not included in city limits of cities of the county] for various uses, prohibiting or regulating the use of property located in said zones or districts for purposes other than those prescribed by the Commissioner," and the act proceeds to set forth in orderly subparagraphs the power that is conferred upon the Commissioner and the method whereby property shall be zoned.
From an examination of the act of 1937 (Ga. L. 1937-38, Ex. Sess., p. 790), it is perfectly clear that it was the intention of the General Assembly to confer upon the Commissioner of Roads and Revenues of Cobb County the power to enact zoning ordinances as had been authorized by the amendment to the Constitution of 1877 ratified June 8, 1937 (Ga. L. 1937, p. 1135, Code, Ann., § 2-1826), which conferred upon the General Assembly authority to grant to the governing authorities of any city or county in this State having a population of 1,000 or more, according to the Federal census of 1930, or any future census, the authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, etc. The governing authority referred to in the act of 1937 was the Commissioner of Roads and Revenues of Cobb County. If the 1937 act had simply declared a purpose to confer upon the Commissioner of Roads and Revenues of Cobb County authority to pass zoning and planning laws, it would have been sufficient without any reference to the act of the General Assembly creating that office, and without the necessity for an amendment to any particular statute. The fact that the author of the bill mistakenly referred to the act of 1921 will not destroy the act, for the reason that *219 the legislative intent is plain and clear to confer the power to enact zoning laws upon the county commissioner therein named. In Lamons v. Yarbrough, 206 Ga. 50 (1) (55 S.E.2d 551), it is said: "It is the duty of the courts, in the interpretation of statutes, to seek diligently to arrive at the legislative intent, and, in order to do so, they should not adopt an arbitrary rule that the legislature intended to make a typographical or clerical error, the result of which would be to make nonsense of the act, and destroy it." In Central of Georgia Ry. Co. v. State of Georgia, 104 Ga. 831, 839 (31 S.E. 531, 42 L. R. A. 518), this court said: "A legislative body should always be presumed to mean something by the passage of an act." In Carroll v. Ragsdale, 192 Ga. 118, 120 (15 S.E.2d 210), it is held: "While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated. The legislative intent will prevail over the literal import of the words." And this seems to be the universal rule, for in 50 Am. Jur. 220, § 233, it is said: "In the case of a mistake in a reference in a statute to another statute, to a constitutional provision, or to a public document, record, or the like, where the real intent of the legislature is manifest, and would be defeated by an adherence to the terms of the mistaken reference, the mistaken reference will be regarded as surplusage, or will be read as corrected, in order to give effect to the legislative intent." In 82 C. J. S. 425, § 257, we find the following: "Mere clerical errors or omissions in the reference to, and identification of, the act or statute to be amended will not invalidate the amendatory statute, where, notwithstanding such errors or omissions, the act or statute to be amended is pointed out with reasonable certainty. Legislative enactments are not, any more than other writings, to be defeated because of mistakes, errors, or omissions, provided the intention of the legislature can be collected from the whole statute." See also Code § 102-102 (9); Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (160 S.E. 909); Scott v. Mayor &c. of Mount Airy, 186 Ga. 652 (198 S.E. 693); Sumter County v. Allen, 193 Ga. 171 (17 S.E.2d 567); Bennett v. Wheatley, 154 Ga. 591 (115 S.E. 83); Gazan v. Heery, 183 Ga. 30 (187 S.E. 371, 106 A. L. R. 498); McCallum v. Bryant, *220 ante, p. 98 (84 S.E.2d 39). The 1937 act (Ga. L. 1937-38, Ex. Sess., p. 790) being complete within itself, and the intention of the legislature being clear, the act will not be held invalid because it mistakenly referred to the act of 1921 (Ga. L. 1921, p. 427), and this is particularly true when it is not essential to the validity of the act that it amend any other. The case of Lampkin v. Pike, 115 Ga. 827 (42 S.E. 213, 90 Am. St. Rep. 153), relied on by counsel for the defendants, is distinguishable from the instant case. The act there held invalid, because it attempted to amend an act which had previously been repealed, was not a complete act within itself, but was purely and simply an effort to amend a previously repealed act by striking therefrom the word "town" wherever it occurred and inserting in its stead the word "city." The trial court, therefore, erred in holding the act of 1937 (Ga. L. 1937-38, Ex. Sess., p. 790) invalid because it purported to amend the act of 1921, which had never become effective.
3. It is further contended by the defendants that the act of 1937 (Ga. L. 1937-38, Ex. Sess., p. 790) contravenes and is violative of article I, section IV, paragraph I of the Constitution of 1945 (Code, Ann., § 2-401), which provides: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law," and of the Constitution of 1945, article XI, section I, paragraph VI (Code, Ann., § 2-7806), which provides in part: "Whatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for Commissioners of Roads and Revenues in any county," and similar provisions of the Constitution of 1877, in that said act constitutes a special law enacted in a case for which provision has been made by an existing general law, viz., the act approved August 10, 1910 (Ga. L. 1910, p. 130), and the act approved August 21, 1911 (Ga. L. 1911, p. 200); because there is a general law on zoning, viz., Code (Ann. Supp.) Ch. 69-8, and because there is an existing general law with respect to zoning, viz., the Airport Zoning Act, Code (Ann. Supp.) Ch. 11-4 (Ga. L. 1946, p. 121), and because *221 said act does not have uniform operation throughout the State, but purports to permit Cobb County to have a particular system which is different from other systems of zoning throughout the State. None of these attacks upon the act is meritorious. We have here held that the act approved August 21, 1911 (Ga. L. 1911, p. 200), is invalid. In Rhodes v. Jernigan, 155 Ga. 523, 528 (117 S.E. 432), it was held: "Under the following decisions of the Supreme Court the General Assembly has the power to pass separate and distinct laws creating county commissioners of roads and revenues for every county in Georgia; and the provisions of general laws enacted by the legislature do not apply to such officers, unless made so by the special laws creating them. On this issue, see the cases of Pulaski County v. Thompson, 83 Ga. 270 (9 S.E. 265), Sayer v. Brown, 119 Ga. 539 (46 S.E. 649), and Smith v. Duggan, 153 Ga. 463 (112 S.E. 158)." See also Bradford v. Hammond, 179 Ga. 40 (175 S.E. 18); Robitzsch v. State, 189 Ga. 637 (7 S.E.2d 387); Moore v. Whaley, 189 Ga. 647 (7 S.E.2d 394); Bowen v. Lewis, 201 Ga. 487, 489 (40 S.E.2d 80); Robert v. Steed, 207 Ga. 41 (60 S.E.2d 134); Hutchins v. Candler, 209 Ga. 415, 418 (73 S.E.2d 191).
4. It is further contended that the act of 1937 (Ga. L. 1937-38, Ex. Sess., p. 790) and all zoning thereunder is unconstitutional and void because violative of article I, section I, paragraph III of the Constitution of Georgia of 1945 (Code, Ann., § 2-103), and the similar provisions of the Constitution of 1877, that no person shall be deprived of life, liberty, or property, except by due process of law, and of the due-process clauses of the 5th and 14th amendments to the Constitution of the United States (Code §§ 1-805 and 1-815); and that the zoning of the property of the defendants exclusively for residential and agricultural purposes is arbitrary, unreasonable, capricious, and unenforceable. Under the decisions of this court in Howden v. Mayor &c. of Savannah, 172 Ga. 833 (159 S.E. 401), and Schofield v. Bishop, 192 Ga. 732 (16 S.E.2d 714), these contentions of the defendants are clearly not meritorious.
5. It is further contended by the defendants that the act of 1937 (Ga. L. 1937-38, Ex. Sess., p. 790), is unconstitutional and void because it is violative of article V, section I, paragraph XII of the Constitution of 1945 (Code, Ann., § 2-3012), and similar *222 provisions of the Constitution of 1877, that no law shall be enacted at called sessions of the General Assembly except as shall relate to the object stated in the proclamation convening them, in that the act of 1937 does not relate to the object stated in the Governor's proclamation convening the 1937-38 extra session of the General Assembly. This contention is also without merit. As already pointed out, the amendment to the Constitution of 1877 (Code, Ann., § 2-1826), which conferred upon the General Assembly the power to grant to governing authorities of Cobb County the authority to pass zoning and planning laws, was ratified at the general election held on June 8, 1937. The act here under attack was enacted at the 1937-38 extra session of the General Assembly and was approved on December 27, 1937. Reference to the proclamation of the Governor convening that session of the General Assembly (Georgia House Journal, Extraordinary Session 1937-38, pp. 7 and 8) shows that it contained the following: "Whereas, the people of Georgia have ratified in a popular election a number of amendments to the Constitution of this State, in the General Election of June 8, 1937, which election was held since the last regular session of the General Assembly; and Whereas, it is necessary to have certain enabling acts and legislation to put into effect the objects and purposes included in said amendments to the Constitution; and, . . . Now, therefore, under and by virtue of the provisions of law contained in Article V, Section I, Paragraph XIII of the Constitution of Georgia, I, E. D. Rivers, Governor of Georgia, do hereby convoke and call a meeting of the General Assembly of this State in Extraordinary Session at 10:00 o'clock A. M., on Monday, November 22, 1937, for the purpose of considering and enacting laws and resolutions, by revision, repeal, amendment, or otherwise, relating to all of the following objects, which are considered by the Executive of sufficient importance to make the necessity for such Extraordinary Session, to wit: . . . Enabling acts for all constitutional amendments ratified at the General Election held on June 8, 1937, and laws relating to such amendments."
6. The foregoing rulings being controlling in the instant case, it becomes unnecessary to pass upon other constitutional attacks made by the defendants upon other statutes and chapters of the *223 Code. For the reasons herein pointed out, the judgment of the trial court must be
Reversed. All the Justices concur, except Wyatt, P. J., and Head, J., who dissent.
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225 S.E.2d 522 (1976)
290 N.C. 253
STATE of North Carolina
v.
Marcus Bryan SHRADER, III.
No. 7.
Supreme Court of North Carolina.
June 17, 1976.
*528 Rufus L. Edmisten, Atty. Gen. by Lester V. Chalmers, Jr., Asst. Atty. Gen., Raleigh, for the State.
Donald P. Brock, Trenton, for defendant.
LAKE, Justice.
The killing of another human being, whether intentional or otherwise, while the person who kills is engaged in the perpetration of a felony, which felony is inherently or foreseeably dangerous to human life, is murder at common law. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1950); State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891); Regina v. Horsey, 3 Fost. & F. 287 (Kent Assizes, 1862); Regina v. Serne, 16 Cox Crim.Cas. 311 (1887); Harno Cases and Materials on Criminal Law and Procedure, 318 (Callaghan, 1939); 40 C.J.S. Homicide § 21 (1944). Kidnaping and robbery are such felonies. State v. Streeton, supra; State v. Jarrette, 284 N.C. 625, 651, 202 S.E.2d 721 (1974); State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1974). A killing is committed in the perpetration of a felony when an unbroken chain of events leads from such felony to the act causing death, so that the homicide is part of a series of events forming one continuous transaction. State v. Thompson, supra; 40 Am.Jur.2d, Homicide, § 73 (1968). In the present case, the evidence, both that for the State and that for the defendant, shows an unbroken chain of events leading from the kidnaping to the robbery and thence to the shooting of Mrs. Boyd. Thus, even if the defendant's testimony that he did not intend to fire the pistol is taken as true, the killing of Mrs. Boyd was murder, there being no statute of this State changing the definition of murder from that of the common law. A murder committed with premeditation and deliberation or in the perpetration of a kidnaping or in the perpetration of a robbery is murder in the first degree. G.S. 14-17. The prescribed punishment for such a murder is death by asphyxiation. G.S. 14-17.
The indictment for murder under which the defendant was charged is in the form prescribed by G.S. 15-144. It alleges that the defendant "feloniously, wilfully, and of his malice aforethought, did kill and murder Cheryl Potter Boyd contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State." Such an indictment is sufficient to support a verdict of guilty of murder in the first degree if the jury finds from the evidence, beyond a reasonable doubt, that the defendant killed the deceased with malice and after premeditation and deliberation or that he killed her in the perpetration of a robbery or of a kidnaping. The evidence is ample to support a verdict on each of these three theories. The jury was instructed completely and accurately upon each of them. The defendant assigns no error in the charge to the jury.
The defendant contends that the trial court erred in accepting his plea of guilty to the charge of kidnaping. It is the defendant's contention that, when the defendant, at the close of all the evidence, changed his plea as to the charge of kidnaping from "not guilty" to "guilty," this was tantamount to his entering a plea of guilty to first degree murder because of the above mentioned rules of law.
As Justice Sharp, now Chief Justice, said in State v. Watkins, 283 N.C. 17, 30, 194 S.E.2d 800, 809 (1973), after noting a lack of statutory authority to sustain the rule promulgated by our predecessors on this Court that an accused will not be permitted to plead guilty to a crime for which the penalty is death, "It has long since become the public policy of this State." Nevertheless, there is no merit in this contention of the defendant. Kidnaping is not a crime punishable by death. Indeed, no punishment has yet been imposed upon the defendant for the crime of kidnaping. He was sentenced to death for the crime of murder in the first degree. He did not plead guilty of that offense.
The public policy upon which the defendant relies is simply that no person shall be put to death in this State for a crime until he has been duly indicted therefor *529 and, at a trial, conducted pursuant to law, evidence has been introduced sufficient to support a finding of every element of the offense and a duly constituted jury, properly instructed upon the law, has found from the evidence, beyond a reasonable doubt, that he has committed each element of such offense. A plea of guilty, when accepted, being the equivalent of a conviction, no evidence of guilt is required and no verdict of a jury is required as a prerequisite to the imposition of a lawful sentence. Thus, the said public policy, established by our predecessors on this Court, precludes the acceptance of a plea of guilty to a crime for which the penalty is death. This policy, however, does not preclude the State from offering evidence of a confession, voluntarily and lawfully made by the accused, nor does it preclude the accused from testifying voluntarily at his trial or the jury from considering matters to which he testified in arriving at its verdict that he is guilty of a capital crime.
In the present case, the defendant, voluntarily, contrary to the advice of his counsel, and after careful interrogation by the court in the absence of the jury, testified. He testimony corroborated the evidence introduced by the State in virtually every particular. There was no error in permitting him to do so, or in permitting the jury to consider his testimony in arriving at its verdict. The court carefully and correctly instructed the jury that the defendant's plea of guilty to the offense of kidnaping did not absolve the jury from the necessity of finding, beyond a reasonable doubt, that the offense of kidnaping had been committed, in order for the jury to reach a verdict of guilty of murder in the first degree on the theory that the murder occurred in the perpetration of the felony of kidnaping. No error is assigned with reference to instructions of the court on this or any other matter. We find no error therein.
It was not error to accept the defendant's plea of guilty of the offense of kidnaping and thus to withdraw that charge, as a separate criminal offense, from the jury's consideration, but had this been error, it would clearly be harmless in view of the defendant's own testimony describing in detail the kidnaping and the events leading in an unbroken chain therefrom to the death of Mrs. Boyd.
The state's witness Hines identified the defendant in court as the man he saw in Mrs. Boyd's automobile with her as they passed him while he was stopped waiting to make a left turn at an intersection only minutes before her death. In the absence of the jury, the court conducted a voir dire and found the in-court identification of the defendant by this witness was not tainted by any extraneous or unlawful or impermissible suggestion by anyone, or by photographs exhibited to him by the police, to whom this witness gave an accurate description of the defendant prior to his seeing such photographs. The evidence on the voir dire supports the findings of the judge and there was no error in admitting the in-court identification of the defendant by this witness. The defendant virtually so concedes in his brief in view of our decision in State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1976). Even if there had been error in the admission of this evidence, it pales into insignificance and is clearly harmless in view of the defendant's own testimony describing the kidnaping of Mrs. Boyd, the robbery of the bank and his compelling her to drive from the bank to the place where she was shot. There is no merit in this assignment of error.
On cross-examination of the defendant's stepdaughter, the defendant's counsel attempted to discredit her testimony by showing she had been promised that, in exchange for her testimony, she, herself, would be charged only with aiding and abetting in the kidnaping of Mrs. Boyd. She testified in the course of such cross-examination, "I am not worried about being charged with two other kidnapings and two other murders." She acknowledged that a note exhibited to her by the cross-examining counsel revealed her involvement in the kidnap-murder of two other girls. On redirect examination by the district attorney, *530 she testified that she had made a statement to the officers on the day she was arrested concerning "the other two murders and kidnapings" and directed the officers to places where evidence of those crimes might be found. Her statement concerning these other murders and kidnapings was introduced in evidence. It was to the effect that, in her company, two weeks prior to the kidnaping and killing of Mrs. Boyd, the defendant had kidnaped and murdered two other girls, these crimes being described in substantial detail. The defendant assigns the admission of this evidence on redirect examination as error.
It is, of course, true that, nothing else appearing, the State cannot, through its own witnesses, offer evidence tending to show the defendant has committed another distinct, independent, separate offense having no relation to the crime charged, except its tendency to show his disposition to commit a crime of the nature of the one for which he is on trial. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975); State v. Patterson, 284 N.C. 190, 200 S.E.2d 16 (1973); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). However, the nature of the defendant's cross-examination of this witness for the purpose of impeaching her credibility was such as to suggest to the jury that the witness, independent of the defendant, had been involved in other kidnapings and murders. On redirect examination, for the purpose of rebutting this impeaching evidence, the State was entitled to show that the defendant was the kidnaper and murderer on the other occasion. State v. Patterson, supra.
Furthermore, the record does not show any objection to this evidence on the redirect examination of the stepdaughter. The failure to object to the introduction of the evidence is a waiver of the defendant's right to do so, and the admission of such evidence, even if incompetent, is not ground for a new trial. State v. Hedrick, 289 N.C. 232, 221 S.E.2d 350 (1976); State v. Gurley, 283 N.C. 541, 196 S.E.2d 725 (1973); State v. Howell, 239 N.C. 78, 79 S.E.2d 235 (1953).
The defendant next contends that "the trial court erred in allowing the testimony of Debra Brown" (the stepdaughter of the defendant). The basis of this contention is that she testified on cross-examination by the defendant that she had been promised, in exchange for her testimony as a witness for the State, that she, herself, would be charged only with the offense of aiding and abetting in the kidnaping of Mrs. Boyd and would not be prosecuted for her murder. The record discloses no motion to suppress the testimony of this witness and no motion to strike her testimony, or any objection on the ground of her competence as a witness. Furthermore, this assignment of error has no merit for the reason that the witness was competent. The defendant virtually so concedes in his brief in the light of our decision in State v. Woodson, 287 N.C. 578, 215 S.E.2d 607 (1975), which clearly so holds.
The defendant further contends that the trial court erred in "allowing the jury access to TV and other news sources." The record shows that when recessing for the night, the court instructed the jury not to discuss the case with anyone, not even among themselves, and directed them: "Please don't listen to anything about it. If there be anything on the radio or on the local TV about it, just cut it off until you think that part of it would be over. Don't read anything about it in the newspapers. In all due respect to whomever may write the newspaper or the TV or radio people, you have heard everything that has happened here. They can't tell you anything that you don't know from what has developed in this evidence. So just keep your mind free and open about the case until you have heard all of the evidence, the arguments of counsel, and the charge of the court." In this we see no error. The defendant concedes in his brief that he is unaware of any misconduct on the part of any juror or any disregard of the instructions of the trial court. In the absence of any indication to the contrary, the jurors are presumed to have complied with the instructions of the court. State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972); State v. *531 Moore, 276 N.C. 142, 171 S.E.2d 453 (1970). The record discloses no objection by the defendant to this instruction or any request for further instruction or action by the court in this respect.
The defendant, acknowledging that we have repeatedly ruled to the contrary, contends that it was error to sentence the defendant to death for the reason that such sentence constitutes cruel and unusual punishment. Further discussion of this contention would be needlessly repetitious of our former decisions. See: State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976); State v. Woodson, supra; State v. Jarrette, supra; State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973).
Finally, the defendant in his brief requests us to consider all assignments of error made in his statement of the case on appeal, whether brought forward in the brief or not. We have done so and have also carefully considered the entire record. We find no merit in any assignments of error and no error in the record which would entitle the defendant to a new trial. The record, in its entirety, discloses a carefully planned and coldly executed murder of a young woman, unknown to the defendant, seized and used as a shield or hostage in the bank robbery and, when she was no longer useful to the defendant for that purpose, murdered in cold blood in order to eliminate a witness who could identify him as the robber. The defendant has had a fair trial free from any substantial error.
NO ERROR.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/8312865/
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Honorable Thomas M. Durkin, United States District Judge
Jonathan Barney, through his company PatentRatings, LLC, created and patented a database and computer program (the PatentRatings "system") for analyzing and evaluating patents. Ocean Tomo, LLC, provides financial services and consulting related to intellectual property, including patent analytics. In 2004, the parties reached agreements providing for (1) licensing the PatentRatings system to Ocean Tomo; (2) giving Ocean Tomo an ownership interest in PatentRatings; and (3) giving Barney an ownership interest in, and a management position with, Ocean Tomo. The relationship among the parties soured, giving rise to amendments to the agreements in 2007, and eventually this litigation in 2012.
The case proceeded to a bench trial beginning on June 26, 2017. The were 16 trial days through July 28, 2017, at which point the Court's and the parties' schedules required that the trial be continued indefinitely. The trial resumed on April 23, 2018 and the parties completed their presentation of evidence on April 27, 2018. A total of 13 witnesses testified, including one who was called twice, and two who were called three times each. Post-trial briefing was completed on August 17, 2018. Considering: (1) this case is eight and half years old; (2) during the course of the case, the parties briefed five pre-trial motions resulting in five memorandum opinions; (3) the parties briefed motions in limine and Daubert motions; (4) the Court received evidence over 21 bench trial days; and (5) the Court has reviewed 380 pages of post-trial briefing (not to mention several hundred pages of exhibits), the Court has determined that closing arguments are unnecessary. The parties had more than sufficient opportunity to raise any claims and make any supporting arguments in *923their post-trial briefs (as well as periodic interim arguments by counsel throughout the trial proceedings). And of course, closing arguments are not a vehicle to expand the evidentiary record.1
This memorandum sets forth the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). These findings are based on the documentary evidence and trial testimony. They are also based on the Court's credibility determinations after observing witnesses testify. All findings are by a preponderance of the evidence unless otherwise noted.
Background: The Relevant Agreements and a Timeline of the Disputes
A. Initial Agreements
Barney developed a computer program that uses regression analysis to measure the strength and quality of a patent relative to a database of information about patents that Barney compiled. See R. 412 ¶ 3; R. 396 ¶ 25. In 2004, Ocean Tomo approached Barney and his company PatentRatings to license this system. R. 412 ¶ 4; R. 416 ¶ 4. That year and early the following year, the parties entered into the following agreements: (1) a license agreement and subsequent amendment; (2) an equity exchange agreement; (3) a letter agreement; and (4) an employment agreement. R. 412 ¶ 4; R. 416 ¶ 4. The equity exchange agreement provided that Ocean Tomo would own 25% of PatentRatings, Barney would own about 6.8% of Ocean Tomo, and Barney would be employed as a manager of Ocean Tomo. R. 412 ¶ 6; 414 ¶ 6. The license agreement provided that Ocean Tomo would pay PatentRatings "any revenues received by [Ocean Tomo] ... for access and use of PatentRatings Analysis." R. 403-9 at 5 (§ 4.3). The letter agreement specified that PatentRatings "products will not be utilized by [Ocean Tomo's] expert services practice." R. 411-179 at 1.2
B. 2007 Amendment and Note
Ocean Tomo was disappointed with the performance of the PatentRatings system *924and its profitability. See R. 414 ¶ 36. Barney was concerned that Ocean Tomo was failing to account properly for royalty-bearing revenues. See R. 412 ¶ 18. As a result, the parties amended the royalty terms in 2007. The 2007 amendment provides that Ocean Tomo will pay "25% of any revenues ... collected solely from External Data Sales," and "13.25% of any revenues ... collected solely from External Data Usage." R. 412-3 at 2 (§ 4.3(a), (b) ). This is the current royalty provision.
On the same day the parties signed the amendment, PatentRatings signed a $ 1.5 million promissory note in Ocean Tomo's favor. See R. 412-15. Since the inception of the parties' business relationship, Ocean Tomo had spent money to improve the performance of the PatentRatings system. See R. 412 ¶¶ 16-17; R. 416 ¶¶ 16-17. The note was intended to reflect that PatentRatings had an obligation to repay these improvement expenses. See R. 412 ¶ 17; R. 416 ¶ 17. The amendment also provided that the parties agreed that "any Revenues owed to [PatentRatings] pursuant to ... the [2004 license agreement] that have accrued since the [effective date of the 2004 license agreement] have been credited to [PatentRatings] as reflected in the Principal amount of the Note." R. 412-3 at 3 (§ I). The parties refer to this provision as the "true-up."
C. Disputes Over Specific Clients and Transactions
Despite reaching agreement on the 2007 amendment and note, the parties' relationship continued to deteriorate. A number of disputes arose or came to a head in 2010 regarding specific clients and transactions.
In January 2010, Barney raised concerns regarding the structure of a potential deal with a French bank. See R. 414 ¶¶ 74-78; R. 420 ¶¶ 74-78. By February 2011, Ocean Tomo came to believe that the deal failed because Barney told the bank that he and Ocean Tomo were disputing the scope of the license agreement. See R. 414 ¶¶ 76-77. During this same time period, the parties also argued over their respective client relationships with Boeing and the proper allocation of revenues from those relationships. See R. 412 ¶¶ 62-64; R. 416 ¶¶ 62-64.
In February 2010, Ocean Tomo entered into a memorandum of understanding with a Japanese company called NTT to create a Japanese patent rating system based on the PatentRatings system. R. 412 ¶ 82; R. 416 ¶ 82. Barney and PatentRatings initially approved of the deal. See R. 412 ¶ 83; R. 416 ¶ 83. But by January 2011, disputes had arisen between Ocean Tomo and Barney regarding the allocation of revenues under the license and operating agreements generally (which the Court describes further below). This led Barney to seek to restructure the potential deal with NTT. See R. 412 at 24-25. The negotiations between Ocean Tomo and Barney regarding NTT became hostile. See, e.g. , R. 411-48 at 2. Additionally, both Ocean Tomo and Barney separately had negotiations with NTT that upset the other and are the basis for their dueling claims of tortious interference filed in this case. By October 2012, NTT finally scuttled the deal due to the unresolved disputes between Ocean Tomo and Barney. See, e.g. , R. 403-20.
In August 2010, another quarrel erupted between Ocean Tomo and Barney over characterization of profits from the $ 10 million sale of Ocean Tomo's intellectual property auction business to a company called ICAP. Specifically, they disputed whether Ocean Tomo's operating agreement required the profits from the sale to be split pro rata among ownership. See R. 412 at 33-34. Ocean Tomo ultimately determined that the operating agreement permitted Ocean Tomo's founder, majority *925owner, and CEO-James Malackowski-to receive a greater share of the sale profits, thus decreasing Barney's share by $ 133,156, relative to a straight pro rata allocation. See R. 412 ¶ 114; R. 416 ¶ 114.
D. Revenue Disputes, Arbitration, and Audit
These client and transaction specific disputes occurred in the context of Ocean Tomo's continuing unhappiness with its financial arrangement with PatentRatings and the money it was investing in the PatentRatings system. See R. 412 at 7-8. In January 2011, Ocean Tomo requested that PatentRatings: (1) pay for future improvements; (2) assume as debt all past payments by Ocean Tomo for improvements (presumably meaning those incurred since the 2007 note and "true-up"); and (3) defer royalties until the debt was repaid. See R. 412 ¶ 28; R. 416 ¶ 28. When PatentRatings refused this request, Ocean Tomo demanded in February 2011 that they resolve the dispute through arbitration. See R. 411-129; R. 411-24; R. 412 ¶ 29; R. 416 ¶ 29. Barney resigned from Ocean Tomo that same month, although he continues to own part of the company. The arbitrator eventually denied Ocean Tomo's claims on May 25, 2012.
Discovery during the arbitration proceeding revealed evidence that Ocean Tomo's "valuation" group was using the PatentRatings system. Barney testified that this surprised him because he considered the "valuation" group to be part of "expert services," and in the 2004 letter agreement Ocean Tomo had agreed not to use the PatentRatings system to provide "expert services." See R. 412 ¶ 32.3 Based on the documents produced in the arbitration discovery, PatentRatings demanded royalty payments on "several" engagements, by letter dated January 26, 2012. See R. 412-16. Ocean Tomo initially refused, but eventually paid $ 14,423.31 on February 24, 2012. R. 412 ¶ 36; R. 416 ¶ 36.
Discovery of these unpaid royalties led PatentRatings to engage an auditor on March 7, 2012 and demand an audit pursuant to the license agreement. See R. 412 ¶ 40. The license agreement gives PatentRatings the right
to inspect or audit [Ocean Tomo's] records from time to time, provided, however, that reasonable notice thereof will be given and that [PatentRatings] will conduct any such inspection or audits during normal business hours and only to the extent necessary to determine or verify any royalty payments ... and [PatentRatings] agrees not to conduct more than one such inspection or audit in each calendar year.
R. 403-9 at 6 (§ 4.5(c) ). Ocean Tomo insisted that the audit be conducted on a sampling basis, although nothing in the agreement requires it. R. 412 ¶ 41; R. 416 ¶ 41. Ocean Tomo initially agreed to produce documentation regarding 25 client engagements.
The auditor determined Ocean Tomo had failed to pay royalties on one of the 25 client engagements in the amount of $ 6,625. R. 411-71 at 16. Having found unpaid royalties in the first sample, the auditor requested documentation for an additional 25 engagements. Id. at 17. Ocean Tomo agreed to produce only an additional 16. Id. In this second sample, *926the auditor found another two engagements with unpaid royalty-bearing work in the amount of $ 11,639.07. Id. at 18. Ocean Tomo then agreed to produce the "deliverables" for the highest 20 billing clients, while refusing to provide documentation for (1) matters for which there was no deliverable, and (2) matters for which a royalty was paid. See R. 419-4 at 2. Defendants objected that this documentation would be insufficient to test the accuracy of Ocean Tomo's royalty payments. See R. 434-99. The parties did not reach agreement on further production of records.
In addition to analyzing whether Ocean Tomo failed to pay royalties on the sample engagements, the auditor reviewed the documentation for the royalties Ocean Tomo had paid from 2008 through 2011. This auditor determined that Ocean Tomo had underpaid royalties on those engagements by $ 31,565.18. See R. 411-71 at 11-14.
Lastly, the auditor found that for certain clients, the revenue Ocean Tomo reported for purposes of determining royalties owed to PatentRatings was less than the total revenue received from the client. See R. 411-71 at 14. Ocean Tomo's records for these clients contained "notations that only a portion of the invoice was to be treated as royalty bearing." Id. The auditor reported his findings in a document dated May 14, 2014. For purposes of the May 2014 audit report, the auditor relied on Ocean Tomo's representations that this invoice splitting was proper.
But in this litigation, Defendants claim that Ocean Tomo's "split billing" practice violates the license agreement. Defendants reengaged the auditor to prepare an expert report for this case. See R. 411-146. Although the expert asserts that his report does not make "legal conclusions" nor render a "legal opinion," see id. at 8, he reached his conclusions by interpreting and applying the relevant provisions of the license agreements, the meanings of which are hotly contested by the parties in this case. The expert concluded that Ocean Tomo owes PatentRatings $ 2,044,413 in unpaid royalties. See id. at 20.
E. Lawsuits and Disputes about Hardware
About a year after Barney resigned from Ocean Tomo, in the midst of the arbitration proceedings, and about five weeks before Barney engaged the auditor, Ocean Tomo filed a complaint against Barney in Illinois state court on January 27, 2012. R. 1-2. Ocean Tomo alleged that Barney had improperly copied Ocean Tomo's confidential information and trade secrets from the laptop computer Ocean Tomo had issued to him. Ocean Tomo claimed that by copying and retaining the data, Barney: (1) breached his fiduciary duty to Ocean Tomo; (2) breached his employment agreement with Ocean Tomo; (3) violated the federal Computer Fraud and Abuse Act; (4) violated the Illinois Trade Secrets Act; and (5) violated Illinois conversion law. See R. 1-1. Ocean Tomo also claimed that Barney breached Ocean Tomo's Computer Asset Policy Agreement by allegedly wiping the laptop's memory.
On October 9, 2012, Ocean Tomo sought leave to file an amended complaint in state court adding a claim of tortious interference regarding the NTT deal and adding PatentRatings as a defendant with respect to that new claim. See R. 1-3. Defendants appeared in the case shortly thereafter and removed the case to this Court on October 19, 2012. R. 1. Defendants filed counter-claims on November 16, 2012, for: (1) breach of the operating agreement with respect to allocation of the ICAP deal profits; (2) breach of the license agreement; (3) tortious interference with the NTT deal; and (4) violation of the federal Computer *927Fraud and Abuse Act for improperly disconnecting and retaining the servers containing the PatentRatings system. See R. 12.
In amended pleadings, Defendants added a claim for fraudulent inducement with respect to the 2007 amendment and note. See R. 84. Ocean Tomo filed second, third, and fourth amended complaints, see R. 83; R. 176; R. 396, which did not materially change the claims at issue in the case.
Findings of Fact and Conclusions of Law on the Parties' Claims
While several iterations of the pleadings have been filed in the case, these findings address the claims for which the parties specifically seek relief in their post-trial briefs. Any other claims are waived.
Ocean Tomo claims: (1) breach of fiduciary duty (with respect to both (i) the information on Barney's laptop computer and (ii) the NTT deal); (2) violation of the Illinois Trade Secrets Act (laptop); (3) breach of Barney's employment agreement (laptop and NTT deal); (4) conversion (laptop); (5) violation of the Computer Fraud and Abuse Act (laptop); (6) breach of Ocean Tomo's Computer Asset Policy Agreement (laptop); (7) tortious interference (NTT deal); and (8) the patents at issue are invalid, as an affirmative defense to Defendants' claim for breach of the license agreement.
Defendants make the following counter-claims: (1) fraudulent inducement (with respect to the 2007 amendment and note); (2) breach of the license agreement (for non-payment of royalties, along with various other allegations); (3) tortious interference (with the NTT deal); (4) breach of the operating agreement (with respect to allocation of the ICAP deal profits); (5) violation of the Computer Fraud and Abuse Act (with respect to the PatentRatings servers); (6) breach of the supplemental license agreement; and (7) declaratory judgments that the license agreement and the supplemental license agreement are terminated (based on allegations addressed below). Barney also seeks relief in the form of forcing Ocean Tomo to repurchase his Ocean Tomo shares pursuant to 805 ILCS 180/35-1(a)(5). Some of the parties' claims overlap factually, and some of the claims also serve as defenses. The Court addresses them accordingly in the following order:
I. Fraudulent Inducement
A. Reliance
B. Fraud and Intent
II. Breach of the License Agreement: Royalties
A. Split Billing
B. "Facilitates"
C. Pre-2007 Amendment
D. Post-December 2012 Royalties
E. OPERS
III. The NTT Deal
A. Ocean Tomo's Claims
1. Tortious Interference
2. Breach of the Employment Agreement
3. Breach of Fiduciary Duty
B. Defendants' Claim for Tortious Interference
IV. Breach of the Operating Agreement
A. The ICAP Deal
B. Board Resolutions
C. Denial of Access to Records
V. Violation of the Illinois Trade Secrets Act
VI. Violation of the Computer Fraud and Abuse Act
A. Ocean Tomo's Claim
B. Ocean Tomo's Additional Related Claims
C. Defendants' Claim *928VII. Breach of the Supplemental License Agreement
VIII. Declaratory Judgment that the License Agreement is Terminated
A. Branding
B. Ocean Tomo Ratings
C. Royalty Audit
D. Materiality
E. Termination of the Supplemental License Agreement
F. Patent Validity
IX. Buy Out
X. Attorneys' Fees
I. Fraudulent Inducement
Defendants claim that Ocean Tomo fraudulently induced Barney to agree to the 2007 amendment and note. Barney testified that James Malackowski-Ocean Tomo's founder, majority owner, and CEO-made the following statements about potential unpaid royalties that Barney relied upon in signing the 2007 amendment and note, which Defendants contend were false:
(1) "the [Ocean Tomo] groups called Expert Services, Appraisals, Investments, Risk Management, and/or Corporate Finance 'did not use the PatentRatings [system] to deliver products and services to external clients' ";
(2) "there was no use of the [PatentRatings] System beyond (a) use in the Analytics group and (b) use that Barney was aware of through his work in [Ocean Tomo's PatentRatings] group"; and
(3) "all the revenues that would be royalty-bearing had been reported to [PatentRatings] at that point, or that [Barney] was aware of them through [his] work in the PatentRatings Group."
R. 412 at 56 (citing Barney's trial testimony).
"In Illinois, fraudulent inducement requires proof of five elements: (1) a false statement of material fact; (2) known or believed to be false by the person making it; (3) an intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance." Hoseman v. Weinschneider , 322 F.3d 468, 476 (7th Cir. 2003). These elements must be proven by clear and convincing evidence. See id.
A. Reliance
The parties focus their arguments on: whether Defendants have proven that Malackowski actually made the three statements; whether they were false; whether they were made with the intent to induce; and whether they caused damages. In three sentences, Ocean Tomo also argues that Defendants have failed to prove the reliance element of their fraudulent inducement claim because they contend that past royalty disputes-the subject matter of the allegedly false statements-were not Barney's focus during negotiation of the 2007 amendment and note. See R. 416 at 60.
The parties, however, have overlooked the significance of the "true-up" provision, included in the 2007 amendment, to the reliance element of Defendants' fraudulent inducement claim. A fraudulent inducement claim alleges that a defendant orally misrepresented a certain fact in order to induce the plaintiff to perform some action. Here, Barney alleges that Ocean Tomo misrepresented what revenues had been reported, in order to induce Barney to agree to the amended royalty provisions and to take on the debt memorialized by the note. (Although Malackowski's first two alleged misrepresentations do not directly mention disclosure of royalty-bearing revenues, Defendants concede that *929these representations were only relevant to determining the "specific amount of accrued royalties in mind that were being credited against the loan balance" in the 2007 note. R. 412 at 56.)
The problem with Defendants' argument is that they expressly affirmed in writing-i.e., in the "true-up" provision-that Malackowski's alleged misrepresentations were true. In the true-up provision, Barney-on behalf of PatentRatings-"agreed" that the principal amount of the note "reflected" that "any revenues owed to [PatentRatings]" up to that point in time had "been credited to [PatentRatings]." R. 412-3 at 3 (§ I). This is not a representation by Ocean Tomo on which Defendants relied. Rather, it is a representation made by Defendants that any royalties they were owed had already been accounted for. This representation implies that Defendants had satisfied themselves that this accounting was accurate, and implicitly waives any claims that the $ 1.5 million note amount failed to account for additional royalties owing.
Agreement to the true-up itself cannot be the action that was induced, because the true-up by its own terms ratifies the alleged misrepresentations. By agreeing to the truth of what Defendants now allege to have been misrepresentations, Defendants expressly disclaimed reliance on the misrepresentations. See Rissman v. Rissman , 213 F.3d 381, 384 (7th Cir. 2000) ("[It is] a doctrine long accepted in this circuit: that a person who has received written disclosure of the truth may not claim to rely on contrary oral falsehoods.").
Generally, when parties intend to disclaim reliance on prior oral representations they include a "no-reliance" clause in a contract. "[S]uch 'no-reliance' or 'disclaimer of reliance' clauses serve a legitimate purpose in closing a loophole in contract law' by heading off a suit for fraud used as a device for trying to get around the limitations that the parol evidence rule and contract integration clauses place on efforts to vary a written contract on the basis of oral statements made in the negotiation phase." Judson Atkinson Candies, Inc. v. Kenray Assocs., Inc. , 719 F.3d 635, 640 n.2 (7th Cir. 2013). In other words, such a provision negates the reliance element of a fraudulent inducement claim. See Vigortone AG Prod., Inc. v. PM AG Prod., Inc. , 316 F.3d 641, 645 (7th Cir. 2002) ("Since reliance is an element of fraud, the clause, ... precludes a fraud suit[.]"). Sometimes such clauses do not use the word "reliance" in particular, but generally disclaim prior oral representations. See Rissman , 213 F.3d at 383-84 (citing One-O-One Enters., Inc. v. Caruso , 848 F.2d 1283, 1285 (D.C. Cir. 1988) (the contract stated that it "supersedes any and all previous understandings and agreements") ); see also Boscia v. Monroe/Wabash Dev., LLC , 2011 WL 10069624, at *4-5 (Ill. App. Ct. 1st Dist. May 31, 2011) ("no salesperson or employee of seller has authority to ... make any representation or agreement not expressly contained in this purchase agreement or any exhibits attached hereto, and only those expressly contained herein shall be binding upon seller, or in any way affect the validity of this purchase agreement or form any part hereof. Purchaser acknowledges that, except as expressly stated herein, no representations have been made by seller, its agents or employees, in order to induce the purchaser to enter into this purchase agreement.").
The amended license agreement does not contain an express no-reliance clause, and the true-up does not generally disclaim reliance on prior oral representations. Rather, it is limited to the specific issue of the note's accounting of outstanding royalty payments. But that is the *930point: a claim of fraudulent inducement cannot be based on an alleged misrepresentation that is expressly disclaimed by the terms of the contract. The purpose of a fraudulent inducement claim is to permit a party to a contract to bypass the parol evidence rule and argue that the counter-party made a false oral representation that was not reflected in the contract itself. See Judson Atkinson Candies , 719 F.3d at 640 n.2. Here by contrast, the contract's express terms provide that Defendants agreed that the note amount accounts for any potential royalties owed.4 If the contract's express terms address the claim at issue, not even a fraudulent inducement theory permits the Court to look past the contract's express terms. This Court reached a similar conclusion in a previous case. See In re Kindra Lake Towing, L.P. , 2016 WL 3227303, at *2 (N.D. Ill. June 13, 2016) (finding that a contract provision which specifically agreed that no representation had been made on a certain issue (i.e., the "seaworthiness" of a ship) precluded a claim of reliance for purposes of a fraudulent inducement claim).
Defendants could have memorialized Ocean Tomo's representations about royalties in the contract, and then sued for breach of contract if those representations turned out to be false. Or, if Defendants were uncertain that the note reflected all royalties owing, and were in fact relying on Malackowski's oral representations, they could have signed the note but not included the true-up in the license agreement amendment, thereby preserving a fraudulent inducement claim. Instead, Defendants affirmed the truth of the facts (allegedly misrepresented by Malackowski) underlying the true-up provision and agreed that the amount of the note covered "any " royalties that might have been owing. This representation by Defendants serves to disclaim any reliance on prior representations by Ocean Tomo that might have otherwise formed the basis of a fraudulent inducement claim.
B. Fraud and Intent
In the alternative, even if the "true-up" did not disclaim reliance on representations regarding royalties owing, Defendants have failed to point to evidence indicating fraud or fraudulent intent sufficient to meet their burden. All three of Malackowski's alleged misrepresentations concerned Ocean Tomo's use of the PatentRatings system and royalties paid. For the Court to find that these statements were false, there must be clear and convincing evidence that Ocean Tomo intentionally failed to pay royalties on profits from client engagements that should have been royalty bearing; whether because the PatentRatings system was used by an Ocean Tomo group Barney understood was not using the PatentRatings system, or because Ocean Tomo hid the use of the PatentRatings system in some way and did not report the revenue to Defendants. But Defendants cite only eight engagements prior to the 2007 amendment on which they allege royalties were owed and not paid. See R. 430 at 7 (citing R. 419-10 (DX591) (Defendants' expert's demonstrative); R. 346 at 227 (2832:5-9) (DX591 shows the engagements "that still remain in the analysis from pre-2007 based on Mr. Barney's representation that they were not a part of his understanding of the true-up at the time") (expert testimony) ).5
*931Ocean Tomo asserts that its total number of client engagements is 550. See R. 416 at 55. Even if only a portion of that 550 were active before 2007, eight is too small a percentage to indicate by clear and convincing evidence that Ocean Tomo intended to deceive Defendants about the royalty revenue they were owed.
Moreover, even assuming that Malackowski made the statements Barney attributes to him, Defendants have failed to produce any evidence that Malikowski knew the statements were false when he made them.6 The only evidence Defendants cite on this point are ten lines of Malackowski's trial testimony about the relationship between Ocean Tomo's "Expert Testimony" and "Valuation" groups. See R. 412 at 57-58 (citing R. 386 at 187 (3569:4-13) ). The parties hotly contest the relationship between the "Expert Testimony" and "Valuation" groups and whether the use of the PatentRatings system by one or the other violates the license agreement. The Court addresses below whether Ocean Tomo's interpretation and application of the royalty provisions in the license agreement constitutes a breach of contract. But merely identifying a dispute about contractual terms does not demonstrate fraudulent intent by a preponderance of the evidence, let alone the clear and convincing evidence standard applicable here.
Lastly, to the extent Defendants contend that certain use of the PatentRatings system after execution of the 2007 amendment and note demonstrates that Malackowki's alleged statements were false, the Court rejects this reasoning. The alleged misrepresentations are retrospective. The 2007 amendment sets forth new provisions regarding royalty-bearing use of the PatentRatings system. Even if Barney believed that Malackowski's statements were intended to explain the intent of the parties behind the 2007 amendment, royalty payments after the 2007 amendment were controlled by the amendment's express terms. Royalty payments governed by the 2007 amendment cannot be evidence of whether a statement about royalty payments made before the 2007 amendment were false.
For these reasons, the Court finds for Ocean Tomo on Defendants' fraudulent inducement claim.
II. Breach of the License Agreement: Royalties
Defendants claim that Ocean Tomo failed to pay royalties in violation of the license agreement by: (1) improperly determining that only a percentage of certain *932client revenues were attributable to use of the PatentRatings system and paying royalties only on that lesser amount-what the parties have referred to as "split billing"; and (2) improperly categorizing some uses of the PatentRatings system as non-royalty-bearing because they did not "facilitate" the client deliverable that generated the revenue. On the assumption that Defendants' interpretation of the royalty provision in the 2007 amendment is correct, Defendants' expert found $ 3,692,388 royalties "owing," with $ 1,647,975 "payments received," leaving a deficiency of $ 2,044,413. R. 411-146 at 20. Ocean Tomo argues that the expert's opinion is faulty because: (1) the expert improperly included royalties incurred prior to the 2007 note and "true-up"; (2) Defendants' interpretations of the royalty provision in the 2007 amendment are incorrect; and (3) the expert improperly included royalties incurred after December 2012 when Ocean Tomo first asserted that the patents underlying the PatentRatings system are invalid.
The 2007 amendment requires Ocean Tomo to pay royalties in the amount of:
(a) 25% of any revenues ... actually collected by [Ocean Tomo] solely from External Data Sales ...; and
(b) 13.25% of any revenues ... actually collected by [Ocean Tomo] solely from External Data Usage ....
R. 412-3 at 2 (§ 4.5). "External Data Sales" and "External Data Usage" are defined terms that describe different ways Ocean Tomo might use the PatentRatings system to serve clients:
"External Data Sales" means any sale of PatentRatings Analysis by [Ocean Tomo] such as in the form of patent due diligence reports, patent score reports, patent scores, research maps, automated reports, data subscriptions, equity research reports or the like that are actually delivered to [Ocean Tomo's] external clients or customers. For the avoidance of doubt, "External Data Sales" shall not mean the internal use of PatentRatings Analysis by [Ocean Tomo], even if such internal use facilitates the provision or sale of consulting, auction or other services or products to [Ocean Tomo's] clients or customers.
"External Data Usage" means any usage or inclusion of PatentRatings Analysis or any derivative thereof by [Ocean Tomo], which facilitates the provision of information or reports actually delivered to [Ocean Tomo's] external clients or customers as part of [Ocean Tomo's] consulting services such as currently used by its practice unit presently known as the "Analytics Practice Group." For the avoidance of doubt, "External Data Usage" shall not mean the internal use of PatentRatings Analysis such as currently used by [Ocean Tomo] as part of its services presently known as Expert Services, Appraisals, Investments, Risk Management, and/or Corporate Finance. For the avoidance of doubt, "External Data Sales" shall not include [Ocean Tomo's] Analytics services directed towards tax advice, general strategy advice or similar advice that does not report, rely on nor consider PatentRatings Analysis.
R. 412-3 at 2 (§ 4.5) (emphasis added).
A. Split Billing
Ocean Tomo contends that the term "solely from" permits it to split revenue into that which is "solely from" External Data Sales or External Data Usage, and thus is royalty-bearing, and that which is derived from Ocean Tomo's work that did not involve the PatentRatings system, and thus is not royalty-bearing. Defendants, by contrast, argue that "the total revenue collected from a client engagement involving an External Data Sale [or]
*933an External Data Usage" is royalty-bearing. R. 412 at 40. The Court disagrees with Defendants' interpretation of this provision, as it is at odds with the plain language of the agreement.
Defendants argue that the words " 'solely from' ... convey only that 'External Data Sales' and 'External Data Usage' are mutually exclusive," and they "do not support dividing engagements into royalty-bearing and non-royalty-bearing portions." R. 430 at 25-26. But the word "solely" is not necessary to establish the "mutual exclusivity" of "External Data Sales" and "External Data Usage." That they are mutually exclusive is readily apparent because they are defined terms in the agreement. The provision could have omitted the word "solely" and simply provided that royalties are a percentage of revenue "from External Data Usage" and "from External Data Sales," and achieved the same expression of "mutual exclusivity." Since it was unnecessary to use the word "solely" to express the "mutual exclusivity" of the definitions, the word "solely" must have some more substantive meaning to the terms of the contract. Otherwise, the word "solely" is surplusage.
Defendants also argue that the "broad" language used in the definition of "External Data Usage" indicates that royalties are intended to be "based on the revenues for the entire engagement." R. 412 at 41. But to the extent the language in the definition of "External Data Usage" can be characterized as "broad," it does not refer to the portion of revenue that is royalty-bearing. Rather, the definition of "External Data Usage" is focused on the type of client deliverable that is royalty-bearing-i.e., certain "information or reports actually delivered to ... external clients." R. 412-3 at 2. The definition does not address whether the total revenue from a client engagement involving a client deliverable that meets the definition of "External Data Usage" is royalty-bearing, or whether only the portion of the revenue directly attributable to "External Data Usage" client deliverable generates royalties.
Defendants argue further that Ocean Tomo's interpretation of the royalty provision cannot be correct because "the 2007 [license agreement amendment] contains no provision on how to determine what subset of revenue collected from a client engagement is subject to a royalty." R. 412 at 41. Defendants point out that "the words 'subset,' 'apportion,' 'divide,' 'separate,' 'portion,' 'split,' or 'rate card,' do not appear anywhere in the contract." Id. This may be true. But, in a provision the parties do not address, the 2007 amendment gives Ocean Tomo the discretion "to charge reasonable fees to its clients and customers for access and use of PatentRatings Analysis." R. 412-3 at 1 (§ 4.2). That section of the 2007 amendment provides further that "[s]uch reasonable fees will be no less than the lowest fee charged by [Ocean Tomo] for the same or similar products or services." Id. This provision makes it clear that Ocean Tomo had discretion (within certain parameters) to set the price charged for use of the PatentRatings system in client engagements. The Court sees no reason why these prices should not be understood to corollate to the revenue collected "solely from" "External Data Sales" or "External Date Use." Thus, while Defendants may be correct that the license agreement does not establish a detailed plan for apportioning royalty-bearing and non-royalty-bearing revenue, it addresses such apportionment through the parameters placed on Ocean Tomo's discretion to price the use of the PatentRatings system in client engagements.
Lastly, Defendants argue that Ocean Tomo did not consistently follow its split billing practice, and that this is evidence *934that Ocean Tomo did not genuinely believe that the split billing practice was the proper interpretation of the contact. It is unnecessary to delve into this argument, however, because it is based on evidence beyond the express terms of the contract. It is only proper to consider such extrinsic evidence if the contract terms are ambiguous. The Court finds no such ambiguity. And in any event, an inconsistent course of conduct is unlikely to satisfy Defendants' burden of proof.
For these reasons, the Court finds that Ocean Tomo's split billing practice did not violate the license agreement.
B. "Facilitates"
The parties also dispute what type of use of the PatentRatings system is royalty-bearing. The provisions of the license agreement relevant to this dispute are the definitions of "External Data Sales" and "External Data Usage" cited above. See R. 412-3 at 2 (§ 4.5).
There can be no dispute that the express terms of the 2007 amendment provide that "External Data Usage" is "use" of the PatentRatings system which "facilitates the provision of information or reports ... [to] clients or customers." The parties dispute whether it is possible for Ocean Tomo to have used the PatentRatings system to create a client deliverable without that use "facilitating" the client deliverable. See R. 412 at 44-46; R. 416 at 47-49.7 Defendants argue that "any" use of the PatentRatings system during the course of a revenue-generating client engagement should be understood to have "facilitated" the generation of revenue from that engagement. See R. 412 at 45 ("Therefore, 'internal use' means use that is unrelated to a revenue-generating client engagement, such as for prospecting auction attendees, screening patents offered for sale, and preparing for televised interviews."). But this interpretation contradicts the definition's express terms. "External Data Usage" is "any usage ... which facilitates." Clearly, the definition is distinguishing between use that facilitates and use that does not facilitate. If the parties intended any use to be royalty-bearing they could have simply used the word "use" and not further narrowed the royalty-bearing use to use that "facilitates." Hence, Defendants' argument that revenue from any use is royalty-bearing is fundamentally at odds with the express terms of the 2007 amendment. This is a sufficient basis alone to reject this aspect of Defendants' claim and find for Ocean Tomo.
Even if it were necessary to further address Defendants' claim, investigation into the parties' intent regarding the meaning of the term "facilitate" does not change the outcome. Such investigation, of course, begins with the meaning of the word "facilitate." It is not defined in the license agreement. The Oxford English Dictionary defines "facilitate" to mean: "To make (an action, process, etc.) easy or easier; to promote, help forward; to assist in bringing about (a particular end or result)." See www.oed.com (last visited Mar. 14, 2019). But this dictionary definition is no help in determining, in this particular case, what "use" the license agreement envisions as "facilitating" a client deliverable. Thus, although the word "facilitate" has a commonly known dictionary definition, it is "susceptible to more than one *935meaning"-in other words, it is ambiguous-in the context of the license agreement. See Gallagher v. Lenart , 226 Ill.2d 208, 314 Ill.Dec. 133, 874 N.E.2d 43, 58 (2007). This ambiguity permits the Court to review "extrinsic evidence to ascertain the parties' intent." Id. Extrinsic evidence might include prior oral negotiation or subsequent course of conduct. See Air Safety, Inc. v. Teachers Realty Corp. , 185 Ill.2d 457, 236 Ill.Dec. 8, 706 N.E.2d 882, 885 (1999) ; Elda Arnhold & Byzantio, L.L.C. v. Ocean Atl. Woodland Corp. , 284 F.3d 693, 701 (7th Cir. 2002) ("When considering extrinsic evidence, the factfinder should focus, in descending order of importance, on: (1) the parties' negotiations over the contract at issue; (2) their course of performance; (3) their prior course of dealing; and (4) trade usage in the relevant industry.").
The evidence presented at trial on this issue consisted solely of Barney's and Malackowski's testimonies.8 Neither witness pointed to particular prior negotiations or subsequent course of conduct that would elucidate what the parties meant by "facilitate." Rather, each witness simply testified to their interpretation of the contract. Barney's testimony was particularly unhelpful because he asserted that "any" use constituted "facilitation." See R. 340 at 204-05 (1894:22-1895:2) (according to "the 2007 amendment .... if the engagement uses the PatentRatings analysis in any way, we get paid the [13.25] percent," including when an "IPQ score [is] slipped into this big report") (emphasis added); R. 342 at 115 (2074:9-15) ("facilitates" includes any use that generated revenues, and only excluded "internal use ... that doesn't result in direct revenues to Ocean Tomo but is merely ... marketing [etc.]"); R. 340 at 212 (1902:7-10) ("Let's just agree that we'll just set a flat rate and apply that rate to any engagement that uses, relies upon or, you know, considers the PatentRatings analysis.") (emphasis added); see also id. at 206-07 (1896:13-1897:3); R. 389 at 43-45 (4132:23-4134:14). As discussed, this is an interpretation contrary to the contract's express terms which the Court rejects.
Although Malackowski's testimony concurred with the Court's finding that not all "use" constitutes "facilitation," his testimony also offered no help in determining which uses in particular constitute "facilitation." See, e.g. , R. 386 at 240-41 (3449:16-3450:11). Nevertheless, the Court found Malackowski's description of the impractical economic consequences of Defendants' interpretation of the royalty provision to be credible and persuasive. According to Malackowski, paying PatentRatings 13.25% of the revenue from an entire engagement would amount to about "half" of the profit margin, which he described as "economic suicide." See id. at 241 (3450:8-11). In light of this entirely reasonable testimony regarding the economics of the business, Barney's testimony appears even more self-serving and less credible.
Defendants concede that, considered in isolation, their interpretation of "facilitation" puts Ocean Tomo in a difficult economic position. They argue, however, that Ocean Tomo's association with PatentRatings produced "tens or hundreds of thousands of dollars" of revenue "at little or no *936expense," and generated valuable, but "less easily measurable ... publicity" which was recovered through royalties. R. 412 at 45-46. It is plausible that Ocean Tomo might have considered the value of its relationship with PatentRatings in this way and baked it into the royalty rates. But the Court finds it unlikely that such a consideration would go unmentioned in the agreements establishing the parties' business relationship. For what is a relatively simple licensing agreement and partnership, Ocean Tomo and PatentRatings signed many detailed agreements. If the publicity and high revenue produced with low expenses generated by PatentRatings were a consideration, the Court would expect to see it in the license agreement.
At bottom, the Court does not believe that Ocean Tomo would have agreed to pay such a high royalty rate for the totality of the engagement fee on "any" use of the PatentRatings system, even if the use was minimal or incidental. For these reasons, the Court finds that Defendants have failed to meet their burden of proof, and so Court must find for Ocean Tomo on this aspect of Defendants' claim for breach of the license agreement.
C. Pre-2007 Amendment: The Note and True-Up
In addressing Defendants' fraudulent inducement claim, the Court has already explained that the "true-up" served to disclaim any unpaid royalties incurred prior to the execution of the 2007 amendment and note. For this reason, any such royalties should not have been included in the expert's damages calculation.
* * * *
Therefore, for these reasons discussed in the forgoing sections II.A, II.B, and II.C, the Court finds that Defendants have failed to prove their claim for breach of the license agreement and for unpaid royalties by a preponderance of the evidence.
D. Post-December 2012 Royalties
Ocean Tomo argues that the relevant patents are invalid so that it does not have to pay royalties after December 2012 when it first raised the invalidity defense. Defendants of course dispute this claim and argue that the parties' contract is not merely a patent license-which invalidity would undermine-but a contract for use of the PatentRatings system, which is not dependent on the validity of the associated patents. See R. 420 at 65-67.
The Court's finding for Ocean Tomo on Defendants' claim for breach of the license agreement changes the posture of Ocean Tomo's invalidity defense. It is unnecessary for the Court to reach the issue of patent validity as a defense to Defendants' particular arguments because the Court has rejected them on the merits.
It would be necessary to address Ocean Tomo's invalidity defense if Defendants alleged that Ocean Tomo failed to pay royalties for reasons other than the parties' disputes over the proper interpretation of the license agreement's royalty provisions. Of particular concern to the Court with respect to the need to address the invalidity defense, is the possibility that Ocean Tomo stopped paying royalties altogether at some point as an aspect of this litigation. In such a scenario, the Court's rejection of Defendants' interpretation of the royalty provisions would not necessarily absolve Ocean Tomo of the obligation to make up those payments, in which case it would be necessary to address Ocean Tomo's invalidity defense. But according to Defendants' expert's report, Ocean Tomo continued to make royalty payments through the time during which Defendants allege Ocean Tomo earned royalty-bearing revenue. The report shows that Ocean *937Tomo last incurred royalties in the quarter ending in April 2016. See R. 411-135 at 4. (Some of these royalties might be rejected in accordance with the Court's interpretation of the royalty provisions. Nevertheless, this is the last time period for which Defendants seek royalties.) The report also shows that Ocean Tomo paid royalties the following quarter ending in July 2016. See id. at 5. In other words, Defendants do not claim that any royalties accrued after Ocean Tomo's last royalty payment. On the basis of this analysis, the Court understands that Defendants do not seek any unpaid royalties that are not within the scope of the Court's rejection of Defendants' interpretation of the royalty provisions in the license agreement.
Additionally, Defendants' expert conceded that if the Court rejected Defendants' interpretation of the royalty provisions the remaining royalties accrued would be approximately $ 1.33 million. See R. 434-47 at 1 (line A). Defendants' expert also determined that Ocean Tomo paid royalties of approximately $ 1.64 million. See R. 411-135. In other words, with the Court rejecting Defendants' claim for breach of the license agreement, Defendants' expert report shows that Ocean Tomo has over-paid royalties. The only reason to address Ocean Tomo's patent validity defense would be to save it from liability for unpaid royalties. Since the Court has determined (using Defendants' calculations) that no royalties are unpaid, it is unnecessary to determine whether the patents at issue are valid.9
E. OPERS
Defendants' arguments for breach of the license agreement addressed above in sections II.A-D were generally relevant to multiple client engagements. In addition to those generally applicable arguments, Defendants argue that Ocean Tomo failed to pay royalties for one client engagement-an entity known as OPERS-in violation of the license agreement for reasons particular to that engagement. Unlike the generally applicable arguments, Defendants do not claim that Ocean Tomo misinterpreted the license agreement's royalty provision with respect to OPERS. Rather, Defendants contend that Ocean Tomo incorrectly determined that the OPERS engagement was covered by a different royalty provision in the supplemental license agreement, and so did not pay royalties under the license agreement for that reason.
To address this argument, it is necessary to understand the relationship between the license agreement, the supplemental license agreement, and the 2007 amendment to the license agreement. The original 2004 license agreement included a carve-out for rights PatentRatings had previously granted to a company called Rosebay, of which Barney is the majority owner. See R. 345 at 96 (2452:21). That carve-out consisted of an agreement by Ocean Tomo not to use the PatentRatings system "to conduct or assist others to conduct securities pricing analysis of any publicly held companies or to buy or sell securities in any publicly held companies for its own accounts or the accounts of others based thereon." R. 403-9 at 4 (§ 3.2(c) ). The rights to those uses were reserved to Rosebay.
In 2006, Rosebay agreed to "ease the restrictions on [Ocean Tomo]" intended to *938protect Rosebay's rights. See R. 403-13 at 1 (preamble). This allowed Ocean Tomo and PatentRatings to enter a supplemental license agreement permitting Ocean Tomo to use the PatentRatings system for the uses that had previously been prohibited by the carve-out in the license agreement. The supplemental license agreement defined these newly permitted uses as: "creating or managing public securities investment funds and accounts for Persons; or creating or managing a public stock index; selling securities-related information to third-party investment analysts; and generally engaging in the buying, selling and trading of any security." Id. at 2 (§ 1, definition of "OT Near Exclusive Field of Use"). The supplemental license agreement included a royalty provision that specifically applied to these uses of the PatentRatings system.
The next year, when Ocean Tomo and PatentRatings amended the license agreement, they apparently sought to acknowledge the separate royalty provision in the supplemental license agreement for uses that had previously been reserved to Rosebay by the carve-out. To that end, they included a section in the amendment providing "that the accumulation and payment of royalties owing to [PatentRatings] as a result of any and all revenue generated by [Ocean Tomo] or its Affiliates from using PatentRatings Analysis to engage in the buying, selling and trading of any securities is governed by the [supplemental license agreement]." R. 412-3 at 2 (§ F (4.7) ) (emphasis added).
Defendants focus on this language in the 2007 amendment to argue that since the OPERS engagement did not involve Ocean Tomo buying, selling, or trading securities, it is governed by the license agreement, not the supplemental license agreement. See R. 412 at 50. The problem with Defendants' argument is that the 2007 amendment incompletely describes the scope of the supplemental license agreement. The 2007 amendment notes that royalties from buying and selling securities are covered by the supplemental license agreement. This is true. But the scope of the supplemental license agreement (and hence the reach of its royalty provision) is broader. As reviewed above, the supplemental license agreement also covers "selling securities-related information to third-party investment analysts." It makes sense for the supplemental license agreement to have such a scope, since the intention of the agreement was to fill the Rosebay carve-out in the original license agreement, which had prohibited Ocean Tomo from using the PatentRatings system both (1) to "conduct securities pricing analysis," and (2) to "buy or sell securities in any publicly held companies." Since it is only under the terms of the supplemental license agreement that Ocean Tomo can use the PatentRatings system for the former-i.e., to conduct securities analysis-it makes sense that any royalties owed for that kind of use of the PatentRatings system are governed by the supplemental license agreement.
Ocean Tomo argues further that the OPERS engagement falls squarely within the supplemental license agreement's scope covering "selling securities-related information to third-party investment analysts." Ocean Tomo relies on the OPERS engagement letter which describes the service to be provided as "provision of information pertaining to investment strategies." R. 411-65 at 2 (p. 1, preamble). There can be no genuine dispute that the service described in the OPERS engagement letter constitutes "selling securities-related information to third-party investment analysts," which is covered by the supplemental license agreement. Therefore, Ocean Tomo's failure to pay royalties under the license agreement (as amended) is not a violation *939of the license agreement, and Defendants' claim for breach of the license agreement on the basis of the OPERS engagement fails.
III. The NTT Deal
Defendants and Ocean Tomo accuse each other of tortiously interfering with the NTT deal. Ocean Tomo also claims that Barney's conduct with respect to NTT breached (1) his employment contract with Ocean Tomo and (2) his fiduciary duty to Ocean Tomo.
The NTT deal concerned use and sub-licensing of the PatentRatings system. The parties' rights to the PatentRatings system are governed by the license agreement. The license agreement distinguishes between the rights to what are defined as "PatentRatings Tools" and "PatentRatings Analysis." "PatentRatings Tools" means the:
technology, know-how, software (computer algorithms, techniques, for statistically analyzing, rating, mapping and valuing patents and/or other intellectual property assets, and including any documentation and research relating to such software) and other ... intellectual property [owned by PatentRatings] relating to the foregoing (including the PatentRatings Patents, PatentRatings Copyrights and PatentRatings Marks).
R. 403-9 at 3 (§ 1.11). "PatentRatings Analysis" is:
any information or report including or using the data output of one or more PatentRatings Tools, including patent rating reports ..., portfolio mapping analysis, strategic analysis and recommendations, and patent valuation.
R. 403-9 at 2 (§ 1.7). The license agreement further provides that PatentRatings Analysis:
shall not include delivery or sublicensing of the PatentRatings Tools, including any formulas, software or algorithms, nor shall it include delivery or sublicensing of all or substantially all of the data underlying or produced by the PatentRatings Tools.
Id.
PatentsRatings licensed different rights to Ocean Tomo with respect to "PatentRatings Analysis" and "PatentRatings Tools." PatentRatings granted Ocean Tomo:
a limited exclusive ... worldwide ... license to:
(a) reproduce, install, and use the PatentRatings Tools and Improvements at Licensed Sites for [Ocean Tomo's] internal use only and for the other uses expressly permitted herein, and
and
(b) distribute, sell, license or other [sic] transfer for use (or offer to sell, license or otherwise transfer for use), and display PatentRatings Analysis to third parties for a fee.
R. 403-9 at 3-4 (§ 3.1). The rights to PatentRatings Tools are limited:
The licensed rights granted above under [section (a) ] shall be exclusive to [Ocean Tomo] ... for the specific business of IP Merchant Banking ....
"IP Merchant Banking" means merchant banking services with intellectual property being the secured or target asset underling one or more merchant banking services ....
Id. at 4 (§ 3.1) and 2 (§ 1.4). The rights to PatentRatings Analysis are also limited:
The licensed rights granted above under [section (b) ] shall be exclusive to [Ocean Tomo] ... for the unique products and services developed by or for [Ocean Tomo] incorporating PatentRatings Analysis.
*940Id. at 4 (§ 3.1). The license agreement further limits the rights in general:
neither [Ocean Tomo], nor any Affiliate of [Ocean Tomo], will make, cause to be made, or assist others to make any statistical patent analytics tools, patent ratings or associated products that are derivative of, or substantially similar to the PatentRatings Tools or the PatentRatings Analysis.
Id. at 7 (§ 6.1). Additionally, the agreement prohibits Ocean Tomo from sublicensing its rights without PatentRatings's consent. See id. at 4 (§ 3.2(a) ).
A. Ocean Tomo's Claims
1. Tortious Interference
Tortious interference requires a plaintiff to prove by a preponderance of the evidence: "(1) a reasonable expectancy of entering into a valid business relationship, (2) the defendant's knowledge of the expectancy, (3) an intentional and unjustified interference by the defendant that induced or caused a breach or termination of the expectancy, and (4) damage to the plaintiff resulting from the defendant's interference." Adelman-Reyes v. St. Xavier Univ. , 500 F.3d 662, 667 (7th Cir. 2007) (quoting Anderson v. Vanden Dorpel , 172 Ill.2d 399, 217 Ill.Dec. 720, 667 N.E.2d 1296, 1299 (1996) ). Ocean Tomo contends that Barney intentionally interfered with the NTT deal by (1) telling NTT that Ocean Tomo had no right to develop a Japanese patent ratings system, and (2) negotiating a sublicense from PatentRatings to NTT excluding Ocean Tomo. See R. 414 at 65. Ocean Tomo argues that Barney's actions "cannot be justified as reasonable in light of the [license agreement]," which gives Ocean Tomo "broad worldwide exclusive rights." Id.
Ocean Tomo's argument is undermined by its concession that it "is not allowed to sublicense the PatentRatings Tools to a third party." R. 414 at 6. Presumably for that reason, from the beginning of the NTT deal negotiations, the parties contemplated that PatentRatings would have to be a party to the deal with NTT because it involved licensing of PR Tools. See R. 411-198 at 1 ("including know-how"). There is no dispute that Barney, as the owner of PatentRatings, was involved in the negotiations with NTT from the beginning. Ocean Tomo claims that Barney "raised issues that frustrated the process." R. 414 at 26 (¶ 129). But these issues concerned Barney's willingness to make an agreement with Ocean Tomo to sublicense to NTT. The license agreement provided Barney the right not to agree. (As will be discussed below, the Court rejects Ocean Tomo's argument that Barney's status as an Ocean Tomo officer imposed upon him a fiduciary duty to agree.)
Ocean Tomo frequently emphasizes that it had an "exclusive, world-wide" license, but ignores the fact that its license for PatentRatings Tools is limited to "internal use" and does not permit it to provide PatentRatings Tools to third parties. Presumably PatentRatings retained the right to determine who licenses PatentRatings Tools and on what terms. In light of this right, Ocean Tomo never explains why it was impermissible for Barney to engage with NTT about the terms of a deal that required licensing use of PatentRatings Tools-especially in the context of Ocean Tomo's prior and related negotiations.
Ocean Tomo argues that the supplemental license agreement10 extended its PatentRatings *941license to its "affiliates," which would include the joint venture entity it intended to form with NTT. Maybe so. But Ocean Tomo does not contend that the deal with NTT would have made NTT an affiliate. And to the extent Ocean Tomo intended to use the joint venture as a vehicle to share PatentRatings Tools with NTT without Defendants' consent, such an action would have been prohibited by the license agreement. The supplemental license agreement's reference to licensing affiliates cannot be interpreted to the contrary.
Additionally, the license in the supplemental agreement is limited to the "OT Near Exclusive Field of Use" which limits the license provided by the supplemental agreement to "creating or managing public securities investment funds and account for Persons; creating or managing a public stock index; selling securities-related information to third-party investment analysts; and generally engaging in the buying, selling and trading of any security." R. 403-13 at 2. Ocean Tomo does not address whether the subject matter of the NTT deal falls within this definition such that the supplemental agreement applies.
For these reasons, the Court finds that Ocean Tomo's tortious interference claim is based on a faulty interpretation of the license agreements, and the Court finds for Defendants on that claim.
2. Breach of the Employment Agreement
Ocean Tomo also claims that Barney's conduct with respect to NTT breached his employment agreement. Similar to the elements for the tortious interference claim just discussed, the employment agreement provides that Barney may not "interfere with the relationship of [Ocean Tomo] with any ... party with whom [Ocean Tomo] has a material business relationship." R. 403-11 at 5 (§ 5.1(c) ). But as discussed above, Ocean Tomo had no right under the license agreement to the business relationship with NTT at issue without PatentRatings's consent. Barney had a contractual right under the license agreement to be involved in Ocean Tomo's relationship with NTT as it concerns PatentRatings. Barney's exercise of this right cannot be "interference."
The same analysis applies to the provision in the employment agreement prohibiting Barney from taking "any action that is intended to or could reasonably be expected to divert from [Ocean Tomo] any business opportunity that would be within the scope of any business then conducted by [Ocean Tomo]." R. 403-11 at 5 (§ 5.1(c) ). As discussed, the NTT deal was a "business opportunity" for Ocean Tomo only to the extent that it could reach agreement with Barney. Barney's conduct cannot be considered to have "diverted" an "opportunity" from Ocean Tomo when Barney was necessarily a party to that opportunity.
Furthermore, to the extent Barney can be considered to have "diverted" the NTT deal, it was not "within the scope of any business then conducted by [Ocean Tomo]." Ocean Tomo's patent ratings business at the time of the NTT deal negotiations was limited to ratings of United States patents. The point of the NTT deal was to expand the scope of Ocean Tomo's business to include ratings of Japanese patents. Thus, the employment agreement did not prohibit Barney's diversion of that opportunity outside the scope of business "then conducted" by Ocean Tomo.
*942For these reasons, the Court find for Defendants on Ocean Tomo's claim for breach of the employment agreement.11
3. Breach of Fiduciary Duty
The foregoing analysis serves to demonstrate that Barney had a contractual right to negotiate with NTT. Ocean Tomo's breach of fiduciary duty claim boils down to the argument that Barney had to give up this right to his detriment in order to fulfill his fiduciary duty as an Ocean Tomo corporate officer. But Ocean Tomo has not cited any authority supporting this interpretation of a corporate officer's fiduciary duty. This Court has held to the contrary. See In re SGK Ventures, LLC , 2018 WL 3302663, at *5 (N.D. Ill. June 19, 2018) (citing Odyssey Partners, L.P. v. Fleming Cos., Inc. , 735 A.2d 386, 415 (Del. Ch. Ct. 1999) ("[F]iduciary obligation does not require self-sacrifice .... Thus one who may be both a creditor and fiduciary (e.g., a director or a controlling shareholder) does not by reason of that status alone have special limitations imposed upon the exercise of his or her creditor rights.") ). For these reasons, the Court finds for Defendants on Ocean Tomo's breach of fiduciary duty claim as it pertains to the NTT deal.
B. Defendants' Claim for Tortious Interference
As discussed, the license agreement provides that PatentRatings's consent was required to license PatentRatings Tools. For this reason, the Court found that Barney's negotiations with NTT could not be considered tortious interference. Defendants also claim that Ocean Tomo tortiously interfered with PatentRatings's deal with NTT.
The relevant question for Defendants' claim is whether PatentRatings could license PatentRatings Tools without Ocean Tomo's consent. The license agreement addresses this question indirectly, but without ambiguity. Ocean Tomo has an exclusive license for PatentRatings Analysis. PatentRatings Analysis is defined as the "data output" of PatentRatings Tools. See R. 403-9 at 2 (§ 1.7). So, to the extent the purpose of PatentRatings Tools is to produce PatentRatings Analysis, a license for PatentRatings Tools would be useless without the accompanying license for PatentRatings Analysis. In other words, the license agreements tie Ocean Tomo and PatentRatings (and Barney) together for purposes of any additional licensing of PatentRatings Tools or PatentRatings Analysis. The evidence indicates that NTT reached this very conclusion and would only enter a deal that both Ocean Tomo and PatentRatings would agree to. The failure of Ocean Tomo and PatentRatings to agree was the proximate cause of the deal's failure. But just has the Court has already found that Barney had no duty to agree, neither did Ocean Tomo have such a duty. Under these circumstances, Ocean Tomo cannot be said to have tortiously interfered with PatentRatings's business. Therefore, the Court finds for Ocean Tomo on Defendants' tortious interference claim.
IV. Breach of the Operating Agreement
Barney argues that Ocean Tomo breached the operating agreement governing the *943relationship among Ocean Tomo's members in three ways: (1) improper allocation of the ICAP deal profits; (2) issuing board resolutions in bad faith to deprive Barney of dividends; and (3) failing to comply with Barney's right to access Ocean Tomo's records. The Court addresses each claim in turn.
A. The ICAP Deal
In 2005, Ocean Tomo started a patent auction business. The auction business was "built" by former Ocean Tomo member Andrew Ramer. R. 340 at 48 (1738:8-9). Eventually, Malackowski and another former Ocean Tomo member, Dean Becker, became responsible for managing the auction business. R. 386 at 137 (3519:15-17).
In 2007 or 2008, Ocean Tomo began working with a company called ICAP in conjunction with the auction business. ICAP is a commodities broker/dealer, and Malackowski testified that Ocean Tomo was interested in using ICAP's "large [client] base and network" to auction patents, and ICAP "had an interest in being a broker to sell patents on a global basis." R. 336 at 198 (851:19-22).
In 2009, Ocean Tomo sold its patent auction business to ICAP for $ 10 million. Malackowski described the transaction during his trial testimony:
[ICAP] paid [Ocean Tomo] $ 5 million in cash. [ICAP] provided [Ocean Tomo] $ 5 million in [ICAP] stock. [Ocean Tomo] transferred to [ICAP] certain assets related to [the] auction business-web domains, a holding company for certain transactional things. No Ocean Tomo equity.
And we entered into a branding relationship with them, where they could be in the auction business using the Ocean Tomo brand and a referral relationship, where we would refer patents for sale to [what was] now the ICAP Ocean Tomo auction, and after the first two years, we would receive 50 percent of the gross revenue of any of those referrals.
R. 336 at 200 (853:8-18).12 During the arbitration proceedings, Malackowski testified that Becker "put together" the ICAP deal. R. 411-247 at 5 (20:21-23). However, Malackowski testified at trial that he-Malackowski-was "personally responsible," R. 386 at 152 (3534:24), for the "origination [and] management" of the ICAP "transaction," and that he "did all the work." R. 336 at 215 (868:13-18).
Allocation of the profits from the ICAP deal among Ocean Tomo's members is governed by Ocean Tomo's operating agreement. As a member of Ocean Tomo, Barney is a party to Ocean Tomo's operating *944agreement. Under the operating agreement, Ocean Tomo's board of managers has discretion to determine whether profits from a transaction are characterized as "Net Profits from Operations" or "Other Net Profits":
"Net Profits from Operations" and "Net Losses from Operation" shall mean, for each Fiscal Year or other period, such portion of [Ocean Tomo's] Net Profits (or Net Losses) attributable to the ordinary course operation of [Ocean Tomo's] business for such period; provided that, (1) such amount shall exclude any Net Profits or Net Losses resulting from the sale of all or substantially all of [Ocean Tomo's] assets, and (2) such amount shall be subject to any other modification (including any modification that would otherwise be inconsistent with the definition set forth in this paragraph) as determined by the Board of Managers (but shall not in any event include profits from the sale of all or substantially all of [Ocean Tomo's] assets). The portion of [Ocean Tomo's] Net Profits (or Net Losses) constituting Net Profits from Operations (or Net Losses from Operations) shall be determined by the Board of Managers in its sole discretion and such determination shall be conclusive on the Members.
R. 398-5 at 7 (§ 1.01).13 The determination of whether profits from a transaction constitute "Net Profits from Operations" or "Other Net Profits" is important because different types of profits are allocated to Ocean Tomo's members in different ways. "Other Net Profits" are "allocated among the Members for each Fiscal Year in accordance with their respective Percentage *945Interest." Id. at 20 (§ 9.01(c) ). By contrast, "[75%] of the Net Profits from Operations shall be allocated to all or any of the Member(s) in such a manner as determined by the Board of Managers in their sole discretion (such allocation to each Member, the 'Performance Allocation') ... and ... the remaining [25%] of Net Profits from Operations shall be allocated among the Members in accordance with their respective Percentage Interests." Id. at 19-20 (§ 9.01(a) ). The 75% of Net Profits from Operations, i.e., the "Performance Allocation," is customarily allocated according to Ocean Tomo's "performance model," which is provided in a written policy giving credit to the members who originated, sold, or managed client engagements. See R. 336 at 214 (868:15) (Malackowski testimony); see also id. at 207 (860:8-12); R. 411-199 (PX812) at 45-47 (Ocean Tomo's strategic plan and policies, including "compensation plan"). Nevertheless, the operating agreement provides that the board of managers has "sole discretion" to allocate the 75% of Net Profits from Operations "to all or any of the Member(s)" in any manner.
The board's discretion (1) to determine Net Profits from Operations, and (2) to allocate Net Profits from Operations, is limited by a section of the operating agreement providing that "no Member shall have priority over any other Member ... as to Net Profits," which is defined to include Net Profits from Operations. R. 398-5 at 16 (§ 6.05), 7 (§ 1.01). The word "priority," however, is not defined in the operating agreement, leaving the intent of the parties with respect to its application "susceptible to two conflicting constructions." Northern Trust Co. v. VIII S. Michigan Assocs. , 276 Ill.App.3d 355, 212 Ill.Dec. 750, 657 N.E.2d 1095, 1104 (1995). "The obligation of good faith and fair dealing is ... used to determine the intent of the parties" in such circumstances. Id. ; see , e.g. , Wilson v. Career Educ. Corp. , 729 F.3d 665, 676 (7th Cir. 2013) ("[E]ven though the termination clause also says [the defendant] has the right to terminate the Plan for any reason, the fact that the parties anticipated that [the defendant] might have to terminate the Plan 'for regulatory compliance purposes' implies that the parties had a reasonable expectation about how [the defendant] would exercise its discretion in this very situation."); Interim Health Care of N. Illinois, Inc. v. Interim Health Care, Inc. , 225 F.3d 876, 884 (7th Cir. 2000) (applying the covenant of good faith and fair dealing where the contract provided one party the right to "withhold some account leads, but the contract is vague about which leads it may withhold, and what justifies withholding"). Such ambiguity is present when the section concerning "priority of members" is applied to the Board's discretion to classify "Net Profits from Operations," and so opens a space for the covenant of good faith and fair dealing to play a role here.
For the relevant time period, Ocean Tomo's board of managers consisted of Malackowski and member Andrew Carter. See R. 412-9 at 4. Ultimately, of the $ 10 million in profits from the ICAP deal, Ocean Tomo decided to spend a little more than $ 3.3 million off the top to pay company liabilities. See R. 434-81 (PX320). The remaining $ 6.67 million in net profits was to be allocated among the members. About $ 3.1 million of that $ 6.67 million was allocated pro rata as Other Net Profits (Malackowski (65.8%), Carter (25.5%), and Barney (8.7%) ). See id. ; DX114 at 214 ; see also R. 336 at 213-16 (866:12-869:14) (Malackowski testimony). The remaining $ 3.5 *946million was allocated as Net Profits from Operations, with 25% being allocated pro rata among the members and 75% being allocated to Malackowski for "managing" the ICAP deal. See R. 434-81 (PX320); DX114 at 2; see also R. 336 at 208-13 (861:24-866:11) (Malackowski testimony). Malackowski testified that although Becker had also played a significant role in the ICAP relationship and transaction, Becker left Ocean Tomo by the time of the allocation decision. Malackowski testified further that the allocation reflected his performance share of the ICAP deal, with Becker's former share being allocated among all the current members, including Barney, pro rata. R. 386 at 152-53 (3534:14-3535:6).
Almost immediately after the ICAP deal was consummated, Barney expressed concern about the plans for allocation of the ICAP deal profits and his desire that the they be allocated entirely pro rata. See DX86 at 3 (8/19/09 email from Barney to Malackowski and Carter).15 In response, Carter argued that the profits should be used to cover a number of Ocean Tomo's liabilities. See id. at 2 (8/19/09 email). And in response to Carter, Barney argued that the ICAP deal profits were not "ordinary income from normal business operations" that should be distributed according to the performance model, but were profits from the "sale of the auction business." Id. at 1 (8/24/09 email). Malackowski responded that "our last discussion and agreement with the entire group ... was to distribute $ 2 [million] to equity holders." Id. (8/24/09 email).
Several months later in January 2010, this debate was apparently still unsettled because Carter and Malackowski exchanged emails discussing "credit" for "the sale," potential credit percentages, and whether they should "giv[e] [Barney] his money off the top." See R. 411-10. After discussing different methods of allocating credit among the two of them for the transaction, Carter suggested:
There is one other way to do it: treat the sale like an operating item instead of a sale item. An argument could be made for that too.... If anything, you'll gain at [Barney's] expense.
So partner, I guess we give the baby his bottle and let [Barney] have his 8% or whatever. As for you and me? I think the 25% is right, but we are in this for the long haul so I can live with the 50% scenario. Unlike some of your other now-departed, so-called "partners" (and probably half the people here) I totally understand that you are the reason for everything and I remain grateful.
R. 411-10 at 1.
Six months later in July 2010, Carter and Malackowski were still exchanging emails discussing how to allocate the ICAP deal profits. See R. 411-12. Carter wrote:
We took $ 2 [million] "off the top" as the partnership agreed at the meeting at your house a year ago. That was split purely by shares, so [Barney] will get his 8% or whatever. The rest we ran thru the comp model, with you getting half credit for the auction (essentially the ICAP sale) and the firm getting the other half of the credit (you get the majority of that back, of course).
Id. at 2. Malackowski responded that they should discuss "next week," and stated, "Maybe we tell [Barney] that from here the second million is dependent on [PatentRatings] being profitable [and other projects] breaking even [or] getting funded." Id. at 1. Carter continued the discussion saying:
*947So what I think that means is we pay out about $ 2 [million] ... [sic] $ 1 for "taxes and $ 1 for "distributions", correct?
We should make you "whole" for '08 then split the rest pro rata I would think. Or, we could make you whole and distribute an extra $ 2 [million], for total payout of $ 2.3 [million].
Id.
Twelve days later, Barney emailed Malackowski and Carter regarding "the proposed equity allocations for FY2009," which included the ICAP deal profits. See R. 411-13 at 7-8. Barney reiterated his concern that the profits be allocated as the "sale of a business," and not be "mixed in with 2009 operating income ... and then distributed to the equity partners (primarily [Malackowski] ) as performance-based income." Id. at 8. Barney also argued that if the profits were to be allocated on a performance basis that Malackowski was not entitled to the 50% that was apparently on the table. Barney asserted that they "had all agreed previously" that Malackowski's piece of the auction business was 25%. Id. Barney challenged Malackowski's right to "inherit" Becker's piece of the auction business, arguing that it should be shared among the members pro rata. Id.
A week later, after Barney, Malackowski, Carter, and Ocean Tomo's chief operating officer, Jake Geleerd, had a conference call to discuss these issues, Barney sent an email purporting to summarize the call. See R. 411-13 at 1-2. Barney again reiterated his opinion that the ICAP deal profits should not be considered ordinary operations income. He also noted that Malackowski and Carter believed they had reached agreement at a meeting at Malackowski's house in 2009 "that only $ 2 [million] of the ICAP sale proceeds would be distributed pro rata to the equity partners and that the rest ($ 8 [million] ) would be 'put back into the business.' " Id. at 1. Barney stated further, "it is not clear to me how the $ 8 [million] got 'put back into the business' if the bulk of it is now being allocated/distributed to equity partners as ordinary merit-based income." Id.
Despite the apparently ongoing disputes, just five days later, Geleerd sent an email to Malackowski, Carter, and Barney, decisively stating:
We are treating, as are Ernst & Young and PWC, the ICAP [$ 10 million] payment as ordinary course income for 2009 .... The ICAP transaction resulted in Ocean Tomo receiving cash up front and 8 years of working in the brokerage/auction space with only upside (50% of all business generated) with no downside risk. This was not a sale or disposal of the Company or its property-it changed the income stream of an operating business.
R. 411-14. Only a month after that, however, Malackowski and Geleerd discussed in an email that "the audit" identifies the ICAP deal as a "sale of assets not ord[inary] income." DX123.16
As he did during the relevant time period, Barney primarily argues in this case that it could only be bad faith to characterize the profits from the ICAP deal as Net Profits from Operations because the deal was a one-time sale of certain assets. See R. 412 at 65. Ocean Tomo contends to the contrary that creation of the auction was part of its normal course of business, and the ICAP deal, although it included sale of some assets, was primarily a restructuring of what had developed into a partnership with ICAP on terms that *948created more liquidity for Ocean Tomo. See R. 336 at 200 (853:8-18 (Malackowski's testimony).
Barney argues that the board's decision to characterize the ICAP deal profits as Net Profits from Operations (putting aside for the moment the board's related decision to allocate those profits among members) is evidence of bad faith because the ICAP deal involved a sale of assets that was not in the normal course. Barney's argument is implicitly based on the idea that there is a clear line distinguishing profits earned in the normal course of business and profits from the sale of assets, and that this distinction maps directly on to the operating agreement's distinction between Net Profits from Operations and Net Profits. There is a certain logic to Barney's argument. However, the only sale of assets the operating agreement mentions is a "sale of all or substantially all of [Ocean Tomo's] assets," and Barney does not contend that such a sale occurred here. That strongly implies that the intent of the operating agreement is to characterize asset sales other than a sale of substantially all the company's assets as Net Profits from Operations, contrary to Barney's claim.
Furthermore, to the extent that Barney's interpretation has appeal, it is not at all clear that any other interpretation is necessarily made in bad faith, which is the finding the Court must make for Barney to prevail on his claim for breach of the operating agreement. The operating agreement gives Ocean Tomo's board the "sole discretion" both (1) to characterize net profits as from Operations, and then (2) to allocate those profits among the members. This double discretion is why the Court determined in its summary judgment opinion, see R. 294 at 3-9,17 that Barney's claim for breach of the operating agreement could only proceed on the theory that the board breached its obligation to not "prioritize" one member over another with respect to allocation of net profits. Although characterization of net profits as "from Operations" implies Ocean Tomo's customary allocation of 75% to the performance model, the operating agreement provides that the board retains "sole discretion" to determine the proper allocation. Thus, the decision by the board to characterize the profits from the ICAP deal as Net Profits from Operations is not evidence of bad faith, even if a different characterization decision is conceivable. The real question here is whether the allocations the board ultimately made were made in bad faith.
Just like the characterization decision, the board's allocation decision was squarely within its discretion under the terms of the operating agreement. With respect to allocation, Barney's arguments rely on statements in emails and a lack of evidence regarding Malackowski's right to a performance share. The email exchanges contain indications of animosity towards Barney and favoritism to Malackowski. In discussing how to allocate the ICAP deal profits, Carter suggested to Malackowki that they "give the baby his bottle," and that they could pursue an allocation that would allow Malackowski to "gain at [Barney's] expense." R. 411-10. Later Carter suggested that the allocation should prioritize making Malackowski "whole." R. 411-12.
Ultimately, the board allocated $ 6.67 million of the $ 10 million in ICAP profits to members-$ 3.5 million as Net Profits from Operations, and $ 3.1 million as Other Net Profits. The import of the emails discussed above must be understood in light of how the board allocated the $ 6.67 *949million among Malackowski, Carter, and Barney:
Malackowski Carter Barney Total Net Profits $2,689,550 $688,809 $175,858 $3,554,217 from (75% of (77% of 25% of (19% of 25% of Operations Total NPfO) Total NPfO) Total NPfO) ("NPfO") Other Net 2,049,377 $792,767 $270,733 $3,112,877 Profits (65% of (25% of (8.7% of ("ONP") Total ONP) Total ONP) Total ONP) Total Profits $4,738,927 $1,481,576 $446,591 $6,667,094 Allocated (71% of TPA) (22% of TPA) (6.7% of TPA) ("TPA")
See R. 434-81 (PX320). Despite the animosity to Barney and favoritism to Malackowski exhibited in the emails, the ultimate allocations demonstrate that a "compromise"-as Malackowski described it in his trial testimony, R. 336 at 209 (862:21)-was struck by the members. A hypothetical straight application of the customary Net Profits from Operations formula to the total $ 6.67 million in net profits from the ICAP deal (a decision which the board had the discretion to make under the operating agreement) would have resulted in Malackowski receiving $ 6.1 million (i.e., 75% of $ 6.67 million + 65.8% of 25% of $ 6.67 million), significantly more than the $ 4.74 million he was actually allocated. Barney of course objected at the time to Malackowski receiving a full 75% performance share. But even if the Net Profits from Operations formula is applied with Malackowski receiving only a 25% performance share, he still would have received $ 4.82 million, which is more than he was actually allocated:
$ 6.67 million x 0.75 (the performance model allocation) = $ 5 million
$ 5 million x 0.25 (Malackowski's performance share) = $ 1.25 million
$ 5 million x 0.75 (the former members' performance share) = $ 3.75 million
$ 3.75 million x 0.658 (Malackowski's pro rata share) = $ 2.47 million
$ 6.67 million x 0.25 (the firm allocation) = $ 1.67 million
$ 1.67 million x 0.658 (Malackowski's pro rata share) = $ 1.10 million
TOTAL = $ 4.82 million
Additionally, Ocean Tomo points out that the ultimate allocation took $ 3.1 million off the top for pro rata allocation, more than the $ 2 million Malackowski promised to Barney. Of course, the ultimate allocation also provided for a 75% performance share of $ 3.57 million to Malackowski, to which Barney objected. But had the board stuck with the originally promised $ 2 million off the top, and allocated the 25% performance share to Malackowski Barney conceded was appropriate, see R. 411-13 at 8 (7/28/10 email), Malackowski's total allocation again would have been more than he was actually allocated:
$ 4.67 million x 0.25 (Malackowski performance share) = $ 1.16 million
$ 4.67 million x 0.75 (firm performance share) = $ 3.5 million *950$ 3.5 million x 0.658 (Malackowski pro rata) = $ 2.3 million
$ 2 million x 0.658 (Malackowski pro rata) = $ 1.32 million
TOTAL = $ 4.82 million
Admittedly, this method of allocation would also have resulted in Barney receiving an additional 0.4% of the total ultimate allocations (or $ 31,936):
$ 6.67 million - $ 2 million (off the top) = $ 4.67 million (for performance allocation)
$ 4.67 million x 0.75 (firm performance share) = $ 3.5 million
$ 3.5 million x 0.087 (Barney's pro rata share) = $ 304,527
$ 2 million x 0.087 (Barney's pro rata share) = $ 174,000
TOTAL = $ 478,527
But the Court does not perceive this to be a material difference in the ultimate allocations for purposes of determining whether they were made in bad faith.
All this goes to show that the ultimate allocations were not unfavorable to Barney in the context of the terms he and the other members were negotiating. To the extent emails between Malackowski and Carter demonstrated animosity toward Barney and a prioritization of Malackowski's interests, the ultimate allocation did not reflect those sentiments, but appears to have been a compromise, as Malackowski testified.
Barney claims that he was entitled to an 8.7% allocation of the full $ 6.67 million in net profits, equaling $ 579,747, which is $ 133,156 more than his actual allocation. But this claim is based on the preliminary objection to the characterization of the profits as Net Profits from Operations (as opposed to Other Net Profits), and his insistence that Other Net Profits is the only good faith characterization of a sale of assets. The Court has already explained why Barney's arguments that the operating agreement obligated Ocean Tomo to make such an allocation fail. Thus, the Court finds that neither the emails nor the ultimate allocation amount demonstrates bad faith.
Furthermore, Barney has presented insufficient evidence to demonstrate that it was bad faith for Ocean Tomo to allocate a performance share of the ICAP deal profits to Malackowski. Although there is evidence that Ramer was responsible for creating the auction business, and that Becker was entitled to a performance share before he left Ocean Tomo, this evidence is not incompatible with Malackowski's testimony that he originated and managed the ICAP relationship and transaction. Barney has not presented any evidence to the contrary. And the fact that Carter and Geleerd approved of Malackowski receiving a performance share is evidence that he was entitled to it.
In sum, Barney has failed to meet his burden to demonstrate that Ocean Tomo acted in bad faith in allocating the ICAP deal profits. The Court finds for Ocean Tomo on Barney's claim for breach of the operating agreement with respect to the ICAP deal.
B. Board Resolutions
Barney also claims Ocean Tomo violated the operating agreement by issuing three resolutions during the course of 2011 and 2012 finding Barney in violation of the operating agreement with respect to competing for Boeing's business, the NTT deal, and his handling of his Ocean Tomo-issued laptop. These resolutions served as a basis for Ocean Tomo to deprive Barney of dividend allocations he was owed pursuant to the operating agreement.
Barney argues that these resolutions were made in bad faith such that they *951constitute violations of the operating agreement. Barney's only argument for bad faith is that they were wrong, and that Ocean Tomo has "acted in bad faith in multiple other ways to deny Barney and [PatentRatings] profits and royalties." R. 412 at 68. The Court has already rejected Barney's claims regarding royalties and the ICAP deal profits. And although the Court has also rejected Ocean Tomo's claim regarding the NTT deal, and will below explain why the Court rejects Ocean Tomo's claims about Barney's handling of his laptop and its data, the claims were not frivolous and thus are not evidence of bad faith. Additionally, although the arbitration panel rejected Ocean Tomo's claim that Defendants were improperly competing for Boeing's business, Defendants have not explained how that claim was brought in bad faith. Further, the Court finds that a good faith dispute existed as to the rightful ownership of a check that Boeing sent to PatentRatings. See R. 412 at 18 (¶¶ 63-64) (PatentRatings "eventually tendered the $ 48,000 to [Ocean Tomo] after deciding it was not worth the fight."). Thus, the Court finds for Ocean Tomo on Barney's claim for breach of the operating agreement on the basis of the three board resolutions.
C. Denial of Access to Records
Barney's third claim that Ocean Tomo violated the operating agreement is based on the allegation that Ocean Tomo deprived him of access to "the records and accounts of the operations and expenditures of the Company." R. 412 at 69. But the operating agreement provides members access to only a specific list of information. See R. 398-5 at 16 (§ 6.04) ("Each member shall have the right ... to inspect and copy... the books and records of the Company described in Section 9.09[.]"). Barney does not contend that he was denied access to the records on this list. Rather, in one sentence, Barney argues that Illinois law provides a right to a broader set of information. See R. 412 at 69 (citing 805 ILCS 180/1-40, 10-15, 15-5(b)(1) ). But he does not explain the difference between the statutory requirements and the operating agreement. The Court's review of the statutes cited reveals none. Thus, the Court finds for Ocean Tomo on this claim.
V. Violation of the Illinois Trade Secrets Act
Ocean Tomo claims that Barney violated the Illinois Trade Secrets Act by copying files from his Ocean Tomo-issued laptop and using them to compete with Ocean Tomo. The Act prohibits "misappropriation" of "trade secrets." See 765 ILCS 1065/2, 3, 4. The "elements of trade secret misappropriation ... are: (1) a trade secret existed; (2) the secret was misappropriated through improper acquisition, disclosure, or use; and (3) the owner of the trade secret was damaged by the misappropriation." Liebert Corp. v. Mazur , 357 Ill.App.3d 265, 293 Ill.Dec. 28, 827 N.E.2d 909, 925 (1st Dist. 2005). "Acquisition" is sufficient to constitute "misappropriation" when the secrets are acquired by a "person who knows or has reason to know that trade secret was acquired by improper means." 765 ILCS 1065/2(b)(1). And "improper means" is defined as "theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means." 765 ILCS 1065/2(a).
Ocean Tomo argues that Barney improperly acquired Ocean Tomo trade secrets when he copied files from his Ocean Tomo-issued laptop to his personal laptop, because "[n]o reasonable person would believe it was appropriate to copy all files *952from a company-issued computer to a personal computer and retain those files after the end of his employment." R. 414 at 53. Notably, Ocean Tomo cites no authority for this assertion, such as a contractual or other duty Barney had to refrain from copying the files, or an affirmative duty to delete the copies when he resigned. As an employee and member of Ocean Tomo, Barney was given authorized access to Ocean Tomo's confidential information. This authorization continued after Barney's resignation because he continued to be a member of Ocean Tomo. See R. 398-5 at 46-47 (Operating Agreement § 13.17 (contemplating that members would possess confidential information) ). Ocean Tomo has failed to present evidence that Barney's acquisition or retention of Ocean Tomo's files was "improper" for purposes of the Act.
The Act also prohibits unauthorized use of trade secrets by a person who has "a duty ... to maintain its secrecy." See 765 ILSC 1065/2(b)(2)(B)(III). Ocean Tomo argues that it is "more likely than not that Barney has ... used [Ocean Tomo] trade secrets" because Barney has accessed the files since copying them. See R. 414 at 53-54. Ocean Tomo also points to evidence that Barney has been working to build a new patent ratings database. See id. at 54. Barney concedes that he "took steps to rebuild the [PatentRatings] system after [Ocean Tomo] wrongfully dismantled it and cut off [PatentRatings's] access." R. 420 at 34 (¶ 154). According to Ocean Tomo, "[t]he most reasonable inference from those facts is that Barney accessed files he improperly copied from the [Ocean Tomo laptop] to use in assembling a new [PatentRatings] database, which he would then use to compete with [Ocean Tomo]." R. 414 at 54.
While this might be one reasonable inference, there are many others. Indeed, Barney testified at trial that the date Ocean Tomo argues the files in question were improperly accessed, was a date on which Defendants were producing the files for discovery in this case and the files were accessed as part of the production process. See R. 389 at 9 (4098:3-22). Furthermore, Barney denied that he accessed the files for the purpose of competing with Ocean Tomo. See id. at 8-9 (4097:25-4098:2). He testified that to the extent he was "rebuilding" the PatentRatings system, it was not to compete with Ocean Tomo but to permit him to fulfill PatentRatings's obligations to Rosebay, see R. 345 at 116-18 (2472:14-2474:9); R. 346 at 9 (2612:20-25), which Ocean Tomo expressly permitted in the license agreement.
At bottom, while Ocean Tomo has produced some circumstantial evidence indicating that Barney used Ocean Tomo files to compete against Ocean Tomo, there is equal or greater evidence to the contrary. For these reasons, the Court finds for Barney on Ocean Tomo's Illinois Trade Secrets Act claim.
VI. Violation of the Computer Fraud and Abuse Act
A person violates the Computer Fraud and Abuse Act in relevant parts if he "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer." 18 U.S.C. § 1030(a)(2)(C). A person also violates the Act if he "causes damage" to a computer by "accessing" a "computer without authorization." 18 U.S.C. § 1030(a)(5)(B), (C).
A. Ocean Tomo Claims Barney Improperly Copied and Deleted Data from his Ocean Tomo Laptop
Ocean Tomo argues that "[a]n employee who breaches a duty of loyalty to an employer is not authorized to access the employer's *953computers, and so violates section (a)(2)(C) by copying confidential information for an improper purpose." R. 414 at 61. The only breach of loyalty Ocean Tomo claims is with respect to the NTT deal, see R. 414 at 47-48, and the Court has rejected that argument. Since this is Ocean Tomo's only argument for violation of section (a)(2)(C), that argument must fail as well.
Ocean Tomo also argues that "Barney violated section (a)(5) by wiping the [Ocean Tomo laptop]." R. 414 at 61. The problem with Ocean Tomo's argument is that the only direct evidence of who wiped Barney's Ocean Tomo laptop is witness testimony that it was wiped by another Ocean Tomo employee after Barney returned it. See R. 420 at 17; R. 426 at 7. Circumstantial evidence of Barney's motive and opportunity, and that Ocean Tomo does not customarily use the wiping method used on the laptop in question, is insufficient to outweigh the direct evidence. Additionally, since Barney remained a member of Ocean Tomo even after he resigned his employment, Ocean Tomo has not proven that Barnye's access to the laptop was "without authorization."
In any event, even if Barney was responsible for the laptop being wiped, Ocean Tomo's later wiping of the laptop is a supervening cause of any damages (which are an element of a section (a)(5) claim). Clearly, Ocean Tomo was not interested in preserving the information the computer contained.
Moreover, Ocean Tomo's only argument for damages is the cost of the forensic investigation of Barney's laptop to which he copied the Ocean Tomo data. See R. 414 at 19 (¶ 90); see also id. at 49 ("Had Barney not taken [Ocean Tomo's] confidential information by copying it from the [Ocean Tomo] Laptop, [Ocean Tomo] would not have had to perform a forensic investigation of the Laptop ...."). But the Court has rejected the theory of liability based on impermissible copying. This theory of damages based on the cost of investigating Barney's laptop has no connection to any potential liability for wiping Ocean Tomo's laptop. And to the extent these costs were an aspect of Ocean Tomo's litigation strategy, they are not damages for the purpose of proving the claim. See Ohio Nat. Life Assur. Corp. v. Davis , 803 F.3d 904, 910 (7th Cir. 2015) ("Of course generally the victorious party to a lawsuit can't charge his litigation expenses to the loser.").
For these reasons the Court finds for Barney on Ocean Tomo's claim for violation of the Computer Fraud and Abuse Act.
B. Ocean Tomo's Additional Claims Regarding the Laptop
In addressing Ocean Tomo's claims for violation of the Illinois Trade Secrets Act and the federal Computer Fraud and Abuse Act, the Court has found: (1) Barney was not prohibited from copying the data on his laptop; (2) Barney was not prohibited from retaining the data after his resignation because he remained a member of Ocean Tomo; (3) the evidence is insufficient to find by a preponderance of the evidence that Barney used the information on the laptop to compete with Ocean Tomo; (4) the evidence is insufficient to find by a preponderance of the evidence that Barney wiped the laptop; and (5) even if Barney wiped the laptop, the evidence is insufficient to find by a preponderance of the evidence that Ocean Tomo suffered damages. This reasoning also serves as the basis for the Court to reject Ocean Tomo's claims for: (1) conversion, which requires unauthorized possession; (2) breach of fiduciary duty, as Ocean Tomo has failed to identify a relevant duty that Barney breached; (3) violation of the Computer Asset Policy Agreement for "altering"
*954the data; and (4) violation of the employment agreement's prohibition on personal benefit from Ocean Tomo's confidential information.
C. Defendants Claim Ocean Tomo Improperly Dismantled Servers
Defendants also bring a claim for violation of the Computer Fraud and Abuse Act, sections (a)(2) and (a)(5). Defendants argue that Ocean Tomo exceeded its authority to access the servers containing the PatentRatings database by moving them to Chicago and disconnecting them. The license agreement, however, permits the servers to be moved to Chicago. See R. 403-9 at 2 (§ 1.6). Further, the relevant statutory phrase " 'exceeds authorized access' means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled to obtain or alter." 18 U.S.C. § 1030(e)(6). But the license agreement authorizes Ocean Tomo to possess the PatentRatings database, and Defendants do not claim that Ocean Tomo "altered" the information in the servers. Rather, Defendants claim that Ocean Tomo prevented or limited Defendants' access to the information, in breach of the license agreement provision prohibiting Ocean Tomo from using the PatentRatings Tools in a way "that would conflict with the Rosebay Agreement." R. 403-9 at 4 (§ 3.2(c) ). That is a breach of contract claim, not a claim for violation of the Act. Therefore, the Court finds for Ocean Tomo on Defendants' Computer Fraud and Abuse Act claim.
VII. Breach of the Supplemental License Agreement
Defendants argue that when Ocean Tomo shut down the PatentRatings servers, PatentRatings was no longer able to fulfill its contractual obligations to Rosebay. Defendants argue that this constitutes a breach of the supplemental license agreement. But the supplemental license agreement does not require Ocean Tomo to continue to provide access to the PatentRatings system to enable PatentRatings to fulfill its obligations to Rosebay.
Nevertheless, Defendants argue that when Ocean Tomo shut down the servers they converted what was a non-exclusive license under the supplemental license agreement-since Rosebay retained rights under that agreement-into a de facto exclusive license agreement. Defendants argue that the supplemental license agreement calls for a higher royalty fee for an exclusive license under section 3. See R. 403-13 at 4. But that section does not mention exclusive or non-exclusive licenses. Id. Defendants cite section 3.3 in particular. See R. 412 at 32 (¶ 107), 47. But that section is dependent upon the occurrence of a certain "Trigger Event," which is defined as the date on which Ocean Tomo's "actual amount of investment funds and accounts under management ... totals less than [$ 50,000,000]." R. 403-13 at 2. The Court is unaware of evidence in the record providing a basis for a finding that this "Trigger Event" occurred. And as discussed, even if the "Trigger Event" occurred, it is not relevant to whether Ocean Tomo created a de facto exclusive license.
Additionally, Ocean Tomo points out that the supplemental license agreement prohibits consequential or specific damages and argues that this should prohibit Defendants from collecting damages based on their inability to provide service to Rosebay. Defendants argue that they do not seek consequential damages but "restitutionary" disgorgement of Ocean Tomo's unjust enrichment from failing to pay for the exclusive license. See R. 430 at 27. The problem with this argument is that Defendants do not contend that Ocean Tomo was *955enriched by shutting down the servers, except by failing to pay an increased royalty rate, which the Court has rejected. Thus, there would be no amount of money to disgorge.
For these reasons, the Court finds for Ocean Tomo on Defendants' claim for breach of the supplemental license agreement
VIII. Declaratory Judgment that the License Agreement is Terminated
Defendants seek a declaration that the license agreement is terminated based on three alleged breaches: (1) Ocean Tomo improperly dropped "PatentRatings" from its branding; (2) Ocean Tomo failed to cooperate with the royalty audit; and (3) Ocean Tomo has created a patent ratings system to compete with the PatentRatings system. The Court addresses each in turn.
A. Branding
The 2004 license agreement requires Ocean Tomo to appropriately "mark" or brand any materials concerning PatentRatings as "reasonably directed by [PatentRatings]." See R. 403-9 at 6-7 (§§ 5.2, 5.4). Malackowski testified that Ocean Tomo changed the name of "Ocean Tomo PatentRatings" to "Ocean Tomo Ratings." R. 337 at 94 (968:3-4). Defendants claim this action violated the 2004 agreement. R. 412 at 51. Ocean Tomo argues that this change was in accordance with PatentRatings's agreement to "change its name to 'Ocean Tomo PatentRatings.' " R. 416 at 56. Although PatentRatings did agree to change its name in that manner, see R. 411-1 at 2 (¶ 5), it does not appear that it agreed to drop the name "PatentRatings" entirely, which the name "Ocean Tomo Ratings" does. Because of the absence of such an agreement, the Court finds for Defendants on this claim.
The Court notes that "Ocean Tomo Ratings" is the brand Ocean Tomo used on its new "machine learning-based" patent ratings system that the Court addresses in the next section. Defendants claim Ocean Tomo's new system was created in violation of the license agreement's prohibition on Ocean Tomo making a patent rating system that is "derivative" of the PatentRatings system. In opposing that claim, Ocean Tomo argues that "Ocean Tomo Ratings" is an alternative system that is not related to the PatentRatings system. To the extent this argument is relevant to the "branding" claim just discussed, it fails for the reasons discussed presently.
B. Ocean Tomo Ratings
In 2014, Ocean Tomo announced it had created a new patent rating system called "Ocean Tomo Ratings." R. 412-6 at 2. The system used "machine learning" to "provide[ ] a simple method for measuring and comparing patent quality based on the cumulative characteristics of patents that make them either more or less likely to be maintained." Id. Ocean Tomo patented this new system. The patent provides that the invention "employs a set of algorithms based on training data receive [sic] from a database of patent information." R. 398-38 at 13 (p. 2, ¶ 26). Barney testified that the data described in the patent "is a data dump from the PatentRatings system. All the variable names are variable names that I came up with. All the data and the information is information that I programmed into the case." R. 389 at 37-38 (4126:23-4127:1). The Ocean Tomo employees or contractors who created the Ocean Tomo Ratings system had access to the PatentRatings database. See R. 412 at 38 (¶ 124).
Barney claims that Ocean Tomo relied on the PatentRatings database to create the Ocean Tomo Ratings system in violation *956of the following license agreement provisions:
[Ocean Tomo] will [not] make, cause to be made, or assist another to make any statistical patent analytics tools, patent ratings or associated products that are derivative of, or substantially similar to the PatentRatings Tools or the PatentRatings Analysis.
R. 403-9 at 7 (§ 6.1);
Ocean Tomo acknowledges and agrees that the Licensed Technology contains certain confidential information, trade secrets, and know-how related to statistical patent analysis, mapping and valuation ("Confidential Information") that is proprietary to [PatentRatings]. [Ocean Tomo] agrees to hold such Confidential Information in strict confidence, not to use it commercially for its own benefit or the benefit of anyone else, and not to use the Confidential Information for the purpose of developing or improving a product or method for anyone except [PatentRatings] ....
Id. at 7-8 (§ 7.1); and
All improvements will be owned by [PatentRatings]. Should [Ocean Tomo] or its Affiliates develop, either solely or jointly with [PatentRatings], any Improvement, [Ocean Tomo] will communicate to [PatentRatings] all Improvements developed by [Ocean Tomo] or its Affiliates as and when developed.... All Improvements developed by [Ocean Tomo] will automatically become part of the Technology License without any further consideration.
Id. at 6 (§ 5.3). "Improvement" means any revisions, updates, upgrades, new versions or releases of the PatentRatings Tools. Id. at 2 (§ 1.3).
The parties focus their arguments on whether Ocean Tomo Ratings constitutes an "improvement" of the PatentRatings system. Ocean Tomo argues that its new system is an "alternative" ratings system, not an improvement of PatentRatings. R. 416 at 41. The argument is based upon the testimony of Ocean Tomo's expert witness whose report distinguishes between the "machine learning" underlying the Ocean Tomo Ratings system and the "regression model" of the PatentRatings database:
At a high level, machine learning tools attempt to discern patterns within data, but with no pre-conceived concepts or requirements as to the structure of these data. Machine learning uses an iterative process, in which the system initially forecasts an outcome based on combinations of input variables. The system then determines the errors of its forecasts, and adjusts accordingly, iterating until these error terms are minimized. The system can also continue to ["]learn" and adjust iteratively as new data are added.
Regression based models also attempt to discern patterns within data, but they start with specific assumptions regarding the structure of these data. In addition, regression models do not work iteratively, but rather make a best fit to a given set of input data. These data often have to be manipulated in order to meet the data structure assumptions of regression modeling. Typically, the resulting model is then used to assess newly-presented cases, rather than these cases being used to help the model to "learn" further over time.
For these reasons, it is my view that the machine learning models described in the 069 Application do not share the same technical foundation as the regression models developed by PR. As such, they represent a fundamentally different approach to data analysis and, in my opinion, do not constitute an improvement on the PR Tools.
*957R. 400-1 at 97-98 (¶¶ 390-92). Defendants' counter argument rests, at bottom, on Barney's testimony that "maybe machine learning comes with a better, more optimized set of coefficients, and it comes up with that living algorithm that changes week to week. But it's basically an algorithm for rating patents." R. 389 at 35 (4124:14-17).
It appears to be undisputed that both Ocean Tomo Ratings and the PatentRatings system use algorithms to evaluate patents. This is unsurprising since all digital computer programs rely on algorithms. See Encyclopaedia Britannica, "Algorithm" (https://www.britannica.com/science/algorithm) (last visited Apr. 12, 2019) ("a computer program [is] a special type of algorithm"); HowStuffWorks, "What is a computer algorithm?" (https://computer.howstuffworks.com/what-is-a-computer-algorithm.htm) (last visited Apr. 12, 2019) (an "algorithm is the basic technique used to" create computer programs); Typhoon Touch Techs., Inc. v. Dell, Inc. , 659 F.3d 1376, 1384 (Fed. Cir. 2011) ("The usage 'algorithm' in computer systems has broad meaning, for it encompasses in essence a series of instructions for the computer to follow, whether in mathematical formula, or a word description of the procedure to be implemented by a suitably programmed computer.").
Yet, Barney's argument that Ocean Tomo Ratings is an "improvement" on PatentRatings is based entirely on his testimony that both systems use algorithms to generate a patent evaluation. Ocean Tomo's expert testified that Ocean Tomo Ratings is not an "improvement" but an entirely different method because it uses algorithms to perform "machine learning," whereas PatentRatings uses algorithms to perform regression analysis. Barney implies that the difference between machine learning and regression analysis is immaterial, but he does not explain why this is true. Barney's testimony, in the face of the testimony from Ocean Tomo's expert, is insufficient to demonstrate that Ocean Tomo Ratings is an "improvement" on PatentRatings.
In addition to addressing "improvement, however, the license agreement provides that the PatentRatings system is based on confidential information that Ocean Tomo agreed "not to use ... for the purpose of developing ... a product or method for anyone except [PatentRatings]." Id. at 7-8 (§ 7.1) (emphasis added). The patent for the Ocean Tomo Ratings system provides that it is "based on training data receive[d] from a database of patent information." R. 398-38 at 2 (¶ 26). Barney testified that the Ocean Tomo Ratings system was based on a "data-dump from the PatentRatings system." R. 389 at 37 (4126:23-24). Ocean Tomo does not dispute this testimony in its trial brief. See R. 412 at 46 (¶ 124); R. 416 at 41 (¶ 124). Indeed, Ocean Tomo does not address at all Defendants' argument that the Ocean Tomo Ratings system used the PatentRatings system data and algorithms. Considering Barney's testimony, and Ocean Tomo's failure to contest it, the Court finds it more likely than not that the "database of patent information" underlying the Ocean Tomo Ratings system is the PatentRatings database. The Court also finds that this use of the PatentRatings database constitutes "development of a product or method," which the license agreement permitted to be done only "for" PatentRatings. There is no dispute that the Ocean Tomo Rating system was developed for Ocean Tomo and not PatentRatings. Thus, it was developed in violation of the license agreement.
C. Royalty Audit
Defendants also claim that Ocean Tomo violated the license agreement provision *958requiring Ocean Tomo to permit PatentRatings "to inspect or audit [Ocean Tomo's] records ... to the extent necessary to determine or verify any royalty payments required." R. 403-9 at 6 (§ 4.5(c) ). Ocean Tomo argues that "a full review of all 550+ engagements was unnecessary and unreasonable" because the initial "random sampling audit discovered less than $ 9,000 in underpaid royalties." R. 416 at 55. Ocean Tomo may find this discrepancy to be relatively insignificant, but it cannot dispute that PatentRatings's auditor discovered unpaid royalties in each of the two random samples to which Ocean Tomo consented. Despite these findings, Ocean Tomo refused to provide complete records for any additional engagements. Instead, Ocean Tomo agreed to provide only the client deliverable for 20 additional engagements. It was unreasonable for Ocean Tomo to refuse to provide complete records of sample client engagements as long as the sample engagements continued to reveal unpaid royalties. Ocean Tomo's offer to provide only the client deliverable had the added disadvantage-from Defendants' perspective-of being intentionally selected by Ocean Tomo. While immediate and complete production of all records for all 550 Ocean Tomo clients was unreasonable, the random sampling process complied with the intent of the license agreement. Ocean Tomo's failure to continue to supply random samples as long as they continued to reveal unpaid royalties constituted a breach of the license agreement.
As an aside unrelated to Defendants' claim for termination of the license agreement, the license agreement audit provision also requires Ocean Tomo "will reimburse [PatentRatings] for the cost of the audit," if the audit shows that royalties due "in any given quarter exceed the amount of payments actually made ... by five percent or more." The initial audit performed in 2012 revealed unpaid royalties that satisfy this provision. There is no dispute that the 2012 audit incurred fees of $ 35,366. See R. 411-146 at 20; R. 411-71 at 19; R. 411-183 at 13. The Court awards those fees to Defendants.
D. Materiality
The license agreement provides that a "material breach" is a sufficient basis for a party to the agreement to request its termination. See R. 403-9 at 10 (§ 10.2(a) ). The license agreement does not define "material breach."
Under Illinois law, the materiality of a breach "focuses on two interrelated issues: (1) the intent of the parties with respect to the disputed provision; and (2) the equitable factors and circumstances surrounding the breach of the provision." Elda Arnhold & Byzantio, L.L.C. v. Ocean Atl. Woodland Corp. , 284 F.3d 693, 700 (7th Cir. 2002). The first element requires the fact finder to determine whether "the matter, in respect to which the failure of performance occurs, is of such a nature and of such importance that the contract would not have been made without it." Arrow Master, Inc. v. Unique Forming Ltd. , 12 F.3d 709, 715 (7th Cir. 1993) ; see also Arnhold , 284 F.3d at 700. The second element requires the fact finder to "take into account the totality of the circumstances and focus on the inherent justice of the matter." Arnhold , 284 F.3d at 701. The focus should be on factors such as "whether the breach defeated the bargained-for objective of the parties; whether the non-breaching party suffered disproportionate prejudice; and whether undue economic inefficiency and waste, or an unreasonable or unfair advantage would inure to the non-breaching party." Id. (citing Arrow Master , 12 F.3d at 715 ).
The breaches regarding (1) development of a new patent ratings system, *959and (2) the audit, were material.18 With respect to Ocean Tomo's failure to comply with the license agreement's audit provision, a license agreement that provides for royalties as a percentage of royalty-bearing revenue, should also provide for the ability to audit the licensee's records. Even assuming that a licensor will act in good faith to pay the royalties owed, reasonable minds can disagree about the meaning of such provisions. (This might be said to be a case in point.) Without a right to inspect and audit, the licensor has surrendered his property to a party who has strong incentives to understate royalty-bearing revenue.
The license agreement's prohibition of the use of the PatentRatings system to develop a competing product or method is at the heart of the agreement. The terms of the parties' agreements demonstrate that they intended their relationship to be a partnership to promote the PatentRatings system. For instance, the parties granted each other ownership percentages in their corporations. Further, unlike a license agreement that provides for a one-time royalty payment, or a fixed annual payment, the parties here agreed that royalties were to be a percentage of revenue on a continuing basis. This also demonstrates an intent to merge their business interests. Contrary to this intent, Ocean Tomo used the PatentRatings database to develop an alternative patent ratings system that would compete with the PatentRatings system. This nearly amounts to an abandonment of the license agreement. Such a material breach is a basis to terminate the license agreement.
Defendants provided written notice of material breach in compliance with the agreement's termination provision. See R. 411-80. Ocean Tomo's decision to create a competing patent ratings system strongly implies that the breach is not resolvable, such that the license agreement's provision for a potential resolution of the breach is inapplicable. Accordingly, the Court will enforce the license agreement's requirement that upon termination Ocean Tomo return the Confidential Information and PatentRatings Tools-i.e., the servers. See R. 403-9 at 10 (§ 10.3(b) ) ("If the parties do not enter the Extension Agreement, [Ocean Tomo] will immediately return to [PatentRatings] all Confidential Information, including any physical embodiment or rendering of the PatentRatings Tools and all databases, software and other structured information, including all collateral materials provided.").
E. Termination of the Supplemental License Agreement
Defendants also seek termination of the supplemental license agreement. Like the original license agreement, the supplemental license agreement provides for termination upon "material breach," but does not define that term.
The supplemental license agreement provides that it is a "supplement" to "the terms of the [original license agreement]." See R. 403-13 at 1 (preamble). As discussed above, the supplemental agreement was intended to permit Ocean Tomo to use the PatentRatings system to provide consulting services regarding securities sales and investment analysis, rights which had previously been reserved for another entity known as Rosebay. Thus, the original license agreement was a condition precedent to the supplemental agreement.
*960Having found a material breach of the license agreement, the Court also finds that the termination of the original license agreement constitutes a material breach of the supplemental license agreement. As discussed, Ocean Tomo's use of the database underlying the PatentRatings system to develop a competing patent ratings system nearly amounts to an abandonment of the license agreement. This is equally true for the uses of the PatentRatings system licensed under the supplemental license agreement and justifies termination of that agreement.
F. Patent Validity
The Court held that its finding for Ocean Tomo on Defendants' claim for breach of the license agreement made it unnecessary to address the patents' validity as a defense to that claim. It might also have been necessary to address the patents' validity if the license agreement or supplemental license agreement continued to be in effect. But the Court has found that both agreements are terminated. Thus, the patents' validity is no longer relevant to the parties' disputes, and the Court does not reach that issue.
IX. Buyout
Barney asks the Court to order Ocean Tomo to buy out his ownership interest pursuant to 805 ILCS 180/35-1(a)(5), which permits such an order when the controlling members have acted "in a manner that is oppressive and was, is, or will be directly harmful to" the member seeking a buyout. Barney relies on his claims that Ocean Tomo's allocation of the ICAP deal profits and the three board resolutions constituted violations of the operating agreement, and that Ocean Tomo breached the license agreement by failing to pay royalties. See R. 412 at 72. But as the Court has rejected these claims, they cannot serve as a basis to order a buyout.
Barney also claims that the bases for terminating the license agreement are sufficient to order a buyout. But Ocean Tomo's failure to abide by the license agreement has been remedied by the Court ordering its termination and turn-over of the PatentRatings servers. The Court disagrees with Barney's general assertion that Ocean Tomo has "deprived him of the entire benefit of his ownership interest in Ocean Tomo." Id. Of course, Ocean Tomo has sought to deprive Barney of dividends through the arbitration and this litigation. But the arbitrator and this Court have rejected those claims, vindicating Barney's ownership rights. Absent future disputes among the parties (which would not be part of this lawsuit), the Court expects that Barney will receive the benefit of his ownership interest in Ocean Tomo going forward, whether through profit distributions or a mutually agreed upon parting of the ways.
X. Attorneys' Fees
Lastly, Barney seeks attorneys' fees pursuant to section 13.18(b) of the operating agreement:
Indemnification for Actions By or in the Right of the Company. The Company (i) shall indemnify an Indemnified Person who is Manager or Member ... in each case who was or is a party, or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that such Indemnified Person is or was a Manager, Member, officer, employee or agent of the Company, ... against expenses (including attorney fees and costs) actually and reasonably incurred by the Indemnified Person in connection with the defense or *961settlement of the action or suit, if the Indemnified Person acted in good faith and in a manner the Indemnified Person reasonably believed to be in, or not opposed to, the best interests of the Company, provided that no indemnification shall be made in respect of any claim, issue or matter as to which the Indemnified Person shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of the Indemnified Person's duty to the Company, unless, and only to the extent that, the court in which the action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, the Indemnified Person is fairly and reasonably entitled to indemnity for those expenses as the court shall deem proper.
R. 398-5 at 54 (p. 48 § 13.18(b) ). The parties argue in their briefs whether Barney has proven, or can prove, that he acted in good faith or in Ocean Tomo's best interests.
But the parties do not address subsection (c):
Expenses. To the extent that an Indemnified Person has been successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to in paragraph (a) or (b) above, or in defense of any claim, issue or matter therein, the Indemnified Person shall be indemnified against expenses (including attorney's fees and costs) actually and reasonably incurred by the Indemnified Person in connection therewith.
R. 398-5 at 54 (p. 48 § 13.18(c) ). This section appears to require that Ocean Tomo pay Barney's attorneys' fees and expenses for defense of the claims Ocean Tomo brought against him because the Court found in Barney's favor on those claims. This section does not refer to good faith or Ocean Tomo's best interests.
Even absent briefing on this particular subsection, the Court is inclined, pursuant to section 13.18(c) of the operating agreement, to order Ocean Tomo to pay the fees and costs Barney incurred defending against Ocean Tomo's claims. It is likely that such an order will engender further dispute among the parties as to the percentage of Barney's fees and costs that are properly attributable to his defense of Ocean Tomo's claims as opposed to the pursuit of his counterclaims. But it may be that the Court's findings and conclusions on the claims made herein will enable the parties to resolve any such outstanding disputes without further intervention of the Court. If not, the Court will receive short briefing on the proper interpretation and application of section 13.18 as a whole.
Conclusion
Putting aside attorneys' fees, the only claims on which the Court found for the complaining party are Defendants' related claims for a declaratory judgment that the license agreement and the supplemental license agreement are terminated. Ocean Tomo is ordered to deliver the servers containing the PatentRatings Tools to Barney by May 24, 2019. Barney should supply Ocean Tomo with a delivery address by April 26, 2019. Defendants are also awarded the audit fees of $ 35,366.
The Court will not enter final judgment in the case until the attorneys' fees issue is resolved. A status hearing is set for 9:00 a.m. on May 10, 2019 at which the Court expects the parties to report on: (1) the need for additional briefing on awarding of attorneys' fees under the operating agreement, or (2) any other outstanding issues. The parties should inform the Court if the status hearing proves unnecessary and the Court should enter final judgment without provision of attorneys' fees.
*962Once final judgment is entered, to the extent any party plans to seek costs pursuant to 28 U.S.C. § 1920, the bill must be accompanied by a brief explaining why that party should be considered a prevailing party.
In any case, there is no right to a closing argument in a civil bench trial. See Matter of Generes , 69 F.3d 821, 825 (7th Cir. 1995) ("Although closing arguments are required in a criminal case under the Sixth Amendment's right to effective assistance of counsel, [the appellant] has supplied no authority for the proposition that closing arguments are a constitutional right in civil cases and nor have we been able to find any. Indeed, Illinois courts have held that 'oral argument in a civil proceeding tried before a court without a jury is a privilege, not a right, which is accorded to the parties by the court in its discretion.' Further, [the appellant] has provided no historical argument or persuasive justification why the Due Process Clause of the Fifth Amendment should be read to require closing arguments at his trial: a four-hour hearing in bankruptcy court." (quoting Korbelik v. Staschke , 232 Ill.App.3d 114, 173 Ill.Dec. 181, 596 N.E.2d 805, 808 (1992) ) ); Thomas v. N.Y. Life Ins. Co. , 161 F.3d 8 (5th Cir. 1998) ("[d]enying closing arguments in a civil bench trial is within a ... court's discretion."); In re: Residential Capital, LLC , 2016 WL 4126542, at *6 (S.D.N.Y. Aug. 2, 2016) ("the Bankruptcy Court did not abuse its discretion by declining Silber's request for closing arguments"); Duncan v. Hartford Life & Acc. Ins. Co. , 2013 WL 506465, at *1 (E.D. Cal. Feb. 8, 2013) (determining "that argument was unnecessary" for a civil bench trial).
Ocean Tomo is organized into three service "verticals": opinion services; management services; and advisory services. See R. 333 at 6-7 (118:25-119:1). Each vertical is divided into practice groups. See id. at 7 (119:2-3). The "opinion services" vertical is divided into the "expert testimony practice group" and the "evaluation practice group." See id. (119:4-9). The "management services" vertical is divided into the "strategy practice group," "risk management services," and "patent analytics services." See id. (119:12-23). The "advisory services" vertical is divided into the "investments practice group" and the "transactions practice group." See id. at 8 (120:10-17).
Although not materially relevant to the Court's decision, the Court assumes that Barney's reference to the "valuation group" means the "evaluation group" described in footnote 2 above, and Barney's reference to "expert services" means the "expert testimony practice group" within the "opinion services" vertical, also described above in footnote 2.
See R. 412-3 at 3 (§ I) ("any Revenues owed to [PatentRatings] pursuant to ... the [2004 license agreement] that have accrued since the [effective date of the 2004 license agreement] have been credited to [PatentRatings] as reflected in the Principal amount of the Note.").
Defendants cite additional exhibits listing royalties owed and unpaid that could be construed as evidence that royalties from as many as 21 engagements before 2007 went unpaid. See R. 412 at 57 (referring to pages 9-11 (¶¶ 32-38), citing R. 411-209 (PX1035) (3 engagements) ); DX625 (16 engagements for which PatentRatings was used, however no indication whether royalty went unpaid); 411-150 (DX624) (two engagements with one client). (Exhibit DX625 was provided to the Court in its native excel format and was not made available on the electronic docket.) But the documentary evidence for 16 of those engagements does not definitively show that royalties were owed and went unpaid. In any event, the Court understands Defendants' expert's testimony and analysis cited in the main text as Defendants' bottom-line claim for pre-2007 engagements for which Ocean Tomo failed to pay royalties.
Defendants' only evidence that Malackowski made these statements is Barney's trial testimony. See R. 412 at 56. Ocean Tomo argues that Defendants have failed to prove by clear and convincing evidence that Malackowski made the statements. See R. 416 at 59. It appears that Malackowski was not questioned about these alleged statements during his testimony. It is unnecessary for the Court to make a finding on whether Malackowski actually made these statements for the Court to decide Defendants' fraudulent inducement claim.
Defendants' claim does not appear to be based on an allegation that Ocean Tomo improperly accounted for "External Data Sales." That definition more straightforwardly applies to stand-alone sales of PatentRatings Analysis, and expressly excludes use that "facilitates the provision or sale of consulting, auction or other services or products to [Ocean Tomo's] clients or customers."
The parties' expert witnesses created reports and testified about what client engagements they believed "facilitate[d] the provision of information or reports," but the experts simply applied the definitions supplied to them by each party, respectively. See, e.g. , R. 347 at 96 (2952:11-20), 101 (2957:11-18), 106-09 (2962:6-2965:14) (Pakter's testimony tracking Defendants' interpretation). Their application of these interpretations does not help the Court determine which definition is the proper interpretation of the license agreement.
Defendants also claim that Ocean Tomo is not entitled to impose a 25% deduction towards repayment of the $ 1.5 million note on any repayment of unpaid royalties. Since the Court has rejected Defendants' claim for breach of the license agreement, the Court is necessarily not awarding any unpaid royalties to which the 25% deduction should be applied.
The 2006 supplemental license agreement was signed primarily to address a carve-out in the 2004 license agreement for rights PatentRatings had previously granted to a company called Rosebay. See R. 403-9 at 4 (§ 3.2(c) ). The supplemental agreement reflected Rosebay's agreement to suspend the license it had been granted by PatentRatings, thereby permitting PatentRatings to agree to "ease the restrictions on [Ocean Tomo]" with reference to Rosebay. See R. 403-13 at 1 (preamble of the supplemental agreement).
Unrelatedly, Ocean Tomo also claims that an interview Barney gave to an industry publication violated the employment agreement because he disclosed Ocean Tomo's "business plans." R. 414 at 57. There was no mention of these facts in the complaint. See R. 414. Further, Ocean Tomo has not explained what specific aspects of that interview disclosed confidential information. This unpleaded and undeveloped argument is waived. See Bunn v. Fed. Deposit Ins. Corp. for Valley Bank Ill. , 908 F.3d 290, 298 (7th Cir. 2018) ("We have repeatedly and consistently held that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.").
In their reply brief, Defendants dispute Malackowski's testimony that Ocean Tomo "would receive 50 percent of the gross revenue of any of those referrals." See R. 430 at 21 ("Nowhere in the ICAP closing documents did ICAP agree to pay [Ocean Tomo] '50 percent of the gross' or any percentage."). Defendants argue that such a provision is not in the deal documents. Id. (citing R. 411-231 and R. 411-232). These documents, however, are over 400 pages, and the Court does not know whether the documents in the record constitute Ocean Tomo's entire agreement with ICAP. Further, Defendants had two opportunities separated by eight months to cross examine Malackowski's testimony about the deal's terms. They also could have raised the issue in their opening brief giving Ocean Tomo an opportunity to respond. For these reasons, the Court finds Defendants' last-minute argument on this issue to be waived. In any event, Malackowski's testimony is corroborated by an email sent by Ocean Tomo's chief operating officer during the time period the Ocean Tomo members were debating how to allocate the ICAP deal profits. See 411-14 (DX113) ("The ICAP transaction resulted in Ocean Tomo receiving cash up front and 8 years of working in the brokerage/auction space with only upside (50% of all business generated) with no downside risk.").
The operating agreement mentions the term "Other Net Profits" only once as the heading for the following provision: "Subject to and after taking into account the special allocations set forth below and in Section 9.02, Net Profits (other than Net Profits from Operations) shall be allocated among the Members for each Fiscal Year in accordance with the respective Percentage Interests." R. 398-5 at 20 (§ 9.01(c) ).
"Net Profits" and "Net Losses" are defined as
an amount equal to the Company's taxable income or loss for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Section 703(a)(l) of the Code shall be included in taxable income or loss), with the following adjustments:
(a) any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Profits or Net Losses pursuant to this definition shall be added to such taxable income or loss;
(b) any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Section 1.704-l(b)(2)(iv)(i) of the Treasury Regulations and not otherwise taken into account in computing Net Profits or Net Losses pursuant to this definition shall be subtracted from such taxable income or loss;
(c) in the event the Gross Asset Value of any Company asset is adjusted pursuant to subsection (b) or ( c) of the definition of "Gross Asset Value," the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Profits or Net Losses;
(d) gain or loss resulting from any disposition of any property of the Company with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value; and
(e) in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year or other period, computed in accordance with the definition of "Depreciation."
Id. at 6-7 (§ 1.01).
This exhibit was provided to the Court in hard copy during the trial and was not filed on the docket with the parties' post-trial briefs.
This exhibit was provided to the Court in hard copy during the trial and was not filed on the docket with the parties' post-trial briefs.
This exhibit was provided to the Court in hard copy during the trial and was not filed on the docket with the parties' post-trial briefs.
Ocean Tomo, LLC v. PatentRatings, LLC , 262 F.Supp.3d 553, 557-59 (N.D. Ill. 2017).
The Court finds that the "branding" breach discussed above in section VIII.A is not material.
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01-03-2023
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10-17-2022
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96 Cal.App.2d 371 (1950)
ANTHONY J. THOMAS, as Administrator, etc., Appellant,
v.
ALICE ANDERSON, as Administratrix, etc., et al., Respondents.
Civ. No. 4008.
California Court of Appeals. Fourth Dist.
Mar. 7, 1950.
C. Ray Robinson, W. Eugene Craven and Margaret A. Flynn for Appellant.
Crossland & Crossland, Wm. C. Crossland and Robert S. Crossland for Respondents.
MUSSELL, J.
This action to quiet title arose out of the circumstances attending the deaths of John F. Thomas and Rhomus C. Sturgeon, who, as joint tenants, owned the real and personal property herein involved. Both men died between the hours of 9 and 10 o'clock on the evening of September 2, 1947, and plaintiff appeals from the judgment in which it was decreed that Rhomus C. Sturgeon survived John F. Thomas; that upon his death his joint tenancy interest terminated and the title to the property vested in Rhomus C. Sturgeon.
The controversy involves the application of the provisions of section 296.2 of the Probate Code, which are as follows:
"Where there is no sufficient evidence that two joint tenants have died otherwise than simultaneously the property so held shall be distributed one- half as if one had survived and one-half as if the other had survived."
Plaintiff contends (1) that the evidence is not sufficient to support the finding of the trial court that the two deaths in this instance did not occur simultaneously; and (2) that under section 296.2 of the Probate Code, deaths are simultaneous if they occur substantially or approximately at the same time.
[1] Mr. Thomas and Mr. Sturgeon were elderly gentlemen with heart ailments and were living in a home owned by them in the city of Fresno, and on the evening of September 2d, at about 9 o'clock, they were observed sitting together on the front porch of their home. Shortly thereafter, Mrs. Sanders, who lived next door, heard Sturgeon, who was in the backyard, say "What is the matter, John, what is the matter." She ran outside and Sturgeon asked her to call the doctor. She called Mr. and Mrs. Shattuck, who lived next door, and Mr. Shattuck ran over while Mrs. Sanders went inside to use the phone. *373
Mr. Shattuck testified that when called by Mrs. Sanders, he went over to the house and saw Mr. Thomas lying on the ground on his back, face up; that Sturgeon was leaning over and had his head lowered to Mr. Thomas' chest; that Sturgeon was feeling or handling Thomas' wrist and that Sturgeon asked him to call a priest; that Shattuck turned Thomas over, got him in position and gave him artificial respiration for a few minutes until Thomas took about three or four gasping breaths; that they were "gasping breaths, like he was fighting to get air, that is the way I'd say, gasping, striving, he was fighting for air." Mr. Shattuck further testified that he had been required to take first aid in the Army and also for the company for which he worked and was familiar with the locations of the pulse, both from the head and the wrist; that he was present and had taken pulses of people who had passed away; that he felt Thomas' temple for a pulse and did not feel any; that at about the precise moment when he was feeling for a pulse, he heard a thump or falling sound in the house; that after he felt for the pulse at the temple, he felt for a pulse at the wrist; that he could not feel any pulse at the wrist at all and that Thomas started to turn and discolor very readily; that he put his face down to Thomas' chest and to his mouth; that there was absolutely no breathing; that he then proceeded into the house and found Sturgeon lying with his head on the piano pedals; that Sturgeon was then breathing; that he proceeded to turn Sturgeon over on his back, straighten him out on the floor and give him artificial respiration; that he continued to give artificial respiration until he could no longer hear or see breathing; that he was still working over Sturgeon when the fire department arrived and that Sturgeon appeared to be still alive; that he was breathing, his breaths were far apart, or were not natural but he was alive.
The fire chief of the city of Fresno, who was experienced in rescue work and in first aid, testified that he arrived at the scene at about 9:36 p. m., and saw Thomas lying on the ground, back of the house; that he could not find any pulse beat; that Thomas' face had become discolored and that the body was cool; that "if the body is warm, there is a faint hope of reviving a person; if it is cold, there is no hope"; that they had just started to set up their resuscitating machine, when "they" were informed that there was another man in the house that "they" thought was still alive; that they went to work on Mr. Sturgeon, who was lying on the floor; that he examined *374 him, felt his wrist; that Sturgeon was warm and had good color; that he detected a slight pulse.
A fire department captain, who was also experienced in first aid and rescue work, testified that he examined a man lying on the ground in the backyard, picked up his hand and that when he could detect no pulse, he took his flashlight out, opened the eyes and flashed the light into them; that he could get no movement in the eyes; that the face started to turn a dark ruddy color; that he was not breathing as far as the witness could determine; that he then sent the squad into the house and went in himself, where he saw Sturgeon on the floor. Sturgeon was warm and his color was good; that they put the resuscitator on Sturgeon and started to work on him and that he could detect a pulse beat, a throb in his wrist.
A sister of Mr. Sturgeon testified that about 9:30 on the night of the tragedy, Sturgeon called her on the 'phone and that his first words were "Della, John is dead."
Dr. Katz, the physician who was called to the scene by the police department, was not present in court at the trial but it was stipulated that if present, he would testify that he is a duly licensed, practicing and qualified physician and surgeon in the city of Fresno; that on the evening of September 2, 1947, he was notified by the police department to go to 1427 La Salle Street in Fresno in answer to an emergency call; that when he arrived at the house, he found two bodies; one being that of Rhomus Clare Sturgeon and the other that of John F. Thomas; that the body identified to him as the body of Mr. Thomas was in the yard and the one identified to him as the body of Mr. Sturgeon was in the house; that he immediately examined both bodies; that he found both men dead and that he, as a physician and surgeon, was not able to determine medically, or otherwise, the exact hour or minute of the death of either of them.
Dr. William J. Reynolds, who was not present at the scene on September 2, 1947, testified that he had attended Mr. Sturgeon prior to his death and had last seen him approximately a week before he died; that he signed a medical certificate in which the cause of death was given as coronary occlusion, and that he also attended Mr. Thomas during his lifetime and signed the certificate that the cause of death of Mr. Thomas was cardiac failure, possibly ventricular fibrillation, rheumatic heart disease with aortic insufficiency, etc.; that he did not know the exact hour of the death of either man and that he knew of no means by which that could be determined. *375 He further testified that the fact that one body might be a little cooler than the other would not be a determining factor in ascertaining which man had died first; that he did not think that there would be perceptibly enough change in temperature in a few minutes to be able to determine correctly; that the coolness would depend greatly on the amount of moisture that was on the skin.
We conclude that there was substantial evidence to support the trial court's finding that John F. Thomas predeceased Rhomus C. Sturgeon and that Rhomus C. Sturgeon survived the death of John F. Thomas.
In the Estate of Loucks, 160 Cal. 551 [117 P. 673, Ann.Cas. 1913A 868], in a proceeding for the distribution of the estate of a deceased person which involved the determination of the question of survivorship of two persons who were killed in a collision between a railway train and the automobile in which they were passengers, the court held that the fact of survivorship must be established by a preponderance of the evidence, and stated, at page 554:
"In the case at bar there was a conflict of evidence and the court, after hearing all of the testimony, found the essential fact to be that the child Thelma survived her father. We do not see that this differs from the ordinary case wherein conflicting testimony has been given, and unless we find, upon a study of the record, that in no rational view of the evidence was the court below justified in the conclusion reached, we must sustain the findings of that court."
In the instant case the question as to which of the two men died first was a question of fact for the determination of the trial court, and where, as here, it was supported by substantial evidence, the finding is binding upon us. (Dillard v. McKnight, 34 Cal.2d 209, 223 [209 P.2d 387].)
[2a] The contention of the plaintiff that under section 296.2 of the Probate Code deaths are simultaneous if they occur substantially or approximately at the same time is untenable. The word "simultaneously" has been defined as follows:
"Simultaneously. In a strict sense, at precisely the same instant; but in a broader sense, at the same time; not at the same instant but at substantially the same time."
And the word "simultaneous" has been defined as:
"Simultaneous. A word of comparison meaning that two or more occurrences or happenings are identical in time." *376
Appellant cites American Surety Co. of New York v. Mosher (1936), 48 Ariz. 552 [64 P.2d 1025, 1030], as holding as follows:
"The word 'simultaneously' ... is not always construed to require absolute synchronism from beginning to end. The events may be substantially or relatively simultaneous without being absolutely so ... so long as the two acts required are performed so that they will not be considered as separate in time as a matter of law, the actions are simultaneous. ... Practically speaking, it means that the acts are done on the same day, since the law ordinarily does not separate a day into parts."
And the case of Westinghouse Mach. Co. v. C. & G. Cooper Co. (CCA-6, 1917), 245 F. 463, 468 [157 C.C.A. 625], wherein it is stated:
"It could hardly be denied that racing horses go around the track simultaneously, although a stop watch may show slight differences between them on the way and at the finish."
The first case cited involved a construction of the word "simultaneously" used in connection with a rule of court which required that a formal judgment be rendered and filed by the court. It was held that if the two acts were done on the same day, they were performed "simultaneously" as the law does not ordinarily divide a day into parts.
As to the last case, it no doubt is a fact that racing horses do go around the track simultaneously, when they are running at the same time. However, if one horse reaches the finish line before another, it cannot be said that they finish simultaneously.
As defined in Black's Law Dictionary, 3d edition, death is the cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.
[3] While it may be said that persons who are alive at the same time are living simultaneouly, death occurs precisely when life ceases and does not occur until the heart stops beating and respiration ends. Death is not a continuing event and is an event that takes place at a precise time.
[2b] We conclude that there was sufficient evidence to support the court's finding that there was an interval of time between the deaths of Mr. Thomas and Mr. Sturgeon *377 and that they did not die "simultaneously" within the meaning of section 296.2 of the Probate Code.
Judgment affirmed.
Barnard, P. J., and Griffin, J., concurred.
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01-03-2023
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10-30-2013
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CONN, HOFFMAN, and GIFFORD
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant TERRY V. TWEEDY
United States Army, Appellant
ARMY 20100563
8th Theater Sustainment Command
Kwasi L. Hawks, Military Judge
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Brent A.
Goodwin, JA (on brief).
For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams,
JA; Major Ellen S. Jennings, JA; Captain Bradley M. Endicott, JA (on
brief).
28 February 2011
---------------------------------
SUMMARY DISPOSITION
---------------------------------
Per Curiam:
A military judge sitting as a general court-martial convicted
appellant, pursuant to his pleas, of one specification of willfully
disobeying a superior commissioned officer and two specifications of
aggravated sexual abuse of a child, in violation of Articles 90 and 120,
Uniform Code of Military Justice [hereinafter UCMJ], respectively (10
U.S.C. §§ 890 and 920). The military judge sentenced appellant to a bad-
conduct discharge and confinement for four years. The convening authority
approved the adjudged sentence.
On review to this court pursuant to Article 66(c), UCMJ, appellant
submitted the case on its merits, citing no specific legal errors, along
with an unsigned, typewritten document submitted pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982). In pertinent part, appellant's
Grostefon matters alleged that his wife was told by a government
representative to divorce appellant in order to receive compensation
[unspecified]; she did so and never received the compensation; and that due
to the divorce his wife [now-ex] was no longer eligible to receive money
through the waiver of automatic forfeiture process.
After pronouncement of sentence, the military judge made a clemency
recommendation by stating he recommended the convening authority waive the
imposition of automatic forfeitures upon final action."[1] The record
reflects in Appellate Exhibit VI—the Post-Trial and Appellate Rights Form
completed by appellant with the advice of his attorney—appellant expressly
acknowledged the right to request waiver of automatic forfeitures from the
convening authority.
Neither the staff judge advocate’s recommendation (SJAR), nor any
other post-trial document from the staff judge advocate (SJA) to the
convening authority contained in the record of trial, apprise him of the
military judge’s clemency recommendation. See Rule for Courts-Martial
1106(d)(3)(B) [hereinafter R.C.M.]. In responding to the SJAR, the trial
defense counsel did not comment on the omission. In the absence of an
objection, we review for plain error. R.C.M. 1106(f)(6). See United
States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000); see also United States v.
Powell, 49 M.J. 460, 463, 465 (C.A.A.F. 1998).
We find the SJA's failure to apprise the convening authority of the
military judge's clemency recommendation was error that was plain and
obvious. Ultimately, however, we find that based on the evidence in the
record, appellant has failed to satisfy the third prong of the plain error
analysis. See United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)
(requiring an appellant demonstrate "some colorable showing of possible
prejudice"); see also United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F.
2005); Kho, 54 M.J. at 65; Powell, 49 MJ at 463, 465. See also United
States v. Capers, 62 M.J. 268, 269-270 (C.A.A.F. 2005). Specifically, the
record reflects that appellant was present at trial when the military judge
made his clemency recommendation. Appellant acknowledged his right to
request waiver of automatic forfeitures via the Post-Trial and Appellate
Rights Form. He had the opportunity, under R.C.M. 1106, to respond to the
SJA's failure to identify the military judge's clemency recommendation.
Additionally, he had the opportunity to submit clemency matters via R.C.M.
1105 and did so. At no time did appellant submit a request for waiver of
automatic forfeitures for the benefit of his dependents or otherwise seek
to leverage the clemency recommendation of the military judge. Although
appellant cites to the harm to his dependents, the plain error analysis
mandates we examine it through the monocle of analyzing the material
prejudice to his substantial rights. See Scalo, 60 M.J. at 436-437
(citations omitted). Appellant has failed to satisfy that burden.
On consideration of the entire record, we hold the findings of guilty
and the sentence as approved by the convening authority correct in law and
fact. Accord-ingly, those findings of guilty and the sentence are
AFFIRMED.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
-----------------------
[1] An accused is subject to automatic forfeitures if sentenced to more
than six months of confinement. UCMJ, art. 58b(a). Under Article 58b(b),
UCMJ, if an accused has dependents, a convening authority “may waive any or
all of the [automatic] forfeitures of pay and allowances . . . for a period
not to exceed six months,” and such money “shall be paid . . . to the
dependents of the accused.” Id. See also R.C.M. 1101(d)(1).
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01-03-2023
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01-09-2015
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, SIMS, and GALLAGHER
Appellate Military Judges
UNITED STATES, Appellant
v.
Staff Sergeant KIJAN A. EDWARDS
United States Army, Appellee
ARMY 20100593
Headquarters, 82d Airborne Division
Patrick J. Parrish and Stephen R. Henley, Military Judges
Major Jessica A. Golembiewski, Acting Staff Judge Advocate (pretrial)
Lieutenant Colonel Lorianne M. Campanella, Staff Judge Advocate
(recommendation and addendum)
For Appellant: Captain Jennifer A. Parker, JA; Captain Meghan M. Poirier,
JA.
For Appellee: Pursuant to A.C.C.A Rule 15.2, no response filed.
28 February 2011
-----------------------------------
SUMMARY DISPOSITION
-----------------------------------
Per Curiam:
A military judge sitting as a general court-martial convicted
appellant, pursuant to his pleas, of one specification each of sodomy with
a child, indecent liberties with a child, and indecent acts with a child,
in violation of Articles 125 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 925 and 934 [hereinafter UCMJ]. The military judge sentenced
appellant to eighteen years of confinement and a dishonorable discharge.
Although not raised as an error, we note that the convening authority
approved a sentence greater than that which had been adjudged at
appellant’s court-martial. Accordingly, we will take corrective action in
our decretal paragraph.
In the Staff Judge Advocate Recommendation (SJAR), the staff judge
advocate (SJA) recommended the convening authority “approve the sentence as
adjudged.” After trial defense counsel pointed out that the appellant’s
term of confinement had been limited to five years in his pretrial
agreement, the SJA, in her Addendum to the SJAR, modified her original
recommendation and advised the convening authority to approve “only so much
of the sentence extending to a reduction to the grade of E-1, forfeiture of
all pay and allowances, confinement for five years, and a dishonorable
discharge.” Thereafter, the convening authority approved “a reduction to
the grade of E-1, forfeiture of all pay and allowances, confinement for
five years, and a dishonorable discharge” even though no reduction or
forfeitures had been adjudged.
Conclusion
The findings of guilty are affirmed. After considering the entire
record, this court affirms only so much of the sentence as provides for
five years of confinement and a dishonorable discharge. All rights,
privileges, and property, of which appellant has been deprived by virtue of
that portion of his sentence set aside by this decision, are ordered
restored. See UCMJ arts. 58b(c) and 75(a).
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
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138 Ga. App. 41 (1976)
225 S.E.2d 500
DILLINGHAM
v.
DOCTORS CLINIC, P. A., et al.
50656.
Court of Appeals of Georgia.
Decided March 9, 1976.
Hendon, Egerton, Harrison & Glean, Michael Anthony Glean, for appellant.
Erwin, Epting, Gibson & McLeod, Gary B. Blasingame, Henry G. Garrard, III, for appellees.
PANNELL, Presiding Judge.
1. Upon review by certiorari the Supreme Court in Dillingham v. Doctors Clinic, P. A., 236 Ga. 302, reversed our ruling in Headnote 1 of our original opinion reported in Dillingham v. Doctors Clinic, P. A., 135 Ga. App. 736 (219 SE2d 2).
2. In Headnote 2 of our original opinion, we held that it was unnecessary to consider the other grounds upon which the trial court could have dismissed plaintiff's complaint because of our decision in Division 1. Because our decision in Division 1 has been reversed, it is necessary for us to decide if there were other grounds which would have supported the trial court's dismissal of the complaint.
*42 3. The defendants moved to dismiss the complaint on several grounds. One of these grounds was that the complaint showed on its face that the claims alleged therein were not of such a character for which a class action would be authorized under § 23 of the Georgia Civil Practice Act.
Even if the court determined that the action brought as a class should not be so maintained, this would not afford a basis for dismissing the complaint. Rather, such a determination would mean that the action would be stripped of its character as a class action and would proceed as a non-class action. 3B Moore's Federal Practice, 23.01[11.-1]. Accordingly, this ground would not have supported the court's dismissal of the complaint.
4. The defendants also moved to dismiss the complaint on the ground that the complaint sought to recover damages for malicious abuse of legal process. Appellees contend that the complaint fails to set forth a claim for malicious abuse of legal process.
The Supreme Court held in the present case that the complaint did set forth a cause of action for negligence and was not subject to dismissal for failure to state a claim upon which relief could be granted. Assuming that the paragraph of the complaint alleging malicious abuse of legal process was insufficient to state a cause of action, this would not have afforded a basis for dismissing the entire complaint for failure to state a claim. "`Where a motion to dismiss is addressed to an entire pleading ... the motions are properly overruled where a portion of the matter thus attacked is not subject to the objection urged.'" Ace-Hi Electric, Inc. v. Steinberg, 133 Ga. App. 917 (3) (213 SE2d 71).
5. The defendant moved to dismiss the complaint on the ground that plaintiff's cause of action for injury to the person was barred by the statute of limitation. The complaint does not affirmatively show that any cause of action set forth therein is barred by the statute of limitation. The record does not show that the trial judge considered any evidence outside of the pleadings. Whether or not plaintiff's claim was barred by the statute of limitation could not be ascertained from the pleadings. Accordingly, this ground did not afford a basis for the trial *43 court's dismissing the complaint.
Judgment reversed. Quillian and Clark, JJ., concur.
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91 Okla. Crim. 38 (1950)
215 P.2d 582
CRICKENBERGER
v.
STATE.
No. A-11111.
Criminal Court of Appeals of Oklahoma.
March 1, 1950.
Clint Braden, Wilburton, and M.O. Counts, McAlester, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
*39 POWELL, J.
The defendant, Carl Crickenberger, was charged in the district court of Latimer county on July 10, 1947, with the larceny of domestic animals, to wit: four head of cattle, duly described in the information. It was alleged that the cattle were owned by one Roy Tripp, and were stolen on May 9, 1947.
The case was called for trial on February 4, 1948. Defendant was represented by two attorneys, one of whom had represented him in his preliminary hearing. After the state had offered the testimony of six witnesses, counsel for defendant requested a recess, and after consultation with the defendant, his father and others, announced that at that time they wished to withdraw defendant's plea of not guilty, and enter a plea of guilty. This was permitted, the jury discharged, and sentence day was set for March 3, 1948. On that date defendant appeared with his father and attorneys, one of whom made an impassioned plea for the defendant, and closed by stating that the defendant did not want to be sentenced on a plea of guilty. The court recessed until after noon, at which time defendant moved the court for permission to withdraw his plea of guilty and enter a plea of not guilty, and asked the court to consider the statement made at the morning session as a part of his motion.
The record would indicate that there was another similar case pending in the district court of Latimer county against this defendant, and it was the contention of the county attorney that he had agreed to dismiss that case, and to recommend a sentence of five years in the case on trial, if the defendant did enter a plea of guilty and pay Mr. Tripp for his calves. The defendant denied any such agreement, but the other case pending against defendant was dismissed in open court the day the plea of guilty was entered.
*40 The court refused to permit the defendant to withdraw his plea of guilty, and sentenced him to five years in the State Penitentiary. Petition in error with casemade attached was duly filed in this court.
But two assignments are made in the petition in error:
"1. Error of the trial court in refusing to allow the defendant, Carl Crickenberger, to withdraw his plea of guilty and enter a plea of not guilty in lieu thereof, and to permit the defendant to have a jury trial, to which action of the court the plaintiff in error then and there excepted.
"II. Error of the trial court in overruling the motion of the defendant, Carl Crickenberger, to withdraw his plea of guilty and enter a plea of not guilty to which action of the court the plaintiff in error then and there excepted."
The evidence of the state stands uncontradicted, and in considering defendant's appeal, we deem a short statement of the evidence in order.
LeRoy Tripp testified that he owned twelve head of cattle, on open range, in Latimer county. He missed some of them, made a diligent search and finally heard the bell on one of his cows from the direction of the defendant's place found some tracks which he followed to the home of defendant, and there found two of his cows, but the four yearlings running with them were not there. Defendant offered to purchase the cows, but witness told him they were mortgaged and not for sale, and took them home, thinking their calves would come to them. He looked for the yearlings for twelve days, but did not find them. All of his cattle were branded, and defendant knew his brand. The jersey heifer described in the information was later found at Cordell, Okla. It was *41 in a truck at the courthouse on the day of the trial, and was identified by the witness as his animal.
Lloyd Wilson Haley, who lived near Amber, in Grady county, testified that he had known the defendant for several years, had hauled cattle for him, sold hay to him, bought fence posts from him, and had other business dealings with defendant. That one F.H. Freeman, a divinity student at Shawnee, had some lands leased near the witness's home; that witness sold hay for Freeman to the defendant and hauled the hay, with some hay of his own, to the defendant; that defendant owed each of them about $200 for the hay and hauling. About May 1, 1947, witness went to Shawnee and he and Freeman drove to defendant's home for the purpose of trying to collect for the hay and hauling. They were there about two hours, and defendant told them he had some cattle, and if they would return in about a week, he would have the cattle rounded up, and they could take and sell them, and apply the proceeds on the amount due them. Witness returned to Latimer county on May 8, but Freeman did not go. Witness took a neighbor boy, Harold Ingram, along for the ride and company. They got to defendant's home about dark, and defendant told them he did not have the cattle up, but knew where they were, and if they would stay over, they could gather them the next day. Witness stayed, and he and Ingram with the defendant and another man rode all the next day looking for cattle, and returned to defendant's home about dark with nine head of cattle. They ate supper, and about 10 or 10:30 loaded seven head, two cows and five yearlings, and started home, with directions from defendant to sell the cattle and apply the proceeds on the hay debt. On the way home, witness stopped at the farm of Floyd Yell in Grady county, and sold the seven head of cattle *42 to him for $310. Three weeks later, about May 27, 1947, the defendant went to the home of witness and informed witness that he wanted to purchase the cattle back; that they were mortgaged and the bank officials would be at defendant's home in three days to check them. Witness went with defendant to see Mr. Yell, who agreed to sell the cattle back to defendant, but wanted a profit on the deal. They did not reach an agreement on the price of the cattle, but defendant told witness to bring the cattle back to Latimer county, that he had his automobile sold when he got home, and would pay witness for the cattle with the proceeds. Defendant was in a hurry (it was then about 9 p.m.) and left. Witness and Mr. Yell talked the matter over, and were afraid they would not get their money after hauling the cattle back to Latimer county, and the next night the witness and Mr. Yell hauled the cattle to Oklahoma City and they were sold at the stockyards the following morning. Witness identified the heifer in the truck as one of the animals brought from defendant's home in Latimer county, sold to Mr. Yell and later sold in Oklahoma City.
J.H. Freeman corroborated Haley in every particular as to the hay, the amount due them, the trip to Latimer county, and defendant's statement about the cattle.
Floyd Yell also corroborated Haley in every detail so far as his connection with the deal was concerned.
Harold Ingram, age 20, further corroborated Haley, and testified to going with defendant and the others to look for the cattle, helping to load them, and haulng them to Grady county.
Carl Cofelt, age 17, was working for the defendant at the time, and helped to load the cattle. On cross-examination this witness was asked if he did not sign a *43 statement in the county attorney's office in which he stated that the defendant told him those were stolen catle, and for him "to keep his mouth shut." Witness admitted this. Defendant's attorney then asked him if he did not come to his office later on, with the defendant, and tell the attorney that the county attorney had told him if he did not sign the statement they would send him to the penitentiary. Witness also admitted this, and testified that the defendant told him to make this statement to his attorney, that he was working for defendant, and was afraid not to do as he said. The evidence of defendant's guilt was overwhelming, without consideration of the testimony of this witness.
At the close of this testimony the defendant, as hereinbefore stated, asked for a recess, and later asked leave of the court to withdraw the plea of not guilty, and enter a plea of guilty, which he was permitted to do.
We shall consider defendant's assignments of error together.
While the Constitution of this state, Art. II § 20, gives to every person accused of crime the right to trial by jury, it also contains a provision that this right may be waived, Art. VII § 20. Certainly this right was accorded the accused in this case, and when he withdrew his plea of not guilty and entered a plea of guilty after the selection of the jury and a number of witnesses for the state had testified, be effectively waived his right to have his case determined by a jury, and cannot now claim that he was denied any right which he had under the Constitution or statutes of this state. He had the benefit of able counsel, well skilled in criminal practice and procedure, at every step of the proceedings, and had the advice of his father. After accepting his plea of guilty *44 and discharging the jury on February 4, 1948, the court fixed the day of sentence for March 3, 1948; and after counsel's plea on behalf of his client, the court took the matter under consideration for several hours. There was no undue haste, and it would appear that no action was taken in the case without due deliberation.
The general rule followed by this court is that the granting or denying of permission to withdraw a plea of guilty and to substitute a plea of not guilty is a matter within the sound discretion of the trial court, and that its action must be upheld unless an abuse of such discretion clearly appears. Wilson v. State, 82 Okla. Crim. 272, 168 P.2d 898; Shiever v. State, 55 Okla. Crim. 342, 30 P.2d 192; McAtee v. State, 39 Okla. Crim. 10, 262 P. 703.
From the testimony appearng in the record, and defendant's plea of guilty, the court was justified in taking the position that to grant permission to withdraw his plea of guilty would merely postpone defendant's day of reckoning, and this same procedure could be repeated and final determination of the case delayed indefinitely. We agree with Judge Doyle where he said in Hart v. State, 29 Okla. Crim. 414, 233 P. 1095, 1096:
"A defendant should not be allowed to trifle with the court by deliberately entering a plea of guilty one day, and capriciously withdrawing it on the day set for pronouncing judgment."
A careful study of the entire record convinces us that the facts in the within case call for the application of the rule announced in the above case; and that the trial court did not abuse his judicial discretion in refusing to allow defendant to withdraw his plea of guilty and to enter a plea of not guilty, under the circumstances here shown.
*45 The judgment and sentence of the district court of Latimer county is affirmed.
JONES, P.J., and BRETT, J., concur.
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168 Kan. 591 (1950)
215 P.2d 172
DUANE SHAFER, by Emma Shafer, his mother and next friend, Appellee,
v.
STATE HIGHWAY COMMISSION OF KANSAS, Appellant.
No. 37,690
Supreme Court of Kansas.
Opinion filed February 28, 1950.
Henry L. Daniels, of Topeka, argued the cause, and Stanley Taylor, attorney for the state highway commission, and C.C. Linley, of Cimarron, were with him on the briefs for the appellant.
James A. Williams, of Dodge City, argued the cause, and Carl Van Riper, C.W. Hughes, Jack G. Voshell, and J.J. Mangan, all of Dodge City, were with him on the briefs for the appellee.
The opinion of the court was delivered by
WEDELL, J.:
This action was instituted pursuant to what is commonly known as the defective highway statute, G.S. 1935, 68-419. Plaintiff prevailed and the state highway commission has appealed.
Appellant assigns ten specifications of error. An examination of the record convinces us most of them are without substantial merit. Nothing would be added to our body of the law on the subject involved by a detailed treatment of all the alleged errors. Following a brief statement pertaining to appellee's journey we shall go directly to the vital issue in the case. It pertains to the nature of the defect alleged in the petition, what the jury found it to be and whether the injury was caused by a defect within the purview of the statute.
Appellee was a boy about eighteen years of age. He and his brother, Virgil Dean Shafer, were making a trip together on the latter's motorcycle from Lacon, Ill., to Tucson, Ariz., making stops on the route to visit relatives. Virgil Dean was seeking employment in a warmer climate. The vehicle was equipped with a buddy seat to carry a passenger in addition to the driver. The seat was standard *593 equipment such as made by the manufacturers of motorcycles. It was approximately two feet to thirty inches in length and was shaped so the driver could sit on the front part and the passenger could sit behind him comfortably. The handles reached to the back where the passenger could hold on to them. The motorcycle also had a separate foot rest for the passenger in addition to the floor boards for the driver's feet. Regular saddle bags were attached to the vehicle. In the back part of it behind the passenger a carrier was fastened. A little platform, the size of a suitcase, was bolted to the carrier, in which the boys had strapped a suitcase containing clothing. Appellee thought the suitcase weighed approximately fifty to sixty pounds. He thought it might have weighed seventy pounds.
The driver was killed and the passenger, appellee, sustained serious injuries.
The pertinent portion of the petition alleged:
"That at a point approximately two and one-half (2 1/2) miles West of the City of Cimarron, in Gray County, Kansas, said U.S. Highway 50 South slopes downward in a Westerly direction from the brow of a low rise or grade for a distance of approximately three hundred (300) yards to a point where said Highway is crossed by a culvert or bridge which is a part of said Highway system; that said Highway rises on a slight up-grade to the West of said culvert or bridge. That at the point in question, said Highway is surfaced with an oil coating or mat, commonly called `black-top.' That on the 16th day of June, 1947, and for more than a week prior thereto, a defect existed in said Highway immediately adjacent to the West side of said culvert or bridge; that said defect consisted of a hole in said Highway which was four (4) to eight (8) inches in depth, was approximately fourteen (14) feet long extending from the North side of the oil mat of said Highway past the center line thereof and over into the South part thereof, was approximately six (6) to eight (8) feet wide from East to West, and that the East side of said hole was immediately adjacent to the West edge or side of said bridge or culvert; that the sides of said hole were almost perpendicular. That at the time mentioned herein there were no flags, flares or other warning devices placed about said defect by Defendants which would in any way warn travelers upon said Highway of the danger surrounding said defect.
"4. That at approximately 12:30 p.m. on said 16th day of June, 1947, the Plaintiff and his brother, Virgil Dean Shafer, were riding a motorcycle in a Westerly direction on said U.S. Highway 50 South, West of Cimarron, Gray County, Kansas. That said Virgil Dean Shafer was the owner, driver and operator of said motorcycle, and that Plaintiff was riding behind him on it. That said Highway between said City of Cimarron and the afore-mentioned defect was relatively smooth, and that said Virgil Dean Shafer was driving said motorcycle in a careful and prudent manner at a reasonable rate of speed, to wit: fifty to fifty-five (50-55) miles per hour. That without any warning *594 said motorcycle struck the afore-mentioned hole and defect in said Highway, adjacent to said culvert or bridge, and said motorcycle was thrown violently into the air and out of the control of its driver; that said Virgil Dean Shafer struggled to maintain control thereof but that finally said motorcycle went into the ditch along the North side of said Highway and overturned. That Plaintiff was thrown from said motorcycle and struck the ground in said ditch with great force and violence and sustained the injuries hereinafter complained of.
"5. That said defect in said Highway was the sole, immediate, and proximate cause of said motorcycle going out of control, and of the resultant injuries to Plaintiff. That there were no warning devices about said defect, and that the same was not easily discernible to travelers upon the Highway."
The jury answered certain questions as follows:
"1. Q. Do you find that a defect as defined in the Court's instructions existed on the highway at the time and place of plaintiff's accident? A. Yes.
"2. Q. If you answer question No. 1 in the affirmative describe fully and in detail such defect or defective condition. A. Depression in roadway 18 feet East by West 20 feet North and South, with chuck hole approximately 3 1/2 or 4 inches deep by 30 inches across.
"3. Q. If you answer question No. 1 in the affirmative do you find that the Director of Highways, State Highway Engineer, or any member of such State Highway Commission, or any foreman, patrolman, or other employee in charge of the construction, maintenance or upkeep of such highway had five days' actual notice of such defect? A. Yes.
"4. Q. If you answer the foregoing question in the affirmative then state the name of the person or persons who had such actual five days' notice? A. Barkley, Reynolds, Moore.
"5. Q. Do you find that plaintiff and his brother, Virgil Dean Shafer, were engaged in a joint enterprise or joint venture as defined in the court's instructions at the time and place of the accident herein? A. No.
"6. Q. If you answer question number 5 in the affirmative do you find plaintiff's brother guilty of any act or acts of negligence? A. ____.
"7. Q. If you answer question number 6 in the affirmative, state the acts which you find constituted negligence on the part of Virgil Dean Shafer. A. ____.
"8. Q. What do you find to be the proximate and direct cause of the accident? A. Defect in surface of the roadway.
"9. Q. What do you find to be the speed of the motorcycle upon which plaintiff was riding immediately prior to the accident? A. 60 miles per hour.
"10. Q. If you answer both questions Nos. 1 and 5 in the affirmative then state if there remained a sufficient portion of the traveled roadway over which plaintiff's brother with reasonable care could have safely operated said motorcycle? A. ____.
"11. Q. Was the plaintiff guilty of negligence at the time and place of the accident? A. No.
"12. Q. If you answer question No. 11 in the affirmative state specifically such act or acts of negligence. A. ____."
*595 Answer No. 2 embraces two separate and distinct things. One is the depression in the roadway. The other is a chuckhole. It will be observed the finding did not state how deep the depression was or where the chuckhole was located in the roadway. There was evidence of broken areas in the pavement along the north side of the highway both east and west of the culvert which were thirty inches in diameter; that in such areas the surface was broken up, crumbled, loose but in place and also that it was not in place; that within such broken area it was rough in the bottom and the sides were jagged.
A similar condition existed on the extreme south side of the road. Some of the witnesses referred to both the north and south places as broken and crumbled areas and others referred to them as holes. Some of the witnesses referred to the area thirty inches across interchangeably as a hole and as a broken place. There was evidence by some of appellee's witnesses there was a hole on the north side of the road which extended across the center of the road and was four to six inches deep, and even deeper and that the sides of the hole were abrupt; the hole was the color of the blacktop and difficult to see.
The jury, however, found the chuckhole was three and one-half or four inches deep and thirty inches across and we are bound by that finding. A search of the record discloses no evidence the driver of the motorcycle struck the chuckhole. We, therefore, need not determine whether such a chuckhole in a blacktop road constitutes a defect within the purview of G.S. 1935, 68-419.
Did the depression constitute a defect? J. Francis Barclay, an assistant division engineer and appellant's witness, testified concerning the depression, in substance, as follows: There was a sunken area at the east side of the culvert where the fill had settled under the mat which extended across the road from one edge of the mat to the other; he estimated it was three to three and one-half inches deep and about ten feet long east and west; this entire sunken area was pretty well cracked but it was in place except in the area which was thirty inches wide on the north side east and west of the culvert where the blacktop was broken up and was lying in place but was loose.
Pearl Moore, a road maintenance man for appellant, but called as a witness for appellee, testified concerning the depression, in substance, as follows: There was a low place east of the culvert along *596 the north side of the mat; it was about ten feet long east and west and five feet north and south; it was approximately two and one-half to three inches deep in the deepest place; there was another hole on the south half of the road, the same kind of a place, a depressed place, with a hole in the center.
Another witness, Captain Tom Glasscock of the state highway patrol, subpoenaed by appellee, testified, in substance: He investigated the accident at 1:45 p.m. on the day it occurred; his field notes contained the data obtained in his investigation; the rough places were on the culvert and not east or west thereof; while his report indicated holes in the blacktop it was so marked by reason of the printed form provided by appellant; there actually were no holes; the blacktop was broken up in pieces; it was rough but the pieces were in place. That part of Captain Glasscock's report contained in the abstract reads:
"Motorcycle with driver and passenger going west on 50-South. They hit a low place in roadway and evidently lost control of vehicle. The cycle skidded and rolled 375 feet from low place in roadway to where it came to rest in ditch on north side of roadway. The cycle fell on driver and the passenger was thrown clear. Defective strip in roadway was 18 feet long where road bed was sunken about 3 1/2 to 4 inches. Blacktop was broken and crumbled in tracks. There was a smooth strip 4 feet wide in center. Roadway 20 feet wide."
Appellee knew little about how the accident occurred. There was no other eye-witness to the accident. According to appellee's testimony the blacktop road west of Cimarron appeared to be in good condition. He and his brother ordinarily traveled approximately fifty to fifty-five miles per hour and that was about their speed at the time of the accident. They had no previous accident or near-accident on their trip. He did not remember whether he was looking at the road or at the surroundings at the time of the accident. He did not remember seeing any hole. The first thing he noticed was that the motorcycle was wobbling back and forth. The next thing he remembered was that he was lying on the ground and somebody was holding a blanket over him.
There was evidence: If a motorcycle was heavily loaded it would tend to hold to the road better but that if the motorcycle started into a wobble with a heavy load it would be more difficult to eliminate the wobble; a motorcycle wobble is similar to the shimmying of a car; a speed wobble results from more speed than the rider can handle.
*597 Appellee reminds us the jury did not find the speed caused the wobble; that it found appellee was not guilty of negligence (finding No. 11) and found the proximate and direct cause of the accident was the defect in the surface of the roadway. This is true. (Finding No. 8.) We are, therefore, confronted with the question originally stated, namely, whether the depression in the road constituted a defect within the purview of the statute?
There is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition constitutes a defect. Some conditions may be so patently dangerous as to clearly constitute a defect while others may be so trifling as to be clearly outside the purview of the statute. (Collins v. State Highway Comm., 134 Kan. 278, 283, 5 P.2d 1106; Douglas v. State Highway Comm., 142 Kan. 222, 226, 46 P.2d 890.) It is, therefore, the policy of courts to handle each case separately and to either include it in or exclude it from the operation of the statute. (Gorges v. State Highway Comm., 135 Kan. 371, 373, 10 P.2d 834.) Where the circumstances are such that an alleged defect cannot be excluded from the operation of the statute as a matter of law it presents a case for a jury. (Watson v. Parker Township, 113 Kan. 130, 213 P. 1051; Collins v. State Highway Comm., supra; Cheney v. State Highway Comm., 142 Kan. 149, 153, 45 P.2d 864.)
The peculiar facts of earlier cases were carefully reviewed in the Douglas case, supra, and in Espey v. State Highway Comm., 143 Kan. 873, 57 P.2d 424. The facts of those cases need not be restated at length here. It is not contended any of the later cases involved facts which would be particularly helpful in the instant case.
Appellee thinks the question whether the evidence in the instant case discloses a defect was for the jury and leans heavily on Williams v. State Highway Comm., 134 Kan. 810, 8 P.2d 946; Collins v. State Highway Comm., 138 Kan. 629, 27 P.2d 216; and the Cheney case, supra. He stresses the statement in the Williams case, to wit:
"A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect." (p. 813.)
The Williams case involved a sand and gravel road. In that case there were two holes, near the top of a hill, one four inches, the other five inches in depth. There was evidence the driver descending the hill could not see the holes until he was practically upon them.
*598 The Cheney case involved a bituminous mat which was corrugated and washboardy. The accident happened at night. The places were one to four inches deep and extended fifteen to twenty-five feet north and south. The corrugations were one to three feet apart. They were on the north slope of a small hill. It was impossible for one coming from the south to see them for more than fifty feet after reaching the top of the hill. The jury found the driver exercised due care.
In Collins v. State Highway Comm., 138 Kan. 629, 27 P.2d 216 (a second Collins case), the condition which caused plaintiff's automobile to upset was a "chuck hole" about two feet long, eighteen inches or two feet wide and six to eight inches deep in a gravel road. The hole in the road was only about two feet from its median line.
In the instant case a view of the depression was not obstructed. Appellee argues the visibility of a defect is not a proper element of test. He insists the condition is, or is not, a defect and its visibility goes only to the question of contributory negligence. The pertinent portion of the statute reads:
"Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state of Kansas...." (G.S. 1935, 68-419.)
This court has held the want of reasonable opportunity to observe a road condition is a proper factor to be considered. (Douglas v. State Highway Comm., supra; Espey v. State Highway Comm., supra.)
Appellee stresses the fact this was a surfaced road and emphasizes a statement in the Douglas case, supra, in which a gravel and chat road was involved. The statement is:
"Chuckholes and corrugations, as described in the above testimony, if existing in a cement or brick road where greater speed in traveling ordinarily prevails, would doubtless be regarded as dangerous to the traveling public, while they might not be so regarded if existing in an ordinary dirt road." (p. 226.)
Appellant replies the instant road was not a cement or brick road but a blacktop road only one step removed from a chat or gravel road and that it is commonly known such a road is frequently uneven and wavy.
Appellant relies primarily on the Gorges and Douglas cases, supra; Snyder v. State Highway Comm., 139 Kan. 150, 30 P.2d *599 102, and cases previously cited in which the lack of visibility of a defect was emphasized. It also stresses the dissenting opinion in Collins v. State Highway Comm., 138 Kan. 629, 632, 27 P.2d 216. The facts in most of these cases were likewise reviewed in the Douglas and Espey cases, supra, and need not be restated here. In the Gorges case it was held an accumulation of ice on the highway was not a defect within the purview of the statute. The statement in the opinion relied on by appellant is:
"It is the duty of the state highway commission to keep the highway in a reasonably safe condition for public travel, and liability arises where, after notice, it permits defects to exist in the public highway. It is not, however, an insurer. The user of the highway is bound in all events to use due care, and to take notice of any defect that comes within his knowledge or vision." (p. 372.)
The principal point relied on in the Douglas case by appellant is the distinction there made with respect to the required upkeep of cement or brick roads on which the speed is ordinarily greater than on other types of roads.
In the Snyder case, supra, there existed a depression in the roadway. The jury found the defect to be:
"Settling of filled ground four feet by eighteen feet, and breaking and settling of slab causing a depression of one (1) inch or more." (p. 152.)
This court held that was not a defect within the purview of the statute.
The parties do not contend we have any decision factually in point. Our research has disclosed none. It is common knowledge numerous depressions and wavy places exist in blacktop roads. The traveling public is aware of this fact. Where depressions such as the instant one exist and are open to the traveler's view we think we would not be justified in holding they are within the purview of the statute.
The judgment is reversed with directions to enter judgment for appellant.
SMITH, WEDELL and ARN, JJ., dissent.
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632 F. Supp. 785 (1986)
Thomas J. MARZEN, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
No. 84 C 1225.
United States District Court, N.D. Illinois, E.D.
April 4, 1986.
*786 *787 Clarke D. Forsythe, Chicago, Ill., for plaintiff.
Anton R. Valukas, U.S. Atty., James P. White, Asst. U.S. Atty., Chicago, Ill., Richard M. Friedman, Atty., Dept. of Health and Human Services, Washington, D.C., for defendants.
MEMORANDUM OPINION AND ORDER
ROVNER, District Judge.
Plaintiff Thomas J. Marzen, general counsel of the National League Center for the Medically Dependent and Disabled in Indianapolis, Indiana, brought this action under the Freedom of Information Act, 5 U.S.C. ง 552 ("FOIA"), seeking to compel the defendants to disclose certain records. The defendants consist of the United States Department of Health and Human Services ("HHS"), the Secretary of HHS, and two subordinate officials of HHS.[1] Specifically at issue are four records from an investigation by the Office for Civil Rights of HHS into possible discrimination against a handicapped individual involving the withholding of medical care from a newborn infant. The investigation involved the "Infant Doe" incident in Bloomington, Indiana, in *788 which certain medical treatment was withheld from a Down's syndrome baby with a blocked esophagus who subsequently died. The government refused to release the records citing Exemptions 5, 6, 7(A), and 7(C) of FOIA, 5 U.S.C. งง 552(b)(5), 552(b)(6), 552(b)(7)(A), and 552(b)(7)(C). In February, 1984, plaintiff filed his complaint for injunctive relief pursuant to 5 U.S.C. งง 552(a)(3) and 552(a)(4)(B). The government then released some of the requested records, and, on May 12, 1984, filed a Vaughn index as required by Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), but continued to withhold four sets of documents under the exemptions cited above. Presently pending before this Court are the parties' cross-motions for summary judgment. In addition, the government seeks dismissal of defendants Sermier and Roberts on the basis that FOIA does not permit suits against subordinate agency officials. The parties agree that there is no material disputed issue of fact which cannot be resolved by the parties' various submissions. The motions are granted in part and denied in part for the reasons stated below.
FACTS
The baby identified in the documents as Infant Doe was born at 8:10 p.m. on Friday, April 9, 1982, in Bloomington Hospital, Bloomington, Indiana. At birth, the baby was diagnosed as having Down's syndrome and also a defective esophagus. Two doctors recommended surgery to correct the blocked esophagus, but the parents decided against surgery or any other treatment, except sedation as necessary. Everyone involved in the situation recognized that the baby would soon die if the surgery was not performed.
Infant Doe was delivered by Dr. Walter Owens, an obstetrician with privileges at Bloomington Hospital. Dr. Paul Wenzler, a general practitioner who had been the family physician for the parents, was the infant's initial attending physician. Both Dr. Owens and Dr. Wenzler tentatively diagnosed Down's syndrome, and Dr. Wenzler requested a consultation from Dr. James Schaffer, a pediatrician at Bloomington Hospital, who agreed with the Down's syndrome diagnosis and also believed that the infant had tracheoesophageal fistula, a developmental anomaly characterized by an abnormal connection between the trachea and the esophagus resulting in the inability of food and fluids to pass from the mouth to the stomach. Dr. Wenzler and Dr. Schaffer recommended that Infant Doe be transferred immediately to Riley Hospital at the University of Indiana Medical Center, the designated neonatal high risk center, where necessary surgery to correct the tracheoesophageal fistula could be performed. A fourth doctor, Dr. James Laughlin, also a pediatrician on staff at Bloomington Hospital, examined Infant Doe and agreed with the diagnosis already made. He expressly noted, however, "There is clinically no evidence of other congenital anomalies. Further work-up work will be necessary to confirm internal organ defects." He agreed with the recommendation of Dr. Wenzler and Dr. Schaffer that the infant be transferred immediately for surgery to correct the esophageal atresia.
The parents of Infant Doe rejected the recommendation for surgery. At 2:45 p.m. that same day, Saturday, April 10, 1982, the parents signed the following statement by which they approved Dr. Owens' proposed course of action "that the child remain at Bloomington Hospital with full knowledge that surgery to correct tracheoesophageal fistula was not possible at Bloomington Hospital and that within a short period of time the child would succumb due to inability to receive nutriment and/or pneumonia." The infant's medical chart noted that the parents requested that four guidelines be followed in the care of Infant Doe:
"(1) Formula may be given if personnel wish, with full recognition that this will likely cause pneumonia and may speed child's demise.
(2) No IV's.
(3) No antibiotics.
*789 (4) Sedation as necessary if infant appears to be in pain or distress."
The same day, at the instigation of the attorney for Bloomington Hospital, an emergency hearing was held before Judge John G. Baker of the Monroe County Circuit Court. During the hearing, Bloomington Hospital made no representation concerning the appropriate course of treatment which should be followed. Instead, the hospital's position was that it did not have the knowledge or authority to make diagnoses or to prescribe treatment. The hospital asked the Court to issue a declaratory judgment concerning the proper course of treatment for Infant Doe. Dr. Schaffer testified that the surgery on the esophagus was 90% likely to be successful. Dr. Owens testified that he and two other doctors concurred that the recommended course of treatment should be basic techniques "to aid in keeping the child comfortable and free of pain" because "the possibility of a minimally adequate quality of life was non-existent due to the child's severe and irreversible mental retardation." Dr. Laughlin disagreed because "he knew of at least three instances in his practice where a child suffering from Down's Syndrome had a reasonable quality of life," although he knew of no instance of children who had both Down's syndrome and tracheoesophageal fistula. The infant's father testified that he had been a public school teacher for over seven years and on occasion had worked closely with handicapped children and with children with Down's syndrome and that "he and his wife felt that minimally acceptable quality of life was never present for a child suffering from such a condition." He further testified that, after consulting with all four doctors, he and his wife had determined that it was in "the best interest of Infant Doe and the two children at home and their family entity as a whole, that the course of treatment prescribed by Dr. Owens should be followed."
At the conclusion of the hearing, Judge Baker held that the parents, "after having been fully informed of the opinions of two sets of physicians, have the right to choose a medically recommended course of treatment for their child in the present circumstances." In a subsequent letter, apparently to a citizen, Judge Baker elaborated on his rationale, stating:
In the "Infant Doe" case, it could not be said that the parents were not acting in the best interests of the child, even though other parents might have acted differently. It is a harsh view that no life is preferable to life, but the great weight of the medical testimony at the hearing I conducted was that even if the proposed surgery was successful, the possibility of a minimally adequate quality of life was non-existent.
In his written declaratory judgment dated April 12, 1982, Judge Baker also appointed the Monroe County Department of Public Welfare ("MCDPW") as guardian ad litem for Infant Doe to determine whether to appeal his judgment.
At 10:00 p.m. that same day, the six-member Child Protection Team of the MCDPW met at Bloomington Hospital to determine whether to appeal Judge Baker's decision. Those also present included the four Bloomington doctors mentioned above, the parents of another Down's syndrome child who testified as to the hardships of raising such a child, and an attorney for Infant Doe's parents, who suggested the presence of additional medical complications, including a heart condition. No minutes or records of this meeting were kept by the MCDPW. After deliberating for approximately one hour, and without reviewing Infant Doe's medical records, the members of the Child Protection Team decided not to appeal Judge Baker's decision, and they filed their report to that effect with Judge Baker on Tuesday, April 13, 1982.
Judge Baker nonetheless immediately appointed on April 13, 1982 Philip C. Hill, a Bloomington attorney, who also represented Dr. Laughlin, as guardian ad litem to prosecute an appropriate appeal from his ruling. Mr. Hill filed a petition for a temporary restraining order to provide treatment *790 for Infant Doe, which Judge Baker denied at 10:50 p.m.
That same day, the county prosecutor sought an order from the Monroe County Circuit Court, Juvenile Court Docket that the MCDPW take immediate custody of Infant Doe and provide emergency treatment. This action was taken pursuant to Indiana Code 31-6-4-10, under which a county prosecutor or county department of public welfare may file a petition to declare a child to be "a child in need of services" (referred to as a "CHINS petition"). Under that statute, a "child in need of services" includes a child whose "physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal or neglect of his parent, guardian or custodian to supply the child with necessary food, clothing, shelter, medical care, education or supervision." I.C. XX-X-X-XX. Dr. Laughlin and Mr. Hill asked the county prosecutor to file the CHINS petition because the MCDPW had already concluded that the parental decision was not wrongful. The CHINS petition argued that Infant Doe's life was endangered by the refusal of his parents to provide necessary medical care and was supported by affidavits from Drs. Laughlin and Schaffer.
Finally, also on April 13, 1982, Mr. Hill, as guardian ad litem for Infant Doe, and the county prosecutor sought an emergency order from the Indiana Supreme Court in the form of a writ of mandamus to the Monroe County Circuit Court to order the treatment of the child.
On Wednesday, April 14, 1982, Judge Spencer denied the county prosecutor's petition for an order declaring Infant Doe to be "a child in need of services" under Indiana law because "the State has failed to show that this child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of his parents to supply the child with necessary food and medical care." Also on that day, the Indiana Supreme Court denied the petition for a writ of mandamus without issuing a written opinion.
At 10:03 p.m. on April 15, 1982, Infant Doe was pronounced dead by Drs. Schaffer, Laughlin, and Owens while attorneys acting as his guardian ad litem were attempting to appeal to the United States Supreme Court. The Indiana Supreme Court sealed all records the next day, April 16, 1982.
The Office for Civil Rights ("OCR") of HHS initiated an investigation, pursuant to its purported responsibility under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. ง 794, for investigating possible violations of that Act by recipients of federal funds. The investigation focused on Bloomington Hospital and the MCDPW, both of which had received HHS funds. The MCDPW initially resisted cooperation with the investigation, but it eventually supplied the documents that OCR had requested after OCR stressed that the confidentiality of the records would be protected pursuant to OCR regulations, specifically 45 C.F.R. ง 80.6(c), and after the Chief Justice of the Indiana Supreme Court had issued an order allowing the MCDPW to turn the documents over to HHS and ordering HHS to keep them confidential.
The investigation was conducted by an investigator in OCR's Regional Office in Chicago. He prepared a draft report on the investigation and, in accordance with OCR practice, sent it to OCR headquarters. The draft report included excerpts from the medical records that were not quoted in records already made available to the public. This draft report is one of the records at issue in this case. Later, a final draft was prepared which ultimately was produced pursuant to the plaintiff's FOIA request.
OCR's investigation of the Infant Doe incident was completed without a recommendation for the initiation of enforcement proceedings under the Rehabilitation Act. The investigation centered on Bloomington Hospital and MCDPW as recipients of federal funds. The Bloomington Hospital took the position that "it did everything within *791 its power to obtain authority to see that surgery was provided." The MCDPW took the position that, because the Indiana courts decided that Infant Doe was not a "child in need of services" under Indiana law, that determination was dispositive. Therefore, the MCDPW could not be shown to have withheld discriminatorily child protective services from a "qualified" handicapped individual.
Since April, 1982, two developments have occurred which affect the issue of whether the MCDPW achieved voluntary compliance with the Rehabilitation Act.[2] First, the Indiana legislature amended its child abuse and neglect law to add to Indiana Code 31-6-4-3 the following:
A child in need of services includes a handicapped child who is deprived of nutrition that is necessary to sustain life, or who is deprived of medical or surgical intervention that is necessary to remedy or ameliorate a life-threatening medical condition, if the nutrition or medical or surgical intervention is generally provided to a similarly situated handicapped or nonhandicapped child.
Second, the Indiana Department of Public Welfare adopted procedures and methods of administration in compliance with 45 C.F.R. ง 84.55(c), a regulation designed to assure that county public welfare departments use their statutory authority to prevent instances of medical neglect of handicapped infants. These newly adopted procedures incorporated the state statutory amendment and all of the elements specified in 45 C.F.R. ง 84.55(c). Because the Director of the MCDPW assured OCR that the MCDPW was functioning in accordance with the new procedures, OCR's investigation ended without an immediate recommendation for further action.
The FOIA request that led to this suit essentially sought all records in OCR's possession relating to the Infant Doe incident. Plaintiff is counsel to the guardian ad litem of Infant Doe and was formerly Chief Staff Counsel of the Americans United for Life Legal Defense Fund, a public interest law firm providing legal services for "human beings at all stages of biological development, regardless of age or condition of dependency." (Affidavit of Thomas J. Marzen, ถ 1.) Plaintiff filed this action in that capacity, and he acknowledges in his affidavit that, as counsel to the guardian of Infant Doe, he was aware of all the information he requested from HHS except for Infant Doe's medical records, which were not a part of the original court records but which were sealed by the Indiana Supreme Court at the parents' request after Infant Doe's death. (Marzen Affidavit, ถ 3.) Plaintiff declares that, although he was privy to the documents he requested except for the medical records, he considers himself bound by the order of the Indiana Supreme Court not to disclose the documents he secured as counsel to the guardian of Infant Doe. (Marzen Affidavit, ถ 5.) He seeks disclosure of the documents for public inspection. He also wishes to be able to participate in the debate on a case of "great public interest" which "has generated significant journalistic commentary, wide public concern, and political consequences of the highest order." (Marzen Affidavit, ถถ 8, 9.) Plaintiff concludes his affidavit by stating:
11. Because of the clear public interest to be served by disclosure of the requested documents and because the Indiana judiciary steadfastly refused to allow them to be released, I decided to seek these documents from the Department of Health and Human Services under the Freedom of Information Act after it became apparent that the Department would take no action against Bloomington Hospital or any other individual or entity involved in the decisionmaking process leading to Infant Doe's death. Secured in this fashion, the documents would not be subject to the same *792 legal and ethical constraints that adhere to the documents I secured and inspected as counsel to the guardian of Infant Doe. Should I secure them from the Department I would submit them to interested publishers and researchers so that they could become matters of public record, analysis, and commentary.
12. My sole purpose in pursuing this action is to expose the legal process and medical circumstances that attended the death of Infant Doe to public scrutiny. I have no interest in exposing the identity of either the parents of Infant Doe or of Infant Doe. As an attorney and as a private citizen, I am motivated by a firm belief in the policy that underlies both the Freedom of Information Act and the First Amendment to the United States Constitution favoring full public disclosure of and debate on all matters of public import, such as the circumstances that attended judicial sanction of the death of Infant Doe.
(Marzen Affidavit, ถถ 11, 12.)
Access to all records requested by plaintiff and located by OCR was initially denied, partly because the investigation was still open and disclosure could interfere with that investigation. Plaintiff's administrative appeal was denied for the same reason. After that appeal was denied, the investigative phase of the OCR proceeding was closed, and HHS released a number of documents to plaintiff, primarily correspondence between OCR and the state agencies, pleadings filed with and papers issued by the state courts, and the final version of the OCR Investigative Report, which explains the issues in the investigation and contains facts relevant to those issues.
At this stage, the government continues to withhold only four sets of records: document 1 is the medical records of the Infant Doe incident from Bloomington Hospital; document 2 is the report to the Monroe County Circuit Court from the Director of the MCDPW; document 3 is a roster of the members of the Child Protection Team; and document 4 is the draft of the Investigative Report.
DISCUSSION
FOIA was designed to expose both the processes of government and governmental records to public scrutiny unless the requested records are exempt under nine "clearly delineated statutory exemptions." Department of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S. Ct. 1592, 1598-99, 48 L. Ed. 2d 11 (1976). The exemptions claimed here by the government for each category of documents are Exemptions 5, 6, 7(A), and 7(C).
First, the government claims that documents 1-3 are non-disclosable under Exemption 7(A) which protects "investigatory records compiled for law enforcement purposes" to the extent that disclosure would "interfere with enforcement proceedings." 5 U.S.C. ง 552(b)(7)(A). The government contends that failure to preserve the confidentiality of investigatory records would make it much more difficult, if not impossible, to obtain such documents quickly in future investigations. Indeed, it was only on the promise of guaranteed confidentiality, to the extent allowed by law, that the government obtained the records in this case.
Second, the government claims that the Infant Doe medical records (and the portions of those records excerpted in the draft Investigative Report) are protected by Exemptions 6 and 7(C) of FOIA. Exemption 6 protects records "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. ง 552(b)(6). Exemption 7(C) protects law enforcement investigatory records to the extent that disclosure would "constitute an unwarranted invasion of personal privacy." 5 U.S.C. ง 552(b)(7)(C). The government contends that because the medical records contain the intimate details of Infant Doe's condition and of the parents' responses and conduct throughout the six day period of the baby's life, disclosure of those records would constitute a clearly unwarranted invasion of the parents' privacy while serving no public interest. Similarly, the government claims that disclosing *793 the Child Protection Team membership roster and that portion of document 2 that lists the names of members of the Team would invade the team members' privacy unnecessarily and could result in harassment of those individuals.
Finally, the government contends that the draft investigatory report is protected by the evidentiary privilege for memoranda that are part of the government's deliberative process and by Exemption 5 of FOIA which protects "intra-agency memorandums ... which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. ง 552(b)(5). See also United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984); Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 103 S. Ct. 2209, 76 L. Ed. 2d 387 (1983).
Plaintiff responds first by emphasizing the enormous degree of public interest spawned by the Bloomington Infant Doe case which must be balanced against the various privacy interests involved under Exemptions 6 and 7(C) of the FOIA. As proof of the extent of public interest, plaintiff contends that the Chicago Tribune considered this Infant Doe case as the primary catalyst for the "Infant Doe regulations" and for the Child Abuse Amendments of 1984. See, e.g., Chicago Tribune, Oct. 10, 1984, sec. 1, p. 4; Dec. 8, 1984, sec. 1, p. 10. The case has also spawned a host of legal commentary. See, e.g., Shapiro, Medical Treatment of Defective Newborns: An Answer to the "Baby Doe" Dilemma, 20 Harv.J. on Legis. 137 (1983); Comment, Defective Newborns: Inconsistent Application of Legal Principles Emphasized By the Infant Doe Case, 14 Tex.Tech.L. Rev. 569 (1983); Comment, The Legacy of Infant Doe, 34 Baylor L.Rev. 699 (1982).
Plaintiff identifies two components of the public interest in support of disclosure: (1) the lawful disclosure of the complete facts surrounding the birth, care, and death of Infant Doe to stimulate public debate based on accurate information; and (2) the examination of the records as a means of overseeing and evaluating the mandate of OCR to investigate "Infant Doe" incidents under Section 504 of the Rehabilitation Act of 1973 and the similar mandate of Indiana officials to investigate such incidents under Indiana law.
As to the first component, plaintiff stresses that to date, reports of the Infant Doe incident have been neither complete nor accurate. Because the First Amendment contains "the antecedent assumption that valuable public debate โ as well as other civic behavior โ must be informed," Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (J. Brennan, concurring), plaintiff contends that the fundamental value of First Amendment principles is shattered when the true facts are suppressed and the facts assumed are inaccurate. Plaintiff and others who have submitted affidavits in support of the plaintiff's motion for summary judgment recognize that the identities of Infant Doe and his parents "are wholly irrelevant to the larger concern that the rights of handicapped newborns be protected" (Plaintiff's Brief at 7) and seek disclosure of the records with all references to the identities of the Does deleted. Plaintiff and the other affiants represent public interest groups who are vitally concerned with the rights of handicapped persons, and they believe that the disclosure of accurate information will help them to demonstrate their view that "intentional starvation is an arbitrary and capricious course of action, which should never be undertaken with regard to Down's Syndrome newborns." (Plaintiff's Brief at 7.)
As to the second component of the public interest identified above, plaintiff stresses that it is crucial for an accurately informed electorate to maintain accountability over state and federal public officials. Indeed, "the people's right to know what their government is doing" was the basis upon which FOIA was enacted, as its legislative *794 history repeatedly indicates.[3] This interest includes even salary and other information concerning public employees, Aug v. National Railroad Passenger Corp., 425 F. Supp. 946, 951 (D.D.C.1976), and extends to state and local government employees as well as to employees of the federal government. The media have questioned the government's handling of the Infant Doe incident and others like it, and plaintiff asserts that access to the requested records will permit the public to better assess the validity of these accusations and evaluate whether the government conducted the investigation properly. As a corollary, knowledge of the identities of the members of the Child Protection Team is essential to the rights of citizens to hold their elected and appointed officials accountable: "Secret Star Chambers are not accountable to the people." (Plaintiff's Brief at 9.)
FOIA expressly provides that when a governmental agency refuses to disclose records so that the party who requested the records must file suit to obtain them, "the burden is on the agency to sustain its action." 5 U.S.C. ง 552(a)(4)(B). "To meet this burden and to assist the court in making its determination, the agency must provide detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing." Antonelli v. Drug Enforcement Administration, 739 F.2d 302, 303 (7th Cir.1984). It normally does this through the submission of a Vaughn index. Vaughn v. Rosen, 484 F.2d at 823.
The nine statutory exemptions are exclusive, narrowly construed, and limited so as not to "obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 1599, 48 L. Ed. 2d 11 (1976); see also Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 630, 102 S. Ct. 2054, 2063, 72 L. Ed. 2d 376 (1982); N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 98 S. Ct. 2311, 2316, 57 L. Ed. 2d 159 (1978). Reflecting this policy, the FOIA exemptions are permissive and not mandatory in the sense that FOIA permits exemption but does not require it. General Dynamics Corp. v. Marshall, 572 F.2d 1211, 1216 (8th Cir.1978), vacated on other grounds, 441 U.S. 919, 99 S. Ct. 2024, 60 L. Ed. 2d 392 (1979). Moreover, FOIA specifically provides that "any reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt under this subsection [b]." 5 U.S.C. ง 552(b). Finally, although other statutes may exempt specific information from disclosure under FOIA, no agency regulation can circumvent FOIA by prohibiting disclosure of information otherwise required to be disclosed under FOIA. Washington Research Project, Inc. v. Department of Health, Education and Welfare, 504 F.2d 238, 253 (D.C.Cir.1974), cert. denied, 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975). See also Mobil Oil Corp. v. Federal Trade Commission, 406 F. Supp. 305, 310 (S.D.N.Y.1976), Burroughs Corp. v. Schlesinger, 403 F. Supp. 633, 637 (E.D.Va.1975). Indeed, the legislative history of FOIA indicates that no agency has the "statutory authority to extend blanket exemption, let alone to solicit the exemptions of confidentiality." 1975 Source Book, supra note 3, at 23.
Although the parties' briefs in this case focus on whether the various exemptions to FOIA may be applied to preclude disclosure, a more fundamental issue must be addressed first: whether the requested *795 records are "agency records" within the meaning of FOIA. FOIA empowers federal courts to order an agency to produce "agency records improperly withheld" from an individual requesting access. 5 U.S.C. ง 552(a)(4)(B).
The agency whose "records" are at issue in this case is the Office for Civil Rights of the Department of Health and Human Services. According to the government, OCR has the responsibility to investigate possible acts of discrimination against those who are handicapped in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. ง 794.[4] HHS has promulgated regulations implementing Section 504 at 45 C.F.R. ง 84. Under 45 C.F.R. ง 84.61, the procedures set forth at 45 C.F.R. งง 80.6 through 80.10, and at 45 C.F.R. ง 81, apply to investigations of potential violations of Section 504. According to the government, 45 C.F.R. ง 80.7(c) authorizes HHS to investigate potential violations of Section 504, and 45 C.F.R. ง 80.6(c) requires recipients of HHS funds to provide the government access to information in connection with the compliance investigation. OCR conducted this Infant Doe investigation purportedly pursuant to the authority vested in it under Section 504 as implemented through these regulations.
The Second Circuit has held, however, that HHS lacked statutory authority to conduct "Infant Doe" type investigations and to compel the production of medical records under Section 504 of the Rehabilitation Act of 1973. United States v. University Hospital, State University of New York at Stony Brook, 729 F.2d 144 (2d Cir.1984); American Hospital Ass'n v. Heckler, 585 F. Supp. 541 (S.D.N.Y.1984), aff'd, 794 F.2d 676 (2d Cir.1984), cert. granted, ___ U.S. ___, 105 S. Ct. 3475, 87 L. Ed. 2d 611 (1985).[5] If the Second Circuit's position is affirmed in pertinent part by the Supreme Court, the primary crucial question in this case becomes: are records which were obtained by a governmental agency, purportedly under statutory authority for investigation and compliance purposes, which authority was later declared to be non-existent, nonetheless "agency records" within the scope of FOIA that must be disclosed unless an exemption applies?
Despite this Court's specific request that the parties address this question in supplemental briefs, neither party has done so adequately. The government's supplemental brief does not discuss the issue at all, and the plaintiff addresses it only with arguments which are either irrelevant, superficial, or border on the frivolous.
Plaintiff argues first that OCR did not obtain these Infant Doe records under the regulations struck down in American Hospital Ass'n or in University Hospital, but under Section 504's procedural regulations that have never been questioned. This argument is so disingenuous that it bears quoting in full:
In AHA v. Heckler, 585 F. Supp. 541 (S.D.N.Y.1984), the plaintiffs challenged the "final regulations" promulgated by the Department of Health and Human Services (HHS) ("45 C.F.R. ง 84.55(b)-(e), 49 Fed.Reg. 1622, et seq....") Id. at 542 (Infant Doe regulations). The proposed rules were published on July 5, 1983 at 48 Fed.Reg. 30846.
In contrast, HHS first requested access to the Infant Doe records by letter of December 22, 1982 and again by letter of April 1, 1983. See Exhibit C infra (Letter of April 1, 1983 from Betty Lou Dotson, Director, Office of Civil Rights to Mr. James R. Cummings, Director, Monroe County Department of Public *796 Welfare). The April 1 letter demanded compliance with ง 504 pursuant to "45 C.F.R. ง 80.6(c), made applicable to 45 C.F.R. Part 84 by 45 C.F.R. ง 84.61." Id. at 2. 45 C.F.R. 84.61ff are the regulations which incorporated the procedural regulations of Title VI for purposes of ง 504. The validity of 45 C.F.R. ง 84.61ff has never been contested; to the contrary, it is quite clear that they are valid, since 504 was patterned after Title VI. Alexander v. Choate [469 U.S. 287], 105 S. Ct. 712, 716-17 n. 7, 718, n. 13, 722, n. 24 [83 L. Ed. 2d 661] (1985), Consolidated Rail Corp. v. Darrone, [465 U.S. 624] 104 S. Ct. 1248, 1254-55 n. 16 [79 L. Ed. 2d 568] (1984). In Darrone, the Supreme Court held "that [the] 1978 Amendments to the [Rehabilitation] Act were intended to codify the regulations enforcing 504." Alexander, 105 S.Ct. at 722-23 n. 24. And, the regulations existing at the time of the 1978 amendments included 45 C.F.R. ง 84.61. 42 Fed.Reg. 22677 (1977), 42 Fed.Reg. 22888 (1977).
Thus, these records were obtained by HHS under procedural regulations which incorporated the procedures of Title VI, not under the Infant Doe regulations enjoined in AHA. Accordingly, even if the Supreme Court affirmed the decision in AHA, striking the Infant Doe regulations, the decision will have no effect on the records in this case.
(Plaintiff's Supplemental Brief at 3-4; emphasis in original; footnote omitted.)
The obvious problem with this argument is that it completely misses the point.[6] The point underlying the Second Circuit's decisions in American Hospital Ass'n and in University Hospital is that HHS lacks statutory authority to conduct investigations of Infant Doe-type incidents under Section 504 and to require compliance therewith. The particular, specific regulations under which HHS believed it had the authority to conduct such investigations, gather documents, and require compliance are wholly irrelevant to the issue of whether Congress intended to grant that authority under Section 504 in the first place. The Second Circuit squarely held that Congress did not. Thus, the Supreme Court cases plaintiff cites to support his argument that the regulations which incorporated the procedural regulations of Title VI for purposes of Section 504 have been upheld are irrelevant to whether HHS properly applied those procedural regulations to investigations within its authority under Section 504. Because the Second Circuit has held that HHS had no such authority, the form of the Infant Doe regulations, procedural or otherwise, does not matter. Indeed, plaintiff so conceded during oral argument requested by this Court specifically on this question:
Now, your Honor, I concede that if the Supreme Court in Bowen vs. American Hospital Association was to broadly hold that Section 504 does not in any way apply to the medical treatment of handicapped newborns, then they could not obtain the records under Title [VI] procedural regulations or under the Infant Doe regulations, especially in the future.
* * * * * *
If there was [a] broad holding in the Bowen case, by the Supreme Court upholding the Second Circuit Court of Appeals, that 504 does not in any respect apply to the handicapped infants, then, yes, it would be invalid for the Department to obtain records under the Infant Doe regulations or under the Title [VI] procedural regulations.
(Transcript of Oral Argument, Feb. 3, 1986, at 4-5, 7.)
Second, plaintiff contends that the Second Circuit's decisions can have no legal effect on this case because the injunction *797 entered in American Hospital Ass'n, by which Judge Brieant declared that actions to regulate treatment in "currently pending investigations and other enforcement actions are declared invalid and unlawful," did not enjoin either the investigation OCR undertook in this case, which is completed, or any enforcement proceeding relating to these Infant Doe records, which apparently is not contemplated. This argument is a red herring: no one has suggested that this Court would be violating Judge Breiant's injunction by ordering production of the requested records in this case.
Finally, the plaintiff argues that the Second Circuit's decisions can have no legal effect on this case because the validity of the Infant Doe regulations does not affect the status of these records as "agency records" under FOIA. Plaintiff contends that the term "agency records" under FOIA is construed by courts to mean records within the possession, custody, or control of the agency. See, e.g., Kissinger v. Reporters Committee For Freedom of the Press, 445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267 (1980). Because there is no question that these records are in the possession, custody, and control of OCR, plaintiff contends they are "agency records" within the meaning of FOIA. The government does not dispute this contention; surprisingly enough, the government agrees with plaintiff. (Transcript of Oral Argument, Feb. 3, 1986, at 12.)
This Court cannot agree. The Court finds the notion that every member of the public may have access to otherwise unobtainable records through the vehicle of a FOIA request to a governmental agency that had no legal authority to obtain the records in the first place to be abhorrent.
Plaintiff admits that he has been unable to locate any case addressing whether records obtained by an agency under regulations later declared invalid are "agency records" subject to disclosure under FOIA.[7] This Court too has not located such a case. But the plaintiff leaps to the conclusion, without analysis, that the only relevant considerations are whether the records are in the "possession, control, or custody" of the agency. (Plaintiff's Supplemental Brief at 9-10.) The mere fact that no court has either been confronted with or focused upon the question before, however, is no excuse to evade careful analysis when the facts mandate that the question be reached.
Because this issue apparently is one of first impression, this Court recognizes that it must proceed carefully. FOIA itself does not define the phrase "agency records," and the legislative history does not provide meaningful assistance on what sort of materials Congress intended FOIA to encompass. See, e.g., Kissinger, 445 U.S. at 151, 100 S. Ct. at 968; Forsham v. Harris, 445 U.S. 169, 100 S. Ct. 977, 63 L. Ed. 2d 293 (1980); McGehee v. C.I.A., 697 F.2d 1095, 1106 (D.C.Cir.1983), modified on other grounds, 711 F.2d 1076 (D.C.Cir. 1983). Consequently, plaintiff is correct when he asserts that courts have generally focused on whether the record is in the "possession, control, or custody" of the agency.[8]
*798 In Kissinger, the Supreme Court held that if a document has been transferred to, and is in the possession of, a nonagency, an agency has no affirmative duty to institute a retrieval action when the documents are requested under FOIA, and the agency does not "improperly withhold" the records by refusing to institute such a retrieval action. 445 U.S. at 139, 100 S.Ct. at 963. Noting expressly that "agency possession or control is prerequisite to triggering any duties under the FOIA," id. at 151, 100 S. Ct. at 968, the Court held that the mere physical location of records does not convert them into agency records if they were not controlled, generated, or used by the agency for any purpose. Id. at 157, 100 S. Ct. at 972. Similarly, in Forsham v. Harris, 445 U.S. 169, 100 S. Ct. 977, 63 L. Ed. 2d 293 (1980), the Court held that written data which have not been "obtained" by a federal agency, but are generated, owned, and possessed by a privately controlled organization receiving federal study grants, are not "agency records." Id. at 171, 100 S. Ct. at 980.[9] Thus, "neither an agency's access to documents (that is, its unexercised power to obtain them) nor even the agency's physical custody of documents (not created by the agency) is enough, in and of itself, to turn documents into agency records." General Electric Co. v. United States Nuclear Regulatory Commission, 750 F.2d 1394, 1400 (7th Cir.1984).
No federal case directly holds that before records may be considered "agency records" subject to disclosure under FOIA, they must have been obtained pursuant to the agency's legal authority to access to those records. Nonetheless, there is language in Supreme Court cases that suggests the converse: i.e., that a federal right of access to records in and of itself does not necessarily render the records "agency records" under FOIA. See, e.g., Forsham, supra, 445 U.S. at 171, 185-86, 100 S. Ct. at 980, 986-87.[10]
The Forsham case, and every other case cited by the parties, rests on the implicit assumption that the records obtained by the agencies in those cases were obtained pursuant to legal authority to do so. Indeed, this assumption is implicit in FOIA itself because Congress could not have intended to expose to public scrutiny documents that the agency itself had no legal authority to examine.
Congress set forth this assumption expressly in the Privacy Act, 5 U.S.C. ง 552a(e)(1):
(e) Agency requirements. โ Each agency that maintains a system of records shall โ
*799 (1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President....
(Emphasis supplied.) See also Clarkson v. Internal Revenue Service, 678 F.2d 1368, 1377 (11th Cir.1982) (Subsection (e)(1) "provides a general overall prohibition against the collection and maintenance of information which is irrelevant to the purposes of an agency.")[11]
This Court hesitates to vest great weight on the Privacy Act both because it was passed subsequent to FOIA and because those statutes were informed by different congressional concerns. At bottom, FOIA is a disclosure statute, whereas the "purpose of the [Privacy Act] is to provide certain safeguards for an individual against an invasion of personal privacy by [establishing certain requirements for] Federal agencies...." Privacy Act of 1974, Pub.L. No. 93-579 ง 2(b) (1974);[12]Privacy Act Source Book at 501.[13] However, the Privacy Act was enacted only 40 days after Congress had overridden President Ford's veto of the 1974 FOIA amendments. Because of the absence of either a statutory definition of, or of legislative history on, the term "agency records" in FOIA, and because Congress considered and passed both the 1974 FOIA amendments and the Privacy Act virtually simultaneously, no better evidence than the Privacy Act and its legislative history exists that Congress did not intend agencies to maintain records and divulge them to the public unless authorized to do so by statute.
The legislative history of Section 552a(e)(1) the Privacy Act demonstrates conclusively that Congress deemed the agency's statutory authorization to collect and maintain records about an individual to be so important as to be of constitutional magnitude. The Senate Report on the Senate version of the statute that ultimately was enacted as Section 552a(e)(1) states:
Subsection 201(a)(1). Provides that each Federal agency shall collect, solicit and maintain only such personal information as is relevant and necessary to accomplish a statutory purpose of the agency.
This section, therefore, governs the first phase of the process which is the gathering of the information in the first place. The provision reaffirms the basic principles of good management and public administration by assuring that the kinds of information about people which an agency seeks to gather or solicit and *800 the criteria in programs for investigating people are judged by an official at the highest level to be relevant to the needs of the agency as dictated by statute. Second, it requires a decision that the collection of information or investigation of people along certain information lines is necessary in that the needs of the agency and goals of the program cannot reasonably be met through alternative means.
* * * * * *
This section is designed to assure observance of basic principles of privacy and due process by requiring that where an agency delves into an area of personal privacy in the course of meeting government's needs, its actions may not be arbitrary, but rather, must be authorized, and found to be not only reasonable, but warranted by the overriding needs of society as the agency is responsible for administering to those needs.
S.Rep. No. 93-1183, 93rd Cong., 2d Sess. 46-47 (1974) U.S.Code Cong. & Admin. News 1974, pp. 6916, 6961-6962, Privacy Act Source Book, supra, at 199-200 (emphasis supplied). This Court cannot condone a construction of the term "agency records" in FOIA that flies in the face of Congress's mandate in the Privacy Act "to assure observance of basic principles of privacy and due process" by requiring that agency record collection and maintenance be authorized "by statute or by executive order of the President." 5 U.S.C. ง 552a(e)(1).
In response, plaintiff first points to the obvious: FOIA's exemptions are "explicitly made exclusive." Environmental Protection Agency v. Mink, 410 U.S. 73, 79, 93 S. Ct. 827, 832, 35 L. Ed. 2d 119 (1973). That response begs the question. If a record is not an "agency record" within the scope of FOIA in the first instance, the question of whether it also falls within the nine, narrowly construed statutory exemptions never arises. Without citation to any authority, plaintiff contends secondly:
How the agency obtains the records is immaterial. Indeed, if the CIA or any other agency notoriously stole records, it is inconceivable that they would not be subject to FOIA merely for that reason. Unless one of the nine exemptions applied, the public interest in disclosure might be even greater. Certainly, the interest of the public in "knowing what their government is doing" would be just as high. This is why withholding has been limited to the nine exemptions.
(Plaintiffs Supplemental Brief at 7.)[14]
Certainly, one of the purposes of FOIA is the underlying public interest in knowing what the government is doing. But that interest is served in and of itself by the Vaughn index which the government must prepare under Vaughn v. Rosen, supra, whenever it decides not to disclose documents under FOIA. The government must describe the document generally and list the reason for nondisclosure in the Vaughn index. At the oral argument held before this Court on February 3, 1986, neither the government nor plaintiff could adequately explain why they believed that the public's interest in knowing how its government works is not protected satisfactorily by the government's admission in a Vaughn index that the documents are not disclosable because they were obtained without authority or illegally. (Transcript of Oral Argument, Feb. 3, 1986, at 35-43.)
The very example cited by the plaintiff illustrates the logic of the conclusion that the Vaughn index does in fact satisfy the public's interest in knowing what the government is doing. If a governmental agency obtains records illegally, for example through theft, the public need know only that fact and the general nature and extent of the records stolen. The content of those records is not necessarily subject to public disclosure. An immediate illustration *801 comes to mind. During the Watergate era, members of the "Plumbers" unit broke into the office of Daniel Ellsberg's psychiatrist and stole his file on Ellsberg. Surely, Ellsberg's psychiatric file, subsequently in the possession, custody, and control of the government, could not be disclosed to every member of the public merely because of those circumstances.[15] The manner in which those records were obtained clearly is relevant to whether they properly were "agency records." The public's interest in knowing how its government works is satisfied to the extent necessary by the government's admission in a Vaughn index that the documents were obtained only because they were stolen, an admission which no governmental agency would make lightly and which, by its very serious nature, suggests its truth.
Of course, this conclusion applies only to documents which were generated elsewhere and which the federal governmental agency in question obtained without legal authority. It does not apply to documents which the governmental agency itself generates during the course of carrying out its functions. This case is illustrative. Documents 1, 2, and 3 originated at the Bloomington Hospital (i.e. Infant Doe's medical records) or at the MCDPW (i.e., the report to the Monroe County Circuit Court from the Director of the MCDPW and the roster of the members of the Child Protection Team). Only document 4, the OCR's draft of the Investigative Report, was generated by OCR itself. Although the public has a clearly protected governmental oversight interest in having access to reports generated by governmental agencies during the course of an investigation, the plaintiff has given no reason why the public should have access to records that otherwise would be barred to it merely because the federal government has undertaken an unauthorized and illegal course of action to obtain those records.
When asked at oral argument why the public should now have access through a FOIA request to medical records of Infant Doe that are normally kept strictly confidential and why a Vaughn index disclosing that the records were obtained illegally would not suffice, plaintiff's response was:
Because, number one, the interest of the public is the information in the records, not whether the Government believes that it has them illegally or legally. The public information is what is in the record.
And, secondly, FOIA was enacted so that Governmental explanations about what it's doing isn't the final answer. FOIA was enacted so that the public gets beyond what the Government says about what it is doing. And if the Government in a Vaughn Index was to say, well, we received these illegally, or it's not in the public's interest to know about this, FOIA is enacted for the public to get behind those statements and to know for itself what the Government is doing.
If FOIA is intended to allow the public to know what the Government is doing, to allow the Government to respond in some vague, categorical answer, or to say that it's not within the public's interest is to, in fact, subvert the entire intention of FOIA.
And so for the Government to say that these records were obtained illegally doesn't satisfy the public's right to know what the records, in fact, are.
(Transcript of Oral Argument, Feb. 3, 1986, at 36-37.) That response merely assumes the answer: to say that "the interest of the public is the information in the records" is to assume that the public has a right to the *802 records themselves, regardless of how they were obtained. But that precisely is the question: why should the public have access to documents illegally obtained solely because those documents are now in the possession, custody, and control of the agency? Does not the very act of disclosure to the public of documents which never would have been in the public domain but for the illegal act of government compound that illegality?
This Court holds that "agency records" do not include records obtained by a governmental agency without legal authority, express or implied, to do so. However, records which originate within the agency itself and which are generated by the agency, even during the course of an illegal investigation, are "agency records" within the scope of FOIA and are disclosable to the public unless a FOIA exemption applies. Of course, portions of government-generated reports that divulge information obtained from illegally acquired reports could not be disclosed because such disclosure would circumvent the rationale for not disclosing the illegally acquired reports themselves. Under this analysis, therefore, documents 1, 2, and 3 are not "agency records" and are non-disclosable under FOIA, but portions of the draft investigative report, document 4, are subject to disclosure, although a FOIA exemption may nonetheless preclude disclosure.
This Court hesitates, however, to rest its analysis on this holding alone for two reasons. First, as noted above, this is an issue of first impression; it is an issue which is not adequately informed by FOIA's legislative history; and it is an issue which, despite the Court's request, has not been thoroughly and adequately briefed and argued by the parties. Second, the government has raised the interesting twist that, in this case, the government believed in good faith that it was authorized by the Rehabilitation Act of 1973 to conduct the Infant Doe investigation, and the Supreme Court may yet rule that the government did have such authority. The government apparently argues that when the government believes in good faith that it was authorized by statute to conduct an investigation and to obtain documents, those documents should be considered "agency records" within the scope of FOIA. This Court is not convinced that the government's good faith belief should make any difference except that such a belief obviously would affect the reason for non-disclosure claimed in the Vaughn index. Here, the government claimed specific FOIA exemptions as reasons for nondisclosure and continues to argue the applicability of those exemptions forcefully in its briefs in this Court. Accordingly, the Court will analyze each of those claimed exemptions in the context of an alternative holding in this case.
I. Exemption 7(A)
Exemption 7(A) of FOIA protects "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... interfere with enforcement proceedings...." 5 U.S.C. ง 552(b)(7)(A). The government contends that the medical records of Infant Doe, the roster of the Child Protection Team, and the report of the MCDPW to the Circuit Court of Monroe County, Indiana are all investigatory records of this nature.
"Investigatory records" are records compiled as part of an inquiry into specific suspected violations of the law, not records generated pursuant to "routine administration, surveillance or oversight of Federal programs." Goldschmidt v. United States Department of Agriculture, 557 F. Supp. 274, 276 (D.D.C.1983); see also Center for National Policy Review on Race and Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C.Cir.1974); Gregory v. Federal Deposit Insurance Corp., 470 F. Supp. 1329, 1333-34 (D.D.C.1979), rev'd on other grounds, 631 F.2d 896 (D.C.Cir.1980).
Assuming that OCR is responsible for investigating possible discrimination against the handicapped in violation of Section 504 of the Rehabilitation Act of 1973 โ an assumption which the Second Circuit *803 has held to be invalid and which is currently being considered by the Supreme Court โ the government argues that documents 1-3 satisfy the threshold test of Exemption 7(A): i.e., that they are each law enforcement investigatory records whose release would interfere with enforcement proceedings. Production of these records would interfere with enforcement proceedings by discouraging the prompt cooperation of institutions that is crucial for investigating the withholding of medical care from handicapped infants. "Infant-Doe-type" investigations require immediate OCR access to sensitive and confidential records under especially difficult circumstances. To meet that need, OCR depends on the voluntary cooperation of hospitals and institutions maintaining the relevant records; the price of that cooperation has been OCR's guarantee that the records obtained will remain confidential to the extent allowed by law.
Voluntary cooperation is crucial to those investigations because OCR has no power to subpoena records.[16] Consequently, OCR's regulations guarantee the confidentiality of records it obtains, especially medical records:
Information of a confidential nature obtained in connection with compliance[,] evaluation or enforcement shall not be disclosed except where necessary in formal enforcement proceedings or where otherwise required by law.
45 C.F.R. ง 80.6(c). According to the government, this guarantee was especially crucial in this case because of the intense publicity it received. OCR needed the cooperation of the local child protection agency, the MCDPW, which was itself a target of the investigation. The government concludes that ordering release of these records would undermine OCR's ability to obtain necessary records in such investigations in the future, especially where a threat to life mandates rapid investigation.[17]
Plaintiff in essence accepts the government's factual contentions as to the necessity for quick, voluntary compliance and as to the adverse effect disclosure of confidential medical records and other documents would have on future Infant Doe investigations and enforcement proceedings. Plaintiff contends, however, that the protection of Exemption 7(A) is limited to records whose disclosure would interfere with a pending enforcement proceeding involving those records and not to its effect on future proceedings. In support of this contention, plaintiff relies heavily on the legislative history of the 1974 amendments to FOIA and on the subsequent case law, particularly the Supreme Court's decision in N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978). In that case, the records at issue were statements of "witnesses whose prior statements would, under the [NLRB]'s own rules, be disclosed to [the plaintiff] following the witnesses' [unfair labor practice] hearing testimony." Robbins Tire, supra, 437 U.S. 214, 218, 98 S. Ct. 2311, 2315, 57 *804 L.Ed.2d 159 (1978). The Court held that such statements were exempt from disclosure under Exemption 7(A) prior to the unfair labor practice hearing and that the NLRB need not make a particularized showing in each case that disclosure of particular witness' statements would interfere with pending enforcement proceedings.
Although language exists in the Court's opinion and in the legislative history both to support the plaintiff's argument that Exemption 7(A) is unavailable if no enforcement proceeding involving the documents in question is pending or contemplated and to support the government's contrary position,[18] this Court finds the government's contention that Exemption 7(A) applies when the government can demonstrate specific and substantial harm to future enforcement proceedings to be more reasonable for several reasons.
First, the Court agrees with the government that:
Not only does Robbins Tire lack any holding restricting Exemption 7(A) to interference with pending proceedings, but the logic of the decision actually supports applying the exemption to future interference. There were several bases for the Supreme Court's holding that Exemption 7(A) covers witness statements in NLRB proceedings. While some focused on harms that would result in the instant, pending, proceeding, another basis for the holding was that the NLRB had to give the limited assurance of confidentiality in order to induce witnesses to cooperate. Id. [437 U.S.] at 240-41 [98 S.Ct. at 2325-26]. This part of the rationale is directed primarily at future cases โ if the NLRB violates the assurances, it will have a chilling effect on witnesses in future cases.
(Defendants' Reply Brief at 9-10; emphasis in original; footnotes omitted.) Although plaintiff had several opportunities to respond to this contention both in the briefs and during oral argument, he did not do so except to argue that the only "chilling effect" at stake in Robbins was to the NLRB's pending case โ an unfair labor practice hearing. (Plaintiff's Memorandum in Response to Defendants' Second Supplemental Memorandum Regarding the Applicability of Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982 (9th Cir.1985) at 8-9.) But the Supreme Court's concerns about a possible chilling effect extended far beyond the pending unfair labor practice proceeding at issue, as the following language from the Court's opinion demonstrates:
Since the vast majority of the Board's unfair labor practice proceedings are resolved short of hearing, without any need to disclose witness statements, those currently giving statements to Board investigators can have some assurance that in most instances their statements will not be made public (at least until after the investigation and any adjudication is complete). The possibility that a FOIA-induced change in the Board's prehearing discovery rules will *805 have a chilling effect on the Board's sources cannot be ignored.
437 U.S. at 241, 98 S. Ct. at 2326.
Second, plaintiff does not provide any basis for prohibiting disclosure while enforcement proceedings are pending or contemplated, but suddenly allowing disclosure once those proceedings have been concluded or are no longer contemplated, even though a cognizable harm to other enforcement proceedings is likely to occur. This case itself illustrates perfectly that such bright line demarcations between "pending" or "contemplated" and "future" enforcement proceedings are not easily drawn: the government has not been able to give this Court an unequivocal answer as to whether enforcement proceedings in this Infant Doe incident will ever be brought.[19]
More importantly, it is precisely these types of "wooden and mechanical" approaches to the interpretation of Exemption 7(A) that the 1974 amendments to FOIA were designed to prevent. Robbins Tire, supra, 437 U.S. at 230, 98 S. Ct. at 2321. If, as plaintiff concedes,[20] the government can demonstrate that disclosure of records will interfere with future enforcement proceedings, that interference is precisely the harm that Exemption 7(A) was designed to protect against. Indeed, the language of the Exemption refers to interference with "enforcement proceedings" in the plural, not to interference with the particular "enforcement proceeding" (in the singular) in question. This Court holds that Exemption 7(A) is broad enough to prohibit disclosure of law enforcement investigatory records whose release would interfere with enforcement proceedings, pending, contemplated, or in the future, so long as the governmental agency can demonstrate concrete, cognizable, and substantial interference with such proceedings.
In the 1974 amendments to Exemption 7, Congress rejected the rationales of four decisions of the District of Columbia Circuit Court of Appeals: Center for National Policy Review on Race and Urban Issues v. Weinberger, 502 F.2d 370 (D.C.Cir. 1974); Ditlow v. Brinegar, 494 F.2d 1073 (D.C.Cir.1974) (per curiam), cert. denied, 419 U.S. 974, 95 S. Ct. 238, 42 L. Ed. 2d 188 (1974); Aspin v. Department of Defense, 491 F.2d 24 (D.C.Cir.1973); and Weisberg v. U.S. Department of Justice, 489 F.2d 1195 (D.C.Cir.1973) (en banc), cert. denied, 416 U.S. 993, 94 S. Ct. 2405, 40 L. Ed. 2d 772 (1974). Those cases had construed the prior language of Exemption 7 literally, holding exempt any document in "investigatory files compiled for law enforcement purposes" regardless of whether release would cause any harm. It is crucial to note that this Court's holding today is not heralding a return to the pre-1974 Exemption 7 FOIA decisions rejected by Congress because this Court's holding is limited to permitting nondisclosure only where the government has met its burden of demonstrating that concrete, cognizable, and substantial interference will result to future enforcement proceedings if the documents are disclosed. That burden is significant and most probably must be decided on a case-by-case basis. Thus, by this ruling this Court by no means intends to grant the government blanket authority to withhold whole categories of documents under Exemption 7(A) on an unsubstantiated assertion *806 of interference with future proceedings.
In this case, the government has amply demonstrated such a concrete, cognizable, and substantial interference with future OCR enforcement proceedings. It has submitted affidavits which establish: that OCR acquires patient medical records in Section 504 investigation only by assuring hospitals that the records will be maintained in confidence; that OCR's ability to enforce Section 504 would be diminished seriously if hospitals could not rely upon OCR's promise of confidentiality because OCR is forced to release the records pursuant to a FOIA request; that, particularly when an infant could die by the time that OCR and a hospital resolve a fight over OCR's entitlement to medical records, the hospital's voluntary and rapid cooperation for release of records gained through commitments of confidentiality is essential to the success of OCR's mandate; and that OCR's ability to obtain cooperation from state child protective service agencies would be seriously compromised if OCR were forced to release records in this case in direct contravention of the order of the Indiana Supreme Court placing the records under seal. (Dotson Declaration, ถถ 24-30.) Because the plaintiff has produced no evidence to contest the government's assertions of such interference with future Infant Doe investigations, should they resume after the Supreme Court's decision in American Hospital Ass'n v. Heckler, this Court rules that the government properly withheld disclosure of documents 1-3 under Exemption 7(A). Accordingly, summary judgment is granted in favor of the government on documents 1-3.
The government concedes, however, that if the Supreme Court affirms the Second Circuit completely, then its Exemption 7(A) claims will disappear because no future Infant Doe investigations of the type conducted here will occur and no future enforcement proceedings will result. Thus, the Court will proceed to analyze the remaining exemptions claimed by the government.
II. Exemptions 6 and 7(C)
The government asserts that the medical records of Infant Doe, document 1, and the roster of members of the Child Protection Team, document 3, are exempt from disclosure under Exemptions 6 and 7(C). Exemption 6 protects records "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. ง 552(b)(6). Exemption 7(C) protects law enforcement records to the extent that disclosure would "constitute an unwarranted invasion of personal privacy." 5 U.S.C. ง 552(b)(7)(C). Both exemptions require the court to balance the asserted privacy interests at stake against any public interest in disclosure. Exemption 6 is "a balancing of the individual's right to privacy against the preservation of the basic purpose of the Freedom of Information Act `to open agency action to the light of public scrutiny.'" Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S. Ct. 1592, 1604, 48 L. Ed. 2d 11 (1976). The Seventh Circuit has applied this same test to Exemption 7(C). Miller v. Bell, 661 F.2d 623, 629 (7th Cir.1981) (per curiam), cert. denied, 456 U.S. 960, 102 S. Ct. 2035, 72 L. Ed. 2d 484 (1982). Although Exemption 7(C) is slightly broader on its face than Exemption 6 in that Exemption 7(C) protects against "unwarranted invasions" of personal privacy whereas Exemption 6 protects against "clearly unwarranted invasions," Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 629-30 n. 13, 102 S. Ct. 2054, 2063 n. 13, 72 L. Ed. 2d 376 (1982); Miller v. Bell, 661 F.2d at 629 n. 4, the distinction between the two exemptions results only in not requiring the balance in Exemption 7(C) to be tilted "emphatically in favor of disclosure" for the records to be exempt, Bast v. United States Department of Justice, 665 F.2d 1251, 1254 (D.C. Cir.1981). In other words, "the deletion of `clearly' renders the Government's burden somewhat lighter" under Exemption 7(C). 1975 Source Book, supra note 3, at 519.
A. Medical Records
The government contends that under either balancing test, the privacy interests *807 here in the medical records of Infant Doe clearly outweigh any public interest in the disclosure of those records. The government contends that the family of Infant Doe has a substantial privacy interest in the medical records, the disclosure of which would cause a still greater privacy invasion, even though most of the central facts regarding Infant Doe's birth, treatment, and death are already public. To allow the public access to the intimate details of the medical records is to permit the public to "lift one of the veils separating the general public from a private family tragedy." (Defendants' Brief at 18.) Particularly because of the great degree of media news coverage of this Infant Doe incident, disclosure of the detailed medical records "would only be used as fodder for exploitation, such as by reproduction of the baby's footprints or by broadcast of the hospital staff's minute-by-minute impressions and views on the baby's condition and appearance and on the parents' emotions."[21] (Defendants' Brief at 18.)
The government also disagrees with plaintiff that any privacy interest may be adequately protected by deleting names and similar identifiers. The government argues first that in the context of this case, identification is irrelevant because this incident and others like it can be expected to remain the subject of such emotionally charged controversy that some have used terms such as "child abuse," "infanticide," and "murder" to describe it. Public disclosure of the medical records would, at the very least, reopen the painful experience for the family members and would constitute a needless assault on the family's privacy regardless of whether anyone ever knew the identity of this Infant Doe family. Even more compelling is the fact that deletion of the family name and other obvious identifiers would not avoid the privacy invasion because a significant number of people already know the Does' identity: "the circumstances of the case make it extremely probable that many friends, co-workers, neighbors, and relatives, even if not told directly, would have deduced the identity of the family." (Defendants' Brief at 22.)
Finally, the government contends that releasing the medical records would not serve the public interest in knowing what it is that the government is doing because the medical records themselves give no information of OCR's investigative and enforcement actions. Those actions have already been made public in the final draft of the Investigative Report and its appendices. That report includes the nature of Infant Doe's medical condition, the medical opinions of the various doctors, the decisions made on care, the court proceedings, and the conduct of both Bloomington Hospital and the MCDPW. The government concludes:
The infant's footprints, the progress notes by doctors and nurses, the characterizations of discussions among doctors and nurses, descriptions of the parents' emotional states, the educational and financial information about the parents, and similar information are all entirely irrelevant to OCR's compliance action. Disclosing them would in no way help the public monitor OCR's actions; nor would it serve any other public interest. The privacy invasion entailed by such a release is clearly unwarranted.
(Defendants' Brief at 23.)
Plaintiff responds first by arguing that Infant Doe has no right of privacy recognized *808 by law because the infant has died.[22] Second, plaintiff cites Dean Prosser's exposition on the common law right of privacy as encompassing four invasions:
"1) Appropriation, for the defendant's advantage, of the plaintiff's name or likeness,
2) Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs,
3) Publicity which places the plaintiff in a false light in the public eye, and
4) Public disclosure of embarrassing private facts about the plaintiff."
Prosser, Privacy, 48 Cal.L.Rev. 383, 389 (1960); Prosser, Law of Torts ง 117 at 804-14 (4th ed. 1971). Of these, plaintiff contends that only the last โ public disclosure of embarassing private facts about the plaintiff โ applies, but argues that if the identity of the person is not revealed, there is no invasion of privacy.[23] Because plaintiff has requested that all identifying information be redacted, plaintiff concludes that there is no invasion of privacy. Third, plaintiff argues that the common law right of privacy is "a personal one which does not extend to the members of a family unless ... their own privacy is invaded along with his." Prosser, Law of Torts ง 117 at 814-15. Plaintiff submits that courts have either rejected outright this "relational right of privacy," see, e.g., James v. Screen Gems, Inc., 174 Cal. App. 2d 650, 344 P.2d 799, 801 (Cal.App. 1959); or courts have held that to prevail, the plaintiff himself must be publicized to a substantial degree, see e.g., Cordell v. Detective Publications, Inc., 307 F. Supp. 1212, 1220 (E.D.Tenn.1968), aff'd, 419 F.2d 989 (6th Cir.1969); or courts have held that the names or likenesses of the plaintiff's relatives must be publicized, see, e.g., Mahaffey v. Official Detective Stories, Inc., 210 F. Supp. 251, 1253 (W.D.La.1952). Fourth, plaintiff argues that the Does have waived any right of privacy they might have by thrusting themselves into an issue of great public importance. Plaintiff contends that courts have recognized that a publication which deals with a matter of great public interest, even if it invades a person's privacy, is not subject to the tort of invasion of privacy.[24] Because the Does have, albeit inadvertently and unwillingly, thrust themselves into a matter of great public importance, they are public figures who have waived their right of privacy. Finally, plaintiff argues that no constitutional right of privacy encompasses the decision of parents to exercise autonomy to withhold treatment from their child in a life threatening situation solely because the child has Down's syndrome, citing numerous cases in which courts have intervened to order life-sustaining medical treatment for newborns with Down's syndrome.[25]
*809 In response to the plaintiff's arguments, the government emphasizes that it is not relying on the privacy interest of the deceased Infant Doe, but of that of the Doe family.[26] The Doe family has a substantial privacy interest in not disclosing the medical records. That interest would not be protected adequately by deleting identifiers and is not outweighed by any public interest in disclosure. Plaintiff's objection to the "relational right of privacy" theory is irrelevant because the government does not rely on this theory, and, in any event, plaintiff has not demonstrated that the theory does not apply under FOIA. The government emphasizes that the medical records are just as much about Infant Doe's parents as they are about Infant Doe and thus the parents' privacy right is directly affected.
Plaintiff's own briefs ... make clear that the public controversy over this incident consists largely of public debate over the morality and legality of the decision made by the parents. To say that the parents have no privacy rights in the records of an incident in which they are implicitly accused of infanticide is absurd.
(Defendants' Reply Brief at 15.)
The government identifies the parents' interest in being able to resume their lives without having the most intimate details of their tragedy replayed in the media as precisely the privacy right identified by the famous and often cited Warren and Brandeis article on privacy as the "right to be let alone." Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890).
This Court agrees. Plaintiff's insistence that the privacy interest asserted here must be analyzed under the traditional common law privacy cases set forth by Professor Prosser or identified as a well-recognized and established constitutional privacy right is misplaced because it is overly rigid, formalistic, and inflexible. As the court stated in United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 n. 5 (3d Cir.1980):
Privacy ... is control over knowledge about oneself. But it is not simply control over the quantity of information abroad; there are modulations in the quality of the knowledge as well. We may not mind that a person knows a general fact about us, and yet feel our privacy invaded if he knows the details. For instance, a casual acquaintance may comfortably know that I am sick, but it would violate my privacy if he knew the nature of the illness. Or a good friend may know what particular illness I am suffering from, but it would violate my privacy if he were actually to witness my suffering from some symptom which he must know is associated with the disease.
(quoting Fried, Privacy, 77 Yale L.J. 475, 483 (1968)). As in Westinghouse Electric, the privacy interest asserted here falls squarely within the privacy interest recognized by the Supreme Court in Whalen v. Roe, 429 U.S. 589, 599-600 n. 24, 97 S. Ct. 869, 876 n. 24, 51 L. Ed. 2d 64 (1977): the right not to have an individual's private affairs made public by the government. Westinghouse Electric, 638 F.2d at 577.
*810 Although the ultimate contours of the right to privacy have yet to be defined, this case presents facts which lie at the heart of what any privacy right must mean. The Supreme Court has so far identified two elements of the right to privacy: the right to protect personal and privileged information from public scrutiny; and the right to make intimate family decisions free from governmental interference. Whalen v. Roe, 429 U.S. at 600, 97 S. Ct. at 876; see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645 (1944) ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents ..."). The Supreme Court has acknowledged the fundamental right of familial privacy for over fifty years. See e.g. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Pierce v. The Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). In Prince, supra, the Supreme Court recognized a private realm of family life that the state cannot enter without compelling justification. That compelling justification on occasion has been found where parents have refused to authorize routine medical care that would permit their child to lead a normal and healthy life. E.g., Jehovah's Witnesses v. Kings County Hospital, 390 U.S. 598, 88 S. Ct. 1260, 20 L. Ed. 2d 158 (1968); In re Sampson, 29 N.Y.2d 900, 328 N.Y.S.2d 686, 278 N.E.2d 918 (1972). But the facts here, unfortunately, are tragically different.
This Court recognizes that serious issues concerning the propriety of the decision not to provide life-saving treatment to a Down's syndrome baby are associated with the facts of this case, but it is crucial to recognize as well that review of that decision is not before this Court. Although the right to make intimate family decisions free from governmental interference is not at issue here, the right to protect personal and privileged information from public scrutiny is directly at stake. This Court feels a strong obligation to guard that right particularly because the parents of Infant Doe have not appeared in this case to assert their own interests. It is indeed ironic, and somewhat disturbing, that they have had to rely on the very governmental agency whose investigation led to their dilemma to protect their privacy interests in the matter.
From all that is present in the record in this case, it appears that the government has made no attempt to notify the Does so that they may assert their privacy interests personally. Although FOIA has no provision mandating notice to the person whose privacy interest is at stake, such a provision is contained within the Privacy Act, 5 U.S.C. ง 552a. Under the Privacy Act, any disclosure of information covered by the Act is prohibited unless authorized by the prior written consent of the individual whose information is disclosed or unless authorized by one or more of the Act's specific exemptions, one of which is FOIA. 5 U.S.C. ง 552a(b). However, the Privacy Act is applicable only to records maintained by an agency in such a way as to allow access to them by the individual's name or identifier. Here, the records at issue were not maintained by the Does' name or other identifier, and the consent provision of the Privacy Act apparently is not applicable.[27] Thus, so far as this Court is aware, the Does have not been informed to this day of the plaintiff's FOIA request for their infant's records and they have not appeared to assert their own rights.
*811 Moreover, although state common law doctrines of privacy may assist analysis, they are not dispositive in the FOIA context, which of course preempts state law. A separate body of privacy law has been developed under FOIA in which courts seldom look to the common law for more than an analytical framework. In the FOIA context, courts have held repeatedly that medical records are exempt from disclosure because "[t]he privacy interest in [medical records] is well recognized, even under the stringent standard of exemption 6." Bast v. United States Department of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981). See also Florida Medical Ass'n v. Department of Health, Education & Welfare, 479 F. Supp. 1291, 1303 (M.D.Fla.1979); ("For information that is purely and patently contained in personnel files and medical records, there is no question about the presumptive applicability of Exemption 6."); Rural Housing Allowance v. United States Department of Agriculture, 498 F.2d 73, 76 (D.C.Cir.1974) (U.S.D.A. investigative report of governmental housing discrimination in Florida which contained, inter alia, "intimate details" of medical condition, was within the ambit of Exemption 6.); Plain Dealer Publishing Co. v. United States Department of Labor, 471 F. Supp. 1023, 1028-30 (D.D.C.1979) (Disclosure of workers' compensation claim files containing medical information which would reveal the intimate details of a claimant's work-related injury or disability, his medical history, and a clinical psychologist's evaluation of the claimant held prohibited under Exemption 6 as a clearly unwarranted invasion of a personal privacy given minimal public interest to be advanced by disclosure.); Columbia Packing Co. v. United States Department of Agriculture, 417 F. Supp. 651 (D.Mass.1976), aff'd, 563 F.2d 495 (1st Cir.1977) (Disclosure of personnel files of two former agency employees containing medical records held prohibited by Exemption 6 because the privacy interest outweighed public interest.).
Plaintiff's argument that the Does are "public figures" who have "waived" their rights of privacy by having thrust themselves into a matter of public interest, albeit unwillingly, is similarly misplaced in the FOIA context. The very cases cited by plaintiff recognize that Exemptions 6 and 7(C) protect the privacy interests even of public figures, although the result of the balancing test may be affected. See Providence Journal Co. v. Federal Bureau of Investigation, 460 F. Supp. 778, 789-91 n. 52 (D.R.I.1978), rev'd on other grounds, 602 F.2d 1010 (1st Cir.1979), cert. denied, 444 U.S. 1071, 100 S. Ct. 1015, 62 L. Ed. 2d 752 (1980); Congressional News Syndicate v. United States Department of Justice, 438 F. Supp. 538, 542 n. 2, 543 (D.D.C.1977). Privacy interests of public figures may be somewhat diminished in the balance, but they are not nullified under FOIA Exemptions 6 and 7(C).
In conducting that balance, this Court is convinced that the Does' privacy interests in the medical records clearly outweighs the minimal public interest in disclosure such that disclosure would constitute a "clearly unwarranted invasion of personal privacy" under Exemption 6.[28] The government does not dispute that a public interest exists in the Infant Doe matter both in the decision to withhold treatment knowing that the infant would die and in the oversight of OCR's enforcement of the civil rights laws. But the government correctly points out that the inquiry cannot end with that determination:
Two critical inquiries remain. First, what is the nexus between the public debate on either of these issues and the particular records still withheld by OCR โ would those records really contribute to this public debate? Second, how does any such contribution compare with the harm caused by the invasion of the family's privacy?
(Defendants' Reply Brief at 21.)
In examining these questions, the Court agrees with the government that plaintiff *812 has not demonstrated adequately that any issue in the public policy debate turns on any information available in the medical records but not already disclosed to the public or that any withheld medical record would contribute to the public's oversight of OCR's role in the matter. Plaintiff first attempts to demonstrate that disclosure would provide necessary information relevant to the policy/ethical issues by contending in conclusory terms that substantial inaccuracies as to the infant's medical condition have appeared in the published accounts of the incident. As the government points out, most of the bases for these claims are not in the record or are hearsay. Accordingly, they cannot be considered in these cross-motions for summary judgment.[29] Even if they could be considered, the general assertions contained in the affidavits submitted in support of plaintiff's motion for summary judgment that disclosure of these medical records could further the policy/ethical debate are not persuasive because they fail to identify how disclosure of the technical medical information would affect the debate, if at all. Similarly, plaintiff's argument that disclosing the records would assist public oversight of OCR's enforcement of the Rehabilitation Act of 1973 is not supported by specific facts or analysis. Plaintiff does not explain, and the Court does not understand, how medical charts are relevant to show what actions OCR or other federal agencies took to investigate this incident or others like it. The medical records simply do not demonstrate the reasoning process used by federal agencies in taking, or in not taking, any particular enforcement action.
Thus, plaintiff has failed to demonstrate what information in the medical records might contribute to the public debate on these issues; he has not identified any factual dispute regarding the baby's condition that is relevant to the public debate and the resolution of which depends on access to the medical records; and he has not specified what information would help the public assess the government's law enforcement activity. As the government succinctly concludes on this point:
Plaintiff's failure to identify the nexus between the medical records and the public debate, and his total failure to attempt to weigh the supposed benefit to the public against the invasion of the family's privacy, are fatal gaps in his case for disclosing the records. Those gaps compel a finding that the records are exempt under Exemption 7(C). But the gaps are even more telling โ they lead one to conclude that plaintiff wants the records not because of what information they might contribute to the public debate, but purely for the dramatic impact to be anticipated from the mass reproduction of the baby's footprints or from the broadcasting of the hospital staff's minute-by-minute impressions and views on the baby's condition and appearance and on the parents' emotions. In other words, those gaps compel the conclusion that plaintiff wants these records for precisely the use that would cause the greatest pain to the family and most seriously invade their privacy.
(Defendants' Reply Brief at 23.)
Although this Court is well aware that the reasons for which a plaintiff makes a FOIA request ordinarily are not relevant to deciding whether the requested documents are exempt from disclosure, see, e.g., Antonelli v. Drug Enforcement Administration, 739 F.2d 302, 304 (7th Cir. 1984), such reasons properly may be taken into account in weighing the balance between the public interest and the privacy interests under Exemptions 6 and 7(C). Because plaintiff has not substantiated his claim that the medical records of Infant *813 Doe will inform in any way the debate on the public interest issues or will contribute to the public's oversight function of OCR's role in this case, and because the privacy interests at stake are substantial โ indeed, overwhelming โ this Court holds that the medical records are exempt from disclosure under Exemptions 6 and 7(C). Accordingly, the defendants motion for summary judgment is granted as to Infant Doe's medical records.
B. The Circuit Court Report and the Roster
The Circuit Court Report (document 2) is a two page report of the MCDPW Child Protection Team submitted to the Monroe County Circuit Court. It is in the form of a sworn statement of the director of the MCDPW, describes the hearing held by the Child Protection Team on April 12, 1982 to determine whether to appeal Judge Baker's ruling, and includes the names of the team members. Document 3 consists entirely of names and addresses[30] of the Child Protection Team members. The government contends that the roster in its entirety and the team members' names from document 2 are exempt under the privacy exemptions to FOIA, Exemptions 6 and 7(C), because the government asserts that the team's decision not to appeal the Circuit Court judgment refusing to order treatment for Infant Doe could possibly expose team members to harassment by persons disagreeing with that decision.
These records stand on a different footing than the medical records of Infant Doe because they do not contain the same type of intimate details of personal information. More importantly, plaintiff seeks the identities of public officials who made decisions affecting the public interest. Disclosure of this information goes to the heart of the basis for FOIA โ the public's right to know how public officials are conducting the affairs of government and to hold public officials working in their official capacities accountable. Moreover, the government now resorts to the same device plaintiff used with respect to Infant Doe's medical records: the government asserts only in conclusory terms that disclosure of the team members' identities "might possibly" subject them to harassment or annoyance and fails to provide any evidence to support this conclusion or even to define "harassment." As the court held in Demetracopoulos v. Federal Bureau of Investigation, 510 F. Supp. 529, 532 (D.D.C.1981), the "bare claim" that "disclosure of the identities of such officials could subject them to unofficial inquiries that could result in harassment or discomfort" is "insufficient under the law." This Court holds that documents 2 and 3 are not exempted by FOIA Exemptions 6 and 7(C) because the government has not met its burden of demonstrating that such harassment will occur.
III. Exemption 5
The government contends that document 4, the draft version of the Investigative Report, is exempted under FOIA Exemption 5, which protects intra-agency memoranda that fall within a recognized evidentiary privilege. 5 U.S.C. ง 552(b)(5); see United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984). The government asserts the privilege for predecisional deliberations within the government. This privilege has three underlying purposes: (1) to encourage frank and candid intra-governmental communications over policy alternatives; (2) to protect the public from premature exposure to policies before they are actually adopted; and (3) to protect the decision-making process by ensuring that officials and agencies are judged by what they finally decided and not by what options and factors they considered before making a decision. Jordan v. United States Department of Justice, 591 F.2d 753, 772-73 (D.C. Cir.1978) (en banc).
Whether a document falls within the privilege depends on two factors:
*814 whether the document is "predecisional" โ whether it was generated before the adoption of an agency policy โ and whether the document is "deliberative" โ whether it reflects the give-and-take of the consultative process.
Coastal State Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980) (emphasis in original). Draft documents in particular are exempt under this privilege since they "reflect the personal opinions of the writer rather than the policy of the agency." Id. Where an employee writes a draft document and the agency uses a consultative process (e.g., circulating the draft for comments, or having the draft reviewed up the supervisory or organization chain) to determine what the final versions will include, and where the final document is released, then the draft is exempt. Russell v. Department of the Air Force, 682 F.2d 1045, 1048-49 (D.C.Cir.1982); Lead Industries Ass'n, Inc. v. Occupational Safety and Health Administration, 610 F.2d 70, 86 (2d Cir.1979). The draft is predecisional in that it is written before the agency decides what the final version will include; it is deliberative because it is submitted to others as the author's input to the decision-making process.
The government describes the particular draft Investigative Report at issue here as follows:
It was written by an investigator in OCR's Regional Office in Chicago. He followed the essential format of OCR investigative reports. The draft represented his preliminary-stage recommendation as to what the final Investigative Report should say. It included his recommendations (none of which was binding on OCR), as to what facts were relevant, as to what OCR should find were the relative responsibilities of the various parties, and as to how the legal and factual positions of the hospital and the [MCDPW] might be stated. It also included his recommended conclusions (which were not binding on OCR) based on the preliminary evidence taken as a whole. He submitted the draft to OCR Headquarters in accord with a review and clearance process adapted from the normal OCR procedure for Investigative Reports. After reviewing the draft, OCR headquarters staff decided to take additional investigative steps, which led to significant revisions in the draft report. They used the draft as the first step in framing and stating the issues and the facts. The draft has been superseded by the final report, which has been disclosed to plaintiff. The draft is therefore exempt.
(Defendants' Brief at 27-28; footnote omitted.)
Plaintiff does not dispute that the draft report qualifies as an Exemption 5 record. Instead, plaintiff cites the FOIA provision which requires that the government disclose segregable portions, 5 U.S.C. ง 552(b)(5), and the cases in which courts have required the disclosure of substantive facts contained in the records which are not "inextricably intertwined" with the revelation of the deliberative process. See, e.g., Environmental Protection Agency v. Mink, 410 U.S. 73, 89-91, 93 S. Ct. 827, 836-37, 35 L. Ed. 2d 119 (1973); Paisley v. C.I.A., 712 F.2d 686, 698-99 (D.C.Cir.1983); Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931, 935 (D.C.Cir.1982). To this point, the government responds by asserting that "even where a record is, on its surface, entirely factual, its role in the decisionmaking process may justify treating it as deliberative." (Defendants' Reply Br. at 28.) The government contends that the privilege was intended to protect not just deliberative material โ i.e., opinions, comments, recommendations โ but the deliberative process. For example, a summary of an extensive factual record prepared to assist the ultimate decisionmaker is exempt from disclosure even though the summary is entirely factual on its face because its release would reveal the decisionmaking process and thereby compromise it. See, e.g., Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931, 935-36 (D.C. Cir.1982); Lead Industries Ass'n. v. Occupational Safety and Health Administration, 610 F.2d 70, 83-86 (2d Cir.1979); *815 Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C.Cir.1974).
After review of the draft Investigative Report in camera, this Court agrees with the government's assessment of the report as a draft by a subordinate agency official which was subsequently submitted through a comment and clearance process and substantially altered before the final Investigative Report, which already has been disclosed to plaintiff, was prepared. It contains a great deal of factual material, but it also contains significant excerpts from the medical records, which this Court has held exempt from disclosure. Substantial changes in the factual recitations in the draft report are evident in the final report, both in additions, deletions, and variations in emphasis and order. It further contains an entire section of conclusions. This Court finds that document 4 is entirely exempt as a draft submitted through a comment and clearance process. See Russell v. Department of the Air Force, 682 F.2d 1045, 1049-49 (D.C.Cir.1982).
IV. Subordinate Agency Officials
As a final matter, this Court agrees with the government that defendants Sermier and Roberts, as subordinate agency officials, are improper party defendants who must be dismissed. Although this District has allowed actions against agency heads, see, e.g., Miller v. Webster, 483 F. Supp. 883, 886 (N.D.Ill. 1979), modified on other grounds, 661 F.2d 623 (7th Cir.1981), cert. denied, 456 U.S. 960, 102 S. Ct. 2035, 72 L. Ed. 2d 484 (1982); Nemetz v. Department of the Treasury, 446 F. Supp. 102, 106 (N.D.Ill.1978); Hamlin v. Kelley, 433 F. Supp. 180, 181 (N.D.Ill.1977), there is no basis for suing subordinate officials in either their individual or official capacities. Plaintiff's suggestion that FOIA's disciplinary provisions justify naming subordinate agency employees as parties defendant, see 5 U.S.C. ง 552(a)(4)(F)-(G), has been rejected soundly by the most recent courts to have considered the question. Gary Energy Corp. v. United States Department of Energy, 89 F.R.D. 675, 677 (D.Col.1981); Ostheimer v. Chumbley, 498 F. Supp. 890, 891 (D.Mont.1980). Moreover, the distinction between agency heads and subordinate officials was explicitly approved by the court in White v. United States, 1980-2 U.S.Tax Cas. (CCH) ถ 9540 (N.D.Ohio 1980). Accordingly, defendants Sermier and Roberts are dismissed from this case.
Conclusion
For the reasons stated above, documents 1-3 may not be disclosed because they are not "agency records" within the meaning of FOIA if the Supreme Court affirms the Second Circuit's decision in American Hospital Ass'n. Alternatively, if that decision is not affirmed in pertinent part, then documents 1-3 are also exempt from disclosure under FOIA Exemption 7(A). Document 1, Infant Doe's medical records, is exempt as well under FOIA Exemptions 6 and 7(C). However, the names of the Child Protection Team Members found in documents 2 and 3, although exempt from disclosure pursuant to FOIA Exemption 7(A), are not exempt from disclosure under Exemptions 6 and 7(C). Document 4 is exempt from disclosure under FOIA Exemption 5. Defendants Sermier and Roberts are dismissed. Accordingly, the parties' cross-motions for summary judgment are granted in part and denied in part. It is so ordered.
NOTES
[1] The defendants collectively will be referred to as "the government."
[2] Under Section 602 of the Civil Rights Act of 1964, 42 U.S.C. ง 2000d-1, made applicable to Section 504 compliance activities by Section 505(a)(2) of the Rehabilitation Act, no action by HHS to effect compliance may be taken until HHS determines "that compliance cannot be secured by voluntary means."
[3] See House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book, 94th Cong., 1st Sess. 99 (Statement of Rep. Moorhead) (Joint Committee Print 1975) ("1975 Source Book"). See also id. at 236 (Statement of Rep. Natsunaga), 262 (Statement of Rep. Gude), 267, 268 (Statement of Rep. Patten), 269 (Statement of Rep. Broomfield), 271 (Statement of Rep. Reuss), 272 (Statement of Rep. Harrington), 300 (Statement of Sen. Cranston), 311 (Statement of Sen. Javits), 417 (Statement of Rep. Conte), 425 (Statement of Rep. Tiernan), 457 (Statements of Sen. Hruska and Taft), 461 (Statement of Sen. Ervin), and 471 (Statement of Sen. Metcalf).
[4] Section 504 provides:
No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
29 U.S.C. ง 794.
[5] When the Supreme Court issues its opinion in the American Hospital Ass'n case, it will be issued under the name Bowen v. American Hospital Ass'n because of the appointment of a new Secretary of HHS.
[6] This Court found this argument to be so incredible on its face that, to give plaintiff the benefit of the doubt, the Court requested oral argument specifically on this issue so that plaintiff could explain what he meant, if in fact he meant something other than what he states, and asked plaintiff to provide the Court with copies of the regulations to which he refers. Unfortunately, it soon became apparent at the oral argument that the Court had not misunderstood the import of plaintiff's argument as presented in his supplemental brief.
[7] Apparently, the government has not even attempted to find such a case.
[8] See generally, Forsham v. Harris, 445 U.S. 169, 100 S. Ct. 977, 63 L. Ed. 2d 293 (1980); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267 (1980); General Electric v. United States Nuclear Regulatory Comm'n, 750 F.2d 1394 (7th Cir. 1984); Bureau of National Affairs, Inc. v. United States Department of Justice, 742 F.2d 1484 (D.C. Cir.1984); Berry v. Department of Justice, 733 F.2d 1343 (9th Cir.1984); International Brotherhood v. National Mediation Board, 712 F.2d 1495 (D.C.Cir.1983); Crooker v. United States Parole Comm'n, 730 F.2d 1 (1st Cir.1984); Wolfe v. Department of Health and Human Services, 711 F.2d 1077 (D.C.Cir.1983); McGehee v. C.I.A., 697 F.2d 1095 (D.C.Cir.1983), modified on other grounds, 711 F.2d 1076 (D.C.Cir.1983); Carson v. United States Department of Justice, 631 F.2d 1008 (D.C.Cir.1980); Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980); Goland v. C.I.A., 607 F.2d 339 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980); Lacy v. United States Department of Navy, 593 F. Supp. 71 (D.Md.1984); Tigar & Buffone v. Department of Justice, 590 F. Supp. 1012 (D.D.C.1984); Center for National Security Studies v. C.I.A., 577 F. Supp. 584 (D.D.C.1983); Illinois Institute for Continuing Legal Education v. United States Department of Labor, 545 F. Supp. 1229 (N.D.Ill.1982); Iglesias v. C.I.A., 525 F. Supp. 547 (D.D.C.1981); Valenti v. United States Department of Justice, 503 F. Supp. 230 (E.D.La.1980); Ciba-Geigy Corp. v. Mathews, 428 F. Supp. 523 (S.D.N.Y.1977).
[9] The "possession, control, or custody" test essentially relies upon how extensively the government uses the records. Although mere physical location at the agency is not enough to create an "agency record," Forsham, 445 U.S. at 185, 100 S. Ct. at 986, "only limited use" is sufficient. General Electric Co., 750 F.2d at 1400. One time, "transitory possession" is not enough, International Brotherhood, 712 F.2d at 1496, but use of the record in the performance of the agency's business is enough. Ciba-Geigy Corp., 428 F.Supp. at 529. The record must in fact be obtained by the agency; the opportunity to obtain it is not enough. Forsham, 445 U.S. at 186, 100 S. Ct. at 987; Wolfe v. Department of Health and Human Services, 711 F.2d at 1079 n. 7.
[10] The Court stated in Forsham:
Petitioners place great reliance on the fact that HEW has a right of access to the data, and a right if it so chooses to obtain permanent custody of the UGDP records. 45 CFR งง 74.24, 74.21 (1979). But in this context the FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained. To construe the FOIA to embrace the latter class of documents would be to extend the reach of the Act beyond what we believe Congress intended. We rejected a similar argument in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S. Ct. 1504, 1521-22, 44 L. Ed. 2d 29 (1975), by holding that the FOIA imposes no duty on the agency to create records. By ordering HEW to exercise its right of access, we effectively would be compelling the agency to "create" an agency record since prior to that exercise the record was not a record of the agency. Thus without first establishing that the agency has created or obtained the document, reliance or use is similarly irrelevant.
445 U.S. at 185-86, 100 S. Ct. at 986-87 (emphasis in original) (footnote omitted).
[11] Congress elaborated further in its Congressional Findings and Statement of purpose:
(b) The purpose of this Act [enacting this section and notes set out under this section] is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to โ
(4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information....
Pub.L. 93-579 ง 2.
[12] For example, information must be gathered directly from individuals to the greatest extent practicable when it may result in determinations which adversely affect their rights, benefits, or privileges under federal programs (5 U.S.C. ง 552a(e)(2)); individuals from whom information is sought must be informed concerning the agency's authority to request the data as well as the purpose for which it will be used (5 U.S.C. ง 552a(e)(3)); records about individuals must be maintained with appropriate accuracy, relevance, timeliness, and completeness (5 U.S.C. ง 552a(e)(5)); reasonable efforts must be taken to assure the accuracy of records about individuals before they are disseminated (5 U.S.C. ง 552a(e)(6)); records about how individuals exercise their First Amendment rights cannot be maintained unless they are expressly authorized by statute or by the individual in question (5 U.S.C. ง 552a(e)(7)); and rules of conduct must be established for agency officials responsible for maintaining records about individuals (5 U.S.C. ง 552a(e)(9)).
[13] The legislative history of the Privacy Act is compiled in Joint Committee Print, Legislative History Of The Privacy Act Of 1974, Source Book on Privacy, Senate Comm. on Gov't Operations and House Comm. on Gov't Operations, 94th Cong., 2d Sess. (1976) ("Privacy Act Source Book").
[14] Plaintiff does cite to two cases in support of his statement that "courts have determined that, generally, it does not matter how the agency acquired the record": Petkas v. Staats, 501 F.2d 887, 889 (D.C.Cir.1974); United States v. Trucking Employees, Inc., 39 Ad.L.2d (Pike & Fischer) 694, 696 (D.D.C.1976). Neither case supports that statement.
[15] Plaintiff responded at oral argument to this example by arguing that Ellsberg's psychiatric file is exempt from FOIA disclosure by the privacy (or national security) exemptions to FOIA. (Transcript of Oral Argument, Feb. 3, 1985, at 38-39.) The privacy exemptions are the same exemptions claimed here by the government for not disclosing Infant Doe's medical records and, plaintiff's wishes to the contrary, there is no principled distinction between Ellsberg's psychiatric records and Infant Doe's medical records. Apart from all that, however, the question of whether a FOIA exemption applies is not reached if the records at issue are not "agency records" within the meaning of FOIA.
[16] Although the regulations implementing Section 504 mandate that recipients of HHS funds grant OCR access to their records (see 45 C.F.R. งง 80.6, 84.61), enforcing this mandate is difficult. If an institution refuses to supply records voluntarily, OCR's only viable recourse is the cumbersome process of referring the matter to the Justice Department and asking that department to sue, seeking an injunction to permit access to records. See 45 C.F.R. งง 80.8(a). The length of time this procedure may entail is shown by the only case in which the United States has had to use it. In that case, although HHS, the Justice Department, the defendant, and the court proceeded quite expeditiously, 26 days expired from the denial of access to a decision of the district court. United States v. University Hospital State University of New York at Stony Brook, 575 F. Supp. 607, (E.D.N.Y.1983), aff'd on other grounds, 729 F.2d 144 (2d Cir. 1984). In cases where the baby is alive and the alleged denial of care is life-threatening, the government asserts that the delay entailed by this procedure could be critical.
[17] This effort is currently suspended because of an injunction in American Hospital Ass'n v. Heckler, 83 Civ. 2638 (S.D.N.Y. June 11, 1984). No injunction was in effect while OCR investigated the Bloomington incident, and the government asserts that any future investigation of this sort will be undertaken only if and when legal authority to do so is restored.
[18] Case law subsequent to Robbins Tire also supports both positions. Some cases squarely hold that Exemption 7(A) is not intended to protect against interference with future enforcement proceedings. Van Bourg, Allen, Weinberg & Roger v. N.L.R.B., 751 F.2d 982, 985 (9th Cir.1985); Associated Dry Goods Corp. v. N.L. R.B., 455 F. Supp. 802, 812 (S.D.N.Y.1978). Others refer to interference with a "pending" proceeding but only in a context where the enforcement proceeding that would be affected by the disclosure was in fact pending. See, e.g., Antonelli v. Drug Enforcement Administration, 739 F.2d 302 (7th Cir.1984) (per curiam); Peterzell v. Department of Justice, 576 F. Supp. 1492 (D.D.C. 1983); Bevis v. Department of State, 575 F. Supp. 1253 (D.D.C.1983); Freedberg v. Department of the Navy, 581 F. Supp. 3 (D.D.C.1982). In yet other cases, the court's holding rests on the governmental agency's failure to show any actual harm to future enforcement proceedings. See, e.g., Poss v. N.L.R.B., 565 F.2d 654 (10th Cir.1977). Finally, yet other cases squarely hold that Exemption 7(A) applies even to interference with future enforcement proceedings. Timken Co. v. United States Customs Service, 531 F. Supp. 194, 199-200 (D.D.C.1981); Brinkerhoff v. Montoya, 3 Gov't Discl.Serv. (P-H) ถ 82,421 (N.D.Tex.1981). None of these cases engage in any in-depth analysis in reaching their holdings.
[19] Plaintiff contends that no such proceedings will ever take place because the MCDPW has voluntarily complied with all statutory and regulatory requirements.
[20] Plaintiff states:
Whether the "failure to preserve the confidentiality of these records will make it much more difficult to obtain information in future investigations," as asserted by the Government, is not a material fact, as shown in Plaintiff's brief. In any case, it is disputed.
(Plaintiff's Statement Of Material Issues Of Facts As To Which There Is No Genuine Issue, ถ 13.) Despite this assertion, plaintiff has produced no evidence to contest the government's evidence that disclosure would indeed impede future investigations, and plaintiff has made no attempt even to argue this point in his briefs. Accordingly, this Court must deem plaintiff to have conceded that disclosure will interfere with future OCR enforcement proceedings.
[21] Pursuant to 5 U.S.C. ง 552(a)(4)(B), this Court exercised its power to view the documents in camera, and, after having done so, cannot disagree with the government that this type of intimate information is contained therein.
On August 2, 1985, plaintiff moved to allow his attorney and a medical doctor to view the records submitted by the government for the Court's in camera inspection upon certain conditions. That motion is denied because this Court agrees with the government that such a procedure is both unprecedented and unnecessary. Plaintiff's request involves disclosure of the very information that this case is designed to obtain. Furthermore, the government's submissions, to which plaintiff has had full access, are sufficient to resolve the legal issues in this case. See Arieff v. United States Department of the Navy, 712 F.2d 1462, 1469 (D.C.Cir.1983) (Exemption 6); Campbell v. Department of Health and Human Services, 682 F.2d 256, 265 (D.C.Cir.1982) (Exemption 7(A)); Public Citizen Health Research Group v. Department of Labor, 591 F.2d 808 (D.C.Cir.1978) (Exemption 6).
[22] Plaintiff cites a slew of cases for this proposition, including Maritote v. Desilu Productions, 345 F.2d 418, 419 (7th Cir.1965); Cordell v. Detective Publications, Inc., 419 F.2d 989, 990-91 (6th Cir.1969); Melvin v. Reid, 112 Cal. App. 285, 297 P. 91-93 (1931); Wyatt v. Hall's Portrait Studio, 128 N.Y.S. 247, 249-50, 71 Misc. 199 (1911); Prosser, Law of Torts ง 112. See also, Silets v. Federal Bureau of Investigation, 591 F. Supp. 490, 498 (N.D.Ill.1984) (citing Diamond v. Federal Bureau of Investigation, 707 F.2d 75, 77 (2d Cir.1983), cert. denied, 465 U.S. 1004, 104 S. Ct. 995, 79 L. Ed. 2d 228 (1984); Providence Journal, 460 F.Supp. at 793 n. 53.
[23] Plaintiff cites the following authorities for this proposition: Branson v. Fawcett Publications, Inc., 124 F. Supp. 429, 432-33 (E.D.Ill. 1954); Levey v. Warner Bros. Pictures, Inc., 57 F. Supp. 40, 42 (S.D.N.Y.1944); Sellers v. Henry, 329 S.W.2d 214, 215-16 (Ky.Ct.App.1959); Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344, 348 (1956); Note, Privacy in Personal Medical Information: A Diagnosis, 33 U.Fla.L.Rev. 394, 404 n. 72 (1981).
[24] For this proposition, plaintiff cites Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967); McCall v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882, 888 (Ky.1981), cert. denied, 456 U.S. 975, 102 S. Ct. 2239, 72 L. Ed. 2d 849 (1982); Beresky v. Teschner, 64 Ill.App.3d 848, 381 N.E.2d 979, 984 (2d Dist.1978); Bradley v. Cowles, Magazine, Inc., 26 Ill.App.2d 331, 168 N.E.2d 64, 65 (1st Dist.1960); Metter v. Los Angeles Examiner, 35 Cal. App. 2d 304, 95 P.2d 491, 494 (Cal.App.1939); and Note, 21 Rutgers L.Rev. at 90.
[25] Plaintiff cites: In re Guatrone, (Bronx Fam. Div.1984) (imminent risk of death) (Washington Post May 25, 1984, A-19 col. 1); In re Application of Cicero, 101 Misc. 2d 699, 421 N.Y.S.2d 965 (1979) (surgery ordered for infant born with spina bifida); In re McNulty, No. 9190 (P.Ct. Essex Co. Mass.1978); Maine Med. Center v. Houle, No. 74-145 (Superior Ct. Cumberland Co., Me. Feb. 14, 1974) (court ordered treatment for infant born with multiple defects and a blockage of the esophagus); Muhlenberg Hospital v. Patterson, 128 N.J.Super. 498, 320 A.2d 518 (N.J.Super.Ct.Law Div.1974); In re Teague, No. 104-212-81886 (Cir.Ct. Baltimore, Md., filed Dec. 4, 1974) (child born with spina bifida); Brown and Truitt, Euthanasia and the Right to Die, 3 Ohio N.U.L.Rev. 615, 632 (1976) (unreported Detroit case in which the court ordered treatment for a Down's syndrome child with duodenal atresia); and In re Obernauer (Juv. and Dom.Rel.Ct., Morris Co. N.J. Dec. 22, 1970) (court ordered treatment for Down's syndrome infant with duodenal atresia).
[26] The Government asserts, however, that authority does exist to support the argument that the privacy interest protected by FOIA survives a person's death. See Kiraly v. Federal Bureau of Investigation, 728 F.2d 273, 277-78 (6th Cir. 1984). Some states even allow recovery in tort for the privacy invasions of dead persons. See 21 Okla.Stat.Ann. ง 839.1 (1983); Donahue v. Warner Bros. Pictures, Inc., 194 F.2d 6 (10th Cir.1952).
[27] The following exchange took place during oral argument on this issue:
THE COURT: Has the Government ever, to your knowledge, notified the Does under the provision of the Privacy Act so as to allow them to assert their private interests personally?
[The Government]: My understanding is that these records are not retrieved by the Does' identity. They are not โ I am not sure whether these records are part of a system of records, as that term is defined under the Privacy Act, or not. But in any case, they are not maintained under the Does' identifiers, so the Does would not be subject individuals for the purposes of the Privacy Act.
(Transcript of Oral Argument, Feb. 3, 1986, at 17.)
[28] A fortiori disclosure is also prohibited by the less stringent balance of Exemption 7(C).
[29] For example, plaintiff's citations to legal commentary and other articles (Plaintiff's Brief at 5-6) to demonstrate inaccuracies in published accounts of the incident are not in the record in this case, and, without a proper foundation, are hearsay in any event. Nor does the plaintiff's reference to editorials from Indianapolis papers calling for the disclosure of medical records, contained in Plaintiff's Supplemental Appendix M, provide any factual basis for believing that those records will serve the public interest.
[30] Plaintiff agrees that the addresses may not be disclosed.
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632 F. Supp. 710 (1984)
Walter F. ROUSH, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
Civ. A. C-2-83-1440.
United States District Court, S.D. Ohio, E.D.
February 8, 1984.
Opinion and Order After Remand September 26, 1985.
Diane E. Hanson, Hanson & Ballam, Columbus, Ohio, for plaintiff.
Asst. U.S. Atty. Joseph E. Kane, Columbus, Ohio, for the U.S.
OPINION AND ORDER
HOLSCHUH, District Judge.
Plaintiff Walter F. Roush brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Secretary of Health and Human Services denying his application for social security disability insurance benefits. This matter is before the Court on plaintiff's motion for summary judgment. In her answer, the Secretary prays for judgment on the administrative record.
Plaintiff filed his first application for social security disability insurance benefits on April 17, 1979 alleging that he became disabled in April, 1973, at age 46, by a back injury. The application was denied administratively. Following a hearing, an administrative law judge issued a decision April 24, 1980 denying the application. On August 19, 1980 the Appeals Council denied plaintiffs request for review and adopted the administrative law judge's decision as the final decision of the Secretary of Health and Human Services.
On October 17, 1980 plaintiff filed a second application for social security disability insurance benefits, again alleging that he was disabled by a back injury. On December 1, 1980 the Social Security Administration *711 issued an initial decision denying the application. Plaintiff did not seek reconsideration.
On October 19, 1981 plaintiff filed this, his third, application for social security disability insurance benefits alleging that he became disabled in April, 1973, at age 46, by back trouble. The application was denied initially and upon reconsideration. Plaintiff requested a de novo hearing before an administrative law judge. On November 17, 1982 plaintiff, represented by counsel, appeared and testified at the hearing. On March 8, 1983 the administrative law judge issued a decision finding that plaintiff was not disabled on or before December 31, 1980, the date plaintiff was last insured under the Act. 42 U.S.C. § 423(a)(1)(A). 20 C.F.R. § 404.115(b). On June 30, 1983 the Appeals Council denied plaintiff's request for review and adopted the administrative law judge's decision as the final decision of the Secretary of Health and Human Services.
Plaintiff Walter Roush was born June 25, 1926. He has a tenth grade education. For 20 years he worked as an assistant engineer on an Ohio river towboat. He repaired engines, mopped the deck, painted, and so forth. He last worked in 1973.
The medical facts of record are set out in the administrative law judge's March 8, 1983 decision which is incorporated herein by reference. The Court will not repeat those facts herein.
This Court's review of the decision of the Secretary is limited to a determination of whether his findings are supported by substantial evidence. 42 U.S.C. § 405(g). Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.1976). It is not the Court's function to resolve conflicts in the evidence or to determine issues of credibility. This is solely the province of the Secretary. Wokojance v. Weinberger, 513 F.2d 210 (6th Cir.1975). Pain alone may be disabling, but the Secretary is not required to fully credit a claimant's subjective complaints of pain and discomfort if there is not "an underlying medical basis" for them. McCann v. Califano, 621 F.2d 829, 832 (6th Cir.1980); Hephner v. Mathews, 574 F.2d 359, 361-362 (6th Cir.1978).
Plaintiff argues in his memorandum in support of his motion for summary judgment that (1) the administrative law judge erred in finding that his insured status expired December 31, 1980 because the Secretary's decision on his first application that he was insured "through at least December 31, 1982" is res judicata and/or collaterally estops the Secretary from asserting that his insurance expired at an earlier date and (2) the administrative law judge mechanically applied the age criteria in a borderline situation in violation of 20 C.F.R. § 404.1563(a).
Section 404.1563 provides that the Secretary will consider age as it "affects your ability to adapt to a new work situation and to do work in competition with others." Disability is not determined on the basis of age alone. Further, the Secretary "will not apply [her] age categories mechanically in a borderline situation." Id. See, Social Security Ruling 82-56, ¶ 14,356, CCH Unemployment Ins.Rptr. at pp. 2499-42 and 2499-43. The effect of a claimant's age is to be determined on an individual basis. Broz v. Heckler, 721 F.2d 1297 (11th Cir. 1983).
Here plaintiff was 54 years, six months old on December 31, 1980. Thus, he was classified as a person closely approaching advanced age, 20 C.F.R. § 404.1563(c), just six months short of advanced age. 20 C.F.R. § 404.1563(d). Since the Secretary found that he was capable of doing work having light exertional demands, the determination that he was a person closely approaching advanced age was outcome determinative of his claim, because under Rules 202.10 and 202.11, 20 C.F.R. Part 404, Subpart P, Appendix 2, Medical-Vocational Guidelines, he was not disabled whereas had he been considered a person of advanced age, he would have been disabled under Rules 202.01 and 202.02, Medical-Vocational Guidelines.
*712 The Court concludes that this is a borderline situation where the administrative law judge should not have mechanically applied the age criteria of the Medical-Vocational Guidelines. Plaintiff had worked one job for a period of 20 years, and he was no longer physically capable of performing that job. Moreover, he had not been employed for seven years, eight months as of December 30, 1980. These factors have an obvious impact on his ability to adapt to a new work situation and to perform work in competition with others. Consequently, this case must be remanded to the Secretary for careful, express consideration of whether Mr. Roush should be considered a person of advanced age for purposes of applying the Medical-Vocational Guidelines.
WHEREUPON, the Court HOLDS that plaintiff's motion for summary judgment is meritorious insofar as it seeks remand to the Secretary for further consideration of his application in light of the Medical-Vocational Guidelines; and, therefore, it is GRANTED to that extent.
This action is hereby REMANDED to the Secretary of Health and Human Services for further consideration of whether plaintiff should be treated as a person closely approaching advanced age or a person of advanced age on or before December 31, 1980.
OPINION AND ORDER AFTER REMAND
Plaintiff Walter F. Roush brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Secretary of Health and Human Services denying his application for social security disability insurance benefits. This matter is before the Court on plaintiff's motion for summary judgment. The Secretary has failed to file a motion for summary judgment as required by the Court's April 2, 1985 Order.
Plaintiff filed his current application for social security disability insurance benefits on October 19, 1981 alleging that he became disabled in April 1973, at age 46, by back trouble. The application was denied administratively by the Secretary. Plaintiff then filed this suit. On February 8, 1984 the Court issued an Opinion and Order remanding the case to the Secretary for further consideration of whether Rules 202.01 and 202.02 of the Medical-Vocational Guidelines should have been applied rather than Rules 202.10 and 202.11. On July 10, 1984 the administrative law judge issued a recommended decision finding that plaintiff is not disabled. On November 14, 1984 the Appeals Council issued a final decision of the Secretary of Health and Human Services denying plaintiff's application for disability insurance benefits.
Plaintiff Walter F. Roush was born June 25, 1926. He has a tenth grade education. For 20 years he worked as an assistant engineer on an Ohio River towboat. He repaired engines, mopped the deck, painted, and so forth. He last worked in 1973.
The Secretary has determined that plaintiff was last insured under the Act on December 31, 1980. See, 42 U.S.C. § 423(a)(1)(A). 20 C.F.R. § 404.115(b). To be entitled to disability insurance benefits, plaintiff must prove that he was disabled on or before December 31, 1980.
Plaintiff was 54 years, six months old on December 31, 1980. The Secretary has determined that he has the residual functional capacity to perform work having light exertional demands. Claimants aged 50 to 54 who have no prior work experience or who have prior unskilled or skilled with no transferrable skills and a limited education are not disabled under Rules 202.10 and 202.11, Medical-Vocational Guidelines. However, persons aged 55 and more with the same characteristics are disabled under Rules 202.01 and 202.02, Medical-Vocational Guidelines.
Section 404.1563 of Title 20 of the Code of Federal Regulations provides that the Secretary will consider age as it "affects your ability to adapt to a new work situation and to do work in competition with others." Disability is not determined on the basis of age alone. Further, the Secretary "will not apply [her] age categories *713 mechanically in a borderline situation." Id. See, Social Security Ruling 82-56, ¶ 14,356, CCH UNEMPLOYMENT INS.RPTR. at pp. 2499-42 and 2499-43. The effect of a claimant's age is to be determined on an individual basis. Broz v. Schweiker, 677 F.2d 1351 (11th Cir.1982), vacated and remanded sub nom., Heckler v. Broz, 461 U.S. 952, 103 S. Ct. 2421, 77 L. Ed. 2d 1311, adhered to, 711 F.2d 957, modified, 721 F.2d 1297 (11th Cir.1983), modified, 725 F.2d 1280 (11th Cir.1984). If the claimant's ability to adapt is less than a level established under the grids, then the Secretary cannot rely upon the age factors under the grid and must look at other evidence to determine the claimant' ability to adapt. Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir.1984).
On remand, the Secretary did not hold a new evidentiary hearing and did not seek out additional vocational evidence. Plaintiff submitted interrogatories answered by a vocational expert who stated that plaintiff's ability to adapt to a new work environment was that of a person aged 55 to 59 with similar education, residual functional capacity, and previous work experience with no transferrable skills.
Substantial evidence. Under the provisions of 42 U.S.C. § 405(g), "[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...." Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)). It is "`more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.1976). The Secretary's findings of fact must be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431 (6th Cir.1985); Houston v. Secretary, 736 F.2d 365, 366 (6th Cir.1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining whether the Secretary's decision is supported by substantial evidence, the Court must "`take into account whatever in the record fairly detracts from its weight.'" Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 464, 95 L. Ed. 456 (1951)); Wages v. Secretry of Health and Human Services, 755 F.2d 495 (6th Cir. 1985).
The Court HOLDS that there is not substantial evidence in the record supporting the Secretary's determination. Plaintiff offered uncontroverted vocational evidence that plaintiff's adaptability was that of a person aged 55 to 59. Consequently, the Secretary should have applied Rules 202.01 and 202.02, Medical-Vocational Guidelines. Those rules direct a finding of disability.
WHEREUPON, the Court HOLDS that plaintiff's motion for summary judgment is meritorious; and, therefore, it is GRANTED.
The decision of the Secretary of Health and Human Services is REVERSED. This action is REMANDED to the Secretary of Health and Human Services with directions to award plaintiff Walter F. Roush social security disability insurance benefits.
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279 Pa. Super. 553 (1980)
421 A.2d 338
John GIANNINI, Margaret Giannini, and Nichole Giannini, a minor, by her parent and natural guardian Margaret Giannini, Appellants,
v.
Stephen FOY and William Foy.
Superior Court of Pennsylvania.
Argued March 18, 1980.
Filed August 1, 1980.
Petition for Allowance of Appeal Denied March 13, 1981.
*554 Allen L. Feingold, Philadelphia, for appellants.
Joseph Kauffman, Media, for appellee.
Before PRICE, CAVANAUGH and WATKINS, JJ.
PRICE, Judge:
Appellants appeal from the May 23, 1979 order of the court of common pleas sustaining appellees' preliminary objections and striking the second, fifth and eighth counts of appellants' complaint.[1] For the reasons stated herein, we quash the instant appeal.
*555 The pertinent facts are as follows. Appellants filed a nine-count complaint in trespass against appellees. The complaint alleged that appellants were injured on March 11, 1978, when an automobile in which they were riding[2] was struck from behind by another vehicle operated by appellee Stephen Foy and owned by appellee William Foy. The first, fourth and seventh counts of the complaint alleged respectively that appellants John Giannini, Margaret Giannini and Nicole Giannini endured pain, suffering, loss of earning capacity, inability to perform usual duties and incurred expenses in excess of those compensable under the Pennsylvania No-fault Motor Vehicle Insurance Act.[3] As a result, they each sought compensatory damages in excess of $10,000. Counts three and six sought damages for loss of consortium, count nine sought damages for loss of services of appellant Nicole Giannini, and counts two, five and eight alleged that appellees acted wilfully, wantonly and maliciously in operation of their motor vehicle, and appellants through their complaint sought punitive damages in excess of $10,000.
In their preliminary objections, appellees moved to strike the three counts that sought punitive damages, to dismiss the complaint, and for more specific pleadings. The court of common pleas, per the Honorable Joseph T. Labrum, Jr., denied appellees' motions for more specific pleadings and to dismiss, but granted the motion to strike counts two, five, and eight of the complaint. The court granted the motion on the ground that appellants' complaint alleged mere conclusions of appellees' malicious conduct without any factual allegations in support thereof. On appeal, appellants contend that the trial court erred in granting appellees' preliminary objection and in failing to grant appellants leave to amend their complaint.
Although neither party has specifically questioned the jurisdiction of this court regarding the instant appeal, the *556 mere agreement of the parties will not vest jurisdiction where it otherwise would not exist. T.C. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). We therefore raise, sua sponte, the issue of appealability of the trial court's order. See Davidyan v. Davidyan, 229 Pa.Super. 495, 327 A.2d 139 (1974).
Under the Judicial Code in effect at the time the instant appeal was filed, this court has jurisdiction over "all appeals from final orders of the courts of common pleas. . . ." Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742 (effective June 27, 1978) (emphasis added). In ascertaining what is a "final order," we look beyond the technical effect of the adjudication and apply practical considerations after examining the ramifications of the order. See Adoption of G.M., 484 Pa. 24, 398 A.2d 642 (1979); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). If an order terminates litigation or disposes of the entire case, it is a final order. Adoption of G.M., supra; T.C. Realty, Inc. v. Cox, supra. Conversely, an order is interlocutory and not final unless it effectively puts the litigant "out of court." Alessandro v. State Farm Mutual Auto. Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979); Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968).
In the instant situation, we conclude that the trial court' order dismissing three counts of appellants' nine-count complaint did not dispose of the entire case or have the practical effect of putting appellants "out of court." The order of the trial court, therefore, must be deemed interlocutory. See Herman v. Harborcreek Township, 458 Pa. 202, 321 A.2d 653 (1974) (order that sustained in part and overruled in part preliminary objections to a complaint is not a final decree). We note, additionally, that the trial court did not certify the appeal to this court, nor is the appeal authorized by statute. See 42 Pa.C.S. § 702. Under these circumstances, we hold that the order of the court of common pleas is a nonappealable interlocutory order.
Accordingly, the appeal from the order of the court of common pleas is quashed as interlocutory.
NOTES
[1] The court of common pleas dismissed appellees' preliminary objections requesting more specific pleadings and a motion to dismiss the entire complaint.
[2] Appellant John Giannini was the operator of the Giannini vehicle.
[3] Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 (40 P.S. §§ 1009.101 et seq.).
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178 Cal. App. 4th 443 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
LUIS VILLA, Defendant and Appellant.
No. C059808.
Court of Appeals of California, Third District.
October 15, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*445 Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ROBIE, J.
A jury found defendant Luis Villa guilty of gross negligence in discharging a firearm, possession of a firearm by a juvenile previously adjudged a ward of the juvenile court, and possession of a loaded firearm in a public place. Defendant was 16 years old at the time of the offense. The trial court sentenced him as an adult to two years in state prison.
On appeal, defendant has four claims: (1) the evidence was insufficient to convict him of gross negligence in discharging a firearm; (2) the two convictions for possession of a firearm are unconstitutional based on the recent United States Supreme Court decision in District of Columbia v. Heller (2008) 554 U.S. ___ [171 L. Ed. 2d 637, 128 S. Ct. 2783]; (3) the trial court abused its discretion in denying his motion to sever; and (4) the trial court prejudicially erred by not holding a hearing to determine if he was fit to be sentenced as an adult. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On or about April 25, 2007, defendant began yelling at and insulting several individuals across the street near his house. The targets of defendant's *446 insults were standing in front of a neighbor's home. After some time, defendant retreated into his house and returned with a large gun. One of the individuals defendant had insulted made a cell phone call. Five to 10 minutes later, codefendants Miguel Hernandez and Juan Cervantes arrived in a black car. Cervantes got out of the car with a handgun and challenged defendant to put down his gun so they could "fight like men." Cervantes and defendant both dropped their guns. At some point, however, defendant picked up his gun and fired it two times. Cervantes picked up his gun and got back into the black car, which then drove off quickly.
Around this time, Deputy Sheriff Kevin Johnson arrived at the end of the street in a marked patrol car and saw the black car reversing at high speed toward his car. The black car slowed and then began to go forward. At that time, Cervantes got partially out of the passenger side window and fired two to three shots. Deputy Johnson activated his sirens and pursued the black car. After a brief pursuit, the black car crashed several blocks away, and Hernandez and Cervantes were arrested.
The prosecutor brought several charges against defendant, including attempted murder. Under Welfare and Institutions Code section 707, subdivision (d)(1), the attempted murder charge allowed the prosecutor to directly file charges against defendant in criminal court rather than petition for a hearing on whether defendant was a fit and proper subject to be dealt with under the juvenile court law. (Welf. & Inst. Code, § 707, subd. (d)(1); see id., § 707, subd. (b)(12).) The prosecutor charged defendant, Hernandez, and Cervantes in the same complaint. Following the preliminary examination, where defendant and his codefendants were held to answer, defendant moved to sever the trials because all three defendants would be claiming self-defense and he argued their defenses were mutually antagonistic. The trial court denied the motion.
Defendant admitted a prior juvenile adjudication for assault with a deadly weapon that made him a ward of the state. The jury found him guilty of (1) gross negligence in discharging a firearm (Pen. Code, § 246.3); (2) possession of a firearm by a juvenile previously adjudged a ward of the juvenile court for assault with a deadly weapon (id., § 12021, subd. (e)); and (3) possession of a loaded firearm in a public place (id., § 12031, subd. (a)). The jury also found Hernandez and Cervantes guilty of several charges; of particular relevance to defendant's appeal, the jury found Cervantes guilty of discharging a firearm from a motor vehicle.
Before sentencing, defendant moved for a hearing on his fitness to be dealt with under the juvenile system. The trial court determined it had the *447 discretion to grant such a hearing but found no need for one because it had considered the probation report and determined it was appropriate to treat defendant as an adult. The trial court sentenced defendant to two years in state prison.
DISCUSSION
I
The Evidence Was Sufficient to Convict Defendant of Grossly Negligent Discharge of a Firearm[*]
II
Defendant's Heller Claims Fail Because Both Statutes in Question Are Constitutional As Applied Here
Defendant argues two of his three convictions are invalid because the statutes under which he was charged violate Heller. Specifically, he contends the prohibition of juvenile possession of a firearm (Pen. Code, § 12021, subd. (e)) and the prohibition of possession of a loaded firearm in a public place (id., § 12031, subd. (a)) violate his Second Amendment right to possess firearms as articulated in Heller. We disagree.
In Heller, the high court addressed the constitutionality of a District of Columbia law prohibiting the possession of all firearms in the district. (District of Columbia v. Heller, supra, 554 U.S. at p. ___ [171 L.Ed.2d at p. 647].) The court analyzed the district's law in light of the Second Amendment and found that an individual has the right to keep and bear firearms. (554 U.S. at p. ___ [171 L.Ed.2d at p. 659].) However, the court recognized this right is not limitless and provided a brief nonexhaustive list of exceptions to the rule of Heller, including the state's ability to prohibit felons from possessing firearms. (Id. at pp. ___ - ___, ___ [171 L.Ed.2d at pp. 659-660, 678].) Further, the court did not address whether this right is applicable to states or if it applied only to the federal government and left this as an open question.[1] (554 U.S. at pp. ___ - ___ [171 L.Ed.2d at pp. 677-678].)
*448 For reasons articulated in People v. Yarbrough (2008) 169 Cal. App. 4th 303, 310-311 [86 Cal. Rptr. 3d 674], defendant has the right to bring this Heller claim, even though he did not raise it in the trial court. Most importantly, defendant's trial predated Heller, making a timely objection impossible. (Yarbrough, at pp. 310-311.) Further, "the issue is still one of law presented by undisputed facts in the record before us that does not require the scrutiny of individual circumstances, but instead requires the review of abstract and generalized legal conceptsa task that is suited to the role of an appellate court." (Id. at p. 310.)
A
The Prohibition of Juvenile Possession of Firearms Is Not Unconstitutional As Applied Here
(1) Defendant contends Penal Code section 12021, subdivision (e) unconstitutionally infringes on his right to bear arms as articulated in Heller. This statute provides that an individual who has committed certain violent and/or serious crimes while a juvenile and who is subsequently determined to be a ward of the state as a result of a violent and/or serious crime is prohibited from possessing firearms until he or she is 30 years old. (Pen. Code, § 12021, subd. (e).) The statute's similarity to Penal Code section 12021, subdivision (c)(1) (prohibition on possession of firearms by misdemeanants), which was upheld against constitutional challenge in People v. Flores (2008) 169 Cal. App. 4th 568 [86 Cal. Rptr. 3d 804], is helpful here.
In Flores, the court upheld the statute against a Heller challenge for several reasons. First, the Flores court found Penal Code section 12021, subdivision (c)(1) to be much narrower than the "broad sweep of the statutes at issue in Heller" because the misdemeanant prohibition concerned itself only with a specific group of people who had committed a specific type of crime. (People v. Flores, supra, 169 Cal.App.4th at pp. 574-575.) Second, the Flores court noted the Heller court recognized an exception to the right to bear arms for convicted felons. (Flores, at pp. 574-575.) And the Flores court did not see any logical reason to not extend this exception to violent misdemeanants because "[t]he public interest in a prohibition on firearms possession is at its apex in circumstances, as here, where a statute disarms persons who have proven unable to control violent criminal impulses." (Id. at p. 575.) Because the predicate crime of the defendant in Flores was violent assault, which showed an inability to contain "violent criminal impulses," the court reasoned that the application of Penal Code section 12021, subdivision (c)(1) to the defendant was particularly appropriate, given the *449 public interest in preventing violent individuals from possessing guns. (Flores, at p. 575.)
Penal Code section 12021, subdivision (e) at issue here has the same purpose as the statute upheld in Flores: to disarm people who have proven an inability to control violent criminal impulses. (See Pen. Code, § 12021, subds. (c)(1), (e).) Therefore, we see no reason to distinguish the two statutes for purposes of a Heller challenge. The prohibition in Penal Code section 12021, subdivision (e) is not a blanket prohibition, as was the case in Heller, and it is narrowly tailored to achieve its result. The statute is further limited in scope because it prohibits possession or use of a firearm only for a specified length of time, until the person reaches 30 years of age. (Pen. Code, § 12021, subd. (e).) Furthermore, the predicate crime here, assault with a deadly weapon, is violent like the predicate crime in People v. Flores, supra, 169 Cal.App.4th at page 575. The similarly violent nature of the predicate crimes means the enforcement of Penal Code section 12021, subdivision (e) when the predicate crime is assault with a deadly weapon will keep firearms out of the hands of people "unable to control violent criminal impulses."[2] (Flores, at p. 575.)
Defendant reasons from In re Michael S. (1983) 141 Cal. App. 3d 814 [190 Cal. Rptr. 585], that a court cannot transform the juvenile conduct into a felony or a misdemeanor; therefore, the exceptions articulated in Heller and Flores are not applicable because those exceptions deal only with felonies and misdemeanors, and defendant's juvenile adjudication cannot be transformed into either a felony or a misdemeanor. (In re Michael S., at p. 817.) That the state has the power, notwithstanding the Second Amendment, to limit the right of certain juveniles to possess firearms based on conduct that would be a crime for an adult does not transform such a person's juvenile adjudication into a criminal conviction. Rather, we merely recognize that the logic for recognizing an exception to the Second Amendment for certain adult criminals extends to certain juvenile offenders as well.
(2) For the above reasons, Penal Code section 12021, subdivision (e), as applied to defendant, is constitutional.
*450 B
Prohibition of Possession of a Loaded Firearm Is Constitutional
(3) Defendant further contends Penal Code section 12031, subdivision (a), is also unconstitutional following Heller; therefore, his conviction under that statute should be reversed. We disagree.
The court in People v. Flores, supra, 169 Cal.App.4th at page 576 found that this statute was constitutional following Heller because it "is so far removed from the blanket restrictions at issue in Heller that its constitutional validity remains undisturbed by the Supreme Court's opinion." (Flores, at p. 576.) Defendant does not offer any rationale for straying from that holding, and so we do not.
III
Refusal to Saver Defendant's Trial Was Not an Abuse of Discretion[*]
IV
Failure to Conduct a Fitness Hearing Required by Penal Code Section 1170.17 Before Sentencing Defendant
Defendant argues the trial court erred in not holding a hearing following his conviction to determine if he was fit to be dealt with under the juvenile court law. Defendant claims Penal Code section 1170.17 entitled him to such a hearing, because although the prosecutor was allowed to try him as an adult since he was charged with attempted murder (see Welf. & Inst. Code, § 707, subds. (b), (d)), he was convicted of only lesser offenses, which could not have been directly filed in adult court. (See Pen. Code, § 1170.17, subds. (b), (c); Welf. & Inst. Code, § 707.) The People agree defendant was entitled to a fitness hearing if requested but contend the trial court's failure to grant such a hearing was harmless. Defendant contends the hearing was required and the harmless error standard does not apply.
*451 A
The Trial Court Erred by Sentencing Defendant Without the Fitness Hearing Required by Penal Code Section 1170.17
Under Penal Code section 1170.17, subdivision (a), "When a person is prosecuted for a criminal offense committed while he or she was under the age of 18 years and the prosecution is lawfully initiated in a court of criminal jurisdiction without a prior finding that the person is not a fit and proper subject to be dealt with under the juvenile court law, upon subsequent conviction for any criminal offense, the person shall be subject to the same sentence as an adult convicted of the identical offense, in accordance with the provisions set forth in subdivision (a) of Section 1170.19, except under the circumstances described in subdivision (b) or (c)."
Here, defendant fell under subdivision (a) of Penal Code section 1170.17 because (1) he was prosecuted for a criminal offense committed while he was a minor; (2) the prosecution was lawfully initiated in criminal court without a prior finding of unfitness to be dealt with under the juvenile court law because he was charged with attempted murder (see Welf. & Inst. Code, § 707, subds. (b)(12), (d)(1)); and (3) he was subsequently convicted of three criminal offenses. Thus, under subdivision (a) of Penal Code section 1170.17, defendant was subject to the same sentence as an adult convicted of the identical offenses (in accordance with the provisions set forth in subd. (a) of Pen. Code, § 1170.19), unless he fell under subdivision (b) or (c) of Penal Code section 1170.17.
(4) Subdivisions (b), (c) of Penal Code section 1170.17 provide different procedures for disposition where the offense of conviction is one that could not have been directly charged in the criminal court, but where the offense, in combination with the defendant's age at the time the offense was committed, would have made the defendant eligible for transfer to the criminal court. Penal Code section 1170.17, subdivision (b) applies where the transfer is subject to "a rebuttable presumption that the person is not a fit and proper subject to be dealt with under the juvenile court law" (italics added) while Penal Code section 1170.17 subdivision (c) applies where the transfer is subject to "a rebuttable presumption that the person is a fit and proper subject to be dealt with under the juvenile court law" (italics added).
To determine if the circumstances described in subdivision (b) or (c) of Penal Code section 1170.17 are present, we must look to Welfare and Institutions Code section 707, which describes the process for determining a minor's fitness to be dealt with under the juvenile court law. Under Welfare and Institutions Code section 707, subdivision (c), a minor 14 years of age or *452 older who commits any of the offenses listed in Welfare and Institutions Code section 707, subdivision (b), is presumed to be unfit for the juvenile system. (Welf. & Inst. Code, § 707, subds. (b), (c).) In all other instances, the fitness determination is made under Welfare and Institutions Code section 707, subdivision (a)(1), where the court may find the minor is unfit to be dealt with under the juvenile court law (which means there is a presumption of fitness). (Welf & Inst. Code, § 707, subd. (a)(1).)
Here, the crimes of which defendant was convicted are not among those listed in Welfare and Institutions Code section 707, subdivision (b). (See Welf. & Inst. Code, § 707, subd. (b).) Thus, the fitness determination with respect to the crimes of which defendant was convicted would have been made under subdivision (a)(1) of Welfare and Institutions Code section 707, pursuant to a presumption of fitness to be dealt with under the juvenile court law, and therefore the circumstances described in Penal Code section 1170.17, subdivision (c) were present here.
Under subdivision (c) of Penal Code section 1170.17, the defendant "shall be subject to a disposition under the juvenile court law, in accordance with the provisions of subdivision (b) of [Penal Code s]ection 1170.19, unless the district attorney prevails upon a motion" and "demonstrates, by a preponderance of the evidence, that the person is not a fit and proper subject to be dealt with under the juvenile court law."
Here, the trial court did not require the district attorney to file and prevail on a motion under Penal Code section 1170.17, subdivision (c), before sentencing defendant in criminal court. Accordingly, the trial court erred.
B
The Trial Court's Error Was Not Shown to Be Prejudicial
Without citation to any authority, defendant argues in his opening brief that the error in sentencing him in criminal court without an "evaluation of [his] suitability to be sent to juvenile court to receive a juvenile disposition" "cannot be harmless." In response (and with an equal lack of any authority), the People argue any error was harmless because the trial court reviewed the probation report and determined defendant was appropriately handled as an adult, and the trial court would have drawn the same conclusion during a fitness hearing. We conclude that the failure to conduct a fitness hearing on a motion by the prosecution under subdivision (c) of Penal Code section 1170.17 is subject to analysis for harmless error and that defendant has failed to carry his burden of showing the error was prejudicial.
*453 (5) The California Constitution dictates that "[n]o judgment shall be set aside . . . in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Our Supreme Court has explained that "a `miscarriage of justice' should be declared only when the court . . . is of the `opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal. 2d 818, 836 [299 P.2d 243].) "To establish prejudice [under Watson], a defendant must show affirmatively that in the absence of the claimed error . . ., a result more favorable to him probably would have ensued." (People v. Gonzalez (2005) 126 Cal. App. 4th 1539, 1549 [25 Cal. Rptr. 3d 124].) Here, defendant has not attempted to show the trial court's error was prejudicial. Defendant argues that the error was not harmless because the statute requires "the probation department to prepare a written social study and recommendation concerning whether the person is a fit and proper subject to be dealt with under the juvenile court law" (Pen. Code, § 1170.17, subd. (c)(2)), and no such report was ever filed, and no fitness hearing was ever held. But this argument simply restates defendant's desired outcome and does not constitute a showing that a result more favorable to him was reasonably probable in the absence of the error because defendant makes no showing that either a fitness probation report or a fitness hearing would have made any difference. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Therefore, defendant's argument fails.
Defendant attempts to avoid a harmless error analysis by analogizing this case to Raul P. v. Superior Court (1984) 153 Cal. App. 3d 294 [200 Cal. Rptr. 360], in which the court held "that a probation department report on the question of fitness, as prescribed by [Welfare and Institutions Code] section 707, subdivision (c), is a jurisdictional prerequisite to a determination of unfitness." (Raul P., at p. 298, italics added.) However, defendant does not explain how the failure to hold a fitness hearing under Penal Code section 1170.17, which occurs at a different time in the proceedings than a fitness hearing under Welfare and Institutions Code section 707, subdivision (c), is jurisdictional. (Pen. Code, § 1170.17; Welf. & Inst. Code, § 707, subd. (c).) Additionally, defendant does not explain how, even if such a failure were jurisdictional in nature, it overcomes the harmless error analysis compelled by the California Constitution. (See Cal. Const., art. VI, § 13.) As a result, we must conclude the trial court's error was harmless absent a showing to the contrary.
*454 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 III of the Discussion.
[*] See footnote, ante, page 443.
[1] Because we find neither statute would violate Heller, we do not reach the question of whether the Second Amendment is incorporated into the due process clause of the Fourteenth Amendment and therefore applies to states.
[2] Since the predicate crime in this case is a violent one, we do not reach the issue of whether a serious yet nonviolent predicate crime, such as witness tampering, would affect the constitutionality of Penal Code section 12021, subdivision (e) under Heller.
[*] See footnote, ante, page 443.
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710 N.W.2d 545 (2005)
MULLEN v. IOWA DIST. COURT FOR ADAMS COUNTY
No. 04-1695.
Court of Appeals of Iowa.
December 21, 2005.
Decision without published opinion. Writ Annulled in Part, Sustained in Part and Remanded.
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968 So. 2d 562 (2007)
PEARCE
v.
STATE.
No. 1D07-0716.
District Court of Appeal of Florida, First District.
November 8, 2007.
Decision without published opinion. Belated App. denied.
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549 A.2d 1133 (1988)
In re AMANDA D., et al.
Supreme Judicial Court of Maine.
Argued June 16, 1988.
Decided October 28, 1988.
L. James Lavertu (orally), Madawaska, for appellant.
James E. Tierney, Atty. Gen., Geoffrey P. Goodwin (orally), Asst. Atty. Gen., Human Services Section, Augusta, for appellee.
John M. Pluto, Van Buren, Guardian Ad Litem.
Before McKUSICK, C.J., and WATHEN, GLASSMAN, CLIFFORD and HORNBY, JJ.
WATHEN, Justice.
Gail B., mother of Amanda D. and Eric D., appeals from a judgment of the District Court (Madawaska, Daigle, J.) terminating her parental rights. 22 M.R.S.A. § 4055 (Supp.1987). On appeal, she challenges the sufficiency of the evidence supporting the order of termination. The State moves for dismissal of the appeal, claiming that the appeal was not perfected in a timely manner. We deny the State's motion and affirm the judgment terminating parental rights.
*1134 We first address the State's motion to dismiss the appeal. An appeal from an order terminating parental rights proceeds directly from the District Court to the Law Court. 22 M.R.S.A. § 4006 (Supp.1987-1988). Although Gail B. did not file a notice of appeal to this Court within the thirty-day time limit, we find a showing of excusable neglect to warrant an extension of time for filing under M.R.Civ.P. 73(a). After entry of the termination order on October 27, 1987, Gail B. filed within thirty days a notice of appeal to the Superior Court. Upon learning of the error shortly after the appeal period expired, she sought relief in the District Court on December 1, 1987, in the form of a motion to amend the notice of appeal to reflect the proper court. In the alternative, she asked that the motion to amend be considered as a motion to extend the period for filing the notice. The District Court declined to entertain the motion. We treat Gail B.'s motion to amend dated December 1, 1987, as a motion for extension of time and a new notice of appeal to this Court as of that date. We find that the record contains a sufficient demonstration of excusable neglect to warrant an extension of time to include the December 1, 1987 notice. We deny the State's motion for dismissal and reach the merits of this case.
Upon review of the merits, however, we find that the District Court had sufficient evidence before it to support its conclusion that the statutory requirements for termination of parental rights were proved to a high degree of probability. See In re Maria C., 527 A.2d 318, 319 (Me.1987); In re John Joseph V., 500 A.2d 628, 629 (Me. 1985). Although the District Court did not issue any separate findings of fact, "[w]hen no findings of fact are made, it is assumed on appeal that the trial court found for the prevailing party on all factual issues necessarily involved in the decision and such assumed findings will not be set aside unless clearly erroneous." Blackmer v. Williams, 437 A.2d 858, 861 (Me. 1981).[1]
After reviewing the record, we find that the District Court had sufficient evidence before it to determine that it was highly probable that Gail B. was unwilling or unable to take responsibility for her children or to protect them from jeopardy in the form of serious neglect, evidenced by lack of supervision or care. 22 M.R.S.A. § 4055(1)(B)(2)(b)(i), (ii) (Supp.1987); 22 M.R.S.A. § 4002(6)(B) (Supp.1987). The record contains evidence that the children were first taken from Gail B. because they were not being adequately fed, nurtured, cared for, or supervised. To deal with this problem, the Department arranged counseling, parenting specialist services, and parent aide services. Despite these attempts, Gail B. showed limited progress with her parenting skills, particularly concerning child safety and supervision. For example, there was testimony that, even after numerous discussions and warnings by the Department and others about the importance of supervision and safety, she allowed the children, then ages 3 and 4, to go unattended down a cellar stairway that had no railing and had a sheer drop to a cement floor and to play in animal feces in the cellar; she allowed Amanda to wander around outside the apartment complex unsupervised; she allowed Eric to play unattended upstairs banging a metal knife on a charged electrical appliance while she watched television downstairs; and on more than one occasion she allowed food to remain unrefrigerated until it decomposed.
Further, the District Court had sufficient evidence to conclude that the conditions were unlikely to change within a reasonable time to meet the needs of her children. 22 M.R.S.A. § 4055(1)(B)(2)(b)(i), (ii). There was testimony that Gail B. lacked the motivation to change because she saw the source of her problems outside of herself and not within herself. There was also *1135 testimony that she did not believe that she needed help with her parenting skills because her behavior was acceptable.
Finally, the District Court had sufficient evidence before it to determine that it was highly probable that termination of parental rights is in the best interests of both Amanda and Eric. 22 M.R.S.A. § 4055(1)(B)(2)(a). In addition to the evidence presented concerning the safety of both Amanda and Eric and their lack of structure while in the custody of the mother, the record also contained evidence that, particularly with Eric, there is a strong need for structure in order to deal with his extremely active and destructive tendencies. Also the District Court could consider the testimony of an independent psychologist that both children have multiple needs that are not being met and that the longer a final resolution is delayed, the greater the degree of risk to the children. In this respect the psychologist testified that the children should be in a permanent stable home environment, at the latest, by the time they are in the school system. Finally, the District Court could consider the preference for placing children in permanent homes. See 22 M.R.S.A. §§ 4003(4), 4050 (Supp.1987). The evidence adequately supports the court's conclusion that termination of parental rights is in the best interest of both Amanda and Eric.
The entry is:
Judgment affirmed.
McKUSICK, C.J., and CLIFFORD and HORNBY, JJ., concurring.
GLASSMAN, Justice, dissenting.
I must respectfully dissent.[1] In the first instance the custody of the children was placed with the Department because of Gail's inability to protect them from jeopardy as defined by 22 M.R.S.A. § 4002(6)(B) (Supp.1987). The uncontroverted testimony of the State's witnesses is that, after the State took custody of Amanda and Eric, the children while with Gail were provided with adequate, nutritious meals and appropriate seasonal clothing, and were generally clean. The court focuses on the three incidents[2] contained in the record as the supporting evidence for the trial court's determination that, because of Gail's lack of supervision of the children while in her temporary custody, she was "unwilling or unable to protect [Amanda and Eric] from jeopardy and these circumstances are unlikely to change within a time which is reasonably calculated to meet the [children's] needs." 22 M.R.S.A. § 4055(1)(B)(2)(b)(i).
I cannot agree that these incidents comprise jeopardy[3] on which the irrevocable termination of a mother's parental rights to her child can be based. Common experience dictates recognition of the fact that in the course of rearing a child there is not a constant of meticulously careful supervision of the child's activities by the person having physical custody of the child. Further, common experience also dictates that isolated incidents of lapses in such supervision do not equate with jeopardy of such a degree as to form the basis for permanent deprivation of a mother's rights of care and *1136 custody of her child. This becomes self-evident from the record of this case. The trial court had before it uncontradicted testimony that while in the foster home selected by the Department Amanda received facial injuries inflicted by a bite from a dog owned by the foster family and both Eric and Amanda, on different occasions, were seriously burned from hot coffee. It seems a fair conclusion, there being no evidence to the contrary, that a probable contributing cause to these injuries was a lapse in the supervision of the children.
Nor can I agree with the court that there was sufficient evidence before the trial court to determine it was highly probable that termination of parental rights is in the best interests of both Amanda and Eric. 22 M.R.S.A. § 4055(2) (Supp.1987)[4] sets forth those factors that the court shall consider in determining whether to terminate parental rights to a child, with no indication but that these factors should be given equal weight in arriving at that determination.
Although the court in its opinion relies heavily on the desirability that the children be permanently placed, there is no evidence in the record of any such plan for the children. There is no evidence that the children had any emotional attachment to any person other than their mother, that the children would be able to integrate into a substitute placement, or of the emotional needs of the children. There is the testimony of the court-appointed psychologist, the Department caseworkers, and a neighbor to Gail, all of whom had observed the interaction of Gail and her children, of the bond of affection and attachment between the children and their mother. Certainly, in considering "the needs of the children," pursuant to section 4055(2), the State should be required to demonstrate by clear and convincing evidence that the consequence to the children of permanently removing from their lives the sole person with whom they are emotionally bonded will not be as severe as allowing the status quo to be maintained.
Accepting all the assumed findings of the trial court on which this court relies, I conclude that the requirements for termination of parental rights have not been met. 22 M.R.S.A. § 4055(1)(B)(2)(a), (b)(i), (ii) (Supp.1987). Accordingly, I would vacate the judgment.
NOTES
[1] We note that, although the District Court is not required to issue findings of fact under M.R.Civ.P. 52(a) unless requested by a party, the prudent procedure in parental termination cases is to find the facts separately so as to better inform the parties and this Court of the basis for its decision. See 1 Field, McKusick & Wroth, Maine Civil Practice § 52.1 at 684 (2d ed.1970). Cf. In re Sabrina M., 460 A.2d 1009, 1013 (Me.1983).
[1] I join with the court in emphasizing the desirability of having detailed findings of facts in parental termination cases. It would seem the parties would prefer that this court's review for clear error by the trial court be based on the actual findings of that court rather than the "assumed" findings.
[2] In regard to the incident recited in the court's opinion of Eric "banging a metal knife on a charged electrical appliance," the record reveals that a Department caseworker testified that Eric was once found in his room banging a butter knife on a radio or clock radio.
[3] 22 M.R.S.A. § 4002(6)(B) (Supp.1977), as applicable to the instant case, defines jeopardy as "serious abuse or neglect, as evidenced by: Deprivation of ... supervision or care ... when that deprivation causes a threat of serious harm." Serious harm is defined in section 4002(10) as:
A. Serious injury;
B. Serious mental or emotional injury or impairment which now or in the future is likely to be evidenced by serious mental, behavioral or personality disorder, including severe anxiety, depression or withdrawal, untoward aggressive behavior, seriously delayed development or similar serious dysfunctional behavior; or
C. Sexual abuse or exploitation.
[4] Section 4055(2) provides:
In deciding to terminate, the Court shall consider the needs of the child, including the child's age, the child's attachments to relevant persons, periods of attachments and separation, the child's ability to integrate into a substitute placement or back into his parent's home and the child's physical and emotional needs.
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280 Pa. Super. 344 (1980)
421 A.2d 755
Donald H. ROLLMAN, Appellant,
v.
Lillian K. ROLLMAN.
Superior Court of Pennsylvania.
Argued December 3, 1979.
Filed September 26, 1980.
*345 *346 *347 William Runyeon, Reading, for appellant.
Lynn E. Stock, Reading, for appellee.
Before PRICE, HOFFMAN and WATKINS, JJ.
*348 WATKINS, Judge:
This is an appeal by the appellant-husband, Donald H. Rollman, from the order of the Court of Common Pleas of Bucks County, Civil Division, dismissing appellant's complaint in divorce.
Plaintiff and defendant, husband and wife, were married on September 19, 1959, in Reading, Pennsylvania. After each of the parties had filed and subsequently withdrawn several divorce actions against each other, the plaintiff-husband initiated the instant divorce action against his wife on September 30, 1975. In his divorce complaint plaintiff alleged indignities to the person as grounds for his divorce. Defendant-wife contested the divorce action and extensive masters' hearings were held thereon. On September 22, 1978 the Master filed his report with the court recommending that plaintiff be granted the divorce. Defendant filed exceptions to the Master's Report and, after argument thereon, the Court of Common Pleas sustained two of defendant's exceptions to the report and dismissed the plaintiff's Complaint via an order dated May 8, 1979. Plaintiff now appeals the lower court's May 8, 1979 Order.
The testimony produced by plaintiff at the various Master's Hearings, and accepted as credible by the Master, indicated that defendant had verbally abused the plaintiff over a long period of time, had referred to him as a "nigger lover", "son-of-a-bitch", "whore lover" and other vile names, had refused to engage in sexual relations with the plaintiff for five months prior to their separation, had embarrassed the plaintiff in front of their relatives and friends, on numerous occasions, and had physically abused the plaintiff on several occasions. The Master found that this conduct on defendant's part amounted to indignities to the person, that plaintiff did nothing to justify defendant's conduct, and that therefore plaintiff was the injured and innocent spouse and was entitled to a divorce. The court below, in refusing to accept the Master's recommendation, held that the "plaintiff's credible evidence although some-what weak, is sufficient to sustain the Master's conclusion *349 that defendant did commit indignities to the person of the plaintiff" but also held that plaintiff was not an "injured and innocent spouse" and therefore was not entitled to the divorce.
While no general rule can be formulated as to what constitutes indignities in a particular action for divorce it has been held many times that vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule and any other plain manifestation of settled hate and estrangement are sufficient grounds for divorce as they, either individually or collectively, amount to indignities to the person. Schrock v. Schrock, 241 Pa.Super. 53, 359 A.2d 435 (1976). We agree with the Master and the court below both of whom held that the above-described conduct of the defendant did constitute indignities to the person of the plaintiff as it made his life burdensome and his condition intolerable. The issue is whether the court below was correct in denying the divorce because the plaintiff's conduct was such that he was not an injured and innocent spouse.
If both parties to a divorce action are nearly equally at fault so that neither party can clearly be found to be the injured and innocent spouse, a divorce will not be granted to either of them. Mintz v. Mintz, 258 Pa.Super. 187, 392 A.2d 747 (1978). However, to be the injured and innocent spouse, for purposes of a divorce, a party need not be totally free from fault. Rensch v. Rensch, 252 Pa.Super. 294, 381 A.2d 925 (1977). This is especially so in a situation where the conduct of the party seeking the divorce was provoked by the other spouse. Rhinehart v. Rhinehart, 197 Pa.Super. 558, 180 A.2d 82 (1962).
The court below found that plaintiff's conduct was such that he could not be said to be the injured and innocent spouse because evidence was produced at the Master's Hearing tending to show that he would go out drinking on the average of once every other week and that his drinking became a major problem in their marriage in that plaintiff would often talk loudly to defendant and her son when he *350 came home from drinking and make humiliating and degrading statements to her especially about her weight. While intemperance and drunkenness does not excuse a party from improper conduct it is not, in and of itself, a ground for divorce. Cowher v. Cowher, 172 Pa.Super. 98, 91 A.2d 304 (1952). And while habitual drunkenness may be relevant evidence in a divorce action since it tends to establish the regard (or lack of it) which the spouse has for the other spouse it is also not in and of itself, a sufficient ground to deny a divorce to a spouse if the conduct of the other spouse is so severe that it contributed to or provoked the excessive drinking. In the instant case it was merely established that the plaintiff would go out drinking once every two weeks. This evidence certainly did not amount to habitual drunkenness. Thus we must turn to other conduct of the plaintiff to determine whether his conduct towards defendant was such that he should have been denied a divorce.
The defendant testified that plaintiff would often use humiliating and abusive language towards her, especially abusing her about her overweight condition, that her conduct towards the plaintiff was provoked by his drinking and his poor work habits, and that he told her he was seeing other women during their marriage. On one occasion he had his paycheck stolen by a prostitute, although there was no evidence to show that he had had sexual relations with her. In any event, plaintiff presented much testimony indicating that the defendant had rejected him sexually and he denied that he had ever had sexual relations with another woman prior to the parties' separation. Plaintiff admitted that he had argued and fought with defendant on occasion but his testimony indicated that his drinking was not the cause of the parties' marital problems but, in fact, he began to drink more heavily because of the defendant's conduct towards him. In short both parties presented sufficient testimony to the effect that the other was at fault for their domestic difficulties. In his Master's Report the Master specifically stated that he found plaintiff's testimony to be credible. The issue of credibility of witnesses in a divorce case is not *351 entirely to be resolved by the Master. The court has the duty to make a complete and independent review of all the evidence presented in a divorce action. This includes a complete review of the weight and credibility to be accorded to the testimony of the witnesses. Riley v. Riley, 246 Pa.Super. 265, 369 A.2d 1314 (1976). The reviewing court must examine the record in detail so as to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias and interest, opposition to incontrovertible physical facts, patent falsehoods, and other factors by which credibility may be ascertained. Ryave v. Ryave, 249 Pa.Super. 78, 375 A.2d 766 (1977). However, where the issue is one of credibility and the Master is the one who heard the testimony and observed the demeanor of the witnesses the reviewing court must give his findings regarding credibility the fullest consideration. Schrock v. Schrock, supra; Ryave v. Ryave, supra. In the instant case the court below recognized these principles and conducted a searching review of the record. In certain instances it finds that the plaintiff's testimony was "shaken" by the testimony of the defendant and the testimony of defendant's sister-in-law and plaintiff's mother in that they all testified that plaintiff admitted to them that the prostitute had stolen his paycheck. The court held that the involvement with the prostitute contradicted defendant's claim that he had never had sexual relations with another woman prior to the separation of the parties. We do not agree. Even if accepted as true, the testimony of defendant and the other witnesses merely showed that plaintiff had intended to engage the services of the prostitute but that she had stolen his paycheck prior to any illicit activities having occurred. While this was surely relevant evidence tending to show plaintiff's attitude towards the marriage and the defendant, this single incident, even if true, would not be sufficient, standing alone, to deprive plaintiff of his standing of being the injured and innocent spouse, in light of the defendant's conduct towards plaintiff, and in light of the fact that plaintiff denied having illicit sex prior to the separation and the Master found his testimony credible.
*352 Because the Master found plaintiff's testimony to be credible and because plaintiff's testimony, if believed, would render him the injured and innocent spouse and because a review of the record fails to establish the type of inherent inconsistencies and contradictions which would improve the threat of plaintiff's testimony we find that the court below failed to give the fullest consideration to the Master's findings regarding credibility. As such we find that plaintiff is the injured and innocent spouse.
Defendant raises several questions regarding the state of the transcript. At one point plaintiff's attorney objected to a question proposed to defendant by defendant's attorney and the Master sustained the objection which defendant argues was an incorrect ruling. However, a review of the record reveals that defendant's attorney rephrased her question and the information sought of the witness was elicited. No reversible error occurred here. On another occasion, defendant's attorney objected to a question asked of defendant on cross-examination, by plaintiff's attorney and the Master made no ruling thereon. However, the record reveals that the question was never answered by defendant and plaintiff's attorney then asked defendant another question, abandoning the original question. No error occurred here. Finally defendant's attorney argues that the transcript is incomplete and that a hearing was held before the Master prior to the one of February 21, 1977, the hearing transcript of which is missing. On February 21, 1977 the Master began the hearing and permitted plaintiff's attorney to begin "the matter of the indignities" without first eliciting the usual preliminary information. However, on March 2, 1977 the second hearing was held at which this information was elicited. Defendant's attorney was not present at this hearing which had been set up for 4:00 P.M. by the Master. The time and date of the second hearing was set by the Master, on the record, after the first hearing. The second hearing began on the appointed date at 4:21 P.M. after giving defendant's attorney ample time to appear. A review of the entire record reveals a record which appears to be complete. Both plaintiff and defendant had the opportunity *353 to testify, cross-examine each other through counsel, and present their own witnesses. The testimony elicited at the March 2, 1977 hearing was basically background information and did not provide the dominant reasons behind the Master's finding on indignities. In addition the defendant, in claiming in her brief that part of the record is missing, fails to allege what was said at such hearing and how it would affect the outcome of the case. Under these circumstances considering the apparent completeness of the transcripts, we will not remand this case in order to produce a transcript that may not exist. In all likelihood, the "missing" transcript may be the one of the March 2, 1977 hearing at which hearing defendant's attorney did not appear. Because the testimony produced at that hearing did not constitute the most important part of plaintiff's cause of action we hold that defendant was not prejudiced by her counsel's failure to appear by said hearing.
Order of court below reversed and divorce awarded to the plaintiff.
PRICE, J., notes dissent.
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632 F. Supp. 256 (1986)
Thomas DOYLE, Plaintiff,
v.
William BROCK, Defendant.
Civ. A. No. 85-0616.
United States District Court, District of Columbia.
March 4, 1986.
*257 Paul Alan Levy, Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., for plaintiff.
Joseph E. DiGenova, U.S. Atty., Royce C. Lamberth, Asst. U.S. Atty., John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., for defendant.
MEMORANDUM OPINION
BARRINGTON D. PARKER, Senior District Judge:
Section 402(b) of the Labor-Management Reporting and Disclosure Act ("LMRDA" or "Act"), 29 U.S.C. § 482(b) (1982), gives the Secretary of Labor authority to file civil actions challenging union elections already conducted "if he finds probable cause to believe that a violation of [the Act] has occurred and has not been remedied." Section 403 makes that authority exclusive. 29 U.S.C. § 483.
Plaintiff Thomas Doyle protests the Secretary's decision not to challenge and seek to overturn a June 1984 election held by Local 6 of the International Brotherhood of Electrical Workers ("Local 6"). Doyle seeks relief from this Court directing the Secretary either to commence a civil action on his behalf against the union or to provide a more satisfactory Statement of Reasons for his decision not to do so. Before the Court are the parties' cross-motions for summary judgment.
After considering the legal memoranda and the supporting documentation submitted by counsel, and for the reasons set out below, the Court determines that the plaintiff is entitled to summary judgment.
BACKGROUND
In May of 1984, plaintiff Doyle was nominated as a candidate for the Executive Board of Local 6. However, he was ruled ineligible as a candidate because of a bylaw provision that a nominee must attend at least one-half of the regular meetings held *258 in the year preceding the nominations.[1] It was determined from an attendance register that Doyle had attended only two meetings in the preceding year and thus was ineligible. Alleging that he had actually attended more than the required number of meetings, even though he had not signed the register, Doyle first pursued internal union remedies. He then filed a complaint with the Secretary of Labor.
After an investigation, the Secretary declined to file suit on Doyle's behalf, announcing his decision in a Statement of Reasons issued in December 1984. Doyle's counsel then requested the Secretary to reconsider his decision. On February 15, 1985, Richard Hunsucker, Director, Office of Elections, Trusteeships and International Union Audits of the Department of Labor ("DOL"), responded to and denied the request on behalf of the Secretary ("Hunsucker letter"). This lawsuit, filed on February 20, 1985, was a response to the Secretary's decision.
DISCUSSION
I. The Standard of Review
Unlike many agency decisions relating to enforcement or prosecutorial action, the Secretary of Labor's decision whether to file suit under section 402 of the LMRDA is not immune from judicial review. See Heckler v. Chaney, ___ U.S. ___, 105 S. Ct. 1649, 1657, 84 L. Ed. 2d 714 (1985). In Dunlop v. Bachowski, 421 U.S. 560, 95 S. Ct. 1851, 44 L. Ed. 2d 377 (1975), the Supreme Court held that the Secretary's disposition of a union member's complaint should be reviewed under the "arbitrary and capricious" standard of section 706(2)(A) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). The majority found, however, that while the intent of the LMRDA was not to preclude altogether judicial review of the Secretary's action, a court cannot simply substitute its judgment for the Secretary's. The Secretary is required only to provide a concise "statement of reasons" supporting his decision not to file suit such that a reviewing court can determine if there is a rational and defensible basis for the decision. "[T]he court's review should be confined to examination of the `reasons' statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." 421 U.S. at 572-73, 95 S.Ct. at 1860-61. Accordingly, a trial-type hearing on challenges to the factual bases of the Secretary's decision is not permitted. But the statement of reasons must be sufficient "to enable a court to determine whether the Secretary's decision was reached for an impermissible reason or no reason at all." Id. 421 U.S. at 573, 95 S. Ct. at 1861; Accord Donovan v. Local 6, Washington Teacher's Union, 747 F.2d 711, 715 (D.C. Cir.1984).
Before turning to the merits of Doyle's challenge under this standard, it is appropriate to consider what might be termed an evidentiary dispute. The Secretary argues that the standard of review outlined in Bachowski, characterized by our Circuit Court as "much narrower than applies under [§ 706(2)(A) of the APA]," Usery v. Local Union No. 639, International Brotherhood of Teamsters, 543 F.2d 369, 378 (D.C.Cir.1976), cert. denied, 429 U.S. 1123, 97 S. Ct. 1159, 51 L. Ed. 2d 573 (1977), precludes the trial court from considering the findings and recommendations of the Secretary's investigators.[2] This interpretation stretches the cautionary language of Bachowski too far.
*259 Bachowski requires the trial court to scrutinize the reasons for the Secretary's decision but prohibits the challenge of factual findings that led to that decision. In this way, it provides a narrower task than in many administrative cases where factual findings may be overturned if not supported by substantial evidence. See 5 U.S.C. § 706(2)(E). Bachowski does not, however, limit the materials that a court may consider in reaching its determination, at least to the extent suggested by the government. For example, in a recent ruling Donovan v. Local 6, supra, our Circuit Court reviewed under the Bachowski standard the Secretary's decision to certify a union election as valid. An unsuccessful candidate claimed that insurgent candidates had been prevented from distributing campaign literature and gathered "numerous affidavits" recounting specific examples of such incidents. The Circuit Court found insufficient the Secretary's statement of the reasons for his decision to certify the election in spite of these incidents. It held that the Secretary had not offered a satisfactory explanation for his decision not to credit the affidavits. Thus, the statement of reasons was evaluated not in a vacuum but in light of the evidence available to the Secretary and the court. See Donovan v. Local 6, 747 F.2d at 718-19.
A similar situation is presented here. The investigative findings of the DOL were available to and utilized by the Secretary when he decided against pursuing Doyle's complaint. It is proper for this Court to consider them in determining the sufficiency of the reasons advanced in support of the decision. They will help determine whether the statement of reasons is internally consistent and rational. See Balanoff v. Donovan, 549 F. Supp. 102, 107 & n. 10 (N.D.Ill.1982).
II. The Merits
Doyle challenges the Secretary's two statements of reasons[3] explaining the decision not to file suit on a number of grounds. First, noting that the meeting attendance bylaw which prohibited his candidacy excludes 97 percent of the membership from nomination, he argues that the statements fail to explain rationally the refusal to file suit since a bylaw having such an effect is not a reasonable qualification for union office and is therefore unlawful under section 401(e) of the LMRDA, 29 U.S.C. § 481(e).[4] Furthermore, the statements do not, and cannot, under current case law, identify a legitimate purpose of the bylaw that outweighs its anti-democratic effect.
Doyle next argues that the Secretary failed to explain adequately his decision allowing the union to base the disqualification solely on the attendance roster. He claims that Local 6 was required under the Secretary's own regulations to expressly state in its bylaws the means of determining candidate eligibility, and that the statements do not adequately explain the Secretary's conclusion that he could not carry the burden of proof on the question of whether Doyle actually attended enough meetings to qualify for nomination. Finally, Doyle criticizes the Secretary's cursory attention in the Department's statements to the discriminatory application of the sign-in requirement and excuse provisions to rank and file members as opposed to Local 6 officers.[5]
*260 In response, the Secretary relies primarily on the narrow Bachowski standard of review and contends that the statements of reasons adequately explain the final decision not to file suit and that the decision was rational under the circumstances. The Court must, therefore, consider the law applicable to Doyle's challenges and determine whether the Secretary's statements are indeed a rational response to them.
A.
Doyle's first argument turns essentially on a single question: Can the meeting attendance requirement, when viewed together with the "liberal" excuse provision, be a "reasonable qualification" for union office under section 401(e) of the LMRDA, when it has the effect of excluding 97 percent of the members from pursuing a candidacy? If the answer to this question is "no," then the decision not to file suit was arbitrary and irrational. If the answer is "yes," then the statements of reasons must provide a cogent explanation for that answer.
As the Supreme Court and the courts of appeals have often stated, the "reasonable qualifications" language of the Act is not to be given broad reach. See, e.g., Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 309, 97 S. Ct. 611, 614, 50 L. Ed. 2d 502 (1977) (quoting Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 499, 88 S. Ct. 1743, 1748, 20 L. Ed. 2d 763 (1968)); Donovan v. Local Union No. 120, Laborers' Int'l Union of North America, 683 F.2d 1095, 1102 (7th Cir.1982). This is because Title IV of the Act was intended to guarantee free and democratic union elections, modeled on our national political elections. The prevention of corruption and abuses of union power by the leadership, the overriding purpose of the Act, is best accomplished through such free elections. Steelworkers, 429 U.S. at 309-10, 97 S. Ct. 614-15. The reasonableness of any qualification for candidacy must be measured against the legislative purposes of the LMRDA. Local Union No. 120, 683 F.2d at 1102.
Meeting attendance requirements, such as contained here in the Local 6 bylaw, are frequently imposed as a qualification for elective office. The usual purported justification for such requirements is that they ensure that candidates will be properly informed on issues of importance to union governance. However, in Steelworkers this justification was specifically questioned: "[T]he election provisions of the LMRDA express a congressional determination that the best means to this end is to leave the choice of leaders to the membership in open democratic elections, unfettered by arbitrary exclusions." 429 U.S. at 312, 97 S.Ct. at 616. See also Donovan v. Sailors' Union of the Pacific, 739 F.2d 1426, 1429-30 (9th Cir.1984), cert. denied, ___ U.S. ___, 105 S. Ct. 1866, 85 L. Ed. 2d 160 (1985), ("[Congress intended] that the good judgment of union members in casting their votes should be the primary determinant of whether a candidate is qualified for office."). When meeting attendance rules disqualify a large portion of the membership from running for office, it is particularly difficult to find that they are consistent with the goal of free and democratic elections. In such cases, the requirements have failed to encourage attendance, the supposed reason for their existence, and they arbitrarily and severely "restrict[] the free choice of the membership in selecting its leaders." Id. 429 U.S. at 310, 97 S. Ct. at 615. Courts have consistently struck down not only meeting attendance requirements, but also other election bylaws that exclude the major portion union's membership. Donovan v. Illinois Education Ass'n, 667 F.2d 638, 641 (7th Cir.1982) ("We have found no recent decision upholding a candidacy qualification that excluded a majority of the union's membership, however reasonable the qualification may have seemed.").[6]
*261 The Secretary's investigation of the challenged bylaw revealed that only 3 percent of the membership was eligible for nomination. Even though the area administrator for the DOL's San Francisco office recommended that this fact alone justified filing suit,[7] the Secretary's Statement of Reasons doesn't mention it at all. The Statement simply says: "The local's meeting attendance rule is reasonable on its face, particularly in view of the liberality of the excuse provisions." Statement at 2. Doyle's counsel noted the obvious inadequacy of this comment in his letter requesting reconsideration. In response, the Hunsucker letter states: "If the Department concluded that the rule is reasonable, it will not initiate litigation solely because the rule's effect is to disqualify a vast percentage of the membership from running for union office." Hunsucker letter at 1.
Absent from the response is a precise explanation of how the DOL concluded that the rule was reasonable under applicable case law, especially given the following language from Steelworkers: "[A]n attendance requirement that results in the exclusion of 96.5 percent of the members from the candidacy for union office hardly seems to be a `reasonable qualification' consistent with the goal of free and democratic elections." Steelworkers, 429 U.S. at 310, 97 S. Ct. at 615. The only indications of the Secretary's reasoning come from the brief mention in the original Statement of the liberal excuse provision of article III, section 9(g) of the bylaws, and the reference in the Hunsucker letter to DOL regulations stating that the reasonableness of a meeting attendance requirement is determined through a consideration of all of the circumstances of a particular case. See 29 C.F.R. § 452.38 (1985). It appears, therefore, that the Secretary decided the qualification in this case was reasonable because of the excuse provision.
It is true that the "nature, availability and extent of excuse provisions" is mentioned in the regulations as a factor that will influence the Secretary's view of a meeting attendance requirement. Id. The courts, however, have never accepted the argument that liberal excuse provisions can save requirements that exclude the greater part of a union's membership. In Marshall v. Local 1402, International Longshoremen's Ass'n of Tampa, Florida, 617 F.2d 96 (5th Cir.1980), for example, a union argued that a meeting attendance bylaw that resulted in the disqualification of nearly 94 percent of its membership was nonetheless reasonable because to get credit for attendance, a member need only call the union office in advance of the meeting. Rather than distinguishing the case from Steelworkers, the court held, the liberal excuse provision undermined the only possible legitimate purpose asserted on behalf of the bylaw. If a member can get credit for attendance so easily, the bylaw can scarcely be said to encourage meeting attendance and therefore a familiarity with union affairs. 617 F.2d at 98; see also Usery v. Local Division 1205, Amalgamated Transit Union, 545 F.2d 1300, 1304 n. 3 (1st Cir.1976).
When presented with this argument in the plaintiff's reconsideration request, the Secretary responded not by relying on contrary legal authority, but rather by citing cases from a summary sheet of DOL investigations of other complaints, some of which involved meeting attendance requirements that excluded the vast majority of union members. The summaries indicate that many of these investigations were terminated without the filing of a lawsuit because of liberal excuse provisions. Simply because the Secretary was following his own "precedent," however, does not make his decision rational. Indeed, there is no indication that decisions not to file suit on the basis of these other complaints were *262 challenged in, much less upheld by, the courts.
The simple fact is that even though the liberal excuse provision in this case may have been intended to ensure broad eligibility for union office, it failed to do so. Even with the provision, of which the members were supposedly aware, 97 percent of the membership was ineligible to run for office. Given that every recorded court decision in cases involving the exclusion of that high a percentage of members points in only one direction, and that the statement of reasons offer no rational explanation for why this case is any different, the Secretary's decision not to move to overturn the election can only be viewed as so irrational as to be arbitrary and capricious.[8]
B.
The second group of arguments presented by the plaintiff concern the decision of Local 6 to determine presence at meetings only by reference to written attendance rosters and the application of the excuse provision to the rank and file members as opposed to officers. In view of the resolution of the more general challenge to the meeting attendance requirement, a detailed analysis of these more specific claims is unnecessary. Indeed, this Court believes the first of these specific challenges is more than sufficient to find the statements of reasons arbitrary and capricious.
Article III, § 9(f) of the bylaws requires that potential candidates "attend" at least one half of the regular Union meetings in the twelve month period preceding nominations. In ruling that Doyle was an ineligible candidate based on this bylaw, Local 6 relied solely on the attendance rosters made available for members to sign during the meetings.
The regulations promulgated concerning "reasonable qualifications" for union office under 29 U.S.C. § 481, provide in part:
An essential element of reasonableness is adequate advance notice to the membership of the precise terms of the requirement. A qualification which is not part of the constitution and bylaws or other duly enacted rules ... may not be the basis for denial of the right to run for office.... [Qualifications] must contain specific standards of eligibility by which any member can determine in advance whether or not he is qualified to be a candidate.
29 C.F.R. § 452.53 (1985) (emphasis added). The specific requirement that notice must be given to the membership through publication in the bylaws or other duly enacted rules is consistent with the admonition in Steelworkers that the purposes of the LMRDA transcend the interests of an individual union member. See 429 U.S. at 309, 97 S. Ct. at 614. Thus, the necessity of general advance notice of a requirement is not alleviated by a particular individual having notice.
The Secretary's Statement barely mentions the decision of the Union to rely only on the sign-in registers. It provides only:
[T]he local did not violate its own constitution and bylaws or the Act by relying on its records, rather than recollections of members about who attended meetings. As the complainant had signed the meeting attendance roster on two occasions he was aware of the need to sign in at meetings he attends.
Statement at 2. Whether the Union violated its own bylaws is not the issue raised by the reliance on its written records only; the issue is whether such reliance violated the "reasonable qualifications" language of the LMRDA as interpreted by the DOL's regulations. *263 Doyle's personal awareness of the requirement has no relevance to this issue.[9]
While the meeting attendance requirement in this case was published as a bylaw, the requirement that a member sign the register at each meeting to demonstrate attendance was not. The "precise terms" of the meeting attendance requirement were thus not made known in advance. A member who actually attended the required number of meetings could not determine with certainty his or her eligibility without knowing of this additional unpublished requirement.
An agency's application of its own regulations is usually entitled to deference, but there are limits to that deference. Agency action inconsistent with the regulations must be overturned. Shepard v. Merit Systems Protection Board, 652 F.2d 1040, 1043 (D.C.Cir.1981). The meeting attendance requirement as applied by the Union was "unreasonable" under the Department's own regulations. Ignoring Doyle's challenge to the requirement on this basis was irrational and arbitrary.
III. Remedy
Bachowski indicates that when a district court believes that a statement of reasons is inadequate, it may require that the Secretary furnish additional and satisfactory justification for not filing suit on behalf of a complaining union member. 421 U.S. at 574, 95 S.Ct. at 1861. At a certain point, however, no statement of reasons can justify the decision not to file suit; in such cases the decision is arbitrary and capricious and must be overturned. See id. 421 U.S. at 575, 95 S. Ct. at 1861.
The appropriate remedy, however, presents a difficult problem. Plaintiff suggests that an order be entered directing the Secretary to initiate suit. This would be an unusual and troubling step, involving complex issues not resolved in Bachowski, 421 U.S. at 575 & n. 12, 95 S. Ct. at 1862 & n. 12, or subsequent cases. See Sadlowski v. Marshall, 464 F. Supp. 858, 863-64 (D.D.C. 1979); Note, Dunlop v. Bachowski and the Limits of Judicial Review Under Title IV of the LMRDA, 86 Yale L.J. 885, 900-03 (1977). These issues would be best considered with the benefit of the views of counsel for the parties. The Secretary is therefore directed either to initiate suit in accordance with the plaintiff's request or provide a supplemental statement of reasons for not doing so. Balanoff v. Donovan, 569 F. Supp. 962, 966 (N.D.Ill.1983). If the Secretary decides not to bring suit, the parties will be asked to brief the issue of the appropriate remedy.
Under the facts and circumstances presented thus far, it appears unlikely that a rational and acceptable explanation for not bringing suit can be advanced. If such cannot be done, the Secretary should reconsider his decision in light of this opinion and avoid further delay or judicial intervention by "proceed[ing] appropriately without the coercion of a court order." Bachowski, 421 U.S. at 576, 95 S. Ct. at 1862. The Court's concern is that the purposes of the LMRDA not be frustrated by "endless litigation concerning the sufficiency of the written statement." Id. 421 U.S. at 575, 95 S. Ct. at 1861. It would not be appropriate to allow recalcitrance to succeed where rational decisionmaking cannot. State Farm Mutual Auto Insurance v. Department of Transportation, 680 F.2d 206, 241 (D.C. Cir.1982), vacated on other grounds sub nom. Motor Vehicle Manufacturers' Ass'n v. State Farm Mutual Auto Insurance, 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).
An appropriate order will be entered in accordance with this opinion.
*264 EXHIBIT A
June 19, 1985
Statement of Reasons For Denying the Complaint of Thomas Doyle Concerning the Election Conducted By Local 6, International Brotherhood of Electrical Workers On June 20, 1984 San Francisco, California
The investigation conducted pursuant to the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 401 et seq. (Act), disclosed the following with respect to the matters alleged by the complainant in his protest to the union and his complaint to the Secretary of Labor.
The subject local conducted its regular triennial election of officers on June 20, 1984. The complainant was a candidate for Delegate to the International Convention of the International Brotherhood of Electrical Workers (the International). Because the International's officers will be elected at the convention, Title IV of the Act applies to the election of delegates. The complainant also sought to be a candidate for a position on the local's Executive Board, an officer position for purposes of the Act.
In a handwritten note dated May 21, 1984 and left at the local's office, the complainant asked to be informed in writing of the appeals process available to him to protest his disqualification from the ballot. In a letter to the complainant dated May 22, 1984, Mr. Franz E. Glen, the local's Business-Manager/Financial Secretary, informed him that there was no appeals process. The International's Constitution contains no specific provisions for election protests, however, Article XVII, Sections 12-16 provide a general "appeals" procedure. Clearly, these sections apply to disputes about local union elections, along with other kinds of disputes between a local and its members.
The nominations meeting for the subject election was conducted on May 9, 1984. The complainant sought to be a candidate for the Executive Board but was disqualified based upon the local's meeting attendance rule. He invoked his internal union remedies the next day by means of a letter to the local complaining about his disqualification.
On May 12, 1984 the complainant wrote to International Vice President S.R. McCann to protest his disqualification from the ballot. McCann responded by letter dated June 6, 1984, stating that he concurred with the Election Committee in holding that the complainant did not attend the required number of meetings prior to nominations as contained in Article 3, Section 9(f) of the local 6 Bylaws.
On June 9, 1984, the complainant wrote to International President Charles H. Pillard to appeal from the decision of the International Vice President. Pillard responded to the complainant's appeal by letter dated July 2, 1984, denying the appeal.
Under Article XXVII, Section 16 of the International Constitution, the International President's decision was appealable to the International Executive Committee, but such an appeal should have been made within 30 days after the International President's decision.
As the local's letter of May 22, 1984 substantially contributed to the complainant's confusion, the International President should have corrected the complainant's misimpression and informed him of his right to appeal to the International Executive Committee within 30 days. Because the International President did not correct the complainant's misimpression, the complainant's failure to appeal to the International Executive Committee will be excused and the complainant's allegations will be considered on their merits.
The complainant alleged that he should not have been disqualified from candidacy for the office of Executive Board member. Article II, Section 9(f) of the local Bylaws requires a member to attend at least one-half of the local's regular meetings during the 12 months preceding nominations. Very liberal excuse provisions are applied. *265 Members are required to sign an attendance roster at each meeting they attend. The local's meeting attendance rule is reasonable on its face, particularly in view of the liberality of the excuse provisions.
An examination of the meeting attendance roster shows that the complainant attended two of the twelve monthly meetings during the year preceding nominations. At one other meeting the minutes show that the complainant made a motion, although the meeting attendance records do not reflect his presence at that meeting. The investigation established some evidence, by no means conclusive, that the complainant attended three other meetings, or at least that some members believe they saw the complainant at the minimum of six meetings in the year prior to nominations. It is considered that the local did not violate its own constitution and bylaws or the Act by relying on its records, rather than recollections of members about who attended meetings. As the complainant had signed the meeting attendance roster on two occasions he was aware of the need to sign in at meetings he attends. Therefore the evidence did not establish that the complainant had complied with the union's meeting attendance rule and he was correctly declared ineligible.
The complainant alleged that the local violated his right to inspect the local's membership list and to the local's assistance in mailing his campaign literature. Section 401(c) of the Act gives to candidates for union office the right, upon request, to inspect the union's membership list and also to have the assistance of the union in distributing campaign material to the members, at the candidate's expense. The investigation established that the complainant never made any such request, so the local did not violate the Act.
The investigation established that the local's nominations/election notice incorrectly stated that the meeting attendance rule applied to candidates for Delegate to the International Convention as well as to candidates for officer positions. In fact, the rule only applies to candidates for officer positions.
The complainant did not include this allegation in his protest to the union, although he was certainly aware of the facts underlying this apparent violation. For that reason, the Secretary is precluded from suing on the basis of the incorrect notice.
The investigation also established that the incorrect notice could not have affected the outcome of the election for any office. The complainant and other candidates who did not qualify to run for officer positions were in fact permitted to run for Delegate. The investigation did not establish evidence that any member was misled by the incorrect notice.
The investigation did not disclose any violation of the Act which may have affected the outcome of the election. Therefore, the file has been closed.
EXHIBIT B
Feb 15 1985
Paul Alan Levy, Esq.
Public Citizen Litigation Group
Suite 700
2000 "P" Street, N.W.
Washington, D.C. 20036
Re: Local 6, International Brotherhood of
Electrical Workers
SOL: 84-(LM)-187
Dear Mr. Levy:
This writing will respond to your letter dated February 1, 1985, regarding our decision not to file suit on behalf of complainant, Thomas Doyle, in the above-referenced matter. We have carefully reconsidered our decision in light of the arguments set forth in your letter and have concluded that the Statement of Reasons is consistent with controlling precedent and provides both a sufficient and rational basis for our decision.
*266 You first state that the Department of Labor has traditionally argued that a meeting attendance rule which works to disqualify the bulk of membership from office is per se unreasonable. The Department of Labor has never applied a per se test in this regard. Rather, the Department's traditional approach has been to review each meeting attendance rule on a case-by-case basis. As stated in 29 C.F.R. § 452.38, the reasonableness of a rule "must be gauged in light of all the circumstances, of a particular case". (Emphasis supplied). Furthermore, if the Department concludes that the rule is reasonable, it will not initiate litigation solely because the rule's effect is to disqualify a vast percentage of the membership from running for union office. In this regard, we refer you to several administrative cases which are summarized on pages 268 through 271 in the Union Officer Elections and Trusteeships Case Digest, Supplement I, which was prepared by the Labor-Management Services Administration in 1983 (copies attached). See, e.g., Carpenters, Local 2378, 78-(LM)-292 (rule reasonable even though it excludes 99% of local membership); Government Employees (AFGE), Local 3369, 78-(FL)-9 (no violation even though 98% of membership ineligible).
You also question why the Department has abandoned its "traditional objection" to "liberal excuse" rules, such as that employed by Local 6. Stated simply, this so-called "traditional objection" does not exist. To the contrary, the existence of a liberal excuse provision is often cited by the Department as a basis for concluding that a meeting attendance requirement is reasonable. Again, we refer you to pages 268-271 of the Case Digest, Supplement I wherein the following cases are summarized: Rubber Workers, Local 134, 81-(LM)-159; Glass Bottle Blowers, Local 155, 80-(LM)-78. Conversely, the absence of an excuse provision will almost always render a meeting attendance rule unreasonable. See e.g., Postal Workers, Local 2251, 80-(LM)-224.
Lastly, you challenge the Department's rejection of Mr. Doyle's contention that he attended the requisite number of meetings. As summarized in the Statement of Reasons, the Department's investigation produced conflicting and inconclusive evidence on the issue of Mr. Doyle's attendance. Consequently, the Department concluded that it could not meet its burden of proof, i.e., it could not establish, by a preponderance of the evidence, that Mr. Doyle attended a sufficient number of meetings to be eligible to be a candidate under the union's constitution. See, 29 U.S.C. § 482(c). As such, this was a factual determination, which as you acknowledge, cannot be challenged in a Bachowski-type suit. You also assert that the sign-in rule was not "uniformly imposed" because incumbent officers were excused without any approval by the Executive Board, as provided by the local's by-laws. However, as you note on page 3 of your letter, "the investigation suggests that Local 6 has never refused to grant a request for an excuse". Thus, it is clear the rule has been uniformly imposed, as there is no evidence to suggest that non-incumbents have been denied excuses when requested.
I trust this letter resolves your concerns regarding this matter.
Sincerely,
/s/ Richard G. Hunsucker
Richard G. Hunsucker
Director, Office of Elections,
Trusteeships and International Union Audits
NOTES
[1] This requirement is contained in Article III, section 9(f) of the bylaws of Local 6. Article III, section 9(g) allows members to receive credit for meetings they did not attend by filing an acceptable excuse with the Executive Board within 30 days of the meeting.
[2] The plaintiff obtained copies of the Department of Labor's file on his complaint, including the initial investigator's report and memoranda regarding the advisability of filing suit through a Freedom of Information Act request. These documents were submitted to the Court as exhibits to the plaintiff's motion for summary judgment.
[3] Both parties treat the Secretary's December 1984 statement of reasons and the February 15, 1985 Hunsucker letter as statements that must be reviewed by this Court. These documents are attached as Exhibits A & B to this opinion.
[4] 29 U.S.C. § 481(e) provides in pertinent part: "In any election required by this section ... every member in good standing shall be eligible to be a candidate and to hold office (subject to ... reasonable qualifications uniformly imposed)."
[5] The DOL's investigation revealed that incumbent officers could be excused from attending meetings simply by calling another officer who would sign his name to the attendance register. On occasion, absent incumbent officers were telephoned after the meetings to get their excuses. Plaintiff's Memorandum in Support of Motion for Summary Judgment, Exhibit 7, at 5.
[6] In a case subsequent to Illinois Education Ass'n, a district court did uphold a one year good-standing requirement despite its exclusion of 70 percent of the union's membership. See Donovan v. Local 500, Transport Workers Union of America, 111 L.R.R.M. (BNA) 2499 (S.D.Fla. 1982). Interestingly, the Secretary in that case argued that the requirement was per se unreasonable because it excluded that many members. Id. at 2500.
[7] See Plaintiff's Memorandum in Support of Motion for Summary Judgment, Exhibit 5.
[8] The Supreme Court decided in Steelworkers that by allowing "reasonable" qualifications, Congress envisioned a flexible approach and therefore did not intend that the Secretary issue regulations defining exactly what qualifications would be challenged. 429 U.S. at 313, 97 S.Ct. at 616. The Secretary's "flexibility," however, does not extend to ignoring applicable caselaw, most of which, it should be noted, was established in cases where the Secretary himself was challenging restrictive union candidacy requirements.
[9] Furthermore, the Secretary's conclusion that Doyle was aware of the sign-in requirement is hardly self-evident. That Doyle signed the register on two occasions certainly indicates that he knew of its existence, but not that he knew it was the only way he could demonstrate attendance at Union meetings for purposes of qualifying for a future election.
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280 Pa. Super. 193 (1980)
421 A.2d 471
Richard O. THOMPSON, Administrator of the Estate of Cecil Thompson, a/k/a Cecil Armstrong Thompson, Deceased, and Richard O. Thompson, Administrator d.b.n. of the Estate of Emily Thompson, a/k/a Lillian E. Thompson, a/k/a Lillian C. Thompson, a/k/a Lillian C. Thompson, Deceased,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
Richard O. THOMPSON, Administrator d.b.n. of the Estate of Emily Thompson, a/k/a Lillian E. Thompson, a/k/a Lillian C. Thompson, a/k/a Lillian C. Thompson, Deceased,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
Superior Court of Pennsylvania.
Argued September 14, 1978.
Decided August 1, 1980.
*194 J. Shane Creamer, Philadelphia, for appellant.
Ronald Ziegler, Philadelphia, for appellee.
Before VAN der VOORT, WATKINS, and MONTGOMERY, JJ.
*195 VAN der VOORT, Judge:
On December 12, 1968, Mrs. Emily Thompson suffered injuries when she slipped on a piece of paper or trash and fell while descending the stairwell of a subway station owned and maintained by Southeastern Pennsylvania Transportation Authority, appellant. She died on May 3, 1970, but the testimony was conflicting as to whether her death resulted from the accident.
At the time of the accident, the police took Mrs. Thompson to a hospital where she was treated for an abrasion of the right knee and a laceration of the left shin. She made several subsequent outpatient visits to the hospital until January 15, 1969 when it was noted in her hospital record that the wounds on her legs were "almost all healed". However, she continued to visit the hospital for some time at approximately monthly intervals. On February 5, 1969, the examining doctor observed tender scabs on both legs. On March 14, 1969, there was an unhealed two-inch uninfected laceration on the shin and moderate swelling of the right knee. On June 10, 1969, she had three ulcerated sores on the right leg which were diagnosed as a traumatic infected ulcer. She returned to the hospital for treatment in August 1969. In January, 1970, while in the hospital, she bumped her left leg on a wheel chair and developed an ulcerated sore. The hospital death certificate gave the immediate cause of death as pneumonia due to infected ulcers on the left leg with sepsis due to hypertensive arteriosclerosis. A later death certificate issued by the medical examiner's office listed the cause of death as cardiac arrest due to myocardial infarction.
The litigation which grew out of the accident was tried on a two-count Complaint seeking both a wrongful death and a survivor's recovery.
In answer to certain special Interrogatories, the jury determined the appellant was liable in damages for the injuries caused by its negligent maintenance of its property but that the accident had not been the cause of Mrs. Thompson's death. It awarded damages of $34,223.85. Following *196 a hearing on post-trial motions for a judgment N.O.V. or a new trial, the trial court sustained the verdict on the condition that the appellee file a remittitur in the sum of $13,000. This was done and judgment entered for the resulting $21,223.85.
The verdict was well supported by evidence and the appellant raises no issue as to the amount of the judgment. However, appellant contends that the judgment should be vacated on the ground that the appellee was not a viable party plaintiff. This issue involved an examination of the course of pleading in this case. It is not a recommended case-book study in how it should be done.
It is to be recalled that the accident occurred on December 12, 1968 and that Emily Thompson died on May 3, 1970. A Complaint was filed on August 5, 1970 in the name of Emily Thompson and her husband, Cecil Thompson, and docketed by the trial court in its August Term, 1970 at No. 610 (hereinafter No. 610). The affidavit to the Complaint purported to bear the signature of Emily Thompson notarized on August 3, 1970. It was claimed, but not established by evidence, that Emily Thompson had signed the affidavit before her death on May 3. Her husband and co-plaintiff, Cecil Thompson, was living when the Complaint was filed. Appellant entered a general appearance and filed an Answer.
On April 5, 1971, letters of administration on Emily Thompson's estate were issued to her husband, Cecil, and on April 22 of that year, the caption of the Complaint at No. 610 was amended by stipulation to read: CECIL THOMPSON, individually and as Administrator of the Estate of Lillian E. Thompson, a/k/a Emily Thompson v. Southeastern Pennsylvania Transportation Authority. Appellant consented by stipulation to the amendment of the caption and raised no issue about the earlier irregularity of filing suit in Emily Thompson's name after her death. Appellant contends that appellee's counsel failed to advise it of the date of Emily's death, but there is no evidence that inquiry was ever made. In any event, the application for the letters of *197 administration on Emily's estate which were the basis of the stipulated substitution would have revealed the date of death had it been examined.
On April 20, 1971, Cecil Thompson, acting as administrator of his wife's estate, initiated a second action against appellant by a Summons in Trespass. He died on January 25, 1972. For some unexplained reason, the sheriff did not effect service on the appellant until April 24, 1972, but appellant entered a general appearance on May 15, 1972. This second action was filed in the trial court at its April Term, 1971, at No. 4759 (hereinafter No. 4759).
On June 5, 1972, the appellant served Interrogatories on the appellee in No. 4759. On July 3, 1972, it obtained a Rule that the appellee file a Complaint in that action within twenty (20) days or suffer a judgment non pros. A Complaint was not filed within twenty (20) days and no judgment of non pros was entered.
Letters of administration on the estate of Cecil Thompson were issued to his brother, Richard O. Thompson, on September 20, 1972 and to the same Richard O. Thompson as successor administrator of the estate of Emily Thompson on August 6, 1974.
On July 9, 1974, appellee obtained an order from the trial court, (1) consolidating the actions at Nos. 610 and 4759, (2) approving the Complaint at No. 610 as an appropriate Complaint for the consolidated actions and (3) authorizing an amendment to the Complaint to include a wrongful death claim as well as the survivor's action. This order was entered upon petition of the appellee, and the petition and order were neither answered nor contested by the appellant.
On December 3, 1974, Richard O. Thompson was substituted in the consolidated action as administrator of the estates of both Cecil and Emily Thompson, again without objection by the appellant.
On these facts, appellant argues that there is no proper party plaintiff before the court because Emily Thompson was dead when the action at No. 610 was filed and Cecil *198 Thompson was dead when service of summons was completed by the sheriff in No. 4759. Appellant concludes that the consolidation of the two actions and the substitution of a second administrator as plaintiff in December 1974 were a nullity because the statute of limitations had run at No. 610 as a survival action and at No. 4759 as a wrongful death action at the time the consolidation and substitution were effected. It cites Thompson v. Peck, 320 Pa. 27, 181 A. 597, (1934); Gilbert v. Thompson, 7 D.&C. 2d 593 (1956); and Casner v. Fisher, 22 Pa. D.&C. 2d 1 (1960) in support of this position.
In Thompson, an action for personal injuries was brought against one H.A. Peck after he had died. After the applicable one-year statute of limitations had run, plaintiff petitioned to amend its Complaint by substituting the executor of the Peck estate. This was opposed and the court denied the petition stating that (320 Pa. 27, 30) "an amendment, the effect of which is to bring in new parties after the running of the statute of limitations, will not be permitted". Gilbert arose on a similar set of facts and the substitution of an administrator was successfully opposed for the same reason. In Casner, the original Complaint was filed against an estate rather than an executor or administrator, and when an effort was made after the one-year statute of limitations to substitute an administratrix, it was successfully opposed.
The record is quite different in the case before us. Appellant consented to the substitution of Cecil Thompson as administrator of the Estate of Emily Thompson in No. 610 on April 22, 1971. It did not contest the order of July 9, 1974, consolidating the actions at No. 610 and 4759 and authorizing an amendment of the Complaint.
At no time, were either No. 610 or No. 4759 without a viable party plaintiff. Cecil Thompson, as the husband of Emily Thompson, was an original co-plaintiff in the action at No. 610 and he also initiated the action at No. 4759. Although he died before service of process upon the appellant was completed in the second action, this did not make *199 the action a nullity because service was later completed and appellant entered a general appearance within a few days thereafter. While it is true that Emily Thompson had no initial standing in the action at No. 610 in view of the fact that she was not living when it was started, the action nevertheless survived on the basis of the standing of her husband as a co-plaintiff.
Hence, it can not be said that there was no pleading to amend when Cecil Thompson was substituted on April 22, 1971 at No. 610 as administrator of his wife's estate. Likewise, the court orders of July 9 and December 3, 1974, consolidating the actions, amending the Complaint and substituting Richard O. Thompson as administrator of the estates of both Emily Thompson and Cecil Thompson amends two causes of action which were properly before the court at the time of amendment. Consequently, the argument that these cases lacked a viable plaintiff at the time of amendment is without factual foundation.
What is really at issue in the attack upon the validity of the original actions is a belated attempt to invoke the statute of limitations. While it is true that the amendments to the pleadings in this case were made after the statute of limitations had run, that issue had been waived by the appellant. Appellant's repeated acquiescence in the substitution of parties plaintiff, the amendment of the Complaint and the consolidation of the actions amounted to an affirmative waiver of the statute; otherwise these rulings of the court were nullities. A waiver was plainly implied. Smith, Administrator v. Pennsylvania Railroad, 304 Pa. 294, 297, 156 A. 89 (1931).
The statute of limitations does not divest the court of jurisdiction over either the cause of action or the parties, but is merely a procedural bar to recovery which may be waived by consent or conduct implying consent. Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969).
Rule 1030 of the Pennsylvania Rules of Civil Procedure requires that the statute of limitations "shall" be *200 pleaded as an affirmative defense under New Matter; otherwise, the defense is waived. Royal Oil & Gas Corporation v. Tunnelton Mining Company, 444 Pa. 105, 282 A.2d 384 (1971). It has long been our rule that unless the statute is pleaded as a defense, it is waived. Heath v. Page, 48 Pa. 130, 142 (1864).
Judgment affirmed.
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491 Pa. 351 (1980)
421 A.2d 172
COMMONWEALTH of Pennsylvania,
v.
Otis WALKER, Jr., Appellant.
Supreme Court of Pennsylvania.
Argued May 23, 1980.
Decided September 22, 1980.
Colie B. Chappelle, Philadelphia, for appellant.
*352 Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty., Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Gaele McLaughlin Barthold, Asst. Dist. Atty., Philadelphia, for appellee.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION
LARSEN, Justice.[1]
On December 9, 1975, Harold Berry and Jerome Thomas were stabbed and beaten on the street in North Philadelphia by members of a nearby street gang. Berry died as a result of his wounds, and appellant Otis Walker was arrested for his participation in the incidents. After trial by jury, appellant was convicted of murder of the third degree, aggravated assault, criminal conspiracy, and possessing instruments of a crime. Post-verdict motions were denied, and appellant was sentenced to consecutive prison terms of ten to twenty years on the murder conviction and one to two years on the aggravated assault conviction. Sentence on the other two convictions was suspended.
Appellant appealed these judgments of sentence to this court, and the appeal was transferred to a Special Transfer Panel of the Superior Court. That Panel denied appellant's prayer for relief on all grounds asserted, except appellant's allegation that the trial court erred in refusing his request for a jury instruction on the offense of involuntary manslaughter. The Panel noted the conflicting authority on this *353 issue, see Commonwealth v. Hinson, 485 Pa. 626, 403 A.2d 564 (1979) and Commonwealth v. Thomas, 482 Pa. 312, 393 A.2d 1122 (1979), and transferred the case to this Court for resolution of that question.
Recently, in Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), Commonwealth v. Williams, 488 Pa. 625, 413 A.2d 658 (1980), it was held that "in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict." 490 Pa. at 186, 415 A.2d at 402. In the instant case, the offense of involuntary manslaughter was not at issue and the evidence would not reasonably have supported a verdict of guilty of that offense. The Commonwealth's evidence unquestionably established an intentional killing, and appellant's defense was that he went to the scene of the crimes anticipating only a "fair" fistfight, and fled as soon as his fellow gang members drew their knives. Thus, if appellant's version of the incidents was accepted by the jury, he should have been acquitted of murder, not found guilty of involuntary manslaughter, and the trial court properly refused his request for a jury instruction on that offense.
Consequently, the judgments of sentence are affirmed.
ROBERTS, J., filed a dissenting opinion in which O'BRIEN, J., joined.
ROBERTS, Justice, dissenting.
For the reasons set forth in my dissenting opinions in Commonwealth v. White, 490 Pa. 179, 186, 415 A.2d 399, 402 (1980) and Commonwealth v. Williams, 490 Pa. 187, 194, 415 A.2d 403, 406 (1980), I adhere to the view that under the express language of the Crimes Code, 18 Pa.C.S. § 2501(a), a defendant is entitled upon request to a jury instruction on involuntary manslaughter. Because appellant's timely request for an involuntary manslaughter instruction was improperly *354 denied, judgment of sentence should be reversed and a new trial granted.
O'BRIEN, J., joins in this dissenting opinion.
NOTES
[1] This case was assigned to this writer after oral argument on May 23, 1980, but could not be proceeded with at that time because appellant's counsel was given until June 23, 1980 to file a supplemental brief. On June 20, 1980, appellant's counsel requested and received a ten day extension of time within which to file his supplemental brief. This extension expired on July 4, 1980, at which time the supplemental brief had not yet been filed. On July 16, 1980, appellant's counsel filed a motion for permission to file the supplemental brief nunc pro tunc. That motion was denied on July 21, 1980, and the record and notes of testimony were forwarded to this writer.
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279 Pa. Super. 581 (1980)
421 A.2d 351
COMMONWEALTH of Pennsylvania
v.
Anthony Ray REAVES, Appellant.
Superior Court of Pennsylvania.
Argued December 4, 1979.
Filed August 1, 1980.
Petition for Allowance of Appeal Denied January 14, 1981.
*582 Larry A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
Edward H. Jordan, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Before PRICE, WATKINS and HOFFMAN, JJ.
WATKINS, Judge:
This is an appeal from the judgment of sentence of the Court of Common Pleas of Dauphin County, Criminal Division, *583 by the defendant-appellant, Anthony Ray Reaves, claiming that his Miranda rights were violated at the time he gave incriminating statements to police concerning his participation in a burglary of a cleaners establishment in Steelton, Pa. which burglary occurred on or about December 19, 1978. On August 22, 1979, defendant was sentenced to pay a fine of $50.00, pay the costs of prosecution, and to undergo imprisonment in the Dauphin County Prison for six (6) to twenty-three (23) months.
On March 2, 1979 a juvenile petition was filed against the defendant alleging that on December 19, 1978 he committed the offense of burglary at Kauffman Cleaners in Steelton, Pa. On March 8, 1979, after a hearing thereon, the matter was transferred to the criminal division pursuant to Section 6355 of the Juvenile Act (42 Pa.C.S. 6355). Subsequently, a criminal information was drawn and filed against the defendant, he was arraigned on May 2, 1979 where he entered a not guilty plea to the offense, and on August 22, 1979, the defendant was adjudged guilty of the burglary following a non-jury trial and was sentenced as set forth above. On August 27, 1979, the defendant took this appeal. Defendant was 17 years of age at the time of the burglary.
On December 22, 1978 police questioned the defendant, in the presence of his mother, about the burglary. During the course of the questioning the defendant gave oral inculpatory statements to the police which implicated him in the burglary. These statements were later reduced to writing which the defendant signed. Prior to trial the defendant filed a suppression motion seeking to have the statements suppressed as the product of unlawful questioning in violation of his Miranda rights.[1] The court below denied defendant's suppression motion and the incriminating statements were used to convict him at his trial. Defendant's sole contention on appeal is that his Miranda rights were violated because they included a statement by the police that any *584 statements he gave to them "can and will be used against you in a juvenile proceeding at some later date." (Emphasis ours) The defendant claims that he was misled by the Miranda statement and would not have given the incriminating statements to the police if he was aware that they could be used against him in a criminal proceeding. He claims that because the words juvenile proceeding were used by the police that his waiver of his Miranda rights was ineffective and that his statements should have been suppressed at the suppression hearing. Defendant's mother also testified that she was misled by the use of the same words during the reading of the Miranda rights.
Prior to the actual interrogation of the defendant, he was given the Miranda warnings in various forms. The police first read him his rights from a card which contained the statement that "Anything you say can and will be used against you in a court of law" (Emphasis-ours). Shortly thereafter the statement which defendant claims misled him was read to the defendant and his mother and was signed by the defendant's mother. The police then gave the defendant and his mother the opportunity to confer privately with each other. Following this conference the Miranda warnings were read to the defendant a third time. This Miranda statement was given to the defendant in essentially the same form as the first one. Defendant then gave the inculpatory statement. He now claims that the Miranda warnings given to him were defective because they misled him into believing that he would be subjected only to juvenile proceedings and that therefore his statements were not given voluntarily, knowingly and intelligently. We do not agree.
At the outset we note that the defendant was given the Miranda warnings three times. It was only during the second reading of his rights that the words "juvenile proceeding" were used. The defendant was also given the opportunity to consult with an interested adult (his mother) in private prior to giving the incriminating statement. Therefore, the requirements that a juvenile be permitted to consult with a parent, attorney or other interested adult *585 before giving a statement has been met. See Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978). At the time he was questioned the defendant was 17 years of age, had had numerous contacts with the juvenile justice system, had been committed on prior occasions to various facilities within the juvenile justice system, had the benefit of his mother's advice prior to answering any questions, was permitted to consult with her privately prior to giving the statement, was alert and responsive at all times prior to giving the statement, and was informed twice by police that any statement given by him could be used against him in a court of law. There was no evidence to the effect that the police coerced or threatened the defendant in any way. Considering the above, it cannot be maintained that the defendant did not understand the effect of his waiver. Nor can we say that the police misled the defendant into thinking that he would be handled as a juvenile. At the time of the questioning defendant was a juvenile. The police did not know then that defendant's case would be transferred to the criminal court docket where defendant would be tried as an adult, nor could they have known that at the time of the questioning. We can envision a situation where a juvenile defendant claims on appeal that his waiver of his right to remain silent was ineffective because he was informed by police that his statements would be used in a court of law (with its jury system and other rights) rather than in a juvenile proceeding in a case where the juvenile was ultimately dealt with in a juvenile proceeding. It would place an unfair burden on the police to require them to delve into every conceivable possibility with a juvenile defendant before they could ask him a question regarding his participation in criminal activity. In fact, in the instant case the police went farther than they had to go since they gave the defendant and his mother the Miranda warnings three times before questioning the defendant during which the defendant was advised that his statements could be used against him in a court of law twice. It could very well be the case that defendant was also advised that his statements could be used against him in a juvenile proceeding because the police *586 wanted to cover all possible situations in the event that the defendant was handled as a juvenile.
Defendant cites the case of Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553 (1977) in support of his proposition. In that case the court held that a defendant's waiver of her Miranda rights was ineffective because she misapprehended which of two offenses the police were investigating when she was questioned. The defendant thought that she was being questioned about her failure to make restitution in connection with a malicious mischief charge when instead the questioning concerned a murder. During the questioning the defendant admitted killing her son and was charged with that murder. The Supreme Court held that defendant's statement in which she admitted killing her son to the police was inadmissible at trial because the defendant was not aware of the nature of the investigation at the time she waived her rights. Dixon, supra, therefore, stands for the proposition that an accused must be aware of the nature of the investigation at the time of the questioning before a waiver of Miranda rights can be held to be effective. It does not mean that an accused must be aware of all the consequences which might flow from a waiver of his Miranda rights before he can effectively waive them. A suspect, therefore, need not have knowledge of the "technicalities" of the criminal offense involved; rather it is necessary only that he be aware of the "transaction" involved. Commonwealth v. Dixon, supra; Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974). We also hold that a defendant need not be aware of every conceivable consequence which might flow from a waiver of his Miranda rights in order to effectuate such a waiver as it is impossible to foresee every such possible consequence. We merely hold that the defendant must be informed that his statements can and will be used against him in a court of law as required in Miranda. Since the defendant was informed of this we hold that his waiver was effective and we refuse to hold that because he was also informed that his statements could be used against him in a juvenile proceeding that such warning constituted a promise to him that he would be handled as a juvenile.
*587 Defendant also argues that his statements were involuntarily given because he was questioned in the police station. Defendant had come to the police station at the request of the police. However, he had come voluntarily and was not under arrest at the time. Merely because a person gives an incriminating statement at a police station does not mandate a finding that he gave the statement involuntarily. See Commonwealth v. Peters, 473 Pa. 72, 373 A.2d 1055 (1977). In light of the fact that the defendant was provided all of the protections afforded to a juvenile defendant under the law, as discussed above, we hold that his statements were properly admitted into evidence by the court below.
Judgment of sentence affirmed.
HOFFMAN, J., files a concurring statement.
PRICE, J., concurs in the result.
HOFFMAN, Judge, concurring:
I agree that under the circumstances of this case appellant validly waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). I express no opinion regarding any other circumstances in which a suspect may validly waive his Miranda rights. Accordingly, I concur in the affirmance of the judgment of sentence.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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120 N.H. 669 (1980)
PETER E. GOODNOW
v.
EVERETT I. PERRIN, WARDEN
No. 79-399.
Supreme Court of New Hampshire.
October 2, 1980.
*670 Kelliher, Clougherty & Dalpra, of Manchester, by brief for the plaintiff.
Gregory H. Smith, acting attorney general, and Brian T. Tucker, attorney, by brief for the defendant.
PER CURIAM.
This is an appeal from the Hillsborough County Superior Court's (Goode, J.) dismissal of the plaintiff's petition for habeas corpus. We affirm.
The plaintiff began serving a sentence of eighteen months to seven years in the New Hampshire State Prison on June 1, 1978, pursuant to a conviction for aggravated assault. Subsequently, based on allegations that he was a disciplinary problem, the plaintiff was transferred to the federal prison system and on December 11, 1978, he was sent to the United States Penitentiary in Lewisburg, Pennsylvania. The plaintiff was transferred to the medical center for federal prisoners in Springfield, Missouri, to receive proper medical treatment and was returned to the Lewisburg facility in August 1979.
In September 1979, the plaintiff filed the petition for habeas corpus which is the subject of this appeal, challenging the propriety of his transfer to the federal prison system. The court appointed counsel to represent the plaintiff. Counsel for the plaintiff stated that he had attempted on numerous occasions to contact his client, both by telephone and mail, and that prison officials at the Lewisburg Penitentiary continually had told him that the plaintiff could not receive telephone calls but would have to be brought from another area of the prison to return the call. *671 Counsel received no communication from plaintiff prior to the superior court hearing on the habeas corpus petition and was required therefore to base his arguments at that hearing solely on the information contained in the pro se petition. Subsequent to the hearing, after the direct intervention of the New Hampshire Attorney General's Office, counsel did receive one telephone call from his client who alleged that he had not received the earlier messages.
At the superior court hearing, the defendant's motion to dismiss was granted. The plaintiff appeals, contending that the interstate transfer constituted cruel and unusual punishment, was in violation of both the due process clause of the fourteenth amendment and 18 U.S.C. § 5003, and impaired his constitutional right of access to the courts. He requests that he be returned to the New Hampshire State Prison to consult with his attorney and that the case be remanded to the superior court for a new hearing on the merits.
[1] First, the plaintiff alleges that he was deprived of liberty without due process of law because State prison officials had transferred him to the Lewisburg Penitentiary without an adequate factfinding hearing. It is well settled, however, that "no Due Process Clause liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within the State, whether with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events." Montanye v. Haymes, 427 U.S. 236, 242 (1976), citing Meachum v. Fano, 427 U.S. 215 (1976). This reasoning is equally applicable to interstate prison transfers. Sisbarro v. Warden, Mass. State Penitentiary, 592 F.2d 1 (1st Cir.), cert. denied, 100 S. Ct. 99 (1979); Curry-Bey v. Jackson, 422 F. Supp. 926 (D.D.C. 1976).
[2] Transfers between New Hampshire prisons are not conditioned upon the occurrence of specified events, RSA 623:2-4, and under the New England Interstate Corrections Compact, the State prison warden is given extremely broad discretion in decisions relating to interstate transfers. RSA 622-A:3. Thus, although at the time of the plaintiff's transfer there was no State statutory authorization for federal transfer of New Hampshire prisoners, New Hampshire law conferred no right on the prisoner to serve his time in any particular facility or even inside the State. Laaman v. Perrin, 435 F. Supp. 319 (D.N.H. 1977). Since the *672 plaintiff has no liberty interest rooted in State law, we hold that the out-of-state transfer did not implicate the due process clause and that the plaintiff was not constitutionally entitled to a hearing prior to such transfer.
Second, the plaintiff contends that he is entitled to a pre-transfer hearing under 18 U.S.C. § 5003 (1979), which authorizes the United States Attorney General, "when the Director [of the Federal Bureau of Prisons] shall certify that proper and adequate treatment facilities and personnel are available," to contract with State officials "for the custody, care, subsistence, education, treatment, and training" of State prisoners. The plaintiff asserts that because 18 U.S.C. § 5003 authorizes the transfer of State prisoners to federal custody only upon a showing that the prisoner is in need of specialized treatment available only in the federal system, Lono v. Fenton, 581 F.2d 645 (7th Cir. 1978), a hearing is required on that issue prior to any transfer.
[3, 4] We find the reasoning of the majority opinion in Lono unpersuasive. The language of the statute expressly authorizes transfers for a number of penological purposes and contains no suggestion that transfers are limited to prisoners needing specialized treatment. Sisbarro v. Warden, supra at 4; Lono v. Fenton, supra at 648-49 (Bauer, J., dissenting); Howe v. Civiletti, 480 F. Supp. 111, 114-15 (D. Vt. 1979); Fletcher v. Warden, 467 F. Supp. 777, 781 (D. Kan. 1979). Accordingly, we hold that 18 U.S.C. § 5003 requires no showing of specialized treatment needs before a State prisoner is transferred to a federal prison and that therefore the plaintiff is not entitled to a hearing on the issue of his need for specialized treatment.
[5] The plaintiff also maintains that the transfer to the Lewisburg Penitentiary constituted cruel and unusual punishment because it deprived him of seeing members of his family who reside in New Hampshire. Although involuntary out-of-state transfers are burdensome and may impair visitation of family, such transfers are neither cruel nor unusual in the constitutional sense. Sisbarro v. Warden, supra at 4; Lindsay v. Mitchell, 455 F.2d 917, 918 (5th Cir. 1972); Hoitt v. Vitek, 361 F. Supp. 1238, 1250-51 (D.N.H.), aff'd sub nom. Laaman v. Vitek, 502 F.2d 1158 (1st Cir. 1973). See also Rebideau v. Stoneman, 398 F. Supp. 805 (D. Vt. 1975). The superior court properly dismissed this claim.
Finally, the plaintiff alleges that there are no New Hampshire legal materials at the Lewisburg Penitentiary and that he has been prevented from effectively communicating with his attorney. *673 He contends that as a consequence of these conditions his constitutional right of access to the courts has been impaired.
[6] There is no doubt that "prisoners have a constitutional right of access to the courts", and states must "insure that inmate access to the courts is adequate, effective, and meaningful." Bounds v. Smith, 430 U.S. 817, 821-22 (1977). Consequently, prison officials have an affirmative obligation to assist inmates in the preparation and filing of meaningful legal papers by providing them with either adequate law libraries or adequate assistance from persons trained in the law. Id., at 828; Younger v. Gilmore, 404 U.S. 15 (1971), aff'g Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970); Hohman v. Hogan, 458 F. Supp. 669 (D. Vt. 1978). The issue here is whether the defendant has failed to fulfill this obligation.
[7] We first note that this constitutional violation which the plaintiff alleges occurred during his incarceration at the Lewisburg Penitentiary. The duty to provide either adequate law libraries or legal assistance would seem to belong to the federal prison officials at that facility. State prison officials have no control over the contents of federal penitentiary libraries or the terms under which penitentiary inmates may communicate with outside legal counsel.
[8] Even if the obligation of State prison officials to assure meaningful access to the courts to all prisoners continues after an inmate has been properly transferred to an out-of-state federal penitentiary, see Hohman v. Hogan supra, this obligation has been satisfied by the appointment of counsel to represent the plaintiff in the instant habeas corpus proceeding. The claim that the plaintiff has been prevented from effectively communicating with his attorney does not change this, for the record indicates that the responsibility for any interference with the plaintiff's access to counsel lies with officials at the Lewisburg Penitentiary, not with New Hampshire State officials.
We conclude that the plaintiff's contentions are without merit and that the superior court properly dismissed the petition for habeas corpus.
Affirmed.
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Case: 12-50802 Document: 00512244184 Page: 1 Date Filed: 05/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 16, 2013
No. 12-50802
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DEVIN KENNEDY-PUTHOFF, also known as Devin Shea Kennedy-Puthoff,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:09-CR-516-1
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Devin Kennedy-Puthoff was convicted of making a false statement in
connection with obtaining a firearm and was sentenced to 10 months of
imprisonment, to be followed by three years of supervised release. His
supervised release was revoked, and the district court sentenced him to eight
months of imprisonment and two years of supervised release. Kennedy-Puthoff
now challenges the substantive reasonableness of his revocation sentence, which
was within the advisory range, arguing that it is greater than necessary to meet
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-50802 Document: 00512244184 Page: 2 Date Filed: 05/16/2013
No. 12-50802
the factors set forth in 18 U.S.C. § 3553(a). He asserts that a sentence at the
bottom of the range would have been sufficient and that the sentence overstated
his danger to the community and likelihood to reoffend.
Ordinarily, this court reviews revocation sentences under the “plainly
unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). Because Kennedy-Puthoff did not object to the reasonableness of his
revocation sentence in the district court, our review is for plain error. See United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). Plain error requires
there to be a forfeited error that is clear or obvious and that affects the
defendant’s substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If such a showing is made, we have the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
The revocation sentence imposed in the instant case fell within the
advisory range, and it is entitled to an appellate presumption of reasonableness.
See United States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008).
Kennedy-Puthoff’s arguments amount to nothing more than a disagreement with
the sentence imposed, and he fails to rebut the presumption of reasonableness
attached to his sentence. See id. Moreover, he fails to show that there is a
reasonable probability that but for any alleged error, he would have received a
lower sentence. See United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
Thus, Kennedy-Puthoff has not shown that the revocation sentence imposed
constituted reversible plain error. See Puckett, 556 U.S. at 135; Whitelaw, 580
F.3d at 259-60.
The district court’s judgment is AFFIRMED.
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279 Pa. Superior Ct. 458 (1980)
421 A.2d 289
Bonnie Tokarek PALMER
v.
Eugene TOKAREK
v.
Gildo BERTETTO and Pearl Bertetto.
Appeal of Bonnie Tokarek PALMER and Gildo Bertetto and Pearl Bertetto, his wife.
Superior Court of Pennsylvania.
Argued April 16, 1980.
Filed July 18, 1980.
*461 Thomas D. MacMullan, Pittsburgh, for appellants.
Gary F. Selway, Greensburg, for appellee.
Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
CAVANAUGH, Judge:
This appeal involves a dispute over custody of Paul John Tokarek, age eight. Three parties are involved in this action: the child's father (Eugene Tokarek), the child's mother (Bonnie Tokarek Palmer), and the maternal grandparents (Gildo and Pearl Bertetto). Eugene Tokarek filed a petition for custody in June of 1978. Two years prior to this a court order was entered placing custody in the mother with reasonable visitation to the father. Mr. and Mrs. Bertetto were granted permission to intervene and cross-petition *462 for custody of P.J. Following a hearing, the lower court awarded custody of P.J. to his father with liberal visitation to Mr. and Mrs. Bertetto. Mrs. Palmer was awarded visitation at such times as the child is with the maternal grandparents. Due to the pendency of this appeal, the lower court granted a supersedeas directing that P.J. remain with his grandparents with visitation rights to Mr. Tokarek.
P.J.'s parents were married in February, 1971 after discovering that Mrs. Palmer was pregnant. After the marriage the father continued to live with his parents and the mother remained at her parents' home. On weekends the couple stayed at the Bertetto's but several months before P.J. was born they separated. They were divorced in 1972.
Following P.J.'s birth the mother returned to work and the grandparents assumed the normal duties of parents to P. J. At all times since his birth, P.J. has lived with his maternal grandparents save for a brief period in 1976. The child's mother also resided there until 1976 when she remarried and moved back to Rhode Island, taking P.J. with her. However, because of the child's anxiety at being separated from his grandparents, his mother returned P.J. to Pennsylvania.
P.J. has been cared for by his grandparents as if he were their own son. They have provided a home and have provided for his education, religious training and social needs. Although P.J. knows that the Bertetto's are not his natural parents, he refers to them as "Mum and Pop." The child's father has had visitation rights by order of court since August 3, 1971. In September, 1974 the court adjusted the visitation order to include weekend visitation. Although the father has had to enlist the aid of the court and the county Domestic Relations Department in order to enforce his visitation rights, he has made a consistent and persistent effort to visit P.J. since 1973. Concerning his obligation to support P.J., a support order was entered in April of 1971 and payments by the father pursuant to that order were irregular, *463 resulting in an attachment of his wages in October, 1972. Since that time payments have been made on a regular basis. There are currently no arrearages.
The petition for custody filed in 1978 was the first attempt made by the father to gain custody of P.J. The father remarried in 1978 and procured living accommodations in a five-room house. The present Mrs. Tokarek has a son by a prior marriage who resides with her and P.J.'s father. The house has two bedrooms one for Mr. and Mrs. Tokarek and another, containing twin beds, for the two boys.
At trial two expert witnesses, Dr. Schachner, a psychologist, and Dr. Garrity, a psychiatrist, were called to testify as to the effect of a change of custody on P.J. Dr. Schachner, a witness for the appellants, testified that P.J. would suffer severe trauma if separated from his grandparents. Dr. Garrity disagreed, claiming that P.J. could withstand the pressure without permanent damage to his psyche. The court, finding both experts equally qualified, placed more emphasis on Dr. Garrity's report because of her disinterested posture as a court retained expert.
The lower court found that P.J.'s best interests would be served by awarding custody to his natural father with liberal and frequent visitation by the maternal grandparents. The standard of review this court will exercise was recently set forth in In re Custody of White, 270 Pa.Super. 165, 167-169, 411 A.2d 231, 232-3 (1979).
[I]t is well established that the scope of review of this court in such disputes is of the broadest type. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). Although we will not usurp the fact-finding function of the trial court, we are not bound by deductions or inferences made by the hearing judge from the facts as found. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 *464 (1974); Commonwealth ex rel. Grillo v. Shuster, 226 Pa. Super. 229, 312 A.2d 58 (1973). Because of the Commonwealth's legitimate and overriding concern for the well-being of its children, we are required to render an independent judgment based on the evidence and testimony and make such order on the merits of the case as to effect a just result. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 245 A.2d 663 (1968). So as to facilitate this broad review, we have consistently emphasized that the hearing court must provide us not only with a complete record, Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974), but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court's ultimate decision. Martincheck v. Martincheck, 262 Pa.Super. 346, 396 A.2d 788 (1979); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). Absent an abuse of discretion, we will not reverse a hearing judge who complies with these requirements.
I.
In awarding custody to the father, the lower court characterized the case as a dispute between a natural parent and the grandparents. As such the lower court allocated the burden of proof as is appropriate in such cases: the parents have a prima facie right to custody which will be forfeited only if convincing reasons appear that the child's best interests will be served by an award to a third party. Hooks v. Ellerbe, 257 Pa.Super. 219, 390 A.2d 791 (1978); Ramos v. Rios, 249 Pa.Super. 487, 378 A.2d 400 (1977); In Re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977).[1] Appellants *465 argue that the case is actually a dispute between two natural parents. If such were the case, the burden of proof would be borne equally by the contending parents, each being required to show that an award to him or her would be in the child's best interest. See Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979); Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979). The lower court acknowledged that "if the parties stood in equal positions, this Court would have no difficulty in awarding custody to the grandparents because of their proven ability to provide for this child and because of the trauma which will undoubtedly result in this child because of a change in environment." Appellants note that the father sought custody from the mother and these parties' names appear on the original pleadings. The grandparents intervened because of their involvement in the case. However, looking beyond form to substance, we find appellants' argument untenable.
Appellants attempt to distinguish this case from other cases involving disputes between a third party and a natural parent. Here, they argue, the parent seeks to have the child remain with the third party whereas in Hernandez, as well as Hooks, the third parties sought custody for themselves. Appellants cite no authority for such a distinction, nor does any exist. To permit such a distinction would, in effect, give the third party equal status with a natural parent as long as the parent not seeking custody prefers that the child remain with the third party. Such a result would be inconsistent with the court's overriding concern for the best interests of the child and the recognized rights of natural parents to custody.
The lower court explained the unusual position of the parties in the following finding of fact:
While the natural mother is a party to this proceeding, she does not seek custody for herself; rather, her desire is that the child remain with her parents . . .
*466 The record bears this out, although the grandparents and mother characterize their claim as one for joint custody or custody in the mother alone. The mother stated that she has no intention of bringing P.J. to live in Westmoreland County where she resides with her present husband and baby daughter. P.J. and the Bertettos live in Allegheny County. The Bertettos act as parents in every way to P.J. and have done so since his birth. The mother indicated during direct examination that she wishes this to continue:
Q. So now, without using any psychological terms, just tell the Court again in your own words what you think is the best for P.J.
A. He loves his mom and dad, which are my parents, in regard that they raised him. He loves them.
Q. All right. What do you believe or where do you think P.J. should be?
A. With them.
(N.T., April 3, 1979, p. 251.)
In view of the foregoing we hold that the lower court properly treated the dispute as one between a parent and a third party. Thus, the father was entitled to custody unless convincing reasons could be shown that the child's best interest would be served in an award to the grandparents.
II.
Appellants contend that even under the standards applicable to a custody dispute between a natural parent and a third party the court erred in awarding custody to the father. They claim that it is undisputed that the grandparents are suitable guardians and that P.J. exhibited an emphatic, unwavering preference to remain with his grandparents. Also, appellants argue that P.J. will suffer severe trauma if separated from his grandparents, and that the father is an unfit parent.
A.
In addressing the suitability of the grandparents as guardians, we note that Ramos v. Rios, supra, is similar to the *467 instant case. There, a father sought to regain custody of his daughter who had been placed in the custody of her maternal grandparents following the mother's death. The lower court found that the child's best interest would be served by an award to either party. However, since the court had failed to give weight to the parents' prima facie right to custody the case was remanded. Similarly, in Hooks v. Ellerbe, supra, a father was awarded custody over the maternal grandmother. There, the daughter, Carla, age twelve, had lived with her grandmother from the time she was less than two. This court stated:
Not only does Carla appear to have a good and loving relationship with her grandmother, but all of her friends live in the same neighborhood, she is active at the local church, and her stepbrother, Derrick, lives "two doors" away and comes by most days to help her with her homework.
257 Pa.Super. at 224-5, 390 A.2d at 794. Despite these facts the parent's prima facie right to custody had not been overcome. See also Commonwealth ex rel. Strunk v. Cummins, 258 Pa.Super. 326, 392 A.2d 817 (1978); In re Custody of Hernandez, supra.
Even P.J.'s clear preference for remaining with his grandparents does not outweigh the father's prima facie right to custody. Although a factor, a child's preference is not dispositive of the issue of custody. As this Court has stated:
It is true that a child's stated preference may be sufficient to support a conclusion that a change of custody is warranted. Carlisle Appeal, 225 Pa.Super. 181, 310 A.2d 280 (1973). It is also true that as a child grows older more weight should be given to the child's preference. Tomlinson v. Tomlinson, 248 Pa.Super. 196, 374 A.2d 1386 (1977); Williams v. Williams, 223 Pa.Super. 29, 296 A.2d 870 (1972). However, a court must not simply accept the child's statement of preference; instead the court must critically examine the reasons underlying the child's statement, for a too ready acceptance of the statement would *468 be in effect an abdication by the court of its responsibility to decide for itself what will be in the child's best interest. Shoup v. Shoup, 257 Pa.Super. 263, 390 A.2d 814 (1977, Dissenting Opinion 257 Pa.Super. at 266 [390 A.2d 814] (1978)).
Hooks, supra, 257 Pa.Super. at 227, 390 A.2d at 795.
At the time of trial P.J. was seven years old. He had been reared in the loving home of his grandparents since birth. The record demonstrates that, unfortunately, there is ill feeling between the child's maternal grandmother and his father. According to the report of Dr. Garrity (R. 38a-39a), P.J. is afraid of his father although he admitted that his father has never hurt him in any way. In the report it was also stated that P.J.'s dislike and fear of his father are a repetition of the grandmother's dislike of her former son-in-law.
When questioned as to his preference, P.J. stated that he did not wish to stay with his father "[b]ecause they don't treat me right; they don't treat me like my mom and pappap [his grandparents] do" (Tr. April 3, 1979, p. 390). The Court questioned P.J. on this:
Q. How do they treat you that's different than the way your mom and pappap treat you?
A. They spank me a lot of times, and I don't want to go there because every time when we get up in the morning, we're not allowed to make noise because, like playing and that, because the next door neighbors, so we don't get to play. We can't get the toys out. Sometimes we're allowed to get toys and they make us do things.
Q. Like what?
A. Like get something; things like telling us to get stuff. They tell us to get things.
Q. What kind of things?
A. Like toys, pick them up; like pick them up.
Q. Don't you like to pick up toys? Don't your mom and pappap make you do that?
*469 A. No, they do it.
Q. I see. Do they let you get out of bed whenever you want to?
A. No.
Q. Your mom and pappap?
A. Yes, yes.
(N.T., April 3, 1979, pp. 390-1). And later:
Q. . . . Well, don't you want to see your father?
A. No.
Q. At all?
A. No.
Q. Why do you say that?
A. Because I don't like it up there. They don't treat me like my mom and pappap do.
(N.T., April 3, 1979, p. 393). The fact that a potential custodian is more or less strict is doubtless an important factor to a seven year old in determining his preference. However, this Court must look beyond the desires of the child towards his best interest. P.J. expressed a natural desire to remain with his grandparents in the lifestyle he has been accustomed to since birth. However, this preference for consistency must be outweighed by the right of the natural parent to custody. Therefore, we conclude that the fact that P.J. has been well cared for and loved by his grandparents, and that he prefers to remain with them does not amount to such convincing reasons as would overcome the father's right to have P.J. with him.
B.
The lower court concluded that P.J. would, following some behavioral problems, be able to adjust to a change of custody with no permanent damage to his psyche. Appellants, however, argue that P.J. will suffer severe trauma upon separation from his maternal grandparents if custody is awarded to the natural father.
*470 Both experts testified as to the effect on P.J. of separation from the "psychological parents," his grandparents. The trial judge summarized their testimony in his opinion:
The child psychologist who testified on behalf of the grandparents, Stephen P. Schachner, Ph.D., is of the opinion that the child would suffer trauma if he is removed from his grandparents and that his development would not occur and would be hampered. The psychiatrist selected by this Court to examine the child, Gene C. Garrity, M.D., agrees that it would be very difficult for the child to accept a change in his environment, and that he might exhibit some behavioral problems such as bed wetting, and sleeplessness. Dr. Garrity nevertheless, however, is of the opinion that because of the solid early development and good early care of the child he could withstand this pressure without damage to his psyche. This Court is therefore faced with conflicting predictions by two experts with regard to future consequences of separation from the grandparents.
Appellants claim that the conclusion of the lower court that "[t]his Court is therefore faced with conflicting predictions by two experts with regard to future consequences of separation from the grandparents" is without support in the record. However, this claim is without merit. Although both experts agreed that P.J.'s transitional or adjustment period would be difficult emotionally, they disagreed as to the impact of separation from the grandparents on P.J.'s future development. Dr. Schachner testified as follows:
A. In my professional opinion I think P.J. would respond traumatically in a very upset manner to a relation of custody in that direction. I believe that he would be very upset over the separation; he would become anxious, depressed, he would regress in terms of some childhood behaviors. Occasionally children will become bedwetters, or they may be very whiny and difficult to deal with, and be very unhappy over an extended period of time. The natural and growth *471 development, relationships, and the degree of comfort would be severely hindered by that final separation.
(N.T., April 2, 1979, pp. 58-59). Whereas Dr. Garrity stated:
So, that I do think that his upbringing to this point has been excellent. But, I don't feel, as does Doctor Shackner, that this would create such trauma to his psyche that he would not recover from it. I think any changes made, the boy would certainly find it difficult. I think that probably whichever parent he might be with would have to receive some kind of counselling, if not therapy, in order to accomplish any change in his life but because he is so solid, I don't think that this would create any real problem for the boy.
(N.T., July 26, 1979, p. 7).
The lower court chose to give more weight to the testimony of Dr. Garrity and gave its reasons for so doing in its opinion:
While Dr. Schachner is well qualified in his field and impressed this Court with his testimony, he nevertheless was retained by the grandparents to testify in this custody dispute. On the other hand, Dr. Garrity, having been retained by the Court, is completely disinterested in the outcome of the proceedings, and the Court places more emphasis upon her report because of that fact, together with her equally impressive qualifications.
Therefore, we will not disturb this conclusion of the trial judge.
C.
Appellants also argue that the custody award to the father is improper because he is an unfit parent. They claim that certain evidence, which bears on the father's fitness, was not addressed by the court in its opinion.
First, appellants claim that the father has exhibited his unfitness in his use of profane language and his tendency to violence. In support of this argument, appellants point to the fact that the father used profanity in an argument with the natural mother approximately eight years prior to the *472 hearing. Appellants also point to two notes containing profanities written by the father to P.J.'s grandmother. Certainly, the use of a profanity eight years ago has no bearing on appellee's fitness as a parent. Likewise, the note to which appellants refer demonstrates that the father was concerned about P.J.'s ability to control his bowels and suggested P.J. be taken to a doctor. Thus, the unfortunate choice of words does not in any way reflect on the father's ability to care for P.J.
In addition, one of appellants' witnesses, John Lattanzi who occupies the other half of the duplex where the father resides, testified that he often heard violent arguments between appellee and his present wife. Mr. Lattanzi also testified that the father used profanity during these arguments and that two years prior to trial the father allegedly threatened his wife by saying, "I'd blow your brains out; it wouldn't bother me one bit." (N.T., April 2, 1979, p. 183). Mr. Lattanzi's mother, who testified for the father, contradicted her son's testimony. Even assuming the truth of Mr. Lattanzi's testimony, appellant has failed to show its effect on P.J.'s welfare. There is no evidence on the record that the father used profanity in P.J.'s presence or was violent in front of or towards P.J.
The father's right to custody is forfeitable only by misconduct or other factors which substantially effect the child's welfare. Johnson v. Pinder, 217 Pa.Super. 180, 269 A.2d 511 (1970); Commonwealth ex rel. Insalaco v. Delconte, 201 Pa.Super. 354, 192 A.2d 750 (1963), aff'd 413 Pa. 221, 196 A.2d 353 (1964); Commonwealth ex rel. Sabath v. Mendelson, 187 Pa.Super. 73, 143 A.2d 665 (1958). Because appellants have not shown that the alleged misconduct of the father in any way affects P.J.'s welfare, we hold that such conduct cannot be said to bear on the father's right to custody.
Appellants point to other acts of the father which at least to some degree involve P.J. The first of these incidents occurred when the father came to the grandparents' home for a scheduled visitation. According to the testimony of *473 the Bertetto's neighbor, she was with the grandmother in her yard one day when the father arrived to pick up P.J. She recalled that the father called to P.J. and when P.J. hesitated the father threatened him by saying, "P.J., are you coming? . . . You want the cops to come and get you?" (N.T., April 2, 1979, p. 374.) This recounting of the testimony by appellants, however, fails to disclose the fact that this incident occurred during a time when the father was required to have a constable accompany him to the grandparents' home in order to enforce his right to visitation.[2] Viewed in the proper context appellants' argument is spurious.
Finally, appellants allege that the father lied concerning P.J.'s attendance at Sunday school classes. It is true that the father's testimony that P.J. was taken regularly to these classes was contradicted by the testimony of the catechism teacher who compiled an attendance record. Appellants note that the lower court never addressed this testimony or the question of the credibility of the natural father in its opinion. They cite Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979) and Rupp v. Rupp, 268 Pa. Super. 467, 408 A.2d 883 (1979) for the argument that this court should remand the case because of a lack of detailed analysis as to credibility. We disagree. Even if the trial judge did not believe the father's testimony concerning P.J.'s attendance at Sunday school, this would not be inconsistent with the court's finding that the father is a fit parent. Certainly this discrepancy alone cannot provide convincing reasons outweighing the father's prima facie right to custody. Although an analysis as to credibility would have been helpful to us in reviewing the holding of the court below, it cannot be said that "[t]he opinion is devoid of the type of detailed analysis as to credibility which is essential before we may render a considered opinion on appeal." Garrity v. Garrity, 268 Pa.Super. at 224-225, 407 *474 A.2d at 1327. Thus the lower court was correct in concluding that appellants failed to overcome the father's prima facie right to custody. There was ample evidence to support the court's conclusion that it "finds the natural father to be a fit parent and is convinced of his sincerity in trying to reestablish himself as the father of this child and to engraft this child onto his present family situation."
III.
Appellants contend that it was improper for the court to rely on the report of a court-appointed psychiatrist without first submitting the report to the parties. The lower court ordered that P.J., the natural parents and maternal grandparents be examined by Gene C. Garrity, M.D., a child psychiatrist, and that her report be sent directly to the court. Relying on this court's opinion in Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979), appellants claim that the report should have first been submitted to their counsel.[3]
Appellants' reliance on Rummel is misplaced. There, the trial court relied on extra-judicial reports without taking testimony and giving the parties an opportunity to cross-examine the individual who made up the report and/or to present rebuttal testimony. This court in Rummel based its holding on Wood v. Tucker, 231 Pa.Super. 461, 332 A.2d 191 (1974), also a custody case wherein it was stated:
*475 . . . Reports of investigators, agents and doctors cannot be received in evidence, or considered by the court, in a contested case [citations omitted]. The investigators, agents, doctors, etc., must themselves be produced, sworn and examined as witnesses and be subject to cross-examination . . .
231 Pa.Super. at 463, 332 A.2d at 192, quoting Commonwealth ex rel. Oncay v. Oncay, 153 Pa.Super. 569, 570, 34 A.2d 839 (1943). See also Kessler v. Gregory and Catholic Charities, Inc., 271 Pa.Super. 121, 412 A.2d 605 (1979). Woods makes clear that these cases stand for the proposition that the right of a litigant to in-court presentation of evidence is essential to due process. 231 Pa.Super. at 463, 332 A.2d at 192.
The record discloses that the trial court conducted an extensive examination of Dr. Garrity as to her credentials and the contents of her report. Counsel for both sides conducted cross-examinations of Dr. Garrity. Appellant noted his objection to Dr. Garrity's testimony on the ground that counsel had not received a copy of the report prior to its submission to the court. The objection was overruled. The report was made a part of the record.
We hold that the in-court examination of Dr. Garrity fulfilled the requirements of Woods and Rummel. See also Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979).
IV.
Appellants object to the lower court's award of visitation to P.J.'s mother. The lower court's order states, "[t]he natural mother shall have the right to visit with the child at such times as the child is with the maternal grandparents." Appellants argue that the mother should have been awarded independent visitation. This court has recognized that visitation rights of a parent not in custody must be carefully guarded. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977). It is undisputed that Mrs. Palmer has a right to visitation. See Commonwealth ex rel. Fetters v. Albright, 266 Pa.Super. 583, 405 A.2d 1260 (1979); Strapple *476 v. Strapple, 263 Pa.Super. 187, 397 A.2d 809 (1979); Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978). Appellants apparently contend that awarding visitation to Mrs. Palmer and her parents simultaneously infringes on the mother's right to visitation. However, the record does not disclose any desire on the part of the mother to obtain independent visitation; rather, the record supports the hearing judge's finding that the mother desired "that she be allowed to visit with the child while he is in her parents' custody." It was clear from her testimony that she was seeking to maintain this status quo. Therefore, she cannot be heard to complain now when her request has been granted.
We find that the visitation rights of the mother have been carefully guarded. This is especially true in light of the unusual relationships involved herein and the mother's stated preference that the parental relationship between P.J. and his grandparents continue. (N.T., April 2, 1979, p. 251).
V.
Finally, appellants argue that this court should vacate the Order of the lower court and remand in order that independent counsel be appointed to represent the child. Appellant cites Lewis v. Lewis, 271 Pa.Super. 519, 414 A.2d 375 (1979) as support for their claim. Although in Lewis this court recognized independent counsel may be required where the "bitterness which exists between their parents may result in the children's interest being thrown aside" (at 527 of 271 Pa.Super., at 378 of 414 A.2d), this is not the case before us. Throughout the proceeding below the focus of all parties was clearly P.J.'s best interest and not the ill-will existing between appellants and the natural father. Therefore, independent counsel for P.J. was not required and, in fact, the presence of such counsel may have worked to create an adversarial atmosphere between P.J. and the parties that would not otherwise have existed. See Lewis (at 526-527 of 271 Pa.Super., at 378 of 414 A.2d).
*477 Because appellants have failed to show convincing reasons why P.J.'s best interests would not be served by an award of custody to the father, we affirm the order of the court below.
Order affirmed.
NOTES
[1] It is established that this burden of proof is to be applied to relative and non-relative alike. As this court stated in In re Custody of Hernandez, supra, to draw such a distinction in the burden of proof to be allocated "would be to indulge in over-refinement, which would distract the inquiry from the essential concern of the case-the child's best interest." 249 Pa.Super. at 287, 376 A.2d at 654-5 (footnote omitted). Hooks, supra, and Ramos, supra, both involved a dispute between the natural father and a maternal grandparent.
[2] The lower court found as a fact that "[b]ecause of difficulties in exercising the visitation privileges granted by the court, the father had to enlist the aid of the Domestic Relations Department of Westmoreland County on several occasions."
[3] In their brief, appellants claim that they objected to this procedure, requesting that the report first be submitted to counsel. However, there is some confusion in the record as to whether such an objection was made prior to Dr. Garrity's testifying. Appellees concede that appellants filed an Objection to Evidence and an Amended Objection to Evidence and mailed a copy to opposing counsel and to the trial judge. However, appellees claim that notice to present the motions to the court was never given; the motions were never presented to the trial court; and the orders appended to the motions have never been granted or denied. The record bears out appellee's claim. However, because waiver does not obtain in a child custody dispute, Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976), we will consider appellant's claim assuming the proper procedure was followed.
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280 Pa. Superior Ct. 178 (1980)
421 A.2d 464
COMMONWEALTH of Pennsylvania
v.
Richard JEZORWSKI, Appellant.
Superior Court of Pennsylvania.
Submitted December 6, 1979.
Filed August 15, 1980.
Petition for Allowance of Appeal Denied November 5, 1980.
*179 Robert T. Gownley, Jr., Assistant Public Defender, Scranton, for appellant.
Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
*180 Before WICKERSHAM, BROSKY and EAGEN, JJ.[*]
PER CURIAM:
Richard Jezorwski plead guilty to (1) escape from prison, and (2) unauthorized use of a motor vehicle without the consent of the owner. On the first-mentioned charge, a prison sentence of two to four years was imposed. On the second charge, a concurrent prison sentence of one day was imposed.
Jezorwski filed a motion challenging the legality of the sentence and seeking reconsideration of the sentences imposed. After a hearing, the motion was denied. This appeal followed.
Jezorwski's sole complaint is that the sentence imposed was so manifestly excessive as to constitute too severe a punishment and, as such, constituted an abuse of discretion by the sentencing court.
This state's procedure of indeterminate sentencing[1] necessitates the granting of broad discretion to the sentencing court, and that court's determination will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Our Supreme Court has stated a sentencing court must consider the particular circumstances of the offense and the characteristics of the defendant in all sentencing determinations. Commonwealth v. Martin, supra. Within this framework, the limits placed on the sentencing court's discretion are that it must not overlook pertinent facts, disregard the force of evidence, commit error of law, or inflict punishment exceeding that prescribed by statute. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978).
A review of the record discloses the following. The sentencing court considered the particular circumstances of the crime, as well as Jezorwski's history and background. *181 Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977). The sentence imposed was well within that allowed by statute,[2] and the court filed a timely opinion stating its reasons for the imposition of sentence. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).[3]
We find no abuse of discretion.
Judgments of sentence affirmed.
NOTES
[*] Chief Justice MICHAEL J. EAGEN of the Supreme Court of Pennsylvania, is sitting by designation.
[1] Sentencing Code, 18 Pa.C.S.A. §§ 1301, et seq. (1973).
[2] The maximum sentence for the offense of escape is seven years and/or a $15,000 fine. 18 Pa.C.S.A. §§ 5121.
[3] Jezorwski also complains he and a co-defendant did not receive equal sentences for the offense of escape. As a general rule, disparity may constitute excessiveness but only if the sentencing court fails to consider the circumstances of the crime and the particular characteristics of the defendant. Commonwealth v. Burton, 451 Pa. 12, 301 A.2d 675 (1973). Since these factors were considered instantly, this complaint is without merit.
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632 F.Supp. 1531 (1986)
Vitaya ISARAPHANICH, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 85 Civ. 6045(MEL).
United States District Court, S.D. New York.
April 18, 1986.
Vitaya Isaraphanich, pro se.
Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., New York City (Elliott B. Jacobson, Asst. U.S. Atty., of counsel), for respondent.
LASKER, District Judge.
Petitioner Vitaya Isaraphanich moves pursuant to 28 U.S.C. § 2255 to vacate a judgment of conviction entered on March 22, 1979 following his plea of guilty to two counts of heroin distribution. Insaraphanich also requests a hearing on his claims and discovery of various Drug Enforcement Administration ("DEA") records. In addition, Isaraphanich has moved pursuant to 18 U.S.C. § 3006A(g) for the appointment of legal counsel. The motions are denied.
*1532 I.
From March through September 1978 the DEA employed undercover agents and informers in an investigation that resulted in Isaraphanich's indictment on September 15, 1978 on charges of distribution of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Isaraphanich thereafter agreed to cooperate with the government in its prosecution of another defendant indicted as a result of the same investigation. The government agreed to accept his plea of guilty to two of the four counts in his indictment which together carried a maximum sentence of 30 years imprisonment, $50,000 in fines, and a lifetime special parole term in full satisfaction of all pending or potential charges growing out of the activities upon which the indictment was based.[1]
On October 20, 1978 Isaraphanich pleaded guilty before this court to two counts in his indictment charging him with distribution of 55.5 and 55.61 grams of heroin respectively.[2] On March 22, 1979 Isaraphanich was sentenced by this court to concurrent prison terms of ten years on each count as well as a special parole term. The execution of the sentence was thereupon suspended and the defendant placed on probation for a period of five years on each count, the probation periods to run concurrently.[3]
Subsequently in an unrelated matter, according to Isaraphanich, he was sentenced in December 1982 in New York Supreme Court to a prison term of three to six years on his plea of guilty to a charge of Forgery in the Second Degree.[4]
II.
Isaraphanich moves to vacate his conviction on virtually every constitutional ground suggested by the motion form made available to pro se litigants seeking to proceed under 28 U.S.C. § 2255. Isaraphanich contends that his conviction was obtained by the use of evidence obtained pursuant to an unconstitutional search and seizure of his person and residence, by the use of evidence obtained pursuant to his unlawful arrest, by a violation of his privilege against self-incrimination, and by the use of his coerced confession. Isaraphanich also claims that his plea of guilty was not made voluntarily, that the government failed to disclose evidence favorable to him, and that he was denied the effective assistance of counsel. Finally, Isaraphanich contends that he has been denied his right to appeal his conviction and that his subsequent sentence on unrelated charges in New York State court constitutes a violation of the protection against double jeopardy.
At the heart of Isaraphanich's claims is his contention that he was entrapped by the government into committing the crimes to which he ultimately pleaded guilty. However, even were Isaraphanich to assert a sufficient factual basis for an entrapment defense a question not reached in deciding this motion he still would not be entitled on that ground to have his conviction vacated. This is so because Isaraphanich's plea of guilty "was an admission of all the elements of a formal criminal charge" and by pleading guilty he "waived all ... non-jurisdictional defenses and cannot raise them now by collateral attack." LaMagna v. United States, 646 F.2d 775, 778 (2d Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981). Entrapment is a non-jurisdictional defense on the merits, Eaton v. United States, 458 F.2d 704, 707 (7th Cir.), cert. denied, 409 U.S. 880, 93 S.Ct. 208, 34 L.Ed.2d 135 (1972), not a defense *1533 that goes to the power of the court to force the defendant to stand trial. Therefore, so long as Isaraphanich's guilty plea represented a voluntary and intelligent choice, United States v. Muench, 694 F.2d 28, 34 (2d Cir. 1982), cert. denied, 461 U.S. 908, 103 S.Ct. 1881, 76 L.Ed.2d 811 (1983), he has waived the right to assert an entrapment defense.
For the same reasons Isaraphanich is not entitled to the vacating of his conviction on the basis of claimed antecedent constitutional infirmities such as unconstitutional search and seizure, unlawful arrest, coerced confession, and violation of the privilege against self-incrimination even assuming there is some factual basis for these allegations. The Supreme Court has held that
a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). The only proper focus of a federal habeas inquiry in such a situation is the voluntary and intelligent character of the guilty plea. Id. at 266, 93 S.Ct. at 1607-08.
The question that must be addressed directly in deciding this motion, therefore, is whether Isaraphanich's plea of guilty "represent[ed] a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). Three of petitioner's scattered claims challenge the validity of his plea in this regard. Isaraphanich contends (1) that his plea of guilty "was unlawfully induced, and not made voluntarily, and without understanding of the nature of the charge and the consequences of the plea"; (2) that the government "failed to disclose the unlawful conduct and operational schemes by the Government's agents and informers that were known to the prosecutors"; and (3) that the attorney who advised him with respect to his guilty plea failed to provide him with effective assistance of counsel.
Isaraphanich's claim that his plea was unlawfully induced and involuntary in the sense that it was made without an understanding of the charges or their consequences is belied by the plea minutes. On the morning this court took his plea, Isaraphanich had a choice of two interpreters one his friend, the other (whom he selected) provided by the government. Isaraphanich was represented by counsel, who was questioned about the extent of his involvement in petitioner's case as well as his estimation of petitioner's knowledge and understanding of the nature of the charges and the consequences of pleading guilty. Isaraphanich himself was then questioned about his understanding of the case and the extent of his lawyer's involvement, and he proceeded to recount the factual circumstances of each of the two counts to which he was prepared to plead guilty. Isaraphanich was also informed that by pleading guilty he was foregoing a jury trial, that a guilty plea was equivalent to a guilty verdict by a jury, that there was no right to appeal a lawful sentence based on such a plea, and he was told what the maximum sentence could be. The petitioner's cooperation with the government and its effect on his sentence was also discussed, and this court inquired of Isaraphanich whether any pressure had been brought to bear on him or any member of his family in connection with the plea. A review of the plea allocution leaves no doubt that petitioner's guilty plea was, at least according to Isaraphanich himself, voluntary and knowing.
It may be that under certain circumstances a defendant's guilty plea will be prevented from being an intelligent choice by virtue of the government's failure to disclose facts that it is obligated to reveal and that would affect the defendant's decision to plead guilty. Cf. United States v. Crooker, 729 F.2d 889 (1st Cir.1984) (motion under Fed.R.Crim.P. 32(d)). That issue *1534 need not be resolved, however, since Isaraphanich's claim that the government failed to disclose facts to him and his attorney that would support an entrapment defense is foreclosed by petitioner's pro se concession, perhaps unwitting, that "Isaraphanich had contended to his legal counsel that he was entrapped but his counsel to [sic] him to cooperate and plead guilty."[5] Evidently, Isaraphanich was in possession of enough facts to suggest an entrapment defense but chose to accept his attorney's advice that he enter into a plea agreement.
Isaraphanich's final challenge to the validity of his guilty plea is his claim that he was denied the effective assistance of counsel in connection with his decision to plead guilty. In Hill v. Lockhart, ___ U.S. ___, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court held the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to be applicable to ineffective assistance claims arising out of the plea process. Strickland required a defendant complaining of ineffective assistance to "show that counsel's representation fell below an objective standard of reasonableness," id. at 687-88, 104 S.Ct. at 2065, and to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. at 2068. In discussing the second or "prejudice" requirement, the Hill Court stated:
[I]n order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
....
[W]here the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the prejudice inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (CA 7 1984) ("It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received.")
106 S.Ct. at 370-71.
It cannot be said that under the circumstances of this case Isaraphanich's counsel's recommendation that petitioner plead guilty was outside "the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Nor is there any reason to believe that an entrapment defense likely would have succeeded at trial, since it is a matter of legal realism that such defenses rarely succeed, or that Isaraphanich could possibly have received a shorter sentence following a conviction than the suspended prison term he actually received upon his plea of guilty. See Mitchell v. Scully, 746 F.2d 951, 957 (2d Cir.1984) (failure to apprise defendant of availability of affirmative defense not ineffective assistance where "counsel had every reason to think that raising the defense had almost no chance of success and would expose [defendant] to the risk of serious additional punishment on other charges"), cert. denied, ___ U.S. ___, 105 S.Ct. 1765, 84 L.Ed.2d 826 (1985). Moreover, because Isaraphanich has failed to allege the kind of "prejudice" necessary to satisfy the second half of the Strickland test, a hearing on the ineffective assistance of counsel claim is not warranted. Hill v. Lockhart, 106 S.Ct. at 371.
In sum, we find that Isaraphanich's plea of guilty was voluntary and intelligent, and that he has thus waived his right to assert either the affirmative defense of entrapment or any antecedent constitutional violations as grounds for vacating his conviction. Since his guilty plea is valid, Isaraphanich's claim that he has been denied the right to appeal must also fail. He was specifically informed by this court that pleading guilty would preclude his right to *1535 appeal to a higher court from any lawful sentence imposed.[6]
Isaraphanich's last claim is that he was deprived of the protection against double jeopardy by his sentencing in New York state court on a 1982 forgery conviction to a prison term of three to six years, based presumably on New York's "predicate felony" statute. Apparently, as a result of his being adjudged a predicate felon based on the federal narcotics conviction that is the subject of the instant motion, Isaraphanich's minimum term of imprisonment on the forgery conviction was required to be set by the sentencing judge at one-half instead of one-third of the maximum term. See N.Y. Penal L. §§ 70.00(3)(b), 70.06(4)(b), & 170.10 (McKinney 1975 & Supp. 1986).
Any claim Isaraphanich may have under the fifth amendment's double jeopardy clause, however even if the federal conviction were to be set aside would form the basis for an attack not on the 1979 federal conviction but rather on the 1982 New York sentence. Such a claim is thus improperly brought pursuant to 28 U.S.C. § 2255. The necessity of proceeding under 28 U.S.C. § 2254 for a writ of habeas corpus to be issued against state officials is more than a matter of form pleading. Section 2254(b) would require Isaraphanich to show that he had exhausted all appellate remedies available to him in the New York state courts a showing he apparently cannot make at this time.
In view of the conclusions reached above with regard to Isaraphanich's legal claims, we believe that neither a hearing nor discovery of DEA records is warranted. Accordingly, petitioner's requests for a hearing and discovery are denied. In addition, because petitioner's Section 2255 claims are insufficient on their face, we conclude that the appointment of counsel pursuant to 18 U.S.C. § 3006A(g) is not required by the interests of justice. Petitioner's Section 3006A(g) motion is therefore denied.
The motion to vacate is denied and the complaint is dismissed.
It is so ordered.
NOTES
[1] See Letter dated Oct. 19, 1978, to Herbert J. Adlerberg, Counsel for Isaraphanich, from Denise Cote, Ass't United States Attorney (Exhibit A to Government's Memorandum of Law).
[2] See Transcript of guilty plea of Oct. 20, 1978, in United States v. Isaraphanich, 78 Cr. 655 (Exhibit B to Government's Memorandum of Law) (hereinafter "Plea Minutes").
[3] See Transcript of sentencing of March 22, 1979, in United States v. Isaraphanich, 78 Cr. 655 (Exhibit C to Government's Memorandum of Law).
[4] See Petitioner's Traverse Response at 22-23.
[5] Petitioner's Traverse Response at 32.
[6] Plea Minutes at 9.
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491 Pa. 363 (1980)
421 A.2d 179
COMMONWEALTH of Pennsylvania, Appellee,
v.
Kevin DAVIS, a/k/a Kevin Cargo, Appellant.
Supreme Court of Pennsylvania.
Submitted April 24, 1980.
Decided September 22, 1980.
*364 *365 *366 James J. DeMarco, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Sarah B. Vandenbraak, Philadelphia, for appellee.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
OPINION
KAUFFMAN, Justice.
Kevin Davis, also known as Kevin Cargo, appeals from the judgments of sentence entered by the Court of Common Pleas of Philadelphia County following his conviction for murder of the first degree and possession of an instrument of crime. The relevant facts are as follows:
On June 7, 1975, the victim, Frank Johnson ("Johnson"), attended a party given by friends at 2412 Hulseman Terrace in Philadelphia. During the evening, an argument broke out between members of rival gangs, and two unidentified individuals forcibly removed Johnson from the premises. While he was standing in front of the house surrounded by a crowd of people, appellant approached Johnson and fatally wounded him with two shots from a .22 caliber derringer pistol.
Following his arrest on September 9, 1977, for murder and other crimes unrelated to this appeal, appellant confessed in writing to shooting Johnson. On December 16, 1977, appellant's pre-trial motion to suppress the signed confession on the ground that it was involuntary was denied, and on February 28, 1978, he was convicted of first degree murder and possession of an instrument of crime by the court sitting without a jury. On May 4, 1978, the trial court granted appellant's petition to file post-verdict motions nunc pro tunc, and on June 13, 1978, Appellant's motions were denied and he was sentenced to a term of life imprisonment on the conviction for first-degree murder and to a consecutive term of two and one-half to five years imprisonment for possession of an instrument of crime. Appeal was taken *367 directly to this Court from the judgment of sentence imposed for the murder conviction and to the Superior Court from the judgment of sentence imposed for the weapons violation.[1] The latter appeal has been certified to this Court. We affirm.
I
Appellant first argues that his arrest warrant was invalid because the information upon which it was issued was insufficient, unreliable and unworthy of trust. We disagree. The arrest warrant was issued on the basis of information received from three eyewitnesses. Two specifically identified appellant as the individual who shot Johnson and the third identified him as one of the four individuals she observed fleeing from the scene immediately after the shooting. We repeatedly have confirmed the reliability and trustworthiness of eyewitnesses testimony. See Commonwealth v. Musi, 486 Pa. 102, 113, 404 A.2d 378, 383 (1979), (eyewitness to shooting reliable); Commonwealth v. Irving, 485 Pa. 596, 601, 403 A.2d 549, 551 (1979), ("there is a basis for crediting the information of an eyewitness"); Commonwealth v. Stokes, 480 Pa. 38, 44, 389 A.2d 74, 77 (1978) ("information provided by an eyewitness whose identity is known has . . . been deemed sufficient"). See also Commonwealth v. Carter, 444 Pa. 405, 409-10, 282 A.2d 375, 377 (1971) (testimony of two eyewitnesses sufficient to establish probable cause for arrest). Accordingly, there was sufficient information to support the issuance of the arrest warrant.
II
Appellant next argues that the confession introduced at trial was not his, but was that of the interrogator, and that his signature was obtained by physical and psychological coercion. In effect, appellant requests this Court to *368 substitute its own factual findings for those of the suppression court, which we time and again have refused to do. See Commonwealth v. Martin, 481 Pa. 515, 520, 393 A.2d 23, 25 (1978).
When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant's constitutional rights, Pa.R.Crim.P. 323(i), and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). On review, this Court must "determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977); Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). In doing so, we will consider "only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Commonwealth v. Brown, supra, 473 Pa. at 566, 375 A.2d at 1262; Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). See Commonwealth v. Silo, 480 Pa. 15, 18, 389 A.2d 62, 63 (1978); Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978); Commonwealth v. Crosby, 464 Pa. 337, 342, 346 A.2d 768, 771 (1975). See also Culombe v. Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 1880, 61 L.Ed.2d 1037 (1961).
The conclusion of the suppression court that appellant's confession was his own and was made voluntarily is clearly supported by the record. The Commonwealth established that the confession was not the product of either physical or psychological coercion or promises of leniency made in exchange for appellant's cooperation. Although appellant testified as to the events surrounding the interrogation, the suppression court explicitly stated that it disbelieved appellant's testimony as to physical and psychological *369 coercion.[2] Thus, the lower court's conclusion was amply supported by the evidence.[3]
III
Appellant also argues that the Commonwealth's evidence was insufficient to establish beyond a reasonable doubt that appellant committed the crimes with which he is charged. The test for the sufficiency of the evidence in a criminal case is whether the evidence admitted at trial is sufficient to prove every element of the crime or crimes charged beyond a reasonable doubt. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979); Commonwealth v. Liddick, 485 Pa. 121, 401 A.2d 323 (1979). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder could properly have based its verdict. Commonwealth v. Helm, 485 Pa. 313, 402 A.2d 500 (1979); Commonwealth v. Tate, supra; Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978).
Viewed in that light, the testimony at trial disclosed the following: On June 7, 1975, Johnson, while attending a party at 2412 Hulseman Terrace in Philadelphia, was forcibly removed from the house by unknown individuals. An eyewitness testified that a young man dressed in a grayhooded *370 sweatshirt stepped through the crowd surrounding Johnson, who apparently was unarmed, and, without saying a word, pulled out a small handgun and shot him twice in the chest and abdomen. The assailant was subsequently identified as appellant by a second eyewitness who observed appellant standing over Johnson's unconscious body. Appellant ran from the scene, but was apprehended as a fugitive almost two and one half years later.[4] Following his arrest, appellant confessed to the murder. In his statement, appellant detailed the circumstances surrounding the shooting, which were in accordance with the accounts given by the eyewitnesses. Appellant's statement also established that he shot Johnson because of his belief, which later was proved to be mistaken, that Johnson previously had killed a friend of his.
This evidence clearly was sufficient. The testimony of two eyewitnesses established that appellant, without provocation, shot Johnson. Moreover, appellant's admission regarding his motive of revenge, as well as the manner in which Johnson was shot, established that appellant acted with the specific intent required to support a conviction for first degree murder. See Commonwealth v. Alston, 458 Pa. 412, 317 A.2d 229 (1974) (evidence that appellant fired a gun at the victim from a distance of approximately four feet and that the bullet struck the victim in the chest established specific intent to kill); Commonwealth v. Bricker, 458 Pa. 367, 326 A.2d 279 (1974) (specific intent to kill may be inferred from the fact that appellant fired two shots into the chest of the victim at a distance of two feet. See generally Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976) (proof of specific intent to kill may be inferred from underlying circumstantial evidence). Similarly, appellant's conviction *371 for possession of an instrument of crime was also supported by sufficient evidence, including positive eyewitness testimony and appellant's statement regarding his use of a handgun to shoot Johnson. See Commonwealth v. McNear, 238 Pa.Super. 177, 353 A.2d 39, aff'd, 478 Pa. 19, 385 A.2d 975 (1975).
IV
Finally, appellant argues that the trial court erred in admitting evidence of his prior conviction. Although appellant concedes that this evidence was admitted into the record "for the sole purpose of impeaching credibility" (Brief for Appellant at 15), he nevertheless argues that since a defendant's credibility is critical to the determination of guilt or innocence, it is error to admit this evidence prior to that determination, even for the limited purpose of impeaching credibility. Appellant thus advocates a per se rule that evidence of a defendant's prior convictions is never admissible at trial, but may only be considered in determining the appropriate sentence following conviction.
It is well established that the Commonwealth may in rebuttal introduce evidence of prior convictions of crimes of dishonesty or false statement to impeach the credibility of a defendant who has elected to testify on his own behalf. Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).[5]
In any event, appellant's allegation of prejudice is totally unsupported by the record. Appellant was tried and convicted by a judge sitting alone as factfinder, who expressly stated that he disregard appellant's prior criminal record. The evidence now objected to thus was not a factor *372 in determining appellant's guilt.[6] (Opinion of the trial court at 23-24) Accordingly, any error in its admission was harmless beyond a reasonable doubt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).
The judgment of sentence is affirmed.[7]
NOTES
[1] Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.S.C.A. § 722(1) (Pamph. 1979).
[2] It is well established that credibility determinations are the sole province of the fact finder, Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979), and the fact finder is free to believe all, part of, or none of a defendant's testimony. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978).
[3] Appellant, in his pro se "Amended Supplemental Brief," further argues that he was not fully advised of his constitutional rights at the time of the interrogation in violation of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Credible record testimony clearly establishes that appellant received the appropriate Miranda warnings and that he knowingly, intelligently and voluntarily waived his rights to remain silent.
[4] Appellant's consciousness of guilt, evidenced by his flight from the scene and his concealment of his whereabouts for over two years, supports the finding of guilt. See Commonwealth v. Whack, 482 Pa. 137, 141-42, 393 A.2d 417, 419-20 (1978); Commonwealth v. Tinsley, 465 Pa. 329, 333, 350 A.2d 791, 792-93 (1976); Commonwealth v. Osborne, 433 Pa. 297, 302-03, 249 A.2d 330, 333 (1969); Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964).
[5] Appellant does not argue that the Commonwealth failed to establish the admissibility of this evidence under the standards established by this Court in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978) and Commonwealth v. Bighum, supra. Nor does appellant argue that the trial court abused its discretion in admitting this evidence under the standards set out therein.
[6] A judge, as factfinder, is presumed to disregard inadmissible evidence and consider only competent evidence. Commonwealth v. Glover, 266 Pa.Super. 531, 534, 405 A.2d 945, 947 (1979) (Special Transfer Docket); McCormick, Evidence § 60 (2d ed. 1972). Cf. Commonwealth v. Batty, 482 Pa. 173, 178, 393 A.2d 435, 438 (1978) cert. denied 440 U.S. 974, 99 S.Ct. 1543, 59 L.Ed.2d 793 (1979) (court did not abuse its discretion by admitting inflammatory photographs "because, although inadmissible in a jury setting, a judge, as the trier of fact, possesses the training, skill and experience to enable him to view such photographs [in the proper manner]"). Commonwealth v. Green, 464 Pa. 557, 561, 347 A.2d 682, 683 (1975) (no prejudice when a confession, initially ruled admissible, is later found to be involuntary during a non-jury trial; the Court specifically rejected appellant's claim that "the mere exposure to prejudicial evidence is enough to nullify a judge's verdict in a case."); Commonwealth v. Glover, supra, 266 Pa.Super. at 534, 405 A.2d at 947, no prejudice where judge, as factfinder, hears inflammatory tape recording).
[7] In his pro se "Amended Supplemental Brief," appellant argues that he was denied his right to a preliminary hearing. The record, including the transcript of appellant's preliminary hearing, totally refutes this frivolous allegation.
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288 Md. 678 (1980)
421 A.2d 588
BOARD OF PUBLIC WORKS OF THE STATE OF MARYLAND
v.
BALTIMORE COUNTY, MARYLAND
[No. 58, September Term, 1980.]
Court of Appeals of Maryland.
Decided October 28, 1980.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Robert A. Zarnoch and Linda H. Lamone, Assistant Attorneys General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.
Malcolm F. Spicer, Jr., Assistant County Solicitor, with whom was Leonard S. Jacobson, County Solicitor, on the brief, for appellee.
SMITH, J., delivered the opinion of the Court, DAVIDSON, J., concurs in part and dissents in part, and filed an opinion concurring in part and dissenting in part at page 685 infra.
We shall here hold that since it is a public general law the provisions of Chapter 889 of the Acts of 1980 (the Act) making it subject to the approval of the voters of Baltimore County are invalid. We shall likewise hold that the invalid provisions are not severable. Thus, we shall affirm that portion of the judgment of the Circuit Court for Baltimore *680 County which held the provisions for referendum invalid, but reverse the holding that its provisions were severable.
Chapter 889 of the Acts of 1980 authorized the creation of a State debt in the amount of $1,250,000 for the design, planning, construction, etc., of a performing arts center at Oregon Ridge, Baltimore County, to be known as the Oregon Ridge Multi-Performance and Educational Center. This chapter was introduced in the General Assembly as Senate Bill 503. The sum authorized was $2,500,000. The Budget and Taxation Committee of the Senate proposed three amendments which were duly accepted by the General Assembly. The first reduced the authorized sum to $1,250,000. The other two precipitate this litigation. These were added as §§ 5 and 6 of the bill, providing in pertinent part:
(5) Prior to the payment of any funds under the provisions of this Act ... Baltimore County shall provide at least an equal and matching fund of $1,250,000 for this project.... If satisfactory evidence of the raising of at least an equal and matching fund for this project is not presented to the Board of Public Works on or before June 1, 1982, the proceeds of the loan shall be transferred to the Annuity Bond Fund and applied to the debt service requirements of the State.
(6) The payment of any funds under the provisions of this Act ... is further contingent on the approval of this project by a referendum of the legally qualified voters of Baltimore County at the general election to be held in November of 1980....
Citing Steimel v. Board, 278 Md. 1, 357 A.2d 386 (1976), and Cole v. Secretary of State, 249 Md. 425, 240 A.2d 272 (1968), the Attorney General advised the Governor he could not "approve the bill for constitutionality." The bill was signed by the Governor six days later. However, a few days later on June 18, 1980, the Board of Public Works passed a resolution stating that upon the advice of the Attorney General *681 it would take no action to implement the Act "until the questions raised by the Attorney General are judicially resolved in favor of the legislation." In the interim Baltimore County had enacted an ordinance authorizing a county debt not exceeding $1,250,000 for the purpose of funding the Oregon Ridge Center contingent upon the approval of its people at the general election of 1980. Baltimore County Charter § 718 requires that bond bills be submitted to referendum.
Baltimore County filed a petition for declaratory judgment in the Circuit Court for Baltimore County against the Governor, the Comptroller, and the Treasurer, constituting the Board of Public Works. It sought a declaration that Chapter 889 is valid and constitutional. The trial court struck down so much of the Act as required the approval of the voters of Baltimore County but held that provision severable so that the balance of the Act might be enforced. Both parties appealed to the Court of Special Appeals. We granted the writ of certiorari prior to hearing in that court.
Since at least the time of Hammond v. Haines, 25 Md. 541, 562 (1866), the law of this State has been that a public general law may not be submitted by the General Assembly to referendum of the people either on a statewide level, Brawner v. Supervisors, 141 Md. 586, 595, 119 A. 250 (1922), or in one county or the City of Baltimore, Levering v. Supervisors of Elections, 137 Md. 281, 289, 112 A. 301 (1920), even though a public local law may be conditioned upon a referendum of the voters in the area or political subdivision affected by the legislation. Steimel, 278 Md. at 4-5; Cole at 434; and, as to the latter proposition, Steuart Petroleum Co. v. Board, 276 Md. 435, 446, 347 A.2d 854 (1975); Ness v. Baltimore, 162 Md. 529, 537, 160 A. 8 (1932); and Bradshaw v. Lankford, 73 Md. 428, 430-31, 21 A. 66 (1891). The reasons for this holding were explained by Judge Offutt for the Court in Brawner:
[W]e rest our conclusion upon two grounds, one, that the people of Maryland, having delegated to the Legislature of Maryland the power of making its laws, that body could not legally or validly *682 redelegate the power and the authority thus conferred upon it to the people themselves; and two, that the people of the State, from whom the Legislature itself derives its powers, having prescribed in the Constitution of the State the manner in which its laws shall be enacted, it is not competent for the Legislature to prescribe any other or different way in which its laws may be enacted. [Id. 141 Md. at 595.]
In this case the County concedes that the Act is a public general law. Indeed, it is such a law since it provides for the levy and imposition of "an annual State tax on all assessable property in the State in rate and amount sufficient to pay the principal of and interest on the bonds" issued thereunder. However, the County points out that by its terms the Act takes effect June 1, 1980, that issuance of the bonds is not made contingent upon the referendum, and that the Act provides that if the County has not raised the matching sum by June 1, 1982, "the proceeds of the loan shall be transferred to the Annuity Bond Fund and applied to the debt service requirements of the State." From this it argues that "the legislature's power to make law has not been delegated to the people of Baltimore County as their vote is not a vote on the law but merely a vote for or against the project and the County's bond issue...."
The Act authorizes the expenditure of State funds. Under Maryland Constitution Art. III, § 32 no money may be drawn from the Treasury of this State "except in accordance with an appropriation by Law...." The Act amounts to a "Supplementary Appropriation Bill" under Constitution Art. III, § 52 (8). The money is not to be spent for its obviously intended purpose unless the people of Baltimore County approve. In our view this amounts to submission of a public general law to the approval of the people of a single county. Thus, this provision of the Act is invalid.
Maryland Code (1957, 1976 Repl. Vol.) Art. 1, § 23 provides:
The provisions of all statutes enacted after July 1, *683 1973 are severable unless the statute specifically provides that its provisions are not severable. The finding by a court that some provision of a statute is unconstitutional and void does not affect the validity of the remaining portions of that statute, unless the court finds that the remaining valid provisions alone are incomplete and incapable of being executed in accordance with the legislative intent.
A number of our prior cases have discussed severability. See, e.g., O.C. Taxpayers v. Ocean City, 280 Md. 585, 601, 375 A.2d 541 (1977); State v. Schuller, 280 Md. 305, 318-21, 372 A.2d 1076 (1977); Davidson v. Miller, 276 Md. 54, 83, 344 A.2d 422 (1975); Shell Oil Co. v. Supervisor, 276 Md. 36, 48-49, 343 A.2d 521 (1975); Anne Arundel County v. Moushabek, 269 Md. 419, 428, 429, 306 A.2d 517 (1973); Sanza v. Md. Board of Censors, 245 Md. 319, 338-39, 226 A.2d 317 (1967); and Baltimore v. A.S. Abell Co., 218 Md. 273, 290, 145 A.2d 111 (1958). However, as Judge Eldridge observed for the Court in Schuller, "[I]t comes down to a question of legislative intent." 280 Md. at 319. In Sanza, Judge Oppenheimer said for the Court:
The presence of a severability clause raises a presumption of severability, but the clause is merely declaratory of an established rule of construction; it is "an aid merely, not an inexorable command." The test is, would the legislative body have enacted the statute or ordinance if it knew that part of the enactment was invalid? City of Baltimore v. Stuyvesant Ins. Co., 226 Md. 379, 390, 391, 174 A.2d 153 (1961); City of Baltimore v. A.S. Abell Co., 218 Md. 273, 289-91, 145 A.2d 111 (1958), and cases therein cited. [Id. 245 Md. at 338.]
In A.S. Abell Co. Judge Prescott stated for the Court that "a saving clause will not be given effect where ... invalid provisions affect the dominant aim of the whole statute." 218 Md. at 290. In Davidson Judge Digges made the point for the *684 Court that "even though constitutional and unconstitutional provisions of a law are contained in the same section, the entire section or enactment is not invalid unless the provisions are essentially and inseparably connected in substance...." Id. 276 Md. at 83.
Baltimore County points to its standard practice of funding capital projects by bond issues, notes that under its charter such bond issues are subject to approval of the people, and says that the General Assembly would have been aware of this. From these facts it argues that the Legislature would indeed have passed the Act without the offending referendum provision. It seems to us that a probable reason for that which was done by the General Assembly was the fact that it was cognizant that the County could elect to provide the necessary funds out of general revenues which action would not require approval by the people. For that reason in its legislative wisdom it saw fit to amend the proposal to specifically require that payment of funds under the Act was "contingent on the approval of this project by a referendum of the legally qualified voters of Baltimore County...." It was taking no chances. It wanted to be certain that the project had the approval of the people of Baltimore County before the General Assembly obligated all of the taxpayers of this State to pay for this public improvement to be located in Baltimore County. To adopt the County's position would be to conclude that the General Assembly with knowledge that the people would evince their approval or disapproval of the project by voting on the bond issue nevertheless required a redundant vote on the Act. This legislative history convinces us that the General Assembly would not have enacted the measure in question without the invalid provision.
In addition, even if the actual intention of the Legislature were to sever, nevertheless we would not make a finding of severability under the circumstances here. This is not a case where there are parts of the statute which are independent of the unconstitutional provision. Rather, the effectiveness of the entire statute is made dependent upon an unconstitutional referendum. Consequently, the invalidity *685 is so fundamental that such a statute is not susceptible of severability.
Judgment of the Circuit Court for Baltimore County vacated and case remanded to that court for entry of a declaratory judgment in accordance with this opinion; costs to be equally divided between the parties; mandate shall issue forthwith.
Davidson, J., concurring in part and dissenting in part:
While I agree with the majority that the referendum provision is invalid, I believe that it is properly severable.
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178 Cal.App.4th 915 (2009)
In re C.C., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
C.C., Defendant and Appellant.
No. C061230.
Court of Appeals of California, Third District.
October 27, 2009.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*917 Washington & Heithecker, George E. Washington, Philip H. Heithecker and Tahj E. Gomes for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CANTIL-SAKAUYE, J.
C.C. sent his former girlfriend two text messages expressing strong negative feelings about their breakup. A delinquency petition charged him with criminal threats and making a threatening or obscene telephone communication. (Pen. Code, §§ 422, 653m, subd. (a).)[1] The People dismissed the criminal threat count and the juvenile court sustained the petition, finding C.C. sent threatening or obscene texts.
The juvenile court placed C.C. on informal probation and ordered him to write a 500-word essay on the Columbine High School shootings. C.C. completed his essay and filed this timely appeal.
We conclude C.C.'s text messages were neither threatening nor obscene as those terms are used in section 653m. They did not threaten any physical harm, as required by statute. Nor, read in context, did the vulgar language he used qualify as obscene. Accordingly, we reverse for lack of substantial evidence. We need not reach C.C.'s alternative constitutional claims.
FACTS
C.C., aged 16, sent S. two text messages. We provide them in full, redacting the names:
"no [S.] im gonna come to school with one of [P.'s] gun and kill half the school ill load everyone with bullets and then shoot myself in the head right in front of u.
*918 "just to show u how much u pushed me[.]"
"fuck u u stupid fuckin girl!
"fuck u!!
"god u stupid little fuckin cunt!
"god i waited to kiss u for a fuckin month its been two weeks ur kissing ppl [Sh.'s] friends try to cuddle with me and i push them off ur all i think about i do drugs now because of u because u r constantly hurting me i told u i cheating on u cause i didnt want to hide things from u i could have and i could have been happy but no ....
"u pushed me to cheat on u u would constantly tease me and fuck with me and put me thru things those were all bitch moves and i took them i cheated on u because of that u find a fuckin guy that will stay with u when u tease but dont put out and i waited all that time u will probably fuck [B.] right after he wins the [football game] i fuckin hate u i wanna kill myself cause u put me thru all this but only ppl c my bad side not ur shitty side cause ur a cheerleader and ill i did was b nice and i get picked on so fuck u [S.]
"god ur a lyer and a jerk.
"fuck."
S., aged 16, testified she had dated C.C. for a year and a half when she received these texts on October 6, 2008. She testified the words in the texts are in common use at their high school. Another student testified the words were in common use at school, and it was stipulated a third student would so testify.
S. testified she was not annoyed by the texts or offended by the use of the swear words. C.C. sent her an apology for the language he had used and they are again friends. She understood that C.C. was upset about their breakup. S. did not report the texts to the police, but she told a friend, and word spread to other students, one of whom told the police.
A peace officer testified he spoke to C.C., who expressed regret for the texts, explaining that they were sent in response to "a heated argument."
*919 The juvenile court found that the texts were sent with the intent to annoy, and that the first text constituted a threat and that both texts were obscene.
DISCUSSION
"When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense." (In re Ryan D. (2002) 100 Cal.App.4th 854, 859 [123 Cal.Rptr.2d 193] (Ryan D.); see People v. Raley (1992) 2 Cal.4th 870, 886, 891 [8 Cal.Rptr.2d 678, 830 P.2d 712].)
Section 653m, subdivision (a) provides: "Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith."
For purposes of this appeal we will assume substantial evidence shows "intent to annoy," although the point is debatable and C.C.'s claim that the intent to communicate painful feelings does not equate to an "intent to annoy" within the meaning of section 653m carries some force. We will separately consider the claims that the texts were threatening or were obscene under section 653m.
I.
A Physical Threat is Required by Section 653m[*]
II.
Neither Text Was "Obscene" Under Section 653m
(1) The juvenile court found both texts were "obscene" as proscribed by the second prong of section 653m. We disagree, because it is inappropriate to *920 extract isolated words from a private message and impose criminal liability based on their abstract offensiveness. Viewing C.C.'s texts in context, as we must, we find no basis for criminal liability.
(2) In People v. Hernandez (1991) 231 Cal.App.3d 1376, 1384-1386 [283 Cal.Rptr. 81] (Hernandez), the term "obscene" as used in section 653m was interpreted to mean something different from the term as used in the context of erotic expression, such as in defining "`[o]bscene matter'" or "`[o]bscene live conduct.'" (§ 311, subds. (a), (g); 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Sex Offenses and Crimes against Decency, § 83; CALJIC No. 16.182; CALCRIM No. 1142). In such contexts, referred to in Hernandez, supra, at pages 1385-1386 as "the Miller standard" (see Miller v. California (1973) 413 U.S. 15 [37 L.Ed.2d 419, 93 S.Ct. 2607]), "`[o]bscene matter'" generally refers to something "that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value" (§ 311, subd. (a)(1)).
Hernandez involved a traditional type of annoying telephone call, where Hernandez repeatedly called a woman over a two-week period, hurling abuse at her by using vile terms, such as calling her a "`fat bitch,' a `whore,' and a `c___.'" (Hernandez, supra, 231 Cal.App.3d at p. 1380 & fn. 4.)
In that factual context, Hernandez approved an instruction defining "`obscene'" as used in section 653m as "`offensive to one's feelings, or to prevailing notions of modesty or decency; lewd.'" (Hernandez, supra, 231 Cal.App.3d at p. 1384.) Hernandez explained that because the purpose of the statute "was to protect an individual's right to privacy from annoying intrusions," section 653m was not limited to "`obscene' language dealing with sex and appealing to the prurient interest under the Miller standard, while exempting equally annoying telephone calls containing language that would be considered `obscene' under a common or dictionary definition." (Hernandez, supra, at p. 1384.) Hernandez in part noted that sister state statutes had been construed to include a similarly broad definition of "obscene" in order to deter harassing telephone calls and thereby protect the peace and solitude of telephone owners. (Id. at p. 1386; see generally Annot., Use of Telephone to Annoy or Harass (1979 & 2008 supp.) 95 A.L.R.3d 411; Comment, Constitutionally Regulating Telephone Harassment: An Exercise in Statutory Precision (1989) 56 U.Chi. L.Rev. 1403.)
Because C.C. does not challenge the Hernandez definition of "obscene" as the word is used in section 653m, for the purposes of this appeal we accept it as accurate. That definition has three discrete parts, "`offensive to one's *921 feelings, or to prevailing notions of modesty or decency; lewd.'" (Hernandez, supra, 231 Cal.App.3d at p. 1384.) C.C.'s texts do not fit within any of those parts.
We need not consider whether the texts were objectively of the kind that would offend someone's feelings sufficiently for criminal liability, because S. testified without contradiction that she was not subjectively offended.
The texts were not "lewd." The first text has nothing arguably lewd in it. Although the second text used vulgarities derived from sexually related terms such as "fuck" and "cunt," those words were not used lewdly. They were expletives used as verbs and adjectives to emphasize the depth of his feelings, and in a couple of places as insults to describe how he felt about S. as a result of her conduct. For example, calling her a "cunt" did not import any lewd thoughts about her; it conveyed anger and insult towards her. There was one explicit sexual usage, when C.C. posited that S. would "fuck" another boy after a football game, but the term "fuck" was merely a synonym for sexual congress, it conveyed no more salacious meaning than a more refined term for that activity.
Neither text was offensive to prevailing notions of modesty or decency. As for the second text, the words "fuck" and "bitch" and "cunt" are generally eschewed in polite settings, which is why in court the parties and witnesses generally referred to the "F word" or "B word" or "C word." But each has acquired secondary meanings through modern usage. In particular, the evidence was uncontradicted that these words are in common use at the high school, the venue in which the relationship existed, and in which C.C.'s pointed communications about his feelings were sent. For this reason we reject the Attorney General's view that the use of the "C word" and the like at trial proves the words are necessarily indecent.
(3) The meaning of words is always contextual. As provided in the erotic obscenity arena, matter must be judged in its entirety, including the context in which it is presented. (§ 311, subd. (a) [matter must be "taken as a whole"]; see People v. Goulet (1971) 21 Cal.App.3d Supp. 1, 3-4 [98 Cal.Rptr. 782].)
The importance of context is highlighted by In re Price (1970) 4 Cal.App.3d 941 [84 Cal.Rptr. 585] (Price). Price upheld a charge of using obscene language in public (former § 311.6; Stats. 1961, ch. 2147, § 5, pp. 4427, 4428), when a minor called police officers, inter alia, "`mother fuckers,'" because the majority interpreted it to mean "a vulgar description of sexual intercourse with one's mother." (Price, supra, at pp. 944, 946.) A dissenting opinion pointed out that the majority's reading of the words was wrong: "The *922 term `f g pigs' in the context in which it was used referred not to copulation of porcine animals but was rather a highly insulting epithet directed to the police officers. The term `f g law' referred not to the law of sexual intercourse but a derogatory reference to the law in general. The average person would not have construed the phrase `f k them' uttered by appellant in reference to the police officers as an invitation to engage in sexual activities with them. Appellant's use of the vulgarism describing the filial partner in an oedipal relationship is fairly to be viewed as an epithet rather than as a phrase appealing to a shameful or morbid interest in intra-family sex." (Price, supra, 4 Cal.App.3d at p. 948 (dis. opn. of Thompson, J.).)
Although we are not applying the same definition of obscenity at issue in Price, the point is that the dictionary definitions of words such as "fuck" or "cunt" may not reflect the meaning conveyed by those words as used in contemporary society. Meaning generally hinges on the circumstances in which words are used.
As we explained in a case involving an alleged criminal threat (§ 422), "The circumstances surrounding a communication include such things as the prior relationship of the parties and the manner in which the communication was made." (Ryan D., supra, 100 Cal.App.4th at p. 860.) In this case, the words were used by an agitated, frustrated high school boy to his former high school girlfriend, and both parties to the communication attended a high school where such language is in common parlance. The messages concern intimate matters between the parties, and were not spoken aloud in a group, but texted privately inter sese.
To extract isolated words like "fuck" and "cunt" from such a communication and predicate criminal liability on them because they are "offensive" in the abstract is to stretch the Hernandez definition far beyond its utility, which was to broaden the meaning of obscene beyond its usage in reference to erotic material, in order to deter unwanted, harassing communications that intrude on a person's peace and solitude. (Hernandez, supra, 231 Cal.App.3d at pp. 1384, 1386.)
Similarly, while the violence described in the first text is arguably upsetting, it is not obscenethat is, offensive to prevailing notions of modesty or decencyparticularly when read in the context in which the text was sent.
In short, whatever may be said about the manner in which C.C. expressed himself, it was not criminal.
*923 DISPOSITION
The judgment is reversed for lack of evidence.
Blease, Acting P. J., and Robie, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part I, of the Discussion.
[1] Hereafter, undesignated statutory references are to the Penal Code.
[*] See footnote ante, page 915.
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01-03-2023
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10-30-2013
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