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https://www.courtlistener.com/api/rest/v3/opinions/1934322/ | 438 Pa. Superior Ct. 553 (1995)
652 A.2d 948
FOREST CITY GRANT LIBERTY ASSOCIATES and JLM Grant Liberty Associates, T/A Grant-Liberty Development Group Associates,
v.
GENRO II, INC., T/A General Roofing Company and Carlisle Tire & Rubber Company, a Corporation, and Carlisle Corporation, T/A Carlisle Syntec Systems and Insurance Company of North America,
v.
MELLON-STUART COMPANY and Jos. L. Muscarelle, Inc., Individually and D/B/A Mellon-Stuart Company and Jos. L. Muscarelle, Inc., a Joint Venture, Burt Hill Kosar Rittelman Associates and UDA Architects, Individually D/B/A Joint Venture Architects, Baron/Wheeler, Inc., and RMAX, Inc.
v.
ALLIANCE INSURANCE GROUP, Alliance General Insurance Company and Alliance Syndicate, Inc., Appellants.
FOREST CITY GRANT LIBERTY ASSOCIATES and JLM Grant Liberty Associates, T/A Grant-Liberty Development Group Associates,
v.
GENRO II, INC., T/A General Roofing Company and Carlisle Tire & Rubber Company, A Corporation, and Carlisle Corporation, T/A Carlisle Syntec Systems and Insurance Company of North America
v.
MELLON-STUART COMPANY and Jos. L. Muscarelle, Inc., Individually and D/B/A Mellon-Stuart Company and Jos. L. Muscarelle, Inc., A Joint Venture, Burt Hill Kosar Rittelman Associates and UDA Architects, Individually D/B/A Joint Venture Architects, Baron/Wheeler, Inc., and RMAX, Inc.
v.
ALLIANCE INSURANCE GROUP, Alliance General Insurance Company and Alliance Syndicate, Inc.
Appeal of RMAX, INC.
Superior Court of Pennsylvania.
Argued September 28, 1994.
Filed January 12, 1995.
*556 Bradley S. Tupi, Pittsburgh, for Alliance Ins. Group, Alliance General Ins. Co. & Alliance Syndicate, Inc.
Robert J. Cindrich, Pittsburgh, for RMax, Inc.
Before WIEAND, OLSZEWSKI and KELLY, JJ.
WIEAND, Judge:
In this dispute over an insurer's duty to indemnify, the principal issue makes it necessary that we construe a clause in the policy which requires the insured to "cooperate" with the insurer.
When the owners of the Liberty Center discovered defects in the roofing on their several buildings,[1] they commenced an action against Carlisle SynTec Systems, which had designed the several roofs, and General Roofing Company, which had installed the same. Joined as an additional defendant was RMax, Inc., which had supplied foam insulation for the project. It was alleged that the facer sheet on each side of the foam insulation had separated from insulation, a process known as delamination. Alliance Insurance Group was the liability carrier for RMax. At trial, RMax was represented by Terry Cavanaugh, Esquire.
During trial, extended negotiations resulted in a settlement on February 20, 1991. Based on a report by Robert McNeil, an employee of Carlisle SynTec Systems, it was agreed that at least 27,000 square feet of roofing insulation had delaminated, resulting in damaged roofing. This area, it was agreed, should be repaired for $155,000. Because delamination, once begun, tends to migrate, it was also agreed that if repairs to the roof were found to be necessary in adjacent areas, they would be made at a cost of $7 per square foot. Finally, it was *557 agreed that additional areas, not adjacent to identified areas but which were later discovered to be defective, would only be repaired if RMax agreed that delamination had occurred because of a defect in its product. Before these additional, non-adjacent areas could be repaired, however, the parties were to submit an amendment of the settlement agreement to Alliance. Universal Roofing Company was selected to perform the repairs. Both Alliance and RMax consented to the terms of the settlement.
After the settlement agreement had been approved, McNeil revisited the Liberty Center Complex in May, 1991, and determined that at least 14,085 additional square feet of insulation had delaminated and needed to be repaired. McNeil attributed this increased square footage to the migratory nature of delamination. As a result, McNeil amended his initial report and drawings. A copy of the amended report was submitted to RMax and Alliance.
Prior to the commencement of repairs, Cavanaugh contacted Alliance and suggested that Alliance hire an expert to monitor the work so as to prevent any overreaching on the part of Universal. Alliance rejected this suggestion and said that it would rely upon RMax to inspect the project from time to time. Although RMax agreed to visit the work site on occasion, it did not agree to monitor or supervise the project.
In August, 1991, Universal began work on the hotel roof. It repaired the hotel roof and the roof of the podium in areas which had been identified by McNeil and also in areas adjacent thereto. It also replaced the roof in some areas which had not been damaged by delamination. By the time it completed its work, almost the entire hotel and podium roofs had been replaced, and the cost had exceeded greatly the estimates contained in the McNeil report, which had formed the basis for the agreed settlement.
During the repair process Universal sent periodic invoices to Alliance. Although these invoices did not distinguish between areas identified by the McNeil reports and other areas in which repair work had been done, Alliance paid each invoice *558 without question or objection. In November, 1991, after paying $232,100.93, Alliance became aware that it had paid for roof repairs in areas not contemplated by the McNeil reports.
In December, 1991, McNeil visited the Liberty Center complex for a third time and discovered delamination of an additional 27,964 square feet on the office tower roofs. It was estimated that this additional damage would cost $195,748 to repair. On February 4, 1992, Alliance informed RMax that it would not indemnify it for this work.
RMax agreed with McNeil that the newest delamination had been caused by migration of the original damage and stipulated that it should be repaired pursuant to the settlement agreement. Therefore, after Alliance had refused further indemnification, RMax paid $160,062 to Universal for additional repairs. While performing the repair work, Universal replaced 4,350 square feet of undamaged roof at a cost of $37,750. Because RMax had not assigned a representative to supervise the project, it was unaware of Universal's continued overreaching.
In a proceeding for declaratory judgment, RMax contended that Alliance was liable for all costs of making roof repairs, as well as counsel fees. Alliance contended, inter alia, that it was excused from liability because of RMax's failure to cooperate by having its personnel oversee the repair work done by Universal. The trial court held that Alliance was liable for all repairs made pursuant to the settlement agreement and for counsel fees in the amount of $38,908. It was not liable, however, for unnecessary repairs of $37,750 made to the roofs of the office tower, which RMax had already paid and to which it had improperly consented. Both parties appealed.
Generally, where the terms of an insurance contract are ambiguous, they should be construed liberally in favor of the insured and strictly against the insurer. Miller v. Prudential Ins. Co. of Amer., 239 Pa.Super. 467, 472, 362 A.2d 1017, 1020 (1976). Where the policy language is unambiguous, however, words are given their plain and ordinary meaning. *559 Techalloy Co., Inc. v. Reliance Ins. Co., 338 Pa.Super. 1, 7, 487 A.2d 820, 823 (1984).
RMax's duty to cooperate, as set forth in its policy with Alliance, was as follows:
(4) Insured's Duties in the Event of Occurrence, Claim or Suit:
. . . .
(c) The insured shall cooperate with the company and, upon the company's request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of the accident.
The purpose of a cooperation clause in an insurance contract is to protect the insurer's interest and to prevent collusion between the insured and the injured party. 8 Appleman, Insurance Law and Practice § 4741. Although a breach of a duty to cooperate will relieve the insurer from liability under the policy, a failure to cooperate must be substantial and will only serve as a defense where the insurer has suffered prejudice because of the breach. Id. at § 4773. Whether there has been a material breach of an insured's duty to cooperate is a question for the finder of fact. Cameron v. Berger, 336 Pa. 229, 235, 7 A.2d 293, 296 (1938).
By virtue of a cooperation clause, an insured binds itself to assist the insurer fully in its handling of the claim and agrees to take no action which would vitiate a valid defense. See: United Services Automobile Ass'n v. Morris, 154 Ariz. 113, 117, 741 P.2d 246, 250 (1987). An insured's duty to cooperate is breached where the insured neglects to disclose *560 information needed by the insurer to prepare a defense, does not aid in securing witnesses, refuses to attend hearings or to appear and testify at trial or otherwise fails to "render all reasonable assistance necessary to the defense of the suit." 8 Appleman, Insurance Law and Practice § 4774. See also: H.Y. Akers & Sons, Inc. v. St. Louis Fire & Marine Ins. Co., 120 Ga.App. 800, 803-804, 172 S.E.2d 355, 359 (1969).
Despite the broad nature of the duty to cooperate, neither the parties nor our own research has disclosed a case in which a cooperation clause has been construed to include a duty on the part of the insured to supervise the implementation of an agreement of settlement accepted by the insurer. Such a duty is not within the general purpose of the cooperation clause and is not suggested by the express language thereof.
The trial court also found that RMax had not agreed separately with Alliance to monitor or supervise the repair work being done by Universal. Moreover, even if there had been a discussion regarding the approval of additional work, the evidence was that Alliance's practice had been to pay Universal's invoices without inquiry and without requiring prior approval by RMax. Additional areas of delamination, which were adjacent to known areas of damage, were discovered by Universal on a daily basis. The potential for this was known to both Alliance and RMax, as was the potential for overreaching by the contractor. The only way to guarantee that Universal correctly distinguished between damaged and undamaged insulation would have been to assign a qualified expert to monitor the repairs daily. Indeed, Cavanaugh had recommended such a course to Alliance. It was Alliance's responsibility to pay for the work; and, therefore, it had responsibility for establishing an effective program for monitoring the work. Having failed to do so, it cannot assert the insured's failure to cooperate as a defense to the obligation assumed pursuant to its settlement agreement.
It is appropriate for a trial court to reduce the recovery of an injured party by the amount of losses which *561 could have been avoided by the reasonable efforts of the injured party. State Public Sch. Bldg. Authority v. W.M. Anderson Co., 49 Pa.Commw. 420, 423, 410 A.2d 1329, 1331 (1980). Cf.: Dox Planks v. Ohio Farmers Ins. Co., 423 Pa.Super. 311, 318, 621 A.2d 132, 135 (1993), allocatur denied, 536 Pa. 624, 637 A.2d 284 (1993). This duty to mitigate damages prevents the breaching party from being penalized beyond the extent of the damages actually suffered and prevents the injured party from being rewarded for its failure to act. Bafile v. Borough of Muncy, 527 Pa. 25, 31, 588 A.2d 462, 464 (1991). In the fall of 1992, after Alliance had refused to indemnify its insured further, Universal repaired the office tower roof, for which RMax paid the sum of $160,062. Of this total amount, the trial court found, $37,750 was for unnecessary repairs. RMax had paid for these repairs without any attempt to ascertain whether they were within the parameters of the settlement agreement. Therefore, the court refused to require Alliance to pay for these unnecessary repairs. We find no error in the trial court's handling of this aspect of the case.
Finally, the trial court did not err by applying the combined self-insured retentions from the 1986 and 1987 policies of $75,000. Sufficient competent evidence supports this conclusion. See: Ecksel v. Orleans Constr. Co., 360 Pa.Super. 119, 133, 519 A.2d 1021, 1028 (1987) (trial court's findings of fact will be sustained where they are supported by competent evidence). However, it does appear that the trial court made a minor mathematical error. The court mistakenly found that RMax had paid $70,033 in attorney's fees towards its self-insured retention; therefore, the court subtracted $4,967 from RMax's recovery. However, the stipulation of facts submitted by the parties clearly establishes that RMax paid $70,332.76 toward the self-insured retention and that the court should have subtracted $4,667.24 from RMax's recovery. This increases the amount of counsel fees recoverable by RMax to $39,208, and we will cause the order of the trial court to be amended accordingly.
As so amended, the order of the trial court is affirmed.
NOTES
[1] The Liberty Center complex consists of three structures: a hotel, an office tower and a podium. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608477/ | 432 P.2d 405 (1967)
78 N.M. 440
A.A. MARCHIONDO, Plaintiff-Appellant,
v.
Frank SCHECK, Defendant-Appellee.
No. 8288.
Supreme Court of New Mexico.
October 2, 1967.
*406 Hanna & Mercer, Albuquerque, for appellant.
Marron & Houk, Dan A. McKinnon, III, Albuquerque, for appellee.
OPINION
WOOD, Judge, Court of Appeals.
The issue is whether the offeror had a right to revoke his offer to enter a unilateral contract.
Defendant, in writing, offered to sell real estate to a specified prospective buyer and agreed to pay a percentage of the sales price as a commission to the broker. The offer fixed a six-day time limit for acceptance. Defendant, in writing, revoked the offer. The revocation was received by the broker on the morning of the sixth day. Later that day, the broker obtained the offeree's acceptance.
Plaintiff, the broker, claiming breach of contract, sued defendant for the commission stated in the offer. On the above facts, the trial court dismissed the complaint.
We are not concerned with the revocation of the offer as between the offeror and the prospective purchaser. With certain exceptions (see 12 C.J.S. Brokers § 95(2), pp. 223-224), the right of a broker to the agreed compensation, or damages measured thereby, is not defeated by the refusal of the principal to complete or consummate a transaction. Southwest Motel Brokers, Inc. v. Alamo Hotels, Inc., 72 N.M. 227, 382 P.2d 707 (1963).
Plaintiff's appeal concerns the revocation of his agency. As to that revocation, the issue between the offeror and his agent is not whether defendant had the power to revoke; rather, it is whether he had the right to revoke. 1 Mechem on Agency, § 568 at 405 (2d ed. 1914).
When defendant made his offer to pay a commission upon sale of the property, he offered to enter a unilateral contract; the offer was for an act to be performed, a sale. 1 Williston on Contracts, § 13 at 23 (3rd ed. 1957); Hutchinson v. Dobson-Bainbridge Realty Co., 31 Tenn. App. 490, 217 S.W.2d 6 (1946).
Many courts hold that the principal has the right to revoke the broker's agency at any time before the broker has actually procured a purchaser. See Hutchinson v. Dobson-Bainbridge Realty Co., supra, and cases therein cited. The reason given is that until there is performance, the offeror has not received that contemplated by his offer, and there is no contract. Further, the offeror may never receive the requested performance because the offeree is not obligated to perform. Until the offeror receives the requested performance, no consideration has passed from the offeree to the offeror. Thus, until the performance is received, the offeror may withdraw the offer. Williston, supra, § 60; Hutchinson v. Dobson-Bainbridge Realty Co., supra.
Defendant asserts that the trial court was correct in applying this rule. However, plaintiff contends that the rule is not applicable where there has been part performance of the offer.
Hutchinson v. Dobson-Bainbridge Realty Co., supra, states:
"A greater number of courts, however, hold that part performance of the consideration *407 may make such an offer irrevocable and that where the offeree or broker manifests his assent to the offer by entering upon performance and spending time and money in his efforts to perform, then the offer becomes irrevocable during the time stated and binding upon the principal according to its terms. * * *"
Defendant contends that the decisions giving effect to a part performance are distinguishable. He asserts that in these cases the offer was of an exclusive right to sell or of an exclusive agency. Because neither factor is present here, he asserts that the "part performance" decisions are not applicable.
Many of the decisions do seem to emphasize the exclusive aspects of the offer. See Garrett v. Richardson, 149 Colo. 449, 369 P.2d 566 (1962); Geyler v. Dailey, 70 Ariz. 135, 217 P.2d 583 (1950); S. Blumenthal & Co. v. Bridges, 91 Ark. 212, 120 S.W. 974, 24 L.R.A.,N.S., 279 (1909); Williston, supra, § 60A, note 6, and cases there cited. See also Manzo v. Park, 220 Ark. 216, 247 S.W.2d 12 (1952), where a listing agreement for a definite period of time was held to imply an exclusive right to sell within the time named.
Such emphasis reaches its extreme conclusion in Tetrick v. Sloan, 170 Cal. App. 2d 540, 339 P.2d 613 (1959), where no effect was given to the part performance because there was neither an exclusive agency, nor an exclusive right to sell.
Defendant's offer did not specifically state that it was exclusive. Under § 70-1-43, N.M.S.A. 1953, it was not an exclusive agreement. It is not the exclusiveness of the offer that deprives the offeror of the right to revoke. It is the action taken by the offeree which deprives the offeror of that right. Until there is action by the offeree a partial performance pursuant to the offer the offeror may revoke even if his offer is of an exclusive agency or an exclusive right to sell. Levander v. Johnson, 181 Wis. 68, 193 N.W. 970 (1923).
Once partial performance is begun pursuant to the offer made, a contract results. This contract has been termed a contract with conditions or an option contract. This terminology is illustrated as follows:
"If an offer for a unilateral contract is made, and part of the consideration requested in the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or, if no time is stated therein, within a reasonable time." Restatement of Contracts, § 45 (1932).
Restatement (Second) of Contracts, § 45, Tent. Draft No. 1, (approved 1964, Tent. Draft No. 2, p. vii) states:
"(1) Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree begins the invited performance or tenders part of it.
"(2) The offeror's duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer."
Restatement (Second) of Contracts, § 45, Tent. Draft No. 1, comment (g), says:
"This Section frequently applies to agency arrangements, particularly offers made to real estate brokers. * * *"
See Restatement (Second) of Agency § 446, comment (b).
The reason for finding such a contract is stated in Hutchinson v. Dobson-Bainbridge Realty Co., supra, as follows:
"This rule avoids hardship to the offeree, and yet does not hold the offeror beyond the terms of his promise. It is true by such terms he was to be bound only if the requested act was done; but this implies that he will let it be done, that he will keep his offer open till the offeree who has begun can finish doing it. At least this is so where the doing of it will *408 necessarily require time and expense. In such a case it is but just to hold that the offeree's part performance furnishes the `acceptance' and the `consideration' for a binding subsidiary promise not to revoke the offer, or turns the offer into a presently binding contract conditional upon the offeree's full performance."
We hold that part performance by the offeree of an offer of a unilateral contract results in a contract with a condition. The condition is full performance by the offeree. Here, if plaintiff-offeree partially performed prior to receipt of defendant's revocation, such a contract was formed. Thereafter, upon performance being completed by plaintiff, upon defendant's failure to recognize the contract, liability for breach of contract would arise. Thus, defendant's right to revoke his offer depends upon whether plaintiff had partially performed before he received defendant's revocation. In re Ward's Estate, 47 N.M. 55, 134 P.2d 539, 146 A.L.R. 826 (1943), does not conflict with this result. Ward is clearly distinguishable because there the prospective purchaser did not complete or tender performance in accordance with the terms of the offer.
What constitutes partial performance will vary from case to case since what can be done toward performance is limited by what is authorized to be done. Whether plaintiff partially performed is a question of fact to be determined by the trial court.
The trial court denied plaintiff's requested findng concerning his partial performance. It did so on the theory that partial performance was not material. In this the trial court erred.
Because of the failure to find on the issue of partial performance, the case must be remanded to the trial court. State ex rel. Reynolds v. Board of County Comm'rs., 71 N.M. 194, 376 P.2d 976 (1962). We have not considered, and express no opinion on the question of whether there is or is not substantial evidence in the record which would support a finding one way or the other on this vital issue. Compare Geeslin v. Goodno, Inc., 75 N.M. 174, 402 P.2d 156 (1965).
The cause is remanded for findings on the issue of plaintiff's partial performance of the offer prior to its revocation, and for further proceedings consistent with this opinion and the findings so made.
It is so ordered.
NOBLE and MOISE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608500/ | 6 Ariz. App. 338 (1967)
432 P.2d 593
Westbrook PEGLER and Maud Pegler, husband and wife, Appellants,
v.
Ed SULLIVAN and Random House, Inc., a corporation, Appellees.
2 CA-CIV 393.
Court of Appeals of Arizona.
October 24, 1967.
Rehearing Denied November 15, 1967.
Review Denied December 12, 1967.
*339 Rees, Estes & Browning, by Paul G. Rees, Jr., Tucson, for appellants.
Chandler, Tullar, Udall & Richmond, by Thomas Chandler, Tucson, for appellees.
JACK G. MARKS, Superior Court Judge.
This is an appeal by the plaintiffs Westbrook Pegler and his wife Maud from an amended order and judgment of the superior court of Pima County dismissing their complaint against two of the defendants Ed Sullivan and Random House, Inc., a New York corporation on the ground of insufficiency of the service of process. The defendant Random House, Inc. (hereinafter sometimes called Random House) was served in New York City, New York, by United States registered mail on January 22, 1965, and, thereafter, on March 8, 1965, the defendant Ed Sullivan (hereinafter sometimes called Sullivan) was personally served with process by a deputy sheriff in the same city.
Although the attack of each of these defendants was in the form of a motion to dismiss the complaint on the ground of insufficiency of service of process (Rule 12(b) (5), Rules of Civil Procedure, 16 A.R.S.) we treat them as motions to dismiss the complaint for lack of jurisdiction over the person. (Rule 12(b)(2), Rules of Civil Procedure). Taylor v. Portland Paramount Corporation, 9th Cir., 383 F.2d 634, decided September 12, 1967.
As to each of these motions the plaintiffs (hereinafter sometimes called Pegler) asserting jurisdiction have the burden of establishing it since their allegations have been challenged. The facts, and not the allegations of the complaint, must be the touchstone. Taylor v. Portland Paramount Corporation, supra. However, for the purposes of this appeal the defendants in oral argument in this court disclaimed any contention that the plaintiffs had any burden to establish the allegations in their complaint that a telecast occurred which under Arizona law would be an invasion of the right of privacy. A suggestion was made that this telecast might be privileged, but no attempt has been made to factually establish a privilege. Accordingly, we have accepted as true, for the purposes of this opinion, the allegations that Sullivan and Random House caused acts to occur which under our law constitute an invasion of the right of privacy as more fully hereinafter described.
The uncontested facts before the superior court may be summarized as follows: On January 26, 1964, in New York City the "Ed Sullivan Show," which was telecast nationwide, presented a certain stage play entitled "A Case of Libel," written by the defendant Henry Denker, published by the defendant Random House, Inc., and transmitted to Arizona by the defendant Columbia Broadcasting System, a New York corporation, and, to television screens in Tucson, Pima County, Arizona, by the defendant Old Pueblo Broadcasting Company, an Arizona corporation, the owner of station KOLD-TV in Tucson.
As a direct result of this telecast the plaintiffs, who are residents of Pima County, Arizona, and were residents thereof on January 26, 1964, commenced the instant action alleging an invasion of the right of privacy of Westbrook Pegler[1] against Sullivan, Random House, and other defendants.
The service of process with respect to Sullivan and Random House in each instance was pursuant to the provisions of Rule 4(a)(2), Rules of Civil Procedure, 16 A.R.S.[2]
*340 In support of its motion Random House, by its treasurer, submitted an affidavit asserting that it is a New York corporation with its principal office in New York City, that the corporation is not doing business nor is it qualified to do business in Arizona, that it maintains no office and no bank account or assets in this state except sums due from its customers in Arizona who may have purchased books from Random House, that none of its corporate books or books of account are kept in Arizona, that no employee resides in Arizona, that two employees travel in Arizona semiannually interviewing college professors and other potential customers and that orders taken in Arizona are subject to acceptance or rejection by Random House at its home office in New York City. In like manner Sullivan, by affidavit, stated that he is a citizen and resident of New York, that he owns no real or personal property in Arizona (including, particularly, no bank accounts and choses in action), that the "Ed Sullivan Show" originates in New York City and has never originated in Arizona, and, specifically, that the show on January 26, 1964, originated in New York City.
There are three issues to be determined by this court:
1. Did the defendant Ed Sullivan cause "an event to occur"[3] in Arizona out of which the claim against him arose?
2. Did the defendant Random House, Inc., cause "an event to occur" in Arizona out of which the claim against it arose?
3. If one or both of the said defendants did cause "an event to occur" in Arizona, did the service of process in this action upon the said defendants, or either of them, deny to them, or either of them, due process of law?
Rule 4(e) (2), supra, is known as the "long arm" rule, comparable to the long arm statutes and rules of sister states. It provides for two methods of service of process outside of Arizona with the same effect as personal service within the state. Each of the appellees was served as authorized by the rule which has been held to be within the rule-making power of our SuGlen *341 Alden Corp., 93 Ariz. 361, 380 P.2d preme Court. Heat Pump Equipment Co. v. 1016 (1963). Furthermore the efficacy of each mode of service has been held to be identical to service within this state provided the defendants have had "minimum contacts" with Arizona. Phillips v. Anchor Hocking Glass Corporation, 100 Ariz. 251, 413 P.2d 732 (1966); Bekins v. Huish, 1 Ariz. App. 258, 401 P.2d 743 (1965); Excutive Properties, Inc. v. Sherman, 223 F. Supp. 1011 (D.C.Ariz. 1963).
To determine whether Sullivan caused an event to occur in this state an analysis of the tort action for invasion of the right of privacy is required, for, unless we first determine where the injuries allegedly suffered by Pegler occurred, we cannot determine whether an event occurred in Arizona which would justify the service of process upon Sullivan and Random House in New York.[4]
In Arizona an action for the invasion of the right of privacy is recognized. Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945). Our Supreme Court in Reed, supra, has held this action to be for an injury to the person rather than one involving property or contract rights. The claim of the plaintiffs is for damages arising from mental pain and annoyance to Westbrook Pegler resulting from the unauthorized publication of the play entitled "A Case of Libel." The gravamen of the action is "* * * the injury to the feelings of the plaintiff, the mental anguish and distress caused by the publication." 63 Ariz. at 305, 162 P.2d at 139. Furthermore, describing the nature of the action, our Supreme Court held:
"* * * recovery may be had for an invasion of the right of privacy for injured feelings alone, the wrongs redressed must be considered as a direct rather than an indirect injury and one that is wholly personal in character, not depending on any effect which the publication may have on the standing of the individual in the community. It seems to us that the mind of an individual, his feelings and mental processes, are as much a part of his person as his observable physical members. An injury, therefore, which affects his sensibilities is equally an injury to the person as an injury to the body would be. In that respect a cause of action for the violation of the right of privacy, causing mental suffering to the plaintiff, is an injury to the person. * * *" 63 Ariz. at 306, 162 P.2d at 139.
Thus, the only place that the "event" could occur is where Mr. Pegler resided on January 26, 1964, and, for the purposes of the instant motions, he was at Tucson, Arizona. We hold, therefore, that Mr. Sullivan did cause an event to occur in Arizona out of which this cause of action arose.
As to Random House, the same injury is alleged, but in two forms: due to the telecast to which we have referred and by the sale in Arizona of the play. Again the answer must be the same. Mr. Pegler's residence was here and so were his sensibilities. Therefore, we hold, for the same limited purpose, that the defendant Random House, Inc., also caused a similar event to occur in Arizona.
We find that Sullivan, as the producer and master of ceremonies of "The Ed Sullivan Show," entered Arizona by producing the play entitled "A Case of Libel" in New York City. It cannot be assumed that Sullivan did not know that the play *342 would be telecast in Arizona.[5] As the "Ed Sullivan Show" is essentially Sullivan's product the telecast of the show on January 26, 1964, in Arizona, which included the play published by Random House, made the actions of Sullivan and Random House voluntary, purposeful, reasonably foreseeable and calculated to have effect in Arizona, United Medical Laboratories v. Columbia Broadcasting System, 256 F. Supp. 570 (D.C.Or. 1966), and these findings constitute sufficient "minimum contacts" with Arizona. We hold, therefore, that these minimum contacts meet the requirements of due process in that the traditional notions of fair play and substantial justice are not offended. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057 (1945); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957); and Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). By the service of process in New York the superior court of Pima County obtained in personam jurisdiction over the defendants Ed Sullivan and Random House, Inc. In addition, as to the sale of the play in Arizona, the ratio decidendi of Blount v. T.D. Publishing Corporation, 77 N.M. 384, 423 P.2d 421 (1967), sustains the jurisdiction of the superior court over the person of the defendant Random House, Inc.
The amended order and judgment of the superior court is reversed.
HATHAWAY, C.J., and MOLLOY, J., concur.
NOTE: Judge HERBERT F. KRUCKER having requested that he be relieved from consideration of this matter, Judge JACK G. MARKS was called to sit in his stead and participate in the determination of this decision.
NOTES
[1] Westbrook Pegler alleges that he has been a resident of Tucson, Arizona, for the past twenty years and this allegation is not controverted.
[2] "4(e) (2) Summons; personal service out of state. When the defendant is a resident of this state, or is a corporation doing business in this state, or is a person, partnership, corporation or unincorporated association subject to suit in a common name which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, service may be made as herein provided, and when so made shall be of the same effect as personal service within the state. In case of a corporation or partnership or unincorporated association, service under this Rule shall be made on one of the persons specified in Section 4(d) (6).
"(a) Registered mail. When the whereabouts of a defendant outside the state is known, the serving party may deposit a copy of the summons and complaint in the post office, registering it with a return receipt requested. Upon return through the post office of the registry receipt, he shall file an affidavit with the court showing the circumstances warranting the utilization of the procedure authorized under Section 4(e) (1); and (a) that a copy of the summons and complaint was dispatched to the party being served; (b) that it was in fact received by the party as evidenced by the attached registry receipt; (c) that the genuine receipt thereof is attached; and (d) the date of the return thereof to the sender. This affidavit shall be prima facie evidence of personal service of the summons and complaint and service shall be deemed complete and time shall begin to run for the purposes of Section 4(e) (4) of this Rule thirty (30) days after the filing of the affidavit and receipt.
"(b) Direct service. Service out of the state may also be made in the same manner provided in Section 4(d) of this Rule by a person authorized to serve process under the law of the state where such service is made. Service shall be complete when made and time for purposes of Rule 4(e) (4) shall begin to run at that time, provided that before any default may be had on such service, there shall be filed an affidavit of service showing the circumstances warranting the utilzation of the procedure under Section 4(e) (1) and attaching an affidavit of the process server showing the fact of the service." (Emphasis supplied)
[3] See the emphasized portion of Footnote 2, supra.
[4] See § 377, Restatement of the Law of Conflict of Laws (1934) which provides that "[t]he place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place," and compare § 379(h) of Tentative Draft No. 9 (of April 24, 1964) of Restatement of the Law of Conflict of Laws, Second, which specifically deals with multistate invasion of privacy.
[5] The record establishes that the "Ed Sullivan Show" has a regular showing in Pima County unless occasionally the time is pre-empted by Station KOLD-TV for a local telecast. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608511/ | 102 Ariz. 423 (1967)
432 P.2d 435
Arthur C.W. BOWEN, Appellant,
v.
CHEMI-COTE PERLITE CORPORATION, a corporation, Appellee.
No. 8497.
Supreme Court of Arizona. In Banc.
October 20, 1967.
Rehearing Denied November 21, 1967.
*425 Engdahl, Jerman, Butler & Estep, Phoenix, for appellant.
Kramer, Roche, Burch, Streich & Cracchiolo and Spector & Johnson, Phoenix, for appellee.
UDALL, Justice:
This case was commenced in the Superior Court for the County of Pinal by the appellee, Chemi-Cote Perlite Corporation, against the appellant, Arthur C.W. Bowen. An amended declaratory judgment was entered in Chemi-Cote's favor and Bowen appealed to this Court. The case was transferred to the Court of Appeals, Division Two, for decision and that court, in its opinion, affirmed the judgment of the superior court. Thereafter, an amicus curiae brief and reply was filed by the United States and by Chemi-Cote respectively. The case is here on a petition for review pursuant to Rule 47 (b), Rules of the Supreme Court, 17 A.R.S.
*426 Chemi-Cote is the successor in interest to two lode claims of twenty acres each located on the public domain in 1944. The required discovery and location work to perfect the claims was performed and all annual assessment work or any alternative notices to hold mining claims without assessment work were filed for each year to the present time. Chemi-Cote and its predecessors in interest have been in continuous possession of said lode mining claims since their location and perlite ore has been mined therefrom since 1945.
Bowen is the successor to locators of two placer claims of one hundred sixty acres each, one of which was located in 1950 and the other in 1954. They include within their boundaries Chemi-Cote's lode claims and are based on the same perlite ore. All of the required discovery and location work was done to give the claims validity and the assessment work was done thereafter.
Prior to the commencement of this action, Bowen filed with the United States Bureau of Land Management of the Department of Interior an application for patent and conformed to the federal mining laws as to notice by posting, publication, etc. Chemi-Cote did not file an adverse claim within the sixty-day period prescribed by federal law, but after expiration of the period it did file a protest with the land department against issuance of a patent to Bowen. Departmental proceedings culminated in a decision dismissing the protest based on Chemi-Cote's failure to file an adverse claim. Chemi-Cote Perlite Corp. v. Arthur C.W. Bowen, 72 I.D. 403 (1965). Chemi-Cote thereafter filed its complaint in this action to quiet title to the two lode claims situated within the boundaries of Bowen's placer claims. Bowen answered and counterclaimed to quiet title to his placer claims and for damages for wrongful removal of perlite from his claims. The trial court asserted jurisdiction of the case and received testimony on the question of whether the mineral in question should be located as a lode or as a placer under applicable federal law. Finding that Chemi-Cote's lode claims were validly located with the knowledge of Bowen, that Chemi-Cote and its predecessors had been in continuous possession and performed necessary annual assessment work on its lode mining claims, that the cause of action was possessory and the court had jurisdiction over the parties and the subject matter, and that the right of possession of Chemi-Cote to its mining claims was superior to that of Bowen, the court entered judgment for Chemi-Cote and against Bowen.
The first question raised on appeal was whether the trial court had jurisdiction of the subject matter of the suit. The Court of Appeals, in concluding that the issue of temporary possession was triable by the state court, determined that the validity of Chemi-Cote's lode claims was not at issue before the Land Department because section 37, 30 U.S.C.A. operated to exclude the lode claims from Bowen's patent application. It reasoned that since a perfected mining claim is property in the highest sense, it is not subject to disposal by the United States, and that once a property right is acquired, it would be violative of basic due process concepts to conduct a hearing on its validity without reasonable notice and an opportunity to be heard.
Individual rights in public mineral lands can be acquired and held, and an absolute title obtained through the land office, only upon the terms and conditions prescribed by the mining laws of Congress. Lily Mining Co. v. Kellogg, 27 Utah 111, 74 P. 518 (1903); see also, Old Dominion, etc., Smelting Co. v. Haverly, 11 Ariz. 241, 90 P. 333 (1907). The procedure for obtaining title to mineral land by way of a patent application is set forth in section 29, 30 U.S.C.A. and section 30, 30 U.S.C.A. They read in part:
30 U.S.C.A. § 29:
"* * * The register of the land office, upon the filing of * * * (an application for patent to a mining claim) * * * shall publish a notice that such application has been made, for the period *427 of sixty days, in a newspaper to be by him designated as published nearest to such claim; * * * If no adverse claim shall have been filed with the register of the proper land office at the expiration of sixty days of publication, it shall be assumed that the applicant is entitled to a patent, * * * and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. * * *"
30 U.S.C.A. § 30:
"Where an adverse claim is filed during the period of publication, * * * all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. * * *"
Congress has not given the Interior Department jurisdiction to resolve disputes as to the right of possession. When a patent to mineral lands is applied for, however, the jurisdiction of the Department becomes exclusive, and can be stayed only by the filing of an adverse claim as provided by section 30. This Court in Warnekros v. Cowan, 13 Ariz. 42, 108 P. 239 (1910), said:
"Upon the filing of an application for patent to public mineral land, the jurisdiction of the Land Office becomes exclusive as to all questions affecting the title to the lands therein applied for, and so remains until the final determination of the application. The exercise of its jurisdiction may be stayed only by the filing of an adverse claim as provided by section 2326 of the Revised Statutes (30 U.S.C.A. § 30) of the United States * * *. Without the filing of such adverse claim, neither the state nor federal courts will exercise jurisdiction in actions affecting the title to lands included within the application." 13 Ariz. at 45, 108 P. at 239.
In an adverse proceeding, the court may make one of the three determinations: That the plaintiff is entitled to possession of the claim; that the defendant-applicant is entitled to possession of the claim; that neither are entitled to possession. The judgment of the court is conclusive as between the rights of the competing mining claimants, but such decision does not preclude the Department of Interior from refusing to issue a patent. Clipper Mining Co. v. Eli Mining & Land Co., 194 U.S. 220, 24 S. Ct. 632, 48 L. Ed. 944 (1904).
It is so well established as to be axiomatic that a failure to file an adverse claim within the prescribed period operates as a waiver of all rights which were the proper subject of such a claim. See Turner v. Sawyer, 150 U.S. 578, 14 S. Ct. 192, 37 L. Ed. 1189 (1893); Healy v. Rupp, 37 Colo. 25, 86 P. 1015 (1906); South End Min. Co. v. Tinney, 22 Nev. 19, 35 P. 89 (1894). The following language of the Utah Supreme Court in Lily Mining Co. v. Kellogg, supra, is typical of the case law to this effect:
"It follows that in such statutory actions an allegation by the plaintiff that an adverse claim, in due time and form, showing its nature, boundaries, and extent, was filed in the land office, is traversable and necessary to confer jurisdiction upon the court to decide the controversy * * *, and that `an action brought in support of such adverse claim must be based upon the right asserted in such claim, for the reason that it must be conclusively assumed that no adverse claim exists, except such as has been filed' (Marshal Silver Min. Co. v. Kirtley, 12 Colo. 410-415, 21 P. 492). * * * Under section 2325, Rev.St.U.S. (U.S. Comp.St. 1901, p. 1429), when no adverse claim within the time therein prescribed *428 is filed, it must be assumed that the applicant is entitled to a patent, and that no adverse claim exists. In Lavagnino v. Uhlig, 26 Utah 1, 71 P. 1046, this court held that the expression in the mining law, `It shall be assumed,' must be construed to mean `conclusively assumed.'" 74 P. at 519.
In discussing what is the proper subject of an adverse claim contemplated by sections 29 and 30, the United States Supreme Court in Iron Silver Min. Co. v. Campbell, 135 U.S. 286, 10 S. Ct. 765, 34 L. Ed. 155 (1890) said:
"It is true that there are no very distinctive words declaring what kind of adverse claim is required to be set up as a defense against the party making publication; but throughout the whole of these sections, and the original statute from which they are transferred to the Revised Statutes, the words `claim' and `claimant' are used. These words are, in all legislation of congress on the subject, used in regard to a claim not yet perfected by a title from the government by way of a patent; and the purpose of the statute seems to be that, where there are two claimants to the same mine, neither of whom has yet acquired the title from the government, they shall bring their respective claims to the same property, in the manner prescribed in the statute, before some judicial tribunal located in the neighborhood where the property is, and that the result of this judicial investigation shall govern the action of the officers of the land department in determining which of these claimants shall have the patent the final evidence of title from the government." 10 S. Ct. at 769.
In quoting with approval from The Eureka Min. Co. v. Richmond Mining Co., 8 Fed.Cas. p. 819, No. 4548, 4 Sawy. 302, the Utah Supreme Court in Lavagnino v. Uhlig, 26 Utah 1, 71 P. 1046 (1903), affirmed 198 U.S. 443, 25 S. Ct. 716, 49 L. Ed. 1119 (1905), in different words indicated the type of adverse claim intended by the statute. It said:
"(U)nder the mining act of 1872, where one is seeking a patent for his mining location, and gives the prescribed notice, any other claimant of an unpatented location objecting to the patent on account of extent or form, or because of asserted prior location, must come forward with his objections and present them, or he will be afterwards precluded from objecting to the issue of the patent." 71 P. at 1049.
The Supreme Court of Montana in O'Hanlon v. Ruby Gulch Mining Co., 48 Mont. 65, 135 P. 913 (1913) said:
"* * * (T)he statute was intended to apply only to those cases in which there are adverse claims arising out of conflicting locations, or where the adverse claimants derive title from different sources." 135 P. at 919.
It is apparent that sections 29 and 30 have been interpreted to require the filing of all adverse claims not yet perfected by a title from the government by way of a patent or be precluded from objecting to the issue of a patent. Until such an adverse claim is filed, the jurisdiction of the Land Department is exclusive, and upon failure to file such a claim within the required time, the state courts are without jurisdiction to hear matters which should have been so raised. If Chemi-Cote's claim in the instant case is "adverse" to Bowen's patent application, we can see no reason to except it from these provisions.
The Court of Appeals takes the position that section 37, 30 U.S.C.A. creates an exception to the requirement of sections 29 and 30, and that Chemi-Cote falls within this exception. This section provides a procedure whereby the owner of an unpatented placer claim can acquire title to lode claims within the boundaries of his placer claim. It reads as follows:
30 U.S.C.A. § 37:
"Where the same person, association, or corporation is in possession of a placer *429 claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of sections 21-24, 26-30, 33-48, 50-52, 71-76 of this title, including such vein or lode, upon the payment of $5 per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of $2.50 per acre, together with all costs of proceedings; and where a vein or lode, such as is described in section 23 of this title, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof."
Undoubtedly it is the law that a claimant to a "known lode or vein" within a placer need not adverse a placer patent application where the lode claimant bases its claims upon a mineral deposit other than that which is the basis of the placer patent application. Clipper Mining Co. v. Eli Mining & Land Co., supra; Sullivan v. Iron Silver Min. Co., 143 U.S. 431, 12 S. Ct. 555, 36 L. Ed. 214 (1892); Iron Silver Min. Co. v. Mike & Starr Gold and Silver Co., 143 U.S. 394, 12 S. Ct. 543, 36 L. Ed. 201 (1892). Section 30 is inapplicable since there is no "question of the right of possession" upon which a state court suit could be brought. Rather than create an exception to the requirement of sections 29 and 30 requiring the filing of adverse claims section 37 is merely a recognition that in this situation no adverse claim exists, for if the lode claim is known and the placer applicant does not claim it in his application, there is no adverse claim and no need to adverse.
It cannot be said, however, that an adverse claim does not exist and that consequently there is no need to adverse when, as in this case, the claimed lode is the identical deposit as that supporting the placer patent application. A lode-placer dispute or a dispute over whether certain material is properly located as placer or lode is the proper subject matter of an adverse suit. Duffield v. San Francisco Chemical Co., 205 F. 480 (9 Cir.1913). In this instance, the two claims cannot coexist and the issue to be decided is whether the mineral deposit, which is claimed by both parties, may be secured as a lode or a placer claim. The ruling of the Land Department, to which the Court of Appeals took issue, that "* * * a lode claimant asserting a right to the same deposit as a placer claimant cannot rely upon the `known vein or lode' provisions * * *" is a recognition of this principle. Indeed, if such a distinction were not made, in the instant case Bowen's failure to include Chemi-Cote's lode claim in his patent application would act as a disclaimer to any right of possession of the vein or lode claim, but if he did include the lode claim in his application, it would be equivalent to a recognition on his part that the deposit should be located as a lode claim.
The Court of Appeals notes that the issuance of a placer patent does not foreclose the rights of known lode claimants. It argues, therefore, that since the filing of an application for a placer patent does not in and of itself put in issue the question of whether there are known lodes within the area covered by the placer patent application, the claims of a known lode claimant cannot be categorized as "adverse" to a placer patent application. Interestingly enough, this argument impliedly admits that if the two claims were adverse, the lode claimant would necessarily have to file an adverse claim notwithstanding the language *430 of section 37. Furthermore, the weight of the argument is lost because it is based on the situation where the lode claim is based on a deposit different than that supporting the placer claim. Where the same deposit is used to support both a lode and a placer claim, as in the instant case, the placer patent application puts in issue whether there is a "known lode" because the same deposit cannot be located both as a placer and a lode claim. By its very definition there could be no "known lode" if the perlite deposit should have been located as a placer location.
Were we to accept the construction placed upon section 37 by the Court of Appeals, the rights of the parties would be unsettled in the absence of further litigation. As the matter stood pending this decision, the action of the Superior Court giving Chemi-Cote a possessory title to the land in question superior to that of Bowen was not a bar to the adjudication of Bowen's patent application. The judicial determination of the possessory rights of conflicting mining claimants is not necessarily binding upon the Land Department in determining to whom a patent should be issued, and the pendency of such proceedings, having been commenced after expiration of the statutory period for initiating such action, does not bar the issuance of a patent. Madison Placer Claim, 35 L.D. 551 (1907); Nettie Lode v. Texas Lode, 14 L.D. 180 (1892). For these reasons, we are persuaded that the Court of Appeals erred in holding that a lode claimant asserting a right to the same deposit as a placer patent applicant can rely upon the "known vein or lode" provisions of section 37.
It is argued that Chemi-Cote's lode claims are not within the land included in Bowen's patent application for the reason that at the time of the patent application the lode mining claims were the property of Chemi-Cote and not subject to disposal by the United States. The basis for this argument is the language often stated by the courts that a perfected unpatented mining claim is property freely transferable, inheritable, taxable, and otherwise carrying with it many of the incidents of real property in general. See e.g. Belk v. Meagher, 104 U.S. 279, 26 L. Ed. 735 (1881). The title to an unpatented mining claim is not an absolute title, but merely a possessory title subject to a paramount title in the United States. As against third parties, the locator or his assignees have exclusive right to use the surface of the land for mining purposes, but as against the United States, his right is conditional and inchoate. United States v. Etcheverry, 230 F.2d 193 (10 Cir.1956). Contrary to Chemi-Cote's argument, a location embracing a prior valid and subsisting location is not ipso facto void and ineffectual, but if unopposed, may properly become the subject of mineral patent. Thus, a valid and subsisting location will in no case avail to defeat a junior location, as to which patent proceedings are regularly prosecuted, except upon the invocation of judicial intervention. The Clipper Mining Co. v. The Eli Mining and Land Co., 34 L.D. 401 (1906). Having failed to assert its claim, Chemi-Cote lost its title against the United States and it cannot now defeat Bowen's patent application.
The case of Dahl v. Raunheim, 132 U.S. 260, 10 S. Ct. 74, 33 L. Ed. 324 (1889) requires this same conclusion. There the plaintiff brought an action to quiet title to certain placer mining ground. The defendant asserted title to a portion of the ground as a lode claim made subsequently to the location of the premises as placer mining ground and subsequently to the application by the plaintiff for a patent therefor. To this application, no adverse claim to any portion of the ground was filed by the defendant. The court said:
"It is earnestly objected to the title of the plaintiff that he did not present any proof that the mining ground claimed by him was placer ground. * * * That *431 it was placer ground is conclusively established, in this controversy, against the defendant, by the fact that no adverse claim was asserted by him to the plaintiff's application for a patent of the premises as such ground. That question is not now open to litigation by private parties seeking to avoid the effect of the plaintiff's proceedings." 10 S. Ct. at 75.
From the court's holding in the Dahl case, it follows that Chemi-Cote's failure to adverse conclusively established, as between the two litigants, that Bowen's claim was properly located as a placer deposit. Since a placer discovery will not sustain a lode location, Cole v. Ralph, 252 U.S. 286, 40 S. Ct. 321, 64 L. Ed. 567 (1920), Chemi-Cote's location was thus defeated and its possessory title lost.
It is suggested that it would be "violative of basic due process concepts" to read sections 29 and 30, 30 U.S.C.A. as requiring Chemi-Cote to adverse Bowen's patent application. The argument is made that Adams v. Witmer, 271 F.2d 29 (9 Cir.1958) requires that Chemi-Cote have a remedy through jurisdiction of the state courts to test the loss of its mining claim. We do not think such a conclusion is warranted. The court held that the decision of the Bureau of Land Management in a contest proceeding denying an application for a patent to mining claims was subject to the Administrative Procedure Act. As if distinguishing between that situation and the situation here involving adverse claims, the court said, "Thus § 30 of Title 30 U.S.C.A. provides an elaborate manner for court trial of adverse claims to mining claims as a part of the procedure provided for issuing patents under § 29." Whatever property rights Chemi-Cote acquired in the mining claims involved in this case were not lost because of a non-reviewable decision of an administrative official, but because of its failure to comply with the applicable statutory requirements regulating distribution of the public domain. No allegation is made by Chemi-Cote that Bowen did not satisfy the statutory requirements of notice.
Bowen, in his pleadings, counterclaimed for damages for wrongful removal of perlite from his claim. The trial court dismissed the counterclaim and entered judgment for Chemi-Cote, which judgment was affirmed by the Court of Appeals. Having concluded that it was error to quiet title to the right of possession of the two lode claims in Chemi-Cote, the question remains whether Bowen is entitled to damages on his counterclaim.
A claim for wrongful removal of ore must be characterized as a "possessory action" as distinguished from an "adverse suit." The judgment in a possessory action affects only the title to the ground as between the litigating parties, and the rule to be applied is not that respecting the strength of plaintiff's title, but the rule that the better title prevails. Location is the foundation of the possessory title, and possession thereunder as required by law and local rules and customs keeps the title alive, and the government holds the superior title in trust for the person thus holding the possessory title. Bagg v. New Jersey Loan Company, 88 Ariz. 182, 354 P.2d 40 (1960). The court's determination on the question of right of possession as between the litigating parties is not of binding force and effect as against the United States since the government is not a party to the suit and a right thus effective depends finally upon the character of the land involved. Perego v. Dodge, 163 U.S. 160, 16 S. Ct. 971, 41 L. Ed. 113 (1896).
The Bureau of Land Management has the exclusive jurisdiction, insofar as the parties to this action are concerned, to make a determination as to whether or not perlite is subject to location as lode or placer. The jurisdiction of the state court to rule upon the question of right to possession is not withdrawn, however, because such a determination is not a question "affecting title" to the land embraced by the patent application. See Warnekos v. Cowan, supra. *432 The court below found that the mining claims of Chemi-Cote were located prior to the time Bowen's claims were located and that Chemi-Cote or its predecessors were in continuous possession and performed the necessary annual assessment work since the date of the original location of the two claims. Without determining whether perlite is subject to location as lode or placer, Chemi-Cote had a better right of possession to the area encompassed by the two lode claims in question because of its prior possession than did Bowen. That possessory title was lost, however, by reason of its failure to file an adverse claim to Bowen's patent application within the prescribed period of time.
We hold that Bowen is entitled to damages for ore removed by Chemi-Cote subsequent to the date of Bowen's patent application. See Dahl v. Raunheim, supra. No claim was made by Bowen for ore removed prior to his patent application. During the course of the trial, it was stipulated by counsel that the value of perlite ore in place was fifty cents a ton. The amount of perlite ore removed by Chemi-Cote from the claims in question was also stipulated to. That amount may be determined by referring to the record before the Superior Court, Pinal County, in Case Number 16298.[1]
In pursuance to those stipulations, Bowen is entitled to damages of fifty cents per ton of perlite ore found removed by Chemi-Cote.
The judgment of the trial court quieting title in Chemi-Cote and denying Bowen's counterclaim is reversed.
BERNSTEIN, C.J., McFARLAND, V.C.J., and STRUCKMEYER and LOCKWOOD, JJ., concur.
NOTES
[1] The exact number of tons removed from the claims is not in the record before us. At p. 52 of the Reporter's Transcript is the following colloquy between counsel:
Mr. Estep: "You have agreed to the, as I understand it, to the Court considering the evidence of the number of tons of perlite removed from these claims in Case Number 16298; is that correct?
Mr. Burch: "Yes, we have. Our stipulation was that those figures are accurate and we do not deny the removal." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608528/ | 72 Wash. 2d 183 (1967)
432 P.2d 554
ROBERT BOHNSACK, Respondent,
v.
RALPH E. KIRKHAM et al., Appellants.[*]
No. 38686.
The Supreme Court of Washington, Department Two.
October 13, 1967.
Thomas D. Loftus, for appellants.
James Gooding and Beckman, Kuvara & Gooding, for respondent.
DONWORTH, J.
By this action, respondent, Robert D. Bohnsack, sought to recover for damages allegedly sustained *185 by him as the result of the collision between the automobile he was driving and an automobile driven by appellant Ralph E. Kirkham. Appellant Ralph E. Kirkham will be hereafter referred to as if he were the sole appellant. In his complaint, respondent alleged that appellant was negligent in the following particulars:
(a) In failing to yield right-of-way to plaintiffs;
(b) In failing to slow and wait for plaintiffs to pass before turning left in front of plaintiffs' vehicle:
(c) In turning left without regard for oncoming traffic and particularly plaintiffs' vehicle;
(d) In failing to maintain and keep a proper lookout for vehicular traffic lawfully approaching and in failing to keep his vehicle under control and in failing to apply his brakes in a careful and prudent manner in order to avoid the collision.
(e) In failing to observe plaintiffs' approaching vehicle when, by the exercise of due and reasonable care, defendant could have avoided the collision.
Appellant's answer denied negligence as alleged, and in an amended answer affirmatively alleged that respondent was contributorily negligent. The specific allegations in this regard will be discussed later in this opinion.
The case came on for trial in the King County Superior Court sitting with a jury on October 27, 1965.
On October 29, 1965, after all the evidence was presented, respondent moved for a directed verdict, contending that appellant was negligent as a matter of law, and that there was no contributory negligence on the part of respondent which could have been the proximate cause of the accident. The motion was denied, and the case was submitted to the jury on both issues. Later that same day, the jury returned a general verdict for appellant, there being no indication of whether it found no negligence on the part of appellant, or that contributory negligence on the part of respondent barred his recovery notwithstanding the primary negligence of appellant.
Thereafter, on Tuesday, November 2, 1965, respondent moved for judgment n.o.v. or alternatively for a new *186 trial.[1] The court denied the motion for judgment n.o.v., but granted the motion for a new trial. It is from this action that this appeal is brought.
The trial court, in its order granting a new trial, stated as its reasons therefor that:
There was no contributory negligence on the part of the plaintiff which contributed to or proximately caused the accident in question. The evidence was overwhelming that the accident occurred on plaintiff's side of the road and was caused by defendant turning left into plaintiff's lane of traffic. The evidence showed clearly that defendant driver had a clear and unobstructed view, and did not see plaintiff's vehicle. This he stated on direct examination, by deposition and by written interrogatories. Since defendant did not see that which was present to be seen, there can be no claim of deception. If plaintiff erred in any of his driving habits it cannot as a matter of law be the proximate cause or a proximate cause of this accident. See Ward vs. Zeugner (1964) 64 Wash. Dec. 2d, page 581, at page 585 [64 Wash. 2d 570, 574].
[1] We, therefore, approach the issues presented in this case from the standpoint of the well-settled rule that:
[T]he granting or denial of a motion for a new trial is within the sound discretion of the trial court, and that this court will not intervene unless it can be shown that the trial court manifestly abused its discretion. Coats v. Lee & Estes, 51 Wn. (2d) 542, 320 P. (2d) 292 (1958); Skov v. MacKenzie-Richardson, 48 Wn. (2d) 710, 296 P. (2d) 521 (1956). See, also, Riley v. Department of Labor & Industries, 51 Wn. (2d) 438, 319 P. (2d) 549 (1957). Further, a much stronger showing of an abuse of discretion *187 will ordinarily be required to set aside an order granting a new trial than one denying a new trial. Riley v. Department of Labor & Industries, supra; Johnson v. Howard, 45 Wn. (2d) 433, 275 P. (2d) 736 (1954); McUne v. Fuqua, 42 Wn. (2d) 65, 253 P. (2d) 632 (1953). Nelson v. Martinson, 52 Wash. 2d 684, 686, 328 P.2d 703 (1958).
The facts giving rise to this litigation commenced on the evening of May 6, 1964, when respondent, Bohnsack, stopped at the Eagles Club in Issaquah, where Barney Klander worked as a bartender. The two discussed the possibility of visiting a mutual acquaintance in New Westminster, near Vancouver, B.C., and, after the 2 a.m. closing time on May 7, in the company of one Doris Wright, they began a journey for that purpose. Klander drove and respondent Bohnsack slept until the party arrived at Blaine, Washington, near the Canadian border. Bohnsack drove the rest of the way into Vancouver, where the three had a "full breakfast" at around 7 a.m. They arrived at the home of the acquaintance in New Westminster at about 10 or 10:30 a.m., and stayed for about an hour. During the visit, respondent Bohnsack consumed at least two "drinks." The return trip to Issaquah began at or about noon.
Klander again drove on the return trip while respondent Bohnsack slept in the back seat. At Snohomish, about 15 miles north of the intersection at which this accident occurred, Bohnsack awoke and took the wheel of the car. He drove until the collision with appellant occurred.
The collision occurred at a point where State Highway No. 9, also called the old Woodinville-Snohomish Highway, forms a "T" type intersection with N.E. 195th Street. Highway No. 9, at this point, is a 2-lane asphalt highway divided by a broken white center line. The highway is straight, level, and free of all obstructions for approximately 1,000 feet north of the intersection, and for approximately an equal distance southward.
At the time of the accident, near 6:15 p.m. on May 7, 1964, it was daylight, the skies were partly cloudy, and the highway was dry.
*188 About 1,800 feet north of the intersection, on the west side (respondent's side of the road), is a sign reading "Reduce Speed to 25." About 950 feet north of the intersection and on the west side of the road is a sign reading "Speed Limit 25." About 200 feet from the intersection on the west side is a sign reading "Detour," below which is a diamondshaped sign with an arrow pointing to the right (i.e. in the direction of the 195th Street), and below that is a sign reading "10 m.p.h." Then, on the southwest corner of the intersection, on the west side of the road, is a sign reading "Reduce Speed to 50." A short distance south of the intersection, the posted speed limit is 50 miles per hour.
The speed limit for northbound traffic at this point was 60 miles per hour.
Respondent, traveling south, testified that he saw the "Reduce to Speed 25" sign, and did reduce his speed in response thereto. As he proceeded toward the intersection, according to his testimony, he saw appellant's automobile stopped at the intersection with its left-turn indicator flashing, and thereafter did not pay "too much attention" to appellant until he got almost to the intersection. As he neared the intersection and saw the "Reduce Speed to 50" sign, he accelerated, and, at the time of the collision, was traveling at a speed somewhere between 41 1/2 and 60 miles per hour.
Appellant testified that he had stopped, headed northward and on his own side of the road, signaling his intention to make a left turn. He looked, but testified that at no time before the collision did he see respondent's oncoming automobile.
According to respondent, appellant commenced his left turn directly in front of him just as respondent entered the intersection. According to appellant, respondent crossed the center line and struck his stationary automobile.
State Trooper Wallace Johnson, who investigaged the accident, stated unequivocally that the impact occurred in the southbound lane (i.e. respondent's lane of travel), the automobiles colliding left front to left front. Respondent's *189 automobile left skid marks (77 feet and 87 feet long on the left and right sides respectively) wholly on his own side of the road. Appellant's automobile was headed in a northwesterly direction (toward 195th Street) when struck. After the collision, respondent's automobile came to rest near the west edge of the roadway, off the pavement, and appellant's automobile was across the center line, headed in a southeasterly direction.
Appellant's own expert witness, Captain Edgar T. Corning of the Seattle Police Department, testified that, in his opinion, the impact was unquestionably on respondent's side of the road.
The sole evidence which is seemingly in opposition to the testimony above described is the testimony of appellant, who, on direct examination, testified as follows:
Q. Is it your statement that that impact took place on your side of the road or on Mr. Bohnsack's side of the road? A. On my side. Q. It took place on your side? A. That is right. Q. Is it your statement Mr. Bohnsack crossed the line and hit your car? A. He'd have to have to hit me. It was a head-on collision. Q. I see. A. If I had been turned, it would have hit on the other side of the car. Q. It is your statement the accident took place in your lane of travel? A. Yes, sir. Q. And that Mr. Bohnsack crossed the center line and hit you? A. Had to.
On cross-examination, appellant testified as follows:
Q. Previously you stated you were sure you were on your own side of the road. Is that correct? A. Yes. Q. There was no part of your vehicle at the time of this impact that was over the center line? A. There was no visible lines there. Q. I am asking you if at the time of the impact to your knowledge if there was any part of the vehicle over the center line on Mr. Bohnsack's side of the road. A. I don't think so. Q. Was it your statement he came over the center line and hit you? A. He would have had to. (Italics ours.)
[2] The physical evidence at the scene supports only one conclusion on this issue, i.e. that the impact occurred in respondent's lane of travel.
*190 In Fannin v. Roe, 62 Wash. 2d 239, 243, 382 P.2d 264 (1963), this court stated the established rule that when:
"[P]hysical facts are uncontroverted and speak with a force that overcomes all testimony to the contrary, reasonable minds must follow the physical facts, and therefore cannot differ." Mouso v. Bellingham & Northern R. Co., 106 Wash. 299, 303, 179 P. 848.
See, also, Archibald v. Gossard, 65 Wash. 2d 486, 397 P.2d 851 (1965).
The statute in effect at the time of the collision,[2] RCW 46.60.160, provided that:
It shall be the duty of any operator of any vehicle upon entering an intersection and having signaled his intention as required by law to turn such vehicle to the left to look out for and give right of way to vehicles approaching in the opposite direction and thereby placed on his right, simultaneously approaching the given point within the intersection, whether such vehicle first enter and reach the intersection or not.
[3] Appellant, having crossed in front of respondent's oncoming vehicle, and into respondent's lane of travel, did so in violation of the above-cited statute. Appellant owed respondent the duty to yield the right of way. Having failed to do so, he is guilty of negligence as a matter of law, which negligence was a proximate cause of the collision, and it was error to have submitted the issue of appellant's negligence to the jury. Watson v. Miller, 59 Wash. 2d 85, 366 P.2d 190 (1961).
We conclude, therefore, that the erroneous submission to the jury of the question of appellant's primary negligence (a ground implicit in the trial court's order granting a new trial) is sufficient to sustain the trial court's action in this regard. The granting of a new trial must be sustained. Appellant was guilty of negligence as a matter of law, and the jury shall be so instructed upon retrial of this case.
[4] The remaining question is whether or not the question of respondent's contributory negligence shall be submitted *191 to the jury upon retrial. In Bauman v. Complita, 66 Wash. 2d 496, 497, 403 P.2d 347 (1965), we said that:
The issue of contributory negligence is generally one for the jury to determine from all the facts and circumstances of the particular case. It is only in rare cases that the court is justified in withdrawing the issue of contributory negligence from the jury. Baxter v. The Greyhound Corp., 65 Wash. 2d 421, 426, 397 P.2d 857 (1964); Becker v. Tacoma Transit Co., 50 Wash. 2d 688, 695, 314 P.2d 638 (1957); Hynek v. Seattle, 7 Wash. 2d 386, 398, 111 P.2d 247 (1941); McQuillan v. Seattle, 10 Wash. 464, 465, 38 P. 1119 (1895).
....
Before the trial court can take the issue of contributory negligence from the jury and hold, as a matter of law, that there was none, the evidence must be such that all reasonable minds would agree that the plaintiff had exercised the care which a reasonably prudent man would have exercised for his own safety under the circumstances. Hynek v. Seattle, supra; Chadwick v. Ek, supra [1 Wash. 2d 117, 129, 95 P.2d 398 (1939)].
[5] In Ward v. Zeugner, 64 Wash. 2d 570, 574, 392 P.2d 811 (1964), it was said:
Even though plaintiff violated the statute and was thereby guilty of negligence per se, such does not bar plaintiff's recovery or warrant submitting such violation to the jury, unless there be substantial evidence, as distinguished from a mere scintilla, that the violation proximately contributed to causing the accident.
With these principles in mind, therefore, we shall examine the allegations of appellant regarding respondent's alleged contributory negligence to determine (1) whether there is evidence upon which reasonable minds could differ on the question of whether respondent exercised reasonable care; and (2) whether there is substantial evidence that such negligence, if it existed or could be found to have existed, proximately contributed to causing the accident.
Appellant first contends that respondent was contributorily negligent in failing to maintain and keep a proper lookout for vehicular traffic and in failing to keep his vehicle under proper control.
*192 [6] With regard to a favored driver's obligation to observe an approaching vehicle, this court, in Underwood v. Tremaine, 64 Wash. 2d 12, 390 P.2d 533 (1964), held that the failure of a driver to adequately observe an approaching vehicle prior to its suddenly crossing the center line of a highway from its own lane of travel into that of the favored driver, does not establish negligence on the part of the favored driver, since, until such time as the approaching vehicle crossed the center line into his lane there was no reason for the defendant to be concerned with its presence on the highway.
This rule is entirely consistent with the general rule that a favored driver is entitled to rely on his right of way until he becomes aware, or in the exercise of reasonable care should have become aware, that the right of way will not be yielded. Tobias v. Rainwater, 71 Wash. 2d 845, 431 P.2d 156 (1967).
The record in this case is devoid of any evidence that, if respondent had been more attentive to appellant's vehicle, he could have realized that his right of way was being violated in sufficient time to stop. The contention does not, therefore, raise an issue of contributory negligence sufficient to go to the jury.
Appellant next contends that respondent was contributorily negligent in failing to make proper application of his brakes in a careful and prudent manner in order to avoid the collision. We are unable to find any substantial evidence in the record that such is the case. Again, no issue is raised sufficient to justify submission to the jury of the question of respondent's contributory negligence.
Appellant then contends that respondent was contributorily negligent in operating a vehicle upon a public highway while under the influence of intoxicating liquor.
[7] There is evidence in the record that respondent had consumed one or more drinks some hours before the accident. Further, the trooper who investigated the accident stated that, shortly after the accident, he could detect the odor of "stale" alcohol on respondent's breath. But the trooper's *193 testimony that respondent was mentally alert and not under the influence of alcohol stands undisputed by this record. In Madill v. Los Angeles Seattle Motor Express, 64 Wash. 2d 548, 392 P.2d 821 (1964), this court held that, where there was a complete absence of any evidence that such driver was under the influence of alcohol, it was error to permit the jury to consider whether the driver was under the influence of, or affected by, intoxicating liquor, even though there was evidence, as here, that she had consumed some alcohol prior to the accident. To the same effect is White v. Peters, 52 Wash. 2d 824, 329 P.2d 471 (1958), and cases cited therein.
We conclude that there was not sufficient evidence as to respondent's intoxication to warrant the submission of that issue to the jury.
Appellant next contends that respondent was guilty of contributory negligence in operating his automobile on a public highway without benefit of "proper sleep and rest" so as to endanger other users of the highway and, in particular, appellant. Although there is testimony that respondent had had a minimum total of 8 hours of sleep since leaving Issaquah on the previous morning, the record is absolutely devoid of any evidence of a substantial nature that respondent's lack of "proper" sleep in any way contributed to the accident. On the contrary, the investigating state trooper's testimony that respondent appeared to him to be "alert" is uncontroverted. Therefore, again, there is not sufficient evidence concerning this contention to justify the submission of the question of respondent's contributory negligence to the jury.
Appellant further contends that respondent was contributorily negligent in crossing over the center line and colliding with appellant's vehicle which was then stopped preparatory to making a left turn. As stated earlier in this opinion, there is no substantial evidence to support this contention, and the issue of contributory negligence should not be submitted to the jury on this ground.
*194 Appellant then contends that respondent was contributorily negligent in operating a vehicle upon a public highway at an unlawful rate of speed, or in operating his vehicle upon a public highway at a speed in excess of what a reasonably prudent man under all the attendant circumstances would have done.
As stated earlier in this opinion, estimates of the speed at which respondent was traveling varied from the estimate given by appellant's expert witness (a minimum of 41 1/2 miles per hour) to that given by respondent to the investigating state trooper, according to the trooper's testimony (55-60 miles per hour).
[8] In view of the conflict in the numerous posted speed limit signs on the portion of the highway just north of the point of impact, the question presented is one of reasonable speed under all the circumstances, the posted limits being one of the circumstances to be considered.
[9] In appropriate circumstances, this court has recognized that excessive speed on the part of a favored driver, where it exists, may constitute sufficient contributory negligence to bar such favored driver's recovery. See Stangle v. Smith, 10 Wash. 2d 461, 117 P.2d 207 (1941); Bennett v. Karnowsky, 24 Wash. 2d 487, 166 P.2d 192 (1946); Robison v. Simard, 57 Wash. 2d 850, 360 P.2d 153 (1961).
It is clear, however, that, in order for such excessive speed to bar recovery on the part of the favored driver, it must be a proximate cause of the accident.
The standard for that determination was set forth by this court in White v. Greyhound Corp., 46 Wash. 2d 260, 264, 280 P.2d 670 (1955), as follows:
This court, on several occasions, has held that the speed of an automobile, in excess of that permitted by statute or ordinance, was not the proximate cause of a collision when the automobile of the one charged with excessive speed was where it was entitled to be, and the driver would not have had sufficient time to avoid the collision had he been driving at a lawful speed. Burlie v. Stephens, 113 Wash. 182, 193 P. 684 (1920); Clark v. King, 178 Wash. 421, 425, 34 P. (2d) 1105 (1934); Hutteball *195 v. Montgomery, 187 Wash. 516, 60 P. (2d) 679 (1936).
Attention should also be given to Bailey v. Carver, 51 Wash. 2d 416, 319 P.2d 821 (1957), wherein we held that it was error to refuse an instruction in substantially the above language.
In making the determination of whether there was sufficient time in which to avoid the collision, it should also be kept in mind that the favored driver is entitled to proceed on the assumption that his right of way will be respected until he has, or is charged with, notice that such is not the case. After he becomes aware of the impending violation of his right of way, he must further be allowed a reasonable reaction time in which, in the exercise of reasonable care, to act. Tobias v. Rainwater, supra, and cases cited therein.
The facts in the case at bar present the question: What was a reasonable speed under all the attendant circumstances, whether that speed was exceeded by respondent, and, if so, whether such excessive speed on respondent's part was a proximate cause of the collision. We deem these questions properly for a jury in view of the conflicting evidence.
In summary, the trial court's granting of a new trial is affirmed on the ground that the issue of appellant's primary negligence was erroneously submitted to the jury. Upon retrial, the jury should be instructed that appellant was negligent as a matter of law.
The jury then must consider, under proper instructions, the question of respondent's contributory negligence based on his alleged excessive speed. Should it be determined that he was not exceeding a reasonable speed, or that such excessive speed was not the proximate cause of the collision, then the jury must determine the amount of damages to be recovered.
The order of the trial court granting respondent a new trial is hereby affirmed.
*196 Due to the late filing of his brief, respondent shall not be allowed the cost thereof on this appeal. He shall recover his other taxable costs only.
FINLEY, C.J., HAMILTON and NEILL, JJ., and LANGENBACH, J. Pro Tem., concur.
NOTES
[*] Reported in 432 P.2d 554.
[1] Appellant contends that the motion should not have been considered by the court, since it was not filed within 2 days as required by RCW 4.64.010, pointing out that the provisions thereof have been held to be mandatory. (Citing Corbaley v. Pierce Cy., 192 Wash. 688, 697, 74 P.2d 993 (1937).
However, under RCW 4.32.250, where good cause is shown for the delay, the court is permitted to extend the time within which such motions may be filed. Respondent, in this case, filed an affidavit in support of his motion, indicating that he had been ill and bedridden on the Sunday and Monday following the return of the jury's verdict on Friday afternoon. We hold appellant's contention to be without merit. The court properly considered and denied the motion.
[2] The applicable statute is now RCW 46.61.185, recodified by Laws of 1965, 1st Ex. Ses., ch. 155, § 29. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608539/ | 432 P.2d 103 (1967)
78 N.M. 392
Joe CASADOS, Plaintiff-Appellee,
v.
MONTGOMERY WARD & CO., Incorporated, Defendant-Appellant.
No. 8270.
Supreme Court of New Mexico.
September 25, 1967.
Robert S. Skinner, Raton, for appellant.
Wright & Kastler, Raton, for appellee.
OPINION
CASWELL S. NEAL, District Judge.
This case was filed in the District Court of Colfax County, New Mexico, to recover benefits under workmen's compensation. The trial court rendered judgment for plaintiff Casados for 50% partial permanent disability to his body as a whole from August 26, 1965, plus medical expenses and expert witness fees. The employer appeals.
The sole question on appeal involves the question of whether the injury to the appellee is limited to a scheduled injury to the foot at the ankle, or should be affirmed as to the holding of a partial permanent disability to his body as a whole.
The trial court made, among others, the following findings of fact:
"6. The injury to the lower left leg and ankle of the plaintiff is permanent in nature, and is not limited to the leg extremity of the body. The effects of the injury to the lower left leg and ankle extend to and impair the back and body of the plaintiff.
"7. The injury to the lower left leg and ankle of the plaintiff interfere with the efficiency of the entire body of the plaintiff and results in an impairment, restriction, and limitation of use and motion of the back of the plaintiff. There is, arising directly out of a specific injury to the lower left leg and ankle of the plaintiff, a distinct and separate impairment of the body as a whole.
"8. The plaintiff is thirty-nine (39) years of age, went to school through the seventh grade, has had no specific training other than on-the-job experience, and is limited in work ability to those jobs requiring heavy manual labor and a constant and efficient use of his legs in a non-impairing relationship to the rest of his body.
*104 "9. Considering the factors in paragraph 8 of these Findings, the Plaintiff's general physical and mental capacities and his previous work experience, the plaintiff has a permanent partial disability to the body as a whole to the extent of 50%.
"10. The plaintiff is unable, to the extent of 50%, to perform the usual tasks in the work he was performing at the time of his injury and is unable, to the extent of 50%, to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience.
"11. The fifty percent (50%) bodily disability of the plaintiff commenced with the 26th day of August, 1965, and was from that date a permanent disability to such percentage extent."
If there is substantial evidence to sustain these findings of fact, the judgment should be affirmed. On the other hand, if the injury and resulting disability should be confined to the specific body member involved, the judgment should be reversed.
Prior to 1963, the term, "partial disability" was defined by statute, as follows:
"`Partial Disability' means a reduction in, but not an entire loss of, a workman's wage earning ability due to an injury suffered by accident arising out of, and in the course of, his employment."
This definition was changed by Sec. 1, ch. 269, Laws 1963, to read as follows:
"`[P]artial disability' means a condition whereby a workman, by reason of injury arising out of and in the course of his employment, is unable to some percentage extent to perform the usual tasks in the work he was performing at the time of his injury and is unable to some percentage extent to perform any work for which he is fitted by age, education, training, general physical and mental capacity and previous work experience."
This definition is applicable to the injury here involved, which occurred in September, 1964.
At the time of plaintiff's accident, he was working for the defendant in its Raton tire shop. While engaged in stacking tires, he lost his balance and fell, breaking his foot. He was treated by a local doctor several months, and then was sent to an orthopedic specialist, Dr. Norman of Pueblo, Colorado. After some time, an operation called a triple arthrodesis, which amounted to a fusion of three bones in the heel, was performed. After several months of healing and about a year after the injury, plaintiff was released from care by Dr. Norman, whose diagnosis was 60% permanent loss of function of the lower left extremity, measured at the ankle.
At the time of plaintiff's injury, he was 39 years of age. He had a seventh-grade education. As a boy, he had herded sheep with his father. He served overseas in the Army for about three years. He then was employed in the construction business as a common laborer, doing heavy work such as hauling cement in a wheelbarrow. He then worked as a common laborer in the sugar beet fields of Colorado, and later served three years on the Raton police force. In 1950, he went to work as a mechanic's helper in an ordnance depot, carrying tools, jacking up trucks and working as a laborer. He went back on the police force in Raton, and left the police force in 1964 to work for Wells-Fargo, driving 25-ton trucks, hauling coal. Following this, he worked for Pendleton Oil and Gas Company, installing furnaces, which involved heavy lifting and labor. He then went to work for Montgomery Ward & Co. This work also involved heavy lifting. He had worked for Montgomery Ward about a week when the accident complained of occurred. His foot was broken, his wrist injured and his hip cut. There is ample evidence that for about a year he was unable to perform work of the type he was trained to do involving the use of his legs, feet, and in bending, walking or standing on his feet. In attempting to walk, after working for an hour or two, he could stand the pain no longer. His back pained between *105 the hips, and his foot would swell, requiring the use of crutches. He lost sleep because of pain in both his feet and back. The pain extended to the top of his foot, the leg and back. His back would become rigid and stiff. He could not straighten up after bending. He limped perceptibly. He can do very little walking; he cannot climb ladders or squat. According to his immediate supervisor, appellee is not the type to complain of pain. He was given light work to "carry on" so that the pain would not be too severe.
The plaintiff was examined by Dr. Sidney Schultz, an orthopedic specialist of unquestioned ability. The doctor's findings were in detail and specifically explained why, in the doctor's opinion, the plaintiff's over-all efficiency was seriously affected. This clearly appears from the following quotation from the doctor's testimony:
"* * * I would not rate him (referring to claimant) as a percentage of the foot, or ankle, or leg, because of the fact that he does have, I feel, bona fide low-back complaint, and as I said, I would give this man a permanent partial disability of fifty percent of the body as a whole."
The doctor also testified that not every injury to the foot results in disability to the body as a whole, but that it is only in those injuries where there is a residual impairment affecting the body, or which extends to or impairs other parts of the body that there is such a disability.
It is quite apparent that this testimony is sufficient to sustain the findings and conclusions of the trial court.
It is unnecessary to review the decisions in other jurisdictions upon the question involved. It seems established in New Mexico that the scheduled injury section of the statute (59-10-18.4, N.M.S.A. 1953) is exclusive, unless there is evidence of a separate and distinct impairment of other parts of the body than the disability resulting to the scheduled member. Boggs v. D & L Construction Co., 71 N.M. 502, 379 P.2d 788. Of course, when this decision was entered, the definition of "Partial Disability" had not been amended, and Sec. 4, Ch. 67, Laws 1959, was in effect. The court also held that in that case there was no proof of any disability other than the scheduled disability.
It is likewise the law that where an injury to a scheduled member extends to and impairs other parts of the body, compensation is not limited to the scheduled member. Gonzales v. Gackle Drilling Co., 70 N.M. 131, 371 P.2d 605.
In Sisneros v. Breese Industries, Inc., 73 N.M. 101, 385 P.2d 960, the only evidence of any disability was to the scheduled member, namely, the finger. The decision followed the Boggs case.
It would seem that the case of Salome v. Eidal Mfg. Co., 75 N.M. 354, 404 P.2d 308, is also controlling in this case. There, the injury was to a foot, as here. There was medical evidence from the same Dr. Schultz, who testified in this case, that the foot injury had caused general bodily impairment and disability. The trial court's finding to that effect was sustained by the appellate court. This view is sustained by textbook law. 2 Larson's Workmen's Compensation Law, Sec. 58.20.
It is, of course the duty of this court to construe the compensation act liberally to give effect to its benevolent purpose and to construe the findings of the court liberally so as to support the judgment. Plains White Truck Co. v. Steele, 75 N.M. 1, 399 P.2d 642.
Finding no error, the judgment is affirmed. The sum of $750.00 will be allowed to appellee for the services of his attorney in representing him in this court.
It is so ordered.
CHAVEZ, C.J., and CARMODY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329919/ | 506 S.E.2d 449 (1998)
234 Ga. App. 285
In the Interest of B.J.G., a child.
No. A98A0970.
Court of Appeals of Georgia.
September 9, 1998.
*450 Saia, Richardson & Meinken, Joseph J. Saia, Peachtree City, for appellant.
William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.
RUFFIN, Judge.
The Juvenile Court of Fayette County found B.J.G., a minor, committed the offenses of violating curfew (OCGA § 15-11-2) and possession of alcohol by a minor (OCGA § 3-3-23) and adjudicated her a delinquent child. B.J.G. appeals, challenging the sufficiency of the evidence and asserting that the juvenile court improperly convicted her of a crime, failed to issue an order adjudicating her a delinquent child, and failed to hold a dispositional hearing. For reasons which follow, we affirm.
1. "`On appeal the evidence must be viewed in a light most favorable to support the findings and judgment.... Where a juvenile is charged with an offense which would constitute a crime if committed by an adult, the standard of proof in the lower court is "beyond a reasonable doubt." (Cit.)' In the Interest of A.D.C., 228 Ga.App. 829, 830, 493 S.E.2d 38 (1997). Moreover, conflicts in the evidence are decided by the trier of fact, which was the juvenile court judge. [Cit.] And, `"where issues of fact are in conflict, this court passes only on the sufficiency and not on the weight of the evidence. (Cit.)" (Cit.)'" In the Interest of J.J.K., 232 Ga.App. 470, 502 S.E.2d 313 (1998).
Viewed in a light most favorable to support the juvenile court's judgment, the evidence shows that B.J.G. and her family lived in Peachtree City, Georgia. At approximately *451 1:30 a.m. on July 29, 1997, officers from the Peachtree City Police Department went to B.J. G.'s house to speak with her father concerning several juveniles who had left the house the night before and been arrested for DUI. While they were talking to B.J.G.'s father, B.J.G. drove up in her vehicle with two other juveniles as passengers. None of the juveniles was wearing a seatbelt, and they were out past the 12:00 a.m. curfew imposed by OCGA § 15-11-2(12)(E). One of the officers testified at trial that he spoke with B.J.G. that night and noticed that her breath smelled of alcoholic beverages. He also noted that she had bloodshot and watery eyes. According to the officer, B.J.G. admitted that she drank a beer with her father at their house at approximately 9:00 p.m. that evening. B.J.G. was subsequently charged with the curfew violation and underage alcohol possession violations.
B.J.G. denied at trial that she drank alcohol or smelled of alcohol on the night in question. B.J.G.'s father testified that he did not see his daughter drink alcohol, did not smell alcohol on her breath, and did not give her anything alcoholic to drink. Finally, one of B.J.G.'s friends testified that he was with her that evening and did not see her drink alcohol.
Although there is a conflict in the evidence, we find that there was sufficient evidence from which any rational trier of fact could conclude beyond a reasonable doubt that B.J.G. committed the offenses of which she was charged. See In the Interest of J.J.K., supra; Dickerson v. State, 193 Ga.App. 605, 606(2), 388 S.E.2d 736 (1989).
2. B.J.G. asserts that "[t]he petition for delinquency and the order of probation executed by the juvenile court judge, are based upon allegations that the child committed offenses which are criminal[, and a] juvenile cannot commit a criminal offense." Other than a possible assertion that the juvenile court improperly convicted her of criminal acts as opposed to adjudicating her a delinquent child, it is unclear from this enumeration and the appellate brief what alleged error B.J.G. is claiming. And, our review of the record reveals no error.
The record shows that the State filed two petitions for delinquency which alleged that B.J.G. violated OCGA §§ 15-11-2(12)(E) and 3-3-23 and consequently was a "delinquent/unruly child." The petitions make clear that B.J.G. was charged with delinquent acts, which are defined as acts "designated [crimes] by the laws of this state, or by the laws of another state if the [acts] occurred in that state, under federal laws, or by local ordinance...." OCGA § 15-11-2(6)(A). The juvenile court conducted the trial and found that B.J.G. committed the offenses. In its order, the juvenile court ruled that B.J.G. "is found to have committed the offense of OCGA § 3-3-23 Possession of Persons Under 21 of Alcoholic Beverage, and OCGA § 15-11-2 Curfew Violation, and this juvenile is, therefore, a delinquent child." In the Order of Probation, the juvenile court found that B.J.G. committed the offenses and that she is "in a state of delinquency/unruliness and in need of treatment, rehabilitation or supervision." Accordingly, it is abundantly clear that the State charged B.J.G. with committing delinquent acts, that the juvenile court concluded that she committed the delinquent acts, and that the juvenile court appropriately entered an order adjudicating her a delinquent child. There is simply no evidence that the juvenile court convicted B.J.G. of a crime.
3. In a separate enumeration of error, B.J.G. contends that the juvenile court erred because it did not enter an order on the adjudicatory hearing. This assertion is without merit. As we concluded in Division 2, the juvenile court did in fact enter an order finding that B.J.G. committed the offenses and was a delinquent child.[1]
4. B.J.G. asserts that the juvenile court erred in failing to conduct a dispositional hearing after adjudicating her a delinquent child. We disagree.
*452 OCGA § 15-11-33(c) provides that "[i]f the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent or unruly, it shall proceed immediately or at a later time to conduct a dispositional hearing for the purpose of hearing evidence as to whether the child is in need of treatment, rehabilitation, or supervision and shall make and file its findings thereon."
At the conclusion of the trial in this case, the juvenile court judge stated "[w]ell, I find that she did commit the offense. And the dispositional phase, have you ever been up here before?" B.J.G's attorney, answering on B.J.G.'s behalf, responded in the negative. The judge then asked B.J.G. if she had ever been charged with underage drinking before and whether she had previously been on probation. Based in part on B.J.G.'s responses to these questions, the juvenile court placed her on probation. Given this evidence, we find that the juvenile court did conduct a dispositional hearing, albeit a brief one. See D.C.A. v. State of Ga., 135 Ga.App. 234, 217 S.E.2d 470 (1975). As B.J.G.'s only assertion of error in this regard is that the juvenile court did not conduct the dispositional hearing, there is nothing remaining for this Court to review.
Judgment affirmed.
POPE, P.J., and BEASLEY, J., concur.
NOTES
[1] The remaining assertion in this enumeration of error is not supported in the brief by citation of authority or argument and is, accordingly, deemed abandoned. Court of Appeals Rule 27(c)(2). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561305/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 26, 2020*
Decided August 28, 2020
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-3491
BEAUTY ENTERPRISES, INC., Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 16-cv-2523
SARA GREGORY, Robert W. Gettleman,
Defendant-Appellant. Judge.
ORDER
Beauty Enterprises, a distributor, sued Sara Gregory, a market analyst in the
beauty and personal care industry, for fraudulent misrepresentation and fraudulent
concealment. Specifically, it alleged that Gregory made false statements about Carol’s
Express, a beauty-product brand, and that it purchased Carol’s Express products in
reliance on those statements. Beauty Enterprises further alleged that Gregory concealed
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-3491 Page 2
a trademark infringement claim against Carol’s Express. After a bench trial, the district
court entered judgment in favor of Beauty Enterprises. We affirm.
We recount the facts stipulated to in the joint pretrial order and as presented at
trial. Gregory represented the Carol’s Express product line for inclusion in a special
program at CVS Pharmacy to feature hair and skincare products for African-American
consumers. CVS suggested that Gregory use one of its vendors, Beauty Enterprises. On
June 5, 2008, Gregory and Rocco Piccirillo, a Beauty Enterprises executive, discussed by
phone Beauty Enterprises serving as Carol’s Express’s distributor for CVS’s program.
Beauty Enterprises thereafter entered into a contract with Carol’s Express to buy its
products for distribution. Over a month later, Gregory received a letter from Carol’s
Daughter, a manufacturer of high-end beauty products, instructing Carol’s Express to
cease and desist from use of its name and logo, which imitated that used by Carol’s
Daughter. But Carol’s Express still shipped its products to Beauty Enterprises, which
accepted them and paid about $80,000. Beauty Enterprises then distributed the products
to CVS. Not until October did Gregory tell Beauty Enterprises that Carol’s Daughter
had sued Carol’s Express for trade and service mark infringement. At that point, Beauty
Enterprises recovered the Carol’s Express products shipped to CVS, refunded CVS, and
returned the products to Carol’s Express. Carol’s Express reimbursed Beauty
Enterprises for some of its handling fees but did not reimburse the purchase price or
shipping costs.
In 2012, having already obtained a default judgment against Carol’s Express and
Gregory’s consulting company in a Connecticut court, Beauty Enterprises sued Sara
Gregory personally in Illinois state court. Litigation proceeded until late 2015, when
Beauty Enterprises, for an unknown reason, dropped the case after jury selection.
Beauty Enterprises then filed this suit in federal court in February 2016. (Gregory refers
to this lawsuit as having been “removed” from state court, but this is an original action.)
In her answer, Gregory demanded trial by jury, but her demand became less
clear over time. For example, at a status hearing in October 2018, counsel for Beauty
Enterprises asserted, “We don’t think there’s a jury demand,” and the district court
mistakenly agreed, saying, “Oh, there isn’t. You know something, you’re right.”
Counsel for Gregory did not correct the mistake. But when the bench trial began on
September 10, 2019, Gregory’s counsel began by objecting to the proceeding because
Gregory had demanded a jury trial in her answer. The court overruled the objection,
concluding that Gregory had waived a trial by jury. It reminded counsel that the signed
No. 19-3491 Page 3
joint pretrial order was for a bench trial and that the court had said, “This is a bench
trial,” at a pretrial conference in March 2019 (to which counsel replied, “I understand.”).
At the two-day bench trial, the parties gave conflicting testimony about the
June 5, 2008, phone call. According to Piccirillo, Gregory said Carol’s Express had the
same owner (Lisa Price) as Carol’s Daughter but operated as a separate entity because
Carol’s Daughter did not want to dilute its prestige by selling its products at retail
stores like CVS. Piccirillo testified that he took notes during the call, so his counsel
refreshed his recollection with those notes (and Piccirillo answered, “Yes” when asked
if his memory had been refreshed). Over Gregory’s objection, the district court allowed
him to read the notes aloud as his recorded recollection pursuant to Federal Rule of
Evidence 803(5). The notes contained a diagram with “Lisa” at the top-center. From
there, a line pointed left to “Carol’s Express” and a line pointed right to “Proven line
Carol’s Daughter.” Below “Carol’s Express” was “Sara,” and below that were “CVS and
Walmart.” Below “Proven line Carol’s Daughter” were the words “Ethan and Sephora.”
Piccirillo also pointed to Gregory’s follow-up email, in which she called Carol’s
Express the “retail expression of Carol’s Daughter” and directed Piccirillo to “please
visit www.CarolsDaughter.com.” Gregory also described Carol’s Daughter as the
“department store counter-part” of Carol’s Express. Piccirillo thought this meant that
Price owned both brands; he provided examples of manufacturers spinning off a
product line as the “retail expression” of a higher-end product. Although Gregory
referred to Carol’s Express as a “complete and separate entity,” Piccirillo testified that
he thought Price simply was operating the two businesses separately. Piccirillo testified
that he relied on Gregory’s representations because, after knowing her for around ten
years in a business capacity, he admired and trusted her.
Gregory, on the other hand, testified that she did not discuss ownership of
Carol’s Express with Piccirillo at all. She denied telling Piccirillo that Carol’s Express
and Carol’s Daughter were related or had the same owner. Further, she testified that
she “never thought” that Carol’s Express and Carol’s Daughter were affiliated. She
testified that the phrase “retail expression” was a common industry expression used to
mean “similar to.” When asked what she meant when she wrote, “[Carol’s Express]
functions as a complete and separate entity with corporate offices in New York,”
Gregory testified that she meant that “it was a different company.” If the companies
had been affiliated, Gregory testified, she would have “used the word ‘owned.’”
Gregory also admitted receiving a cease-and-desist letter from Carol’s Daughter
on July 28, 2008, asserting that Carol’s Express’s trade dress was similar enough to
No. 19-3491 Page 4
Carol’s Daughter’s to make consumers falsely believe the products were associated. The
letter was addressed to Carol’s Express, Donyale Bush (the owner of Carol’s Express,
who was also Gregory’s stepson), and Gregory’s company. Gregory’s attorney
responded to Carol’s Daughter’s counsel on August 11, 2008. A few days later, Gregory
allowed Carol’s Express to ship its products to Beauty Enterprises. Gregory stipulated
that she did not inform Beauty Enterprises about the infringement claim until October
2008, when she told Piccirillo that, pursuant to a court order, Carol’s Express’s products
should be recovered from CVS and destroyed.
After trial, the district court entered its findings of fact and conclusions of law
under Federal Rule of Civil Procedure 52(a)(1). The court concluded that Beauty
Enterprises had proven both claims. Crediting Piccirillo’s testimony over Gregory’s, it
found that Gregory had told Piccirillo that Carol’s Express and Carol’s Daughter had
the same owner, even though Gregory knew this was false. Gregory’s follow-up email,
which stated that Carol’s Express was the “retail expression” of its “department-store
counterpart” Carol’s Daughter, was also misleading; it falsely assured Beauty
Enterprises that Carol’s Express had permission to market its infringing products. And
so, Gregory’s false representations induced Beauty Enterprises to contract with Carol’s
Express. Beauty Enterprises’ reliance was reasonable, the court further found; Piccirillo
had no reason to doubt Gregory’s statements because of her position and their past
business relationship. The court also determined that Gregory had a duty to disclose the
cease-and-desist letter, which would have allowed Beauty Enterprises to avoid losses. It
entered a judgment of $118,518.09 in favor of Beauty Enterprises.
On appeal, Gregory (now representing herself) makes four arguments. First, she
contends that she was improperly denied a trial by jury. But, given her counsel’s
statements and conduct at multiple pretrial conferences and assent to the jointly filed
final pretrial order, the district court did not err in determining that Gregory waived
her right to a jury trial. See FED. R. CIV. P. 38(d). Counsel’s failure to object and overall
course of conduct waived the jury demand in Gregory’s answer. See Fillmore v. Page,
358 F.3d 496, 503 (7th Cir. 2004).
Second, Gregory argues that her attorney provided ineffective assistance. Despite
any purported errors by counsel (including waiving a jury trial), however, Gregory
cannot attack the civil judgment against her in this way. There is no Sixth Amendment
right to effective assistance of counsel in a civil case. Stanciel v. Gramley, 267 F.3d 575,
581 (7th Cir. 2001). The “exclusive remedy” for an unsatisfied client in a civil case “is a
No. 19-3491 Page 5
suit for malpractice or for breach of fiduciary duty,” Bell v. Eastman Kodak Co., 214 F.3d
798, 802 (7th Cir. 2000), though we do not opine whether there are grounds here.
Third, Gregory argues that Piccirillo’s notes about the June 5, 2008, telephone
conversation were inadmissible. Upon our review of the trial transcript, Gregory is
correct: the district court elided the distinction between past recollection recorded, see
FED. R. EVID. 803(5), and present recollection refreshed, see FED. R. EVID. 612. Specifically,
when Piccirillo agreed that his recollection had been refreshed by the notes, the court
erred by allowing Piccirillo to read directly from his notes. See 28 FED. PRAC. & PROC.
EVID. § 6184 (2d ed.) (counsel should retrieve the writing after the witness’s memory has
been refreshed and before the witness testifies); cf. United States v. Muhammad, 120 F.3d
688, 699 (7th Cir. 1997) (no error where admitted testimony stemmed from agent’s
personal knowledge and not from the written report used to refresh her recollection).
Further, the court incorrectly applied the “recorded recollection” exception to the rule
against hearsay to Piccirillo’s notes. First, Piccirillo did not testify that he now could not
recall the content of the notes well enough to testify about them fully and accurately (in
fact, he said that his recollection had been refreshed). See FED. R. EVID. 803(5)(A). Second,
although Piccirillo testified that the notes related to his phone call with Gregory, he did
not explicitly state that the notes were accurate. See FED. R. EVID. 803(5)(C).
But in light of the rest of the evidence against Gregory, this evidentiary error was
not prejudicial. See FED. R. CIV. P. 61. On the first day of the bench trial, without
reference to notes, Piccirillo testified about the contents of the phone call, including
Gregory’s statement to him that Lisa Price was the common owner of Carol’s Express
and Carol’s Daughter. Further, the evidence included, and Gregory does not challenge
the admission of, the email in which Gregory called Carol’s Express the “retail
expression” of its “department store counter-part” Carol’s Daughter.
Last, Gregory asserts that Beauty Enterprises “fail[ed] to mitigate damages,” but
this is a misnomer for her argument that Beauty Enterprises’ reliance on Gregory’s
statements was unjustified because it did not independently investigate the ownership
of Carol’s Express. We review the district court’s findings after a bench trial for clear
error. FED. R. CIV. P. 52(a)(6); Kreg Therapeutics, Inc. v. Vitalgo, Inc., 919 F.3d 405, 418
(7th Cir. 2019). The court did not clearly err in finding that Beauty Enterprises justifiably
relied on Gregory’s representations. Nothing put Piccirillo on notice that he should
doubt the word of Carol’s Express’s marketing representative, who could be assumed
to know who owned the brand, so the district court reasonably found that his reliance
was justified. See Benzakry v. Patel, 77 N.E.3d 1116, 1129–30 (Ill. App. Ct. 2017). And
No. 19-3491 Page 6
Gregory does not challenge the court’s findings regarding her other statements
implying an affiliation with Carol’s Daughter.
AFFIRMED | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1875647/ | 260 S.W.3d 435 (2008)
Ronald C. PUETZ, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 90369.
Missouri Court of Appeals, Eastern District, Division Three.
August 19, 2008.
Emmett D. Queener, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Robert H. Bartholomew, Jr., Asst. Attorney General, Jefferson City, MO, for respondent.
Before ROBERT G. DOWD, JR., P.J. and CLIFFORD H. AHRENS and SHERRI B. SULLIVAN, JJ.
ORDER
PER CURIAM.
Ronald Puetz ("Movant") appeals from the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant argues the motion court clearly erred in denying his Rule 24.035 motion *436 without an evidentiary hearing because he pleaded facts that were not refuted by the record and that if proved, would warrant relief.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608508/ | 432 P.2d 935 (1967)
Leonard Joe BAKER, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.
No. A-14377.
Court of Criminal Appeals of Oklahoma.
October 18, 1967.
Jay Dalton, Tulsa County Public Defender, Tulsa, for plaintiff in error.
G.T. Blankenship, Atty. Gen., Jerry H. Holland, Asst. Atty. Gen., for defendant in error.
*937 NIX, Presiding Judge.
Plaintiff in error, Leonard Joe Baker, hereinafter referred to as the defendant, was charged in the District Court of Tulsa County with the crime of Unauthorized Use of a Motor Vehicle, After Former Conviction of a Felony. He was tried by a jury, found guilty, and sentenced to seven years in the penitentiary.
Defendant did not have funds to hire his own attorney, and the District Court appointed Robert B. Ardis, the public defender for Tulsa County (in 1963), assisted by Thomas Newhouse, to represent the defendant at the trial. After judgment and sentence was rendered, the public defender filed a motion for new trial, and gave notice of intent to appeal. However, defendant's appeal was never perfected to this Court, and on March 2, 1967, the defendant filed an application, pro se, for Post-Conviction Appeal as authorized in Title 22, O.S.A. § 1073. On April 25, 1967, a hearing was held in this Court, and after a presentation of the facts, this Court ordered the District Court of Tulsa County to prepare a casemade at public expense, to appoint an attorney to represent defendant on appeal, and granted defendant's Post-Conviction Appeal.
Subsequently, the casemade was prepared, and Jay Dalton, the public defender for Tulsa County at the present time was appointed to represent the defendant in perfecting his appeal. This Court heard oral arguments on the appeal September 27, 1967; and because of the lapse of time since the conviction, have advanced this cause for immediate opinion.
The facts of the case, as recited briefly in the Brief of Plaintiff in Error, are as follows:
The state's first witness was Officer E.J. Neely of Ponca City, Oklahoma. Mr. Neely testified that on the morning of May 1, 1963, he had an occasion to be at 518½ West Chestnut in Ponca City, Oklahoma, and that he had a conversation with a Miss Kent, at that address, regarding a 1959 Plymouth automobile, which had allegedly been stolen and parked in the alley behind Miss Kent's garage apartment. The officer testified that Miss Kent told him that a Leonard or Leonard Joe was driving the vehicle. The state's second witness was Loretta Sue Kent. Her testimony was that Leonard Joe Baker had been driving the 1959 Plymouth on the day of May 1, 1963. There was the usual testimony from the owner of the automobile; that the defendant did not have permission to operate the automobile and further that on April 30, 1963, the automobile had been stolen. Mr. Billy J. Jones, an officer for the Tulsa Police Department, testified on behalf of the State that on the afternoon of May 1, 1963, he had an occasion to locate the vehicle parked approximately one block from the courthouse. He and another officer arrested the defendant that afternoon when the defendant got in the automobile.
The defendant's defense relied mainly on the testimony of a Mr. Ferrell Gene Knight. Mr. Knight testified that he was with the defendant on the night of April 30, 1963, at a club in Tulsa County known as the Admiral Club on East Admiral. His testimony was to the effect that the defendant stated during the course of the evening that he would like to go to Ponca City and visit some friends. Inasmuch as the defendant did not have an automobile at the time, a friend of Mr. Knight's, by the name of Buddy Epperly, agreed to transport them to Ponca City. That Mr. Epperly was driving the Plymouth in question. That when the defendant was arrested at the courthouse on the afternoon of May 1, 1963, Mr. Epperly had driven the defendant and Mr. Knight to the courthouse, and that defendant did not at any time know or have reason to believe *938 that the automobile had been stolen. From these facts, defendant raises four assignments of error on appeal.
The first being that the trial court erred in overruling the objection of the defendant to the introduction of evidence to which ruling the defendant duly excepted. It is the defendant's contention that the former convictions which were introduced in the second stage of the proceeding were inadmissible and that the trial court erred in allowing these exhibits into evidence as they had not been properly identified before their introduction.
From the record, it appears that the county attorney introduced three informations and three judgments and sentences from Texas County and one judgment and sentence from Seminole County to prove the former convictions. There was never any evidence or testimony as to the identity of the defendant being the same person as shown on these documents, and defense counsel objected strenuously due to the name on one of the cases being shown as Joe Leonard Baker; while all the rest were shown as Leonard Joe Baker.
This Court has held consistently and repeatedly, that:
"The identity of the accused in the case must also be established on trial as one and the same person as that convicted of the prior offense. Woods v. State, Okl.Cr., 327 P.2d 720; Pitzer v. State, 69 Okla. Crim. 363, 103 P.2d 109; Clore v. State, Okl.Cr., 282 P.2d 780."
See, also, Gilmore v. State, Okl.Cr., 365 P.2d 573:
"A certified copy of the judgment and sentence without proof of identity is not sufficient to establish the conviction of the defendant."
And, this Court held in the 1964 case of Bean v. State, Okl.Cr., 392 P.2d 753:
"The Habitual Criminal Act, Title 21 O.S.A. § 51, was designed solely for the purpose of enhancing the punishment of those convicted of a felony after having been previously convicted of a penitentiary offense. Providing for increased punishment in such cases was its only purpose. To permit any testimony or evidence as to the details of the former convictions * * * tends to place too much inference thereon and tends to further prejudice the defendant.
The information should not be a part of this record as it tends to describe the crime in detail. It was said in the case of Ervin v. State, Okl.Cr., 351 P.2d 401:
`Introduction of the information for examination by the jury would serve no purpose but to advise the jury of the details of the crime constituting the former conviction. What would be accomplished to hold inadmissible evidence as to the details, then present to the jury for examination the information which recites all the details of the former conviction. It would be allowing indirectly that which would be directly prohibited. The information does not prove the conviction but only that a charge was filed. * * * The information is in no manner proof of a former conviction.'
We are not ruling out the method of bringing the prison records clerk, with the judgment and sentence; nor the method herein used of the fingerprint cards as identification."
This Court is of the opinion that there was not proper identification of the defendant with reference to the former convictions introduced; and that, further, the information should not have been presented to the jury for proof of former convictions.
Defendant's second contention of error is that the verdict was a result of coercion by the Judge by his remarks to the jury, to which the defendant duly excepted. The record reflects that after the jury had retired for deliberation they returned into open court, and the following statements were made by the trial judge. On page 125 of the casemade, Mr. Newhouse, in making his record, stated the following:
"The remarks which are of record in this case and to which the defendant is *939 here objecting are those in which the Court stated that the jury could be held in deliberation for a maximum of four days. Further, that the jury would be locked up for the night with a male and female bailiff to continue their deliberations, and further remarks indicating to the jury that the Court desired that they return a verdict one way or the other due to expense to the State of trial proceedings and further due to witnesses from out of county involved in this trial; and any other and all remarks made by this Court to this jury at the times aforementioned."
This Court has long frowned on any remarks made by a trial judge which might be interpreted as attempting to coerce a jury to render a verdict; and have been very quick to condemn conversation between judge and jury, especially where it is of such nature as to leave inferences that are subject to different interpretation.
See the case of Sowle v. State, Okl.Cr., 424 P.2d 993, handed down March 8, 1967, wherein this Court stated:
"Not every improper remark justifies reversal, but if said remarks are such that cause a doubt as to whether defendant was prejudiced by said remarks, that doubt should be resolved in favor of the defendant."
"Since jurors are prone to place much credence upon remarks of trial judge, and his position merits said respect, he should refrain from making remarks that might be interpreted as coercion upon the jury."
Also, see Calhoun v. State, Okl.Cr., 406 P.2d 701, wherein the Court said:
"It is not improper for trial judge, after a jury has been deliberating for some time, to call them into court to ascertain whether there is reasonable probability of reaching a verdict and to inquire of the likelihood of them doing so. However, the court must exercise great caution to say nothing tending to coerce an agreement, to indicate his feelings in the case, or to invade the province of the jury." (emphasis ours)
See, also, Spomer v. State, Okl.Cr., 395 P.2d 657.
The attorney general, in their brief, attempts to evade the issue by stating that the alleged remarks were made after the Court had been advised by the foreman that a verdict was possible in the case. This simply is not consistent with the recited remarks of the trial court, supra. If the jury had stated they were able to reach a decision, there was no occasion for any of these remarks. The only purpose these statements could have served, would have been to coerce the jury and prejudice the defendant.
Defendant's third contention of error is that the trial court refused to instruct the jury as requested by this defendant's requested instruction to which he duly excepted.
This Court will not go into a lengthy discussion of this issue, other than to state that the defendant was entitled to an instruction to the jury on his theory of defense, in this instance, that of alibi. There are cases too numerous to cite wherein this Court has ruled on this question of theory of defense; and we will proceed to the next, and most important, assignment of error.
Defendant alleges in his fourth, and last assignment of error, that the verdict of the jury was a result of passion induced by a bodily search of the defendant for weapons prior to the selection of the jury, but in the presence of four (4) members of the jury panel. At pages 23-24 of the casemade, on the first day of defendant's jury trial, the following proceedings were had in the judge's chambers:
"MR. ARDIS: Comes now the defendant, Leonard Joe Baker, and moves the Court for a continuance on the three charges set on this December docket, on the ground that the defendant, while four male jurors were within the *940 Courtroom, in front of all the jurors within the Courtroom, was completely searched for weapons, and that by so doing the defendant has been prejudiced in his right for a fair and impartial trial on this jury docket.
MR. FALLIS: If it please the Court, I would like for the record to also reflect that this incident, if it occurred, occurred prior to the calling of the case, and prior to the time any jury was impaneled in any of the three cases against Leonard Joe Baker, and after Judge Raymond W. Graham had made inquiry in the Courtroom as to whether or not any prospective jurors were present in the Courtroom, and had asked that they excuse themselves.
MR. ARDIS: To correct the record
THE COURT: They contend it happened before we went in on the bench.
MR. ARDIS: This was before and not after.
THE COURT: Before Court had convened.
MR. ARDIS: That's right, this was before Court convened, and was prior to the time the Judge inquired if there were any jurors present in the Courtroom, and at the time the Judge inquired, four men raised their hands and left the Courtroom immediately, and that this was subsequent to the searching of the defendant.
THE COURT: Your request for continuance is denied.
MR. ARDIS: Thank you.
THE COURT: Exception allowed."
The defendant cites case-law in his brief relating to the statute on "chains and shackles", Title 22, O.S.A., § 15; and urged on oral argument the recent decision of this Court, Moore v. State, Okl.Cr., 430 P.2d 340 (July 19, 1967).
The case relied upon by the State in their brief, DeWolf v. State, 95 Okl.Cr., 287, 245 P.2d 107, is completely out of point, out of date, and without merit.
The portion of the statute relating to chains and shackles cited above was passed as a direct result of the DeWolf case, supra in order that, never again, could a defendant be tried for any crime without the full use of his faculties and with the presumption of innocence the law allows.
The decisions of this Court following the enactment of this Statute have never wavered, but follow the wording of the statute explicitly.
While this Court does not herein rule conclusively that a search of a defendant in a courtroom would fall within this statute, or is automatically reversible error, we will have to judge each case on their individual circumstances.
However, as in the instant case, wherein some of the jury witnessed the search of defendant for weapons by the officers, it could not have helped the defendant in any manner and most definitely would have implanted some prejudice in the minds of the jurymen against the defendant.
Further, we would make this point very clear. We are not stating that a defendant cannot be searched for weapons to secure the safety of the judge and other members of the court. But, that the place defendant is searched should be out of the courtroom; and most particularly, out of any contact with prospective or impaneled jury members.
The Tulsa County Jail, with its modern facilities, can provide an adequate place for this search to take place. Or, it can be conducted, if necessary, in an anteroom out of the presence of witnesses and jury.
This Court is of the opinion that this would fall within the scope of the Moore case, supra; wherein the jury trying the case was conducted on a tour of the jail during a recess in the defendant's trial, and there observed said defendant behind bars with the other prisoners. We ruled in that case that the impact upon the jury was more prejudicial than beneficial.
In an appeal that had been timely filed in this Court, this record would constitute reversible error; however, due to the length of time since judgment and sentence, *941 we feel that, in the interest of justice, this judgment and sentence should be modified instead of reversed and remanded.
It is, therefore, the order of this Court that the judgment and sentence in Tulsa County District Court case number 20,051 be MODIFIED from Seven (7) Years to a term of Two (2) Years in the penitentiary, and as so modified, the judgment and sentence appealed from, is Affirmed.
This Court commends Mr. Jay Dalton, Public Defender from Tulsa, Oklahoma, for the excellent brief and oral argument presented in this cause, and the promptness with which he carries forth his duties.
Modified and affirmed.
BUSSEY and BRETT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608512/ | 432 P.2d 106 (1967)
78 N.M. 395
Ralph L. KNOTTS, Plaintiff-Appellant,
v.
SAFECO INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
No. 8240.
Supreme Court of New Mexico.
September 25, 1967.
Krehbiel, Alsup & Beck, Clayton, for appellant.
Shaffer, Butt & Bass, Albuquerque, for appellee.
OPINION
CHAVEZ, Chief Justice.
Plaintiff-appellant Ralph L. Knotts filed suit under an insurance policy to recover the value of a 1965 Ford XL automobile alleged to be owned by him. The case was tried to a jury and, upon conclusion of appellant's case, the trial court withdrew the case from the jury and entered judgment for appellee dismissing the complaint. Appeal was duly filed.
Appellant's complaint alleged that he was the owner of the automobile in question; that said automobile was insured by appellant against collision loss for its actual cash value and that, due to a collision or upset, the automobile was totally destroyed. Appellee denied that appellant was the owner of the automobile and the trial court ruled there had been no passing of title to appellant, or that appellant was not the owner of the automobile.
Appellant's main point is that the evidence as to ownership was sufficient to require the submission of the case to the jury. Thus, the issue is whether appellant was or was not the owner of the automobile in question.
*107 The record discloses that appellant was a part time salesman for Arthur Arnett, an automobile dealer in Clayton, New Mexico, and the operator of A & Z Motor Company. The arrangement made in about September 1964, was that for any car appellant sold, or for customers he brought to Arnett that Arnett could sell to, appellant would receive a commission of $50. Arnett testified he delivered the car in question to appellant probably in March or April 1965. The arrangement on this car was that appellant was to pay the First National Bank in Clayton $70 per month "until such time as he disposed of the car, or kept it himself and just paid the balance of it off." According to Arnett, if appellant sold the car the profit or loss was all his "It was his car." Appellant bought the car at Arnett's cost. The cost price of the car was $3495. Arnett further testified he had a floor plan coverage for liability and collision on every car he had; that "if the car was mine, Ralph certainly wouldn't have spent the money to buy the insurance to put on the car, himself;" that if appellant did not sell the car, "he was to pay it off." On cross-examination, Arnett was asked why he left the dealer's plates on appellant's car and he replied: "I have five sets of plates, and if he wanted to use that one plate, why, that would be fine." Arnett also testified that, if appellant did not sell the car by the end of the old model year or beginning of the new model year, he would have "issued him a regular title certificate."
As to the arrangement with Arnett concerning the car in question, appellant testified:
"A. Well, I would buy the car, take it and drive it, and use it as my own car or a demonstrator to sell cars with, however I wanted to use it, and I would drive it just as I would my own car, and I would try to sell other cars, and make a commission, and if I got a chance to sell this car, well, I could sell it for a certain price, and keep the profit, and if I did not sell the car before the other '66 models came out, then I would go ahead and keep it for my own use, or sell it later on, and take the loss myself."
Appellant also testified he paid $3495 for the car and was making payments at the bank; that he kept on paying $70 per month after the automobile was wrecked; that he could not turn the car back to Arnett if he did not sell it; that during the period he owned the car he and his wife drove it on vacation trips to Yellowstone Park, Las Vegas, Nevada, Amarillo, Raton and Colorado Springs, and did "just anything we wanted to do with it." The automobile was used as a family car and was the only car appellant had. The car was wrecked on August 8, 1965.
The record shows that appellant obtained a policy of insurance from appellee on the car in question through the General Insurance Agency in Clayton. The insurance policy received in evidence names appellant as the insured; loss payee the First National Bank, Clayton, New Mexico; shows the policy period from 5-8-65 to 11-8-65; property damage liability of $5000; and under definitions provides:
"`owned automobile' means
(a) a private passenger or utility automobile owned by the named insured and described in this policy for which a specific premium charge indicates that coverage is afforded,"
Mr. Raymond Wallin, vice president and cashier of the First National Bank in Clayton, testified that his bank was handling some of the floor planning of A & Z Motor Company in 1965; that the car here involved was floor planned once; that when it was to be renewed, Arnett told him appellant was going to take the car, use it as a demonstrator and sell it to his father-in-law; that in view of this, Wallin advised Arnett they should put it on some type of demonstrator plan because the car was being driven and should be reduced monthly; that they agreed on the $70 per month reduction and the car was set up on a separate note by itself, renewable on a *108 three-month basis; that Arnett of A & Z Motor Company executed the note, but appellant made payments on the note and he continued to do so after the car was wrecked. When Wallin was asked if he was looking to Arnett for payments, he replied:
"A. Yes, in a way. Since that time, this has been renewed again in Mr. Knotts' name.
"Q. Changed it to his name?
"A. Yes. But we are still looking to A & Z Motor Company, because they have endorsed the paper."
Wallin also testified that, when he said title was in A & Z Motor Company, he meant the certificate of origin.
On March 7, 1966, the First National Bank in Clayton assigned to appellant all rights under the insurance policy issued to appellant by appellee.
Appellee contends that, as a matter of law, appellant was not the owner of the vehicle and that the trial court correctly withdrew the case from the jury; that the only evidence appellant owned the car is the bald statements of Arnett and appellant, and that title never passed to appellant; that reasonable minds could not differ that appellant was not the owner of the car; and that appellant only had naked possession of the automobile.
In Clovis Finance Company v. Sides, 72 N.M. 17, 380 P.2d 173, after citing §§ 64-3-9(2), 64-4-1, 64-4-3, 64-5-1(a) (b), 64-3-1, N.M.S.A., 1953 Comp., this court said:
"We are clear that our statutes quoted supra are not to be interpreted as providing an exclusive method for transferring title. This conclusion is strongly supported by the provision (§ 64-3-10, N.M.S.A., 1953) that the certificate of title is prima facie evidence of ownership. Such language clearly indicates an intention that the certificate of title is only evidence of ownership and that the same may be shown by other proof. Other states having statutes comparable to ours so construe this provision. * *"
Section 50A-2-401(2), N.M.S.A., 1953 Comp., states in part:
"Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; * * *."
Section 50A-2-501(1), N.M.S.A., 1953 Comp., provides in part:
"The buyer obtains a special property and an insurable interest in goods by identification of existing goods as goods to which the contract refers * * *. In the absence of explicit agreement identification occurs
(a) when the contract is made if it is for the sale of goods already existing and identified;"
In Schall v. Mondragon, 74 N.M. 348, 393 P.2d 457, this court, after quoting from Clovis Finance Company v. Sides, supra, stated:
"* * * Since New Mexico does not require an exclusive or mandatory method of transferring title to an automobile, it therefore follows that title and ownership pass when the parties intend it to pass. * * *"
See also, Prince v. National Union Fire Insurance Company, 75 N.M. 313, 404 P.2d 137.
In Everly v. Creech, 139 Cal. App. 2d 651, 294 P.2d 109, the court said:
"An insurance policy, like any other contract, is to be construed so as to give effect to the intention of the parties. * * * Under a contract of sale the property is transferred to the buyer at the time the parties intend it to be transferred, and their intention may be disclosed by their conduct, common usage, and the circumstances of the case. Civil Code, Sec. 1738. The conduct of the parties may well disclose their intention in this regard. * * * The definition of an owner found in Section 66 of the *109 Vehicle Code does not apply under all circumstances * * *, and one may be considered to be an owner of a car although he has not transferred the title in the manner required by the Vehicle Code. * * * The word, `dominion' denotes complete ownership or a right to the property. * * * The word ["]ownership["] has different shades of meaning, depending on the context in which it appears and the circumstances in which it is used. * * *
"Under the circumstances here appearing, a finding of full use and the exercise of dominion over this car is equivalent to a finding of ownership within the meaning of this provision of the policy. We think these findings were sufficient to support the judgment. The court found that Everly acquired possession of the Ford prior to August 25 and that he had possession with full use of it and exercised dominion over it at all times thereafter up to the date of the collision. It was also found that it was not true that he had purchased and acquired this car within thirty days of the accident. A clear intent appears from the findings as a whole to find all the material facts against the plaintiff, and the findings are sufficient for that purpose. * * *"
Appellee notices our holding in Clovis Finance Company v. Sides, supra, and Schall v. Mondragon, supra, but argues that naked possession without documentary evidence of title cannot constitute ownership, citing Bustin v. Craven, 57 N.M. 724, 263 P.2d 392. This is not the situation before us. Under all of the facts which appear in this case, we are here called to determine whether the question of ownership of the automobile involved should have been presented to the jury for its determination.
Under the circumstances present here, we feel that it was for the jury to determine, from all of the evidence, whether or not appellant was the owner of the automobile in question. The trial court was in error in holding that, as a matter of law, appellant was not the owner of the automobile.
In view of our holding, it is not necessary to consider other points raised on this appeal.
The cause is reversed and remanded to the trial court with direction that the judgment heretofore entered be set aside and to proceed in a manner consistent with this opinion.
It is so ordered.
COMPTON, J., and WOOD, J., Court of Appeals, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608516/ | 102 Ariz. 410 (1967)
432 P.2d 143
John H. PATTERSON, now deceased, by and through Henderson Stockton, Executor of the Estate of John H. Patterson, Deceased, Appellant,
v.
Nadine M. PATTERSON, Appellee.
No. 8559.
Supreme Court of Arizona. In Division.
September 29, 1967.
*412 Stockton & Hing, Phoenix, for appellant.
Kenneth S. Scoville and LeRoy W. Hofmann, Phoenix, for appellee.
UDALL, Justice:
This appeal is from an order entered by the court below in a divorce proceeding fixing the amount of arrearage due and owing from the appellant, hereinafter referred to as defendant, to the appellee, hereinafter referred to as plaintiff, for alimony and support payments.
The essential facts to this appeal are as follows: Defendant, John H. Patterson, now deceased, was an experienced and successful physician and surgeon of thirty years' experience. He was married to the plaintiff, Nadine M. Patterson, from June 27, 1952, until their divorce in April of 1955. The divorce ultimately went uncontested with the parties agreeing on a property settlement in which plaintiff was transferred a one-third interest in substantial amounts of property. During the course of the marriage they adopted two children, who at the time of the initiation of this action, were both in their teens and attended Phoenix public schools. Plaintiff and defendant were remarried on June 14, 1958 and they lived together with their children in the family residence until June 1962.
On June 26, 1962, plaintiff filed a complaint in which she prayed, among other things, that a decree of divorce be granted and that an order to show cause issue requiring defendant to appear and show cause why he should not be required to pay plaintiff pendente lite a reasonable sum for the support and maintenance of herself and the minor children of the marriage, and for attorneys fees. An order was so issued and the hearing held commencing November 19, 1962.
It was adduced at the hearing that for the year 1961 defendant had a taxable income of $5,351.41. During the first nine months of 1962, his net income from the practice of medicine was approximately $4,196.23. In addition, he received $62,000 from the sale of real property and $6,800 as a dividend on stock. On the date of the order to show cause hearing defendant held a property interest in sixty-eight shares of stock of Arizona Downs, forty acres of desert land, jewelry of a value not exceeding $7,000, a loan to a son of $5,890, a new Chrysler New Yorker automobile, a balance of approximately $10,000 in a bank account and his joint interest in the family residence valued at approximately $75,000 with a present mortgage of approximately $15,000.
Prior to June of 1962, defendant regularly paid, among other expenses, the house payments, the utility bills, the grocery and milk bills, ordinary clothes for the children, automobile expenses, country club membership, *413 school expenses for the children and the salary of a maid. Even though these monthly expenses averaged in excess of $1800 per month, defendant contributed only $200 toward their payment from June 1962 until the date of the hearing to show cause. At that time the house payments were three months in arrears and foreclosure was imminent.
During the corresponding period the first nine months of 1962 plaintiff received income amounting to approximately $14,000. At the time of the hearing she was possessed of substantial property, both real and personal, valued approximately between $150,000 to $200,000. Her health was such that she was unable to work.
Upon conclusion of the evidence, the trial judge made a partial temporary ruling. Thereafter briefs were filed, and on December 21, 1962, he approved a formal written copy of his order regarding utilities, etc., as follows:
"The court having heard the testimony and examined the exhibits and having heard the argument of counsel, and having taken this matter under advisement and after due consideration in the premises and good cause appearing therefore, the court makes the following partial temporary ruling in regard to the order to show cause heard by this court:
"IT IS ORDERED that the defendant, John H. Patterson, pay to the plaintiff through the Clerk of this court the sum of $559.75 per month and plaintiff is directed to use said sum for the following purposes:
"1. $175.00 per month for the food of plaintiff and the minor children of the parties.
"2. $140.00 per month as and for the wages of the maid.
"3. $150.00 per month for the payment of utilities which shall include gas, electricity, water, lights, power, telephone and irrigation.
"4. $94.75 as and for the mortgage payment on the residence of the parties.
"The first of said payments of $559.75 shall be paid by the defendant to the plaintiff through the Clerk of this court on or before the 24th day of December, 1962, and a payment in like amount shall be made on or before the 15th day of every month thereafter until further order of this court."
On February 25, 1963, the trial judge issued an opinion and pendente lite order in addition to that of December 21, 1962.
* * * * * *
"ORDER that the defendant pay as and for the support, maintenance and education of the two minor children of the parties the sum of Six Hundred ($600) Dollars per month, and same shall be paid to the plaintiff through the office of the Clerk of the Court first payment shall be so made on the 4th day of March, 1963, and payments in like amounts shall be made on or before the 4th day of each and every month thereafter until further order of the Court.
"ORDER that the Plaintiff shall keep and present to this Court, when so requested by the Court, a detailed account of the expenditures made by plaintiff for the support, maintenance, and education of the two minor children of the parties.
"ORDER that the defendant shall pay through the Clerk's Office, as and for alimony for the plaintiff, the sum of One Dollar ($1.00) per month.
"IT IS FURTHER ORDERED that the defendant shall, forthwith, pay through the Clerk's office, one-half of all payments necessary to reinstate the loan on the residence of the parties, and if the said loan was not reinstated in accordance with the letter of A.B. Robbs Trust Company under date of January 3, 1963 and addressed to the plaintiff, the defendant is ordered to likewise pay, forthwith, through the said Clerk's office, one-half of all sums paid by plaintiff to satisfy said loan."
* * * * * *
No appeal was taken from either of these orders. For a period of three months *414 beginning with December 1962, defendant made monthly payments of $559.75. A payment of $1,487.21 was made in March 1963, and thereafter, until February 1964, he made monthly payments of $748.50.
On March 14, 1964, defendant died and an executor was appointed for his estate. Plaintiff petitioned the court for an order determining and fixing the arrearage of alimony and support payments due and owing from defendant's estate. Oral arguments were had and on July 1, 1964 the trial judge found that the order of February 25, 1963 did not supersede the order of December 21, 1962 and fixed the arrearage in the amount of $5,695.50. Appeal was taken from this order.
Defendant assigns as error the court's finding that the order of February 25, 1963, directing the defendant to pay $600 per month to the plaintiff for the support and maintenance of the parties' two minor children did not supersede the temporary order of December 21, 1964 which directed the defendant to pay $559.75 per month for the support and maintenance of the two minor children. It is contended that only a change in the circumstances of the parties would justify an increase in the pendente lite award for support and maintenance of the minor children. This argument, of course, presupposes that the February 25, 1963 order superseded rather than supplemented the order of December 21, 1962. Based on this supposition, if there was no showing of a change in circumstances, such a modification would not be justified.
We find no merit in defendant's position. The trial judge himself ruled that the February 25, 1963 order did not supersede that of December 21, 1962. This finding is supported by ample evidence in the record before us. See American Surety Company of New York v. Nash, 95 Ariz. 271, 389 P.2d 266 (1964). No indication was made by the trial judge that the second order in any way vacated or was in lieu of the first. Indeed, it is apparent that the trial judge contemplated making more than one order on the matter of temporary alimony and support by the fact that at the conclusion of the hearing on the Order to Show Cause he indicated that he would "rule on matters re: payment of utilities on or before the 7th day of December, 1962," and the further fact that on December 21, 1962 he referred to the order of December 7, 1962 as a "partial temporary ruling."
A reading of the two orders supports this position. The two orders are complementary in that each is addressed to different expenses incurred and regularly paid for by defendant prior to initiation of the divorce proceeding. The first order was primarily concerned with so called emergency matters i.e., providing a home and food for the minor children. Consistent with this interpretation defendant was ordered to pay utility expenses, share the house payments which were then in arrears, and provide a sum for the food of the plaintiff and children. The second order, on the other hand, made an allowance for the education of the minor children and for the many other items of support which defendant had testified he had normally paid.
Were to indulge in defendant's supposition that the first order was superseded by the second, the jurisdictional requirement of Rule 73(b), Rules of Civil Procedure, 16 A.R.S., would preclude us from reviewing whether there was a change in circumstances justifying the second order, there being no appeal within sixty days from its entry. Marquez v. Rapid Harvest Co., 89 Ariz. 62, 358 P.2d 168 (1960); Murphey v. Gray, 84 Ariz. 299, 327 P.2d 751 (1958).
Defendant argues that it was an abuse of the trial judge's discretion to enter an order by which defendant-husband was required to pay pendente lite a sum which greatly exceeded his earning capacity and income as maintenance and support for his minor children. This argument, rather than attacking the trial court's finding that *415 the two orders were supplementary, is a direct attack against the combined orders as an excessive award for maintenance and support of the minor children. The perfecting of an appeal within the time prescribed by statute is jurisdictional. Harbel Oil Company v. Steele, 80 Ariz. 368, 298 P.2d 789 (1956). Since neither order was appealed, the question of excessiveness is beyond the jurisdiction of this court.
Section 25-315, A.R.S., empowers the court "in its discretion" to require the husband to pay as alimony money necessary "for support and maintenance of the wife or minor children of the parties." Even if the two orders were properly before this court, it would not attempt to substitute its judgment for that of the trial court in the absence of an abuse of discretion. Henning v. Henning, 89 Ariz. 330, 362 P.2d 124 (1961). The amount to be awarded for child support must necessarily depend upon the facts and circumstances of each particular case. See Tennery v. Tennery, 35 Ariz. 69, 274 P. 638 (1929).
Defendant seeks to portray the excessiveness of the award by comparing his earned income of 1962 with the combined award of the two orders. The record is devoid of evidence with respect to the defendant's income from his medical practice other than for the year 1961 and the first nine months of 1962. Considering that period of time only, it would appear that the combined amount of the two awards was excessive. However, in view of his accumulated property holdings, the standard of living to which he and his family was accustomed and his reputation as an experienced physician and surgeon in the community, it could well be assumed that the defendant had an earning capacity much in excess of that actually earned immediately preceding this action. The evidence is somewhat contradictory as to the reasons for defendant's limited income in 1961 and 1962, but irrespective of such reasons, where no showing was made that he lacked the ability or capacity to work, his obligation to his wife and children cannot be diminished because he preferred to be idle rather than industrious or because of his own improprieties he caused a diminution in his medical practice income.
In addition to the ability of the father to pay, other factors to be considered in setting an amount to be awarded for support and maintenance are the needs of the children and the standard of living to which they are accustomed. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963); Pencovic v. Pencovic, 45 Cal. 2d 97, 287 P.2d 501 (1955); and see 24 Am.Jur.2d, Divorce and Separation §§ 839-840. The record contains sufficient evidence establishing the standard to which the children were accustomed. In the absence of a showing that that standard was beyond the capacity or means of the defendant or that the amount of the award included expenses which were unnecessary or unduly extravagant, we cannot say that the trial judge abused his discretion.
The defendant's final argument is that the equitable doctrine of laches operates as a bar to the fixing of an arrearage by reason of the elapse of almost a year and a half before claim was made that facts existed which would give rise to an arrearage.
There is evidence in the record which would negative defendant's claim of an unreasonable delay evidencing either an abandonment by the plaintiff of her claim or prejudice to the defense against such claim. Barr v. Petzhold, 77 Ariz. 399, 273 P.2d 161 (1954). Furthermore, the primary recipients of the award for support and maintenance in the instant case are the minor children of the parties. Under the facts here involved, it would be inequitable to bar them from their right to support by charging plaintiff with laches. See Jose v. Lyman, 316 Mass. 271, 55 N.E.2d 433, 154 A.L.R. 190 (1944); see also 27 Am.Jur.2d, Equity § 168.
Judgment affirmed.
BERNSTEIN, C.J., and STRUCKMEYER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608521/ | 248 Or. 294 (1967)
432 P.2d 1009
KRUSE, Appellant, v. COOS HEAD TIMBER COMPANY, Respondent.
Supreme Court of Oregon.
Argued June 5, 1967.
Affirmed November 8, 1967.
Petition for rehearing denied November 28, 1967.
*296 Phillip A. Levin, Portland, argued the cause for appellant. With him on the briefs were Pozzi, Levin & Wilson, Portland.
John Foss, Coos Bay, argued the cause for respondent. With him on the brief were McKeown, Newhouse & Johansen.
*297 Before PERRY, Chief Justice, and McALLISTER, SLOAN, O'CONNELL, DENECKE, HOLMAN and LUSK, Justices.
AFFIRMED.
HOLMAN, J.
This is an action by an employe to recover damages from his employer for personal injuries suffered in the course of employment. Defendant had elected non-compliance with the provisions of the Workmen's Compensation Law. Plaintiff contended defendant was guilty of common law negligence as well as violation of the Employer's Liability Act. The jury returned a verdict for defendant and plaintiff appealed.
Plaintiff was removing limerock from the interior of the base of an enclosed tower topped by a structure housing an elevator mechanism. As rock was removed with a rake, other rocks higher in the tower would sometimes shift, causing the tower to vibrate. Plaintiff was leaning over looking into an opening at the base of the tower when he was hit on the back by a piece of timber which fell from the tower. When asked if the tower was vibrating at the time of the accident, plaintiff testified: "It might have moved a little bit but not much." The timber fell from a place on the tower about where the tower met the structure which topped it. It was a 6" x 8" about 36 inches long and cut to fit the roundness of the tower. It had two rusty bolts at one end and weighed 40 to 50 pounds.
Subsequent to the injury the plaintiff signed an agreement to accept compensation in lieu of any claim for damages against defendant. Plaintiff claimed this agreement was obtained by fraud and misrepresentation. He also claimed lack of sufficient mental capacity *298 to contract by reason of mental retardation and post-traumatic psychoneurosis.
Plaintiff's first assignment of error is as follows:
"The court erred in connection with the cross-examination of witness Elsie Marks, in excluding plaintiff's Exhibits 24 and 25 for identification, and in refusing to permit plaintiff to use the exhibits in connection with the examination of the witness, or to cross-examine the witness with reference to the exhibits."
Elsie Marks was the defendant's office manager. She testified upon behalf of defendant to the circumstances under which the plaintiff signed the compensation agreement. Exhibit 25 was a purported electronic dictaphone recording of a telephone conversation between Mrs. Marks and an investigator for plaintiff's attorneys. Exhibit 24 was a typewritten transcription of the recording. The matter was presented to the court in the following manner. Mrs. Marks, on cross-examination, admitted she had a telephone conversation with a man who represented himself to be an investigator for plaintiff's attorneys relating to the circumstances under which plaintiff had signed the agreement. She was then handed Exhibit 24 and asked if it correctly portrayed the conversation. She replied that she did not remember a good portion of what appeared therein. Without attempting to question the witness concerning any particular portion, plaintiff then requested permission to play the recording, which request was refused, and neither exhibit was received in evidence. Plaintiff made no statement concerning his reasons for wishing to so play the recording but, when his request was refused, he asked that he be allowed to be heard out of the presence of the jury. *299 Thereafter, the following proceedings and offer of proof were had out of the presence of the jury:
* * * * *
"THE COURT: The witness couldn't remember that being her conversation whereupon you produced an electronic recording of a type generally used on dictating equipment, correct?
"MR. KAHN: Yes, Your Honor, used on a Dictaphone.
"THE COURT: And offered to play that before the jury.
"MR. KAHN: Yes, Your Honor.
"THE COURT: Do you have something to play it on?
"MR. KAHN: I have a machine, Your Honor.
"THE COURT: This is the type of equipment which is readily alterable, I assume, like most dictating equipment?
"MR. KAHN: I am sorry
"THE COURT: Erasable like most electronic equipment?
"MR. KAHN: No, Your Honor.
"THE COURT: You have someone here to authenticate that this took place I think you pointed out that you didn't?
"MR. KAHN: I don't have Mr. Goodman here, however, I believe that Mrs. Marks will be able to identify her own voice and in the event she is not able to identify it, that the jury could identify her voice from having heard her on the witness stand.
"THE COURT: All right, say anything else you want to, this is for the record because I have already denied your permission to have it played to the jury.
"So for the record say anything else you want to about it.
*300 "MR. KAHN: Your Honor, I would like to play it as an offer of proof.
"THE COURT: You mean out of the presence of the jury?
"MR. KAHN: Yes, Your Honor.
"THE COURT: What would that do?
"MR. KAHN: Well, Your Honor, in the alternative so long as I can stipulate with counsel that the girl accurately transcribed it off the recording, I will offer Plaintiff's Exhibit 24 as being what would be heard on the recording.
"But otherwise, I would like to play the recording, itself.
"MR. NEWHOUSE: Your Honor, we are not willing to enter into such a stipulation."
* * * * *
1. On the basis of the present record neither exhibit was entitled to introduction in evidence. No proof was presented showing that the tape accurately recorded the conversation. Plaintiff's real contention is that by preventing him from playing the recording he was deprived of the opportunity to prove that the recording correctly portrayed the conversation the witness admitted having and, in any event, he was prevented from using it to cross-examine the witness.
2. Plaintiff first argues that playing the tape in the presence of the jury would have given the jury an opportunity to conclude that one of the voices in the recording was the voice of the witness to whom they had just listened and therefore the recording was authentic. However, Mrs. Marks' voice on the tape would not prove that the tape was an accurate recording of the particular conversation. No case has come to our *301 attention, nor have any been cited, which suggests that similarity of voice alone is sufficient authentication.[1]
Plaintiff also argues that if he had been permitted to play the recording to Mrs. Marks her memory might have been sufficiently refreshed by the sound of her voice to recall that the recording did correctly portray the conversation, thus authenticating it. In any event, plaintiff contends he should have been permitted to use it in cross-examining her.
3. Plaintiff first requested in open court that he be allowed to play the recording in the presence of the jury. At that time he did not state any reason for the request. Had his reasons been stated, the request would still have been properly denied because of the danger of prejudice to the defendant had the witness failed to verify the recording and denied making the statements. The preferable way is to initially allow the witness to listen to the recording on earphones or to play the recording to the witness out of the presence of the jury. Slatinsky v. Bailey, 330 F2d 136, 141 (8th Cir 1964); United States v. McKeever, 271 F2d 669, 675 (2nd Cir 1959); Breeding v. Reed, 253 Ia 129, 110 NW2d 552, 556 (1961).
4. The colloquy previously set forth took place out of the presence of the jury after plaintiff indicated a desire to be so heard. Then, for the first and only time, plaintiff stated that his purpose in playing the recording was to refresh the witness's memory by the sound of her voice. However, at this time plaintiff's attorney and the court were discussing plaintiff's previous request to play it in the presence of the jury and *302 not his request to play it as part of plaintiff's offer of proof. This request had not yet been made. When plaintiff subsequently asked to play the recording as part of his offer of proof, the court asked his purpose in making such a request. Plaintiff's response was that, in the alternative, he would offer the typewritten transcript if counsel for defendant would stipulate it was correctly transcribed from the recording. This certainly would indicate to the court that plaintiff was not requesting that the recording be played as part of the offer of proof for the purpose of refreshing the witness's memory by the sound of her voice. At no time did plaintiff tell the court that he wanted the recording played out of the presence of the jury for the purpose of refreshing the witness's memory or for the purpose of cross-examining her concerning the statements made in it. His request was a proper one, if made for the purpose he now asserts. However, in the absence of telling the court his reasons for the request, we do not believe error was committed by the court's refusal to allow the recording to be played out of the presence of the jury.
It is difficult to frame a yardstick to apply in determining whether a party has been sufficiently specific in informing the court of the reasons for a request. The specificity required is determined by the reason for the rule that the court should be informed, i.e., to give the trial court an opportunity to rule intelligently. Vancil v. Poulson, 236 Or 314, 324, 388 P2d 444 (1964). The procedure that plaintiff now claims he was entitled to was unusual enough that plaintiff had a duty to make clear to the court the reasons for the request. We do not believe plaintiff did this.
Plaintiff's second assignment of error was the court's refusal to instruct the jury that defendant was *303 guilty of negligence causing the accident. Plaintiff first claims that the proof is uncontradicted that defendant failed to furnish plaintiff a safe place to work.
5. In Shelton v. Paris, 199 Or 365, 368, 261 P2d 856 (1953), this court held that ORS 654.010, which provides that an employer must furnish an employe a safe place to work, was declaratory of the common law. It also held that ORS 654.305, which was part of the Employer's Liability Act, enlarged the common law requirements by establishing a higher degree of care. Where the work involves risk or danger, the duty is imposed upon every employer within the Act to use every practicable precaution for the safety of his employes, regardless of cost and limited only by preservation of efficiency.
6-9. Whether the charge in plaintiff's complaint of failure to provide a safe place to work is considered an allegation of a breach of the common law duty or the enhanced standard under the Employer's Liability Act, there is a jury question whether the defendant was negligent in failing to comply with the standard of care imposed upon him if the evidence is such that reasonable minds can differ. The fact that an accident occurred does not make an employer negligent as a matter of law. The employer is not an insurer of the safety of his employes. Shelton v. Paris, supra, at 369. The question whether the defendant was negligent by failing to furnish plaintiff a safe place to work properly was presented to the jury. There was evidence which strongly inferred that the defendant was negligent in failing to adequately secure the timber. However, we cannot say that the fact the timber fell was conclusive of defendant's negligence and thus negligence as a matter of law. There was no absolutely certain evidence of the cause of its fall.
*304 10. Even if the defendant was held to have violated the high standard of care of the Employer's Liability Act, there still would remain the jury question whether the work was so inherently dangerous or presented dangers so uncommon that the employment would be classed as work involving "risk or danger" and thus come under the Act. Richardson v. Harris, 238 Or 474, 476-477, 395 P2d 435 (1964); Skeeters v. Skeeters, 237 Or 204, 216, 389 P2d 313, 391 P2d 386 (1964).
11. Plaintiff also claims that the uncontradicted evidence shows defendant violated the following portion of the Basic Safety Code:
"2.2 The structure and foundation and all parts thereof, of all buildings and appurtenances used for work shops, warehouses, factories or other places of employment shall be of such a construction as to enable them to be analyzed and designed by accepted rational methods in accordance with established principles of mechanics and sound engineering practice. They shall be of sufficient strength to support the estimated actual dead and live loads acting on them in addition to their own proper dead loads, without the resulting stress exceeding the allowable stress for the material being used. In addition to these loads, due and rational allowances shall be made for loads from wind, impact, erection, and any special loadings that may occur, and no combination of these loading shall cause a stress in any member that exceeds the allowable stress for the material of that member.
"2.5 The foundation and supports of structures shall be inspected regularly by a qualified person and all weakened structures repaired or replaced."
The quoted provisions of the Safety Code relate to the strength of materials which must withstand stress and to the prevention of stress upon materials in excess of that allowed. The evidence is devoid of any explanation *305 of the purpose which the timber performed. Nor is there any conclusive evidence of the cause of its fall. In the absence of conclusive evidence that its fall was related to a failure of the timber or any connected part of the structure to withstand the stress of its loadings, it would have been improper to tell the jury the Safety Code was violated.
Plaintiff's last assignment of error is his claim that the court improperly struck his second affirmative reply which pleaded that the compensation agreement was void because he did not have sufficient mental capacity to enter into it as the result of post-traumatic psychoneurosis and mental retardation. The court struck the reply because it felt there was insufficient evidence to submit the question to the jury.
There was evidence that plaintiff, for a time after the accident, probably suffered post-traumatic psychoneurosis of the type which made him suffer from pain for which there was no organic or physical cause. However, there was no evidence that this type of psychoneurosis would interfere with his mental capacity to enter into a contract.
In addition there was evidence that defendant was unable to read some of the more complicated words in the agreement. He had an intelligence quotient of 83, which placed him in the dull-normal range. He had finished the 8th grade at about the age of 18 but was only able to accomplish at about the 5th grade level. He had been previously employed as a driver and repairer of combines, as a mucker in a mine, as a fireman's helper on a steam turbine generator where he had to keep track of and record the readings of 12 gauges. He had been employed at his present work for about one year. He produced evidence that he was *306 easily influenced, was a dependent person, and that he had difficulty understanding abstract principles and complicated situations. He testified that he did not understand the provision of the contract providing that he released defendant from all claims for damages even though the provision was read and explained to him in the presence of his wife.
12-14. To have the mental capacity to contract it is necessary that a person have the ability to comprehend the nature of the transaction in which he is engaged and to understand its quality and consequences. Coleman v. Coleman, 85 Or 99, 103, 166 P. 47 (1917) and cases cited therein. However, dullness of intellect, if it does not render the party incapable of understanding the nature and effect of his act, does not incapacitate him from making a valid contract. 2 Black, Rescission and Cancellation (2d ed) 741, § 263. The presumption is, in the absence of an adjudication of incompetence, that a person has capacity to contract. Schultz v. First Nat. Bk. of Portland et al, 220 Or 350, 359, 348 P2d 22 (1960).
15-17. The fact that the plaintiff was easily influenced and a dependent person, though relevant to the question of fraud and undue influence, does not prove lack of capacity to contract. Nor does plaintiff's testimony that he did not understand the contract present a jury question. The question is not whether he understood the contract but rather whether he was capable of understanding it. If a party's testimony that he failed to understand a contract was sufficient to prove that he was incapable of doing so, chaos and uncertainty would reign supreme. There is nothing particularly abstract or complex about not being able to sue one's employer for damages if a settlement is accepted. None of the experts who examined plaintiff testified *307 that he would be incapable of understanding such a provision. There was insufficient evidence to make a jury question on the inadequacy of plaintiff's mental capacity.
The evidence proved nothing more than that plaintiff was of normal but below average intelligence. It would be poor public policy to hold that such proof made a jury question on capacity to contract. Such a policy would be more detrimental to such persons than the occasional improvident contract they might make. If their contracts could be held void upon such proof they would be treated as incompetents by the balance of society and relegated to the class of persons with whom no one dared transact business.
The judgment of the trial court is affirmed.
LUSK, J., dissenting.
The first assignment of error, in my judgment, involves the right of cross-examination. Where there is a question of impeachment of a witness (not a party) a foundation must be laid and that cannot be done (as was attempted in this case) by exhibiting to a witness a writing which the witness neither made nor approved: State v. Goodager, 56 Or 198, 202-203, 106 P. 638, 108 P. 185. See, also, State v. Brake, 99 Or 310, 332, 195 P. 583. Where there is no writing such as the statute contemplates and it is desired to impeach the witness by evidence of prior inconsistent statements, "the statements must be related to him, with the circumstances of times, places and persons present, and he shall be asked whether he made the statements, and if so, allowed to explain them." ORS 45.610.
This was never done. It does not follow, however, simply from the fact that a proper foundation for impeachment *308 was not laid, that the court ruled correctly in declining to permit the record of the telephone conversation to be played out of the presence of the jury. I think that the majority has taken too narrow a view of the plaintiff's offer of proof. When what was said is viewed in its entirety it seems to me that counsel for plaintiff proposed that the record be played in her presence so that she could testify as to whether the voice was hers. Counsel for the plaintiff told the court just that when he said in answer to the court's question as to whether he had someone to authenticate the recording: "I don't have Mr. Goodman here, however, I believe that Mrs. Marks will be able to identify her own voice and in the event she is not able to identify it, that the jury could identify her voice from having heard her on the witness stand."
In my opinion the court should have permitted the record to be played out of the presence of the jury in accordance with this offer, and if the witness should have testified that it was her voice and her statements were accurately recorded, then, if those statements were competent evidence, the record should have been played in the presence of the jury. The right of cross-examination surely should go this far. And, of course, if anything in the recorded statement was inconsistent with the witness' testimony on the trial it would serve the purpose of impeachment to the extent of such inconsistency.
If, however, the witness in these circumstances should deny that it was a recording of her voice or should deny that statements of hers had been correctly recorded, then, there being no evidence whatever as to the circumstances of the recording or the accuracy of the instrument, I should suppose that the record *309 should not be played in the presence of the jury. The mere fact, however, that a part of the offer of proof went beyond what the plaintiff was entitled to should not deprive him of the benefit of that which could properly be allowed.
For the foregoing reasons I dissent from that part of the opinion of the court which holds that the trial court did not err in rejecting the offer of proof.
Mr. Justice O'CONNELL concurs in the foregoing dissent.
NOTES
[1] See the fragmentary report in People v. Hornbeck, 277 App Div 1136, 101 NYS2d 182 (1950), which may be to the contrary. For a general discussion see 40 Virginia Law Rev, Magnetic Recordings in the Courts, 23 at 34-35, and 58 ALR2d 1024. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608529/ | 432 P.2d 392 (1967)
78 N.M. 427
Terry E. WELDON, Plaintiff-Appellee,
v.
Kenneth W. HERON and Robert Heron, Co-Executors of the Estate of Kenneth A. Heron, Deceased, Defendants-Appellants.
No. 8229.
Supreme Court of New Mexico.
October 9, 1967.
Kenneth A. Heron, pro se.
Boston E. Witt, Santa Fe, for appellee.
OPINION
NOBLE, Justice.
Kenneth A. Heron appealed from a judgment quieting the title in Terry E. Weldon to approximately twelve acres of land located south of the town of Chama, New Mexico.
Heron answered Weldon's complaint and filed a counterclaim seeking to quiet title in himself. The trial court found Weldon to be the owner of the land described in the complaint; that he and his predecessors had held the land by adverse possession for more than ten years under color of title and payment of taxes; that Heron had no right, title or interest therein; that Heron had never been in possession of the land; and, that Heron had failed to prove the allegations of his counterclaim.
The court's finding that the land described in the complaint has been adversely held by Weldon and his predecessors for the *393 statutory period is attacked by Heron as not being supported by substantial evidence. Color of title and payment of taxes are indispensable to gaining title to real estate by adverse possession. Murray Hotel Co. v. Golding, 54 N.M. 149, 216 P.2d 364. Our examination of the record discloses various mesne conveyances to Weldon and his predecessors conveying all of Blocks 23 and 25 of the Martin and Borders Addition to the Town of Chama. These deeds likewise conveyed a portion of what is known as the Depot Grounds of the Denver and Rio Grande Western Railroad, lying southerly and adjacent to the southerly boundary of a street south of Blocks 23 and 25. The conveyances to Weldon's predecessors described the lands as the two blocks and the 18.45 acres of the station grounds by surveyed description. The deed to Weldon in 1963 so described the land, but, in addition, described the entire tract more particularly by a surveyed description of the outside boundaries. This description included a small triangular tract marked Block "A" on some plats in evidence, lying between Block 23 and the Depot Grounds. It also included all of the street on the northerly and westerly side of the two blocks.
Generally a conveyance of land abutting on a road, street, highway, alley or other way is presumed to include the fee to the centerline of the way, and absent language in the instrument showing a different intention, such presumption will prevail. Nickson v. Garry, 51 N.M. 100, 179 P.2d 524; Annot., 49 A.L.R. 2d 982. Our review of the record discloses that the court's finding of adverse possession is substantially supported by the evidence except we fail to find substantial support for the finding insofar as it covers the triangular block designated "A", and to the other streets adjacent thereto on defendants' exhibit 3, and to the northerly half of the street on the northerly side of Block 23, and to the easterly one-half of the street on the east side of Block 23. The record does not disclose that the adverse possession of Weldon or his predecessors commenced under color of title to those tracts more than ten years prior to filing the complaint in this case. However, where the street or road was laid out along the margin of a subdivision and wholly therein, a conveyance of a parcel thereof abutting on the highway ordinarily includes title to the farther edge of the highway. Annot., 49 A.L.R. 2d 982 at 1009, and cases cited. It appears that the street on the westerly side of Blocks 23 and 24 may have been along the outside of the Martin and Borders Addition.
We find no error in the court's refusal to permit Heron to testify respecting a permissive use of the premises by plaintiff's predecessors. His offer of proof makes it clear that no express permission was ever granted. Implied acquiescence is not necessarily the same as permission. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760, 200 N.E.2d 282; In re Rawlins Mercantile Co., 251 F. 164 (S.D. Ga. 1918). On the contrary, there may be adverse possession where possession is with forbearance of the owner who knew of such possession and failed to prohibit it. Myran v. Smith, 117 Cal. App. 355, 4 P.2d 219. We have examined the offer of proof and find no basis for a conclusion that the trial court erred in refusing it.
The trial court's written findings, conclusions and decision were based upon the theory that Weldon held the property by adverse possession. Accordingly, Heron's argument asserting that Weldon's paper title was not good is irrelevant. Heron v. Conder, 77 N.M. 462, 423 P.2d 985. Heron's argument that he was the record owner of the legal title is likewise irrelevant except as it might serve to attack the sufficiency of the evidence to support the finding that Weldon had "color of title" necessary to establish adverse possession. In our view, detailing the evidence would serve no useful purpose. Suffice it to say that a review of the record discloses substantial support in the evidence for the trial court's findings.
There is merit to Heron's complaint that the court failed to find one way or the other respecting a small protrusion of land *394 claimed by his cross-complaint and lying outside but adjacent to some of the western boundaries of the land quieted in Weldon. The court must, when requested, find one way or the other upon a material issue. Rule 52(B)(a)(2) (§ 21-1-1(52)(B)(a)(2), N.M.S.A. 1953); Laumbach v. Laumbach, 58 N.M. 248, 270 P.2d 385. Even though a finding respecting this protrusion alone was not separately requested, we think its inclusion with other land amounted to the request required by the rule.
The final point asserted as error is a cumulative argument based on points resolved by what we have said and is found to be without merit.
The case will be remanded with instructions to vacate the judgment and to proceed in a manner not inconsistent with this opinion. Each party will pay his own costs.
It is so ordered.
MOISE, J., and HENSLEY, Jr., C.J., Ct.App., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608530/ | 247 Or. 629 (1967)
432 P.2d 182
WILLARD LEE CLARK, Appellant, v. GLADDEN, Respondent.
Supreme Court of Oregon.
Argued May 4, 1967.
Reversed and remanded October 4, 1967.
*631 Gary D. Babcock, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Lawrence A. Aschenbrenner, Public Defender, Salem.
Helen B. Kalil, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief was Robert Y. Thornton, Attorney General, Salem.
Before PERRY, Chief Justice, and McALLISTER, *632 SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, Justices.
REVERSED AND REMANDED.
GOODWIN, J.
A prisoner serving an enhanced sentence as a habitual criminal appeals from a judgment which denied postconviction relief. The court sustained a demurrer to a petition alleging that the Missouri, Oklahoma, and Texas convictions which the sentencing court had considered in applying the Oregon recidivist law were invalid because of denial of counsel and other constitutional defects.
1. As a preliminary question, we must decide whether the prisoner has lost his right to challenge his foreign convictions by not raising his questions at the hearing in which he was found to be a habitual criminal.
When the prisoner appeared for resentencing under ORS 168.015 to 168.085, he did not see fit to challenge any of his foreign convictions. Five foreign convictions were alleged against him, and he admitted that he had been convicted in each of the cases. He was represented by counsel at the time of the hearing, and counsel raised no question concerning alleged constitutional deficiencies. The state now argues that by failing to raise the constitutional questions at the time of his sentencing under ORS 168.085 and by failing to appeal he waived his right to raise these questions at a later time. While it would have been better procedure to have made a timely objection in the court which was considering the prisoner's status as a habitual criminal instead of bringing these new proceedings before another circuit court, the question of waiver is controlled by statute.
*633 The only statutory provision concerning a waiver of defenses to former convictions is the following:
ORS 168.075. "Unless the proof shows the exception of a former conviction under subsection (1) or (4) of ORS 168.015, the defendant waives the exception by failure to claim it at the hearing on the allegations of the information."
The two subsections referred to provide:
ORS 168.015. "(1) `Conviction' means an adjudication of guilt upon a plea, verdict or finding in a criminal proceeding in a court of competent jurisdiction, but `conviction' does not include an adjudication which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory.
"* * * * *
"(4) Except under ORS 166.230 and 167.050, a conviction is not a `former conviction of a felony' if:
"(a) The offense was committed when the defendant was under 16 years of age;
"(b) That conviction was rendered after the commission of the principal felony;
"(c) It is the defendant's most recent conviction described in subsection (3) of this section, and the defendant was finally and unconditionally discharged from all resulting imprisonment, probation or parole more than seven years before the commission of the principal felony; or
"(d) That conviction was by court-martial of an offense denounced only by military law and triable only by court-martial."
The statutory language relevant to this case is that of the definition of a "conviction" which excludes "an adjudication which has been expunged by pardon, reversed, set aside, or otherwise rendered nugatory." *634 The prisoner would have us construe the words "or otherwise rendered nugatory" as meaning "or otherwise adjudicated to be nugatory." The state apparently would have us read the words as meaning "or otherwise deemed nugatory."
Difficulty of the kind created by the ambiguity in our statute has been obviated in New York by a specific amendment in 1964, which reads:
"* * * provided however, that no previous conviction in this or any other state shall be utilized as a predicate for multiple offender treatment pursuant to * * * this article if such conviction was obtained in violation of the rights of the person accused under the applicable provisions of the constitution of the United States.
"An objection that a previous conviction was unconstitutionally obtained may be raised at this time and the court shall so inform the person accused. Such an objection shall be entered in the record and shall be determined by the court, without empanelling a jury. The failure of the person accused to challenge the previous conviction in the manner provided herein shall constitute a waiver on his part of any allegation of unconstitutionality unless good cause be shown for his failure to make timely challenge * * *." N Y Sess Laws 1964, ch 446, § 1.
Until our Legislative Assembly provides such clear statutory direction as has been provided in New York, we construe our present statutory language "or otherwise rendered nugatory," in light of the terms "has been" "expunged," "reversed," and "set aside," as requiring an accomplished act to relieve the prisoner of the unconstitutional judgment. The alternative would be to disregard the words "has been," and hold that the mere failure of the prisoner to challenge a *635 former conviction on grounds other than those spelled out in ORS 168.015 (1) and (4) is itself a waiver of the right to raise such questions. Since such an intent could have been expressed in a very few words, and was not, we do not believe such an intent can be inferred. Our construction of the statutory language is fortified by the fact that our Legislative Assembly has provided elsewhere in the code a comprehensive postconviction remedy which, on its face, appears to apply to the kind of problem now before us.
2. Under ORS 138.510(1)[1] a prisoner has a statutory right, however tardily he may act, to petition for redress of constitutional grievances so long as the questions presented were not actually decided in his former proceedings nor otherwise barred by express terms of the statute. See ORS 138.550(1), (2)[2].
3. The language of ORS 138.510 restricting postconviction relief to persons "convicted of a crime under the laws of this state" likewise does not bar this prisoner. The principal conviction which started the chain *636 of events leading to the present sentence was an Oregon conviction for burglary. This is a conviction within the meaning of ORS 138.510(1). While the principal conviction is not being challenged on the issue of guilt or innocence, the sentence ultimately entered as the result thereof is being challenged. Subsection (c) of ORS 138.530(1) specifically makes the unconstitutionality of a sentence a ground for postconviction relief.
While the Oregon postconviction statute does not, in so many words, say that the unconstitutionality of foreign judgments can be reached in proceedings brought under the statute, there is no reason for denying relief when such judgments are by Oregon law allowed to affect Oregon sentences. See Collins and Neil, The Oregon Postconviction Hearing Act, 39 Or L Rev 337, 345 (1960). In Minnesota, where there was no postconviction statute, the court reached the same result by shaping habeas corpus to fit the situation. See State ex rel Holm v. Tahash, 272 Minn 466, 139 NW2d 161 (1965).
The next question is whether the courts of this state should entertain collateral attacks upon the judgments of conviction entered in the courts of other states, and if so the extent to which such judgments may be re-examined. As noted, New York has settled the question by statute.
4, 5. The full-faith-and-credit clause of Article IV, § 1, of the United States Constitution is not offended by a properly limited collateral attack. No state is required to take notice of foreign convictions in sentencing those who violate its own criminal laws. Each state is free to give foreign convictions such force as it deems proper in the administration of local sentencing *637 policy. The courts of each state must determine which convictions meet constitutional standards in carrying out the legislative policy of their own recidivist laws. Thus, while a challenge to a foreign conviction in a local sentencing proceeding may take the form of a collateral attack, there is no constitutional reason for disallowing such an attack. See, e.g., People v. Coffey, ___ Cal2d ___, 430 P2d 15, 60 Cal Rptr 457 (1967); In re Woods, 64 Cal2d 3, 409 P2d 913, 48 Cal Rptr 689 (1966); State v. Dalrymple, 75 N Mex 514, 407 P2d 356 (1965); United States ex rel LaNear v. LaVallee, 306 F2d 417 (2d Cir 1962). See also cases noted in Norton, Gideon and the Habitual Criminal Statutes, 6 Washburn L J 24 (1966).
6. An Oregon convict, therefore, may, when charged under ORS 168.055 with being a habitual criminal, allege constitutional defects and thereby call into question one or more of his prior convictions.
If his allegations meet Oregon standards of legal sufficiency, and if his allegations are admitted or proven, the sentencing court will disregard the convictions thereby found to be constitutionally defective. See Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962).
7. There is no reason for treating a foreign conviction differently than an Oregon conviction in carrying out Oregon sentencing policies. The substantive question in either case is whether the former conviction being called into question is one that ought to be considered as a part of the criminal history of the prisoner for our own sentencing purposes.
Some courts have taken the position that a state which chooses to employ foreign convictions as part of its sentencing scheme should be prepared in every *638 case to support the constitutionality of the foreign convictions against any challenge that might be asserted, regardless of the character of the alleged defect, the difficulty of proof, or the hazards of relying upon faulty memories. See United States ex rel Savini v. Jackson, 250 F2d 349 (2d Cir 1957). We do not believe that it is necessary at this time to adopt so sweeping a rule.
For our own purposes in administering the Oregon recidivist laws, the courts of this state can distinguish between a foreign conviction in which the prisoner alleges defects that could be reached by collateral attack if it were an Oregon judgment and one in which he alleges some other constitutional irregularity which would not constitute grounds for postconviction relief under ORS 138.510 to 138.670. See, e.g., Guse v. Gladden, 243 Or 406, 414 P2d 317 (1966).
We now turn to the prisoner's allegations to determine whether, upon the warden's demurrer, the petition states one or more grounds for relief which this court would recognize as legally sufficient if alleged against an Oregon conviction.
8, 9. A denial of counsel at the trial is now recognized in state and federal courts as a constitutional defect that will render a conviction void, and it is one that can be asserted in a collateral attack long after the conviction has become final. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 ALR2d 733 (1963). A denial of counsel will also invalidate a guilty plea, and this constitutional defect can be asserted in a collateral attack. Lawson v. Gladden, 245 Or 492, 422 P2d 681 (1967); United States ex rel Durocher v. LaVallee, 330 F2d 303 (2d Cir 1964). The question now before the court is whether the petitioner *639 has alleged a denial of counsel in connection with each of his five former convictions.
In the case of his two Texas convictions, the prisoner alleges that police brutality, threats, promises, and illegal interrogation were employed against him before he entered a plea of guilty. His petition also reveals, however, that in each of his Texas convictions he pleaded guilty with an attorney at his side. He seeks to avoid the effect of his pleas of guilty by alleging the inadequacy of his counsel.
10. The courts of this state will not entertain a factual inquiry into the pretrial conduct of a foreign prosecution when the record reveals a guilty plea made with the advice of counsel. Any meritorious questions about pretrial irregularities could and would have been disposed of if counsel was functioning at the time of the guilty plea.
11. An allegation of the ineffectiveness or inadequacy of counsel, when tested by demurrer in collateral proceedings in this state, must allege disloyalty, bad faith, or some other improper conduct amounting to a substantial denial of the assistance of counsel. See Benson v. Gladden, 242 Or 132, 140, 407 P2d 634 (1965); State v. Abel, 241 Or 465, 469, 406 P2d 902 (1965).
The allegations of denial of counsel in connection with the two Texas convictions are identical in each case: "* * * that said attorney did not converse with petitioner or investigate the facts for preparation of petitioner's defense or advise petitioner as to the meaning of said charge, what elements comprised the charge or what acts amounted to being guilty thereof or any possible defense thereto or to plead not guilty for the purpose of having a jury trial on the merits * * *."
*640 12. We hold that when challenged by demurrer the foregoing allegation states a substantial denial of counsel, and, if proven, would be such a denial of a constitutional right as would render an Oregon conviction void. Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962); Lawson v. Gladden, 245 Or 492, 422 P2d 681 (1967). Accordingly, even though the Texas convictions appear to have been based upon a guilty plea entered with the advice of counsel, the complaint alleges a substantial denial of counsel and therefore states a cause of action. The demurrer should have been overruled.
13. The Oklahoma convictions present a variation of the problem of denial of counsel. The prisoner alleges that in each of his two Oklahoma convictions he was without counsel and that he pleaded guilty without ever being advised of his right to counsel. This allegation states a valid ground for relief. Lawson v. Gladden, supra.
The prisoner also alleges that in connection with one Oklahoma guilty plea he was further induced by the police to plead guilty in exchange for a two-day conjugal visit in the local jail. This latter allegation can be regarded as surplusage. If the prisoner was denied counsel, he was also denied an effective opportunity to present objections to pretrial police misconduct. The alleged denial of counsel, therefore, presents an assertion of fact sufficient, if true, to entitle the prisoner to relief.
In the Missouri conviction, which was also on a plea of guilty, the prisoner again alleges that he entered his plea without being advised that he could have an attorney, and that he was in fact without counsel. This allegation is likewise sufficient against *641 the warden's demurrer. The prisoner also alleges bargaining with police and with other officials prior to entering his plea. We disregard these latter allegations of improprieties as surplusage. They tender questions that would undoubtedly have been disposed of in the state where they allegedly occurred had counsel been provided. Since the prisoner was without counsel, his conviction is bad for that reason and it is not necessary to speculate upon the remedial actions counsel might have taken.
14. The warden, by demurring to the complaint, does not deny the prisoner's allegation that he was denied counsel in one or more of his Oklahoma and Missouri convictions. The availability of counsel is a question of fact in the two Texas convictions. If the prisoner can prove his allegations concerning his denial of counsel in any of the former convictions, his present sentence is based upon one or more unconstitutional convictions.
It necessarily follows that the demurrer should have been overruled and the cause should have been allowed to proceed to a factual determination upon the issues regarding denial of counsel.
Reversed and remanded.
LUSK, J., concurring.
I concur. I would add a word relative to the contention that under ORS 168.015 (1) and 168.075, the petitioner has waived his right to assert the invalidity of the former convictions by failing to claim it at the hearing on the allegations of the habitual criminal information. It is said that because of the constitutional defects in these convictions they have been "rendered nugatory." The words in ORS 168.015 (1) "or otherwise rendered nugatory" cannot be properly construed *642 to include convictions the constitutional invalidity of which had not been determined prior to the bringing of the habitual criminal proceeding. If this were so then the waiver provisions of ORS 168.075 would, as applied to some cases, be unconstitutional. The sections of the code in question were enacted in 1961. It was not until 1963 that the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L ed 2d 799, 93 A.L.R. 2d 733, overruled Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L ed 1595, and held that the Sixth Amendment's guarantee of counsel was a fundamental right "brought within the Fourteenth Amendment by a process of absorption", and thus made applicable to trials in state courts.
Under the suggested construction, a defendant charged as an habitual criminal because of a conviction prior to 1963, would be held to have waived the objection that he was not represented by counsel, although he could not have known at the time of the habitual criminal proceedings that this was a constitutional defect. Similar cases may arise in the future involving as yet undetermined constitutional rights of persons charged with crime. It is not to be supposed that the legislature intended that an accused should be held to have waived a constitutional right the existence of which neither he nor anyone else was aware of at the time.
PERRY, C.J., dissenting.
The majority seems to place a strange interpretation upon ORS 168.015.
It must be remembered that the laws of this state for increasing penalties because of prior felonious convictions were first enacted in 1927. Oregon Laws, *643 1927, ch 334, § 1, p 432; § 13-2801, Oregon Code 1930; § 26.2801, OCLA. At that time there was contained in the Act no definition of the word "conviction." Thus the only requirement placed upon the State was to prove by the records of a court of competent jurisdiction the particular defendant's former conviction of a felony. State v. Smith, 128 Or 515, 273 P. 323 (1929).
In 1927, many of the constitutional rights of defendants had not been discovered and, therefore, infringement of federal constitutional rights had not been imposed upon the states via the Fourteenth Amendment.
In 1959, when the legislature passed the Oregon Post Conviction Act, Oregon Laws 1959, ch 636 (ORS 138.510-680), it was enacted to provide a procedure whereby due process imposed upon the states by these newly discovered federal constitutional rights could be had without resort to federal habeas corpus. In many instances, it was doubtful if federal constitutional violations of convictions in other jurisdictions could be attacked successfully in state habeas corpus proceedings. U.S. ex rel Dennis v. Murphy, C.A.N.Y., 1959, 265 F2d 57.
Therefore, by the passage of the Oregon Post Conviction Act in 1959, the legislature evidently intended and provided (as now decided by the majority) a forum wherein, in response to the requirements of due process, one accused of being an habitual criminal could challenge on constitutional grounds his prior convictions upon which his enhanced sentence was based. See "The Oregon Postconviction-Hearing Act," 39 Or L Rev 337, 345 (1960), authored by Jack G. Collins and Carl R. Neil, members of the drafting committee of the Act.
*644 In 1959, no change was made in the act of 1927 relative to defining prior convictions which might be considered as a basis for determining a convicted felon's status as an habitual criminal. However, two years after the passage of the Oregon Post Conviction Act by the legislature, which provided that:
"(1) The failure of petitioner to have sought appellate review of his conviction, or to have raised matters alleged in his petition at his trial, shall not affect the availability of relief under ORS 138.510 to 138.680. * * *." ORS 138.550(1).
the legislature amended the Habitual Criminal Act by defining the conviction which could be relied upon in law to form a basis for enhancing the penalty. ORS 138.550.
ORS 168.015(1) states:
"`Conviction' means an adjudication of guilt upon a plea, verdict or finding in a criminal proceeding in a court of competent jurisdiction, but `conviction' does not include an adjudication which has been expunged by pardon, reversed, set aside or otherwise rendered nugatory." (Emphasis supplied.)
and ORS 168.075 provided that:
"Unless the proof shows the exception of a former conviction under subsection (1) * * * of ORS 168.015, the defendant waives the exception by failure to claim it at the hearing on the allegations of the information."
From the above, it is clear to me that the legislature, after defining "conviction" and providing for waiver if not raised in the recidivist hearings, determined that all defenses to prior convictions in habitual criminal proceedings are to be tried in the court *645 wherein the "principal felony" conviction was had. Certainly no one would contend, after Graham v. West Virginia, 224 U.S. 616, 32 S. Ct. 583, 56 L ed 917, (1912), that the state could rely upon invalid convictions to enhance criminal penalties. This comports with the requirements of federal due process, and a defendant may waive his right to challenge these prior convictions by failure to assert this right in the habitual criminal proceedings in the court wherein the "principal felony" conviction was had. Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L ed2d 446.
To avoid the effect of ORS 168.015, the majority apparently holds that the statute is unclear and, therefore, the legislative intent was to foreclose the prisoner from his post-conviction challenge only where a record had been made in some prior proceeding that disclosed that the prior conviction had been "set aside," "expunged," or "reversed."
The word "otherwise" is a word of contrast meaning "in a different way or manner; * * * under different circumstances," Webster's Third New International Dictionary; "in a different manner; in another way, or in other ways," Black's Law Dictionary, Fourth Edition. The word "nugatory" simply means "invalid, destitute of constraining force or vitality," Black's Law Dictionary, Fourth Edition.
It is, therefore, clear that the legislature by using the word "otherwise" was distinguishing between those acts which a record disclosed had been "expunged," "reversed," or "set aside," and those acts arising in some other different way or manner which voided the prior judgment.
It would be true, as argued in the concurring opinion, that under ORS 168.075 if the habitual criminal's constitutional rights had been waived by the provisions *646 of the statute when such rights were then unknown and undiscovered, it might not be held that that issue was foreclosed by a waiver under the statute insofar as the jurisdiction of federal habeas corpus applied. This same contention, however, would be just as valid in regard to the 1964 New York statute as to yet to be discovered federal constitutional rights, not because the statute itself is unconstitutional, but because of the requirements of federal due process that the state provide a forum in which federal constitutional rights can be resolved.
Also, it is well established there can be no waiver of an unknown right. In the situation envisaged by the concurring opinion, post-conviction proceedings would still lie if the state is to provide a forum for not yet discovered federal constitutional rights.
That is not the situation present in this case. The petitioner was informed against as an habitual criminal, and "thereafter on said information a hearing was held on April 8, 1964, wherein petitioner admitted the truth of all the material allegations of said information of previous convictions on file." (Emphasis supplied) The petitioner at this time was represented by able counsel, and at this time it was well known that prior unconstitutional convictions could be attacked in recidivist proceedings in both state and federal courts. Graham v. West Virginia, supra.
As stated in Oyler v. Boles, supra, 368 U.S. 448, 454, 7 L ed2d 446, 451:
"Indeed, we may assume that any infirmities in the prior convictions open to collateral attack could have been reached in the recidivist proceedings, either because the state law so permits or due process so requires." (Emphasis supplied.)
*647 At the time of petitioner's recidivist hearing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L ed2d 799, 93 ALR2d 733, was past history.
In Schildan v. Gladden, 246 Or 326, 424 P2d 240, 241, we stated:
"The deliberate bypass of state procedures is the waiver test directed for federal habeas corpus proceedings by state prisoners. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L ed2d 837 (1963)."
It is clear, ORS 168.075 permits a collateral attack upon prior convictions, and "[i]n Delaney v. Gladden, 232 Or 306, 308, 374 P2d 746, cert. den., 372 U.S. 945, 83 S. Ct. 940, 9 L Ed2d 970, in applying ORS 138.550 (2), we held that the post-conviction act was not intended to provide a second appeal and that `"no procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"', citing Yakus v. United States, 1944, 321 U.S. 414, 444, 64 S. Ct. 660, 677, 88 L. Ed. 834, 859." Benson v. Gladden, 242 Or 132, 139, 407 P2d 634.
Certainly no one can successfully contend that the circuit court at the recidivist hearing did not have jurisdiction to pass upon the infirmities of prior convictions.
Even if it be assumed, because petitioner alleges that he was an indigent without counsel when he pleaded guilty to the two convictions in Oklahoma and one in Missouri, that he could not waive these constitutional rights in his Oregon recidivist trial, nevertheless, he was afforded counsel when he pleaded guilty to two burglaries in the state of Texas.
*648 While stating he was appointed counsel in both Texas cases, his petition as to both these convictions states:
"* * * that said attorney did not converse with petitioner or investigate the facts for preparation of petitioner's defense or advise petitioner as to the meaning of said charge, what elements comprised the charge or what acts amounted to being guilty thereof or any possible defense thereto or to plead not guilty for the purpose of having a jury trial on the merits; that at the time petitioner plead guilty as aforesaid he was eighteen years old and had completed the fourth grade of school and was a layman and not learned in the law."
In passing, it is amusing to note that petitioner makes the same allegation of not knowing the meaning of the charge or what elements comprise the charge of burglary even as to his three subsequent burglary convictions.
The allegation that the attorney did not "converse" with him simply means that the attorney did not afford him an opportunity for a "free exchange of views" as to the elements of the crime charged and his possible defenses, as set out subsequently in the paragraph.
None of these allegations charge incompetency of counsel, but raise the sole question of whether petitioner knowingly and intelligently waived his constitutional right to a trial by jury. This is not a waiver of the right to counsel or a waiver of pretrial incriminating statements. This is a waiver of a right made in court and with his counsel present and a matter which must be passed upon by the trial judge before the plea may be accepted.
*649 It seems absurd to me that the courts of Oregon should arrogate to themselves the power to re-examine a question of fact previously decided in the courts of a sister state.
In my opinion, even though this court holds that the petitioner's allegations of lack of counsel in the Missouri and Oklahoma convictions were not waived in the recidivist proceedings, the two Texas convictions were valid and, therefore, the petitioner's pleading fails to state a cause for post-conviction relief.
The petitioner was convicted in this state of the crime of burglary in a dwelling which provides for imprisonment in the penitentiary for a period of not more than 15 years. ORS 164.230.
ORS 168.085, the Habitual Criminal Act, provides:
"(1) Where one former conviction of felony is found by the court, imprisonment for a term not more than twice the longest term otherwise prescribed by statute for the principal felony.
"(2) Where two former convictions of felony are found by the court, imprisonment for a term not more than three times the longest term otherwise prescribed by statute for the principal felony."
The petitioner was sentenced to the penitentiary for a period of 30 years. The above statute, ORS 168.085, authorizes the trial court to fix a sentence insofar as this petitioner is concerned of 45 years in the penitentiary. Therefore, there is no constitutional or statutory invalidity in the sentence pronounced in the original recidivist proceedings.
I had always been of the opinion that the jurisdiction of a court to grant post-conviction relief was limited by ORS 138.530 to:
"(1) * * * (a) A substantial denial in the proceedings resulting in petitioner's conviction, or *650 in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.
"(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner's conviction. (Emphasis supplied)
"(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.
"(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted."
I find nothing in the Act which permits the post-conviction court to review the discretion granted the sentencing court by the legislature in fixing the period of imprisonment. State v. Dixon, 238 Or 121, 393 P2d 204; State v. Montgomery, 237 Or 593, 392 P2d 642. Therefore, by today's decision, the majority acts for the legislature and grants to a court jurisdiction which the legislature has not seen fit to do a usurpation of power by this court that to me is unconscionable.
Therefore, unless this court is willing to deliberately usurp the legislative function in defiance of the Oregon Constitution, the judgment of the trial court must be affirmed, whether or not the majority avoid the clear intent of the legislature expressed in ORS 168.015 (1) and 168.075.
For the above reasons, I dissent.
NOTES
[1] ORS 138.510(1). "Except as otherwise provided in ORS 138.540, any person convicted of a crime under the laws of this state may file a petition for post-conviction relief pursuant to ORS 138.510 to 138.680."
[2] ORS 138.550. "The effect of prior judicial proceedings * * * shall be as specified in this section and not otherwise:
"(1) The failure of petitioner to have sought appellate review of his conviction, or to have raised matters alleged in his petition at his trial, shall not affect the availability of relief * * *. But no proceeding under ORS 138.510 to 138.680 shall be pursued while direct appellate review of his conviction, a motion for new trial, or a motion in arrest of judgment remains available.
"(2) When the petitioner sought and obtained direct appellate review of his conviction and sentence, no ground for relief may be asserted * * * unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding * * *.
"* * * * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608550/ | 432 P.2d 415 (1967)
78 N.M. 450
STATE of New Mexico, Petitioner,
v.
Paul TACKETT, District Judge of the First Judicial District Sitting by designation, Respondent.
No. 8438.
Supreme Court of New Mexico.
September 11, 1967.
Rehearing Denied October 24, 1967.
*416 Alfonso G. Sanchez, Dist. Atty., E.E. Chavez, Arthur H. Coleman, Asst. Dist. Attys., for petitioner.
Elaine F. Hatch, Bertrand B. Prince, Edward T. Johnson, Anthony J. Albert, James E. Thomson, Santa Fe, for respondent.
OPINION
CARMODY, Justice.
The question before us in this original prohibition proceeding relates to the validity of the trial court's orders requiring the district attorney to furnish to various defendants testimony of witnesses given before a grand jury, police reports with respect to the alleged offenses, and statements of witnesses other than those of the repective defendants.
Respondent district judge was designated to preside in ten criminal cases, based upon grand jury indictments. Some of the defendants (but not all in the several cases in which there were multiple defendants) moved, prior to arraignment, for discovery of certain information and to require the furnishing of the transcript of the grand jury testimony of all witnesses who testified against the various moving defendants. The district attorney agreed to make available much of the requested information, such as a copy of any confessions or admissions, doctors' reports, copies of "rap sheets" of certain defendants, and to allow counsel for the defendant to view diagrams and physical demonstrative evidence, if any. However, the district attorney objected to furnishing (1) the grand jury testimony, (2) copies of police reports, and (3) written statements of the state's witnesses endorsed upon the indictment. The trial court ordered that the objected-to material be furnished, *417 on the stated basis that "a defendant in a criminal case in New Mexico is entitled to same to enable him to prepare his defense and give him information he is entitled to under law, * * *."
At the same time as filing his answer to the writ, respondent, by motion, questioned the sufficiency of the petition on several grounds, most of which are concerned with the form of the petition and writ. With perhaps one exception, none of the attacks are such as could not easily be corrected, either by interlineation or the filing of a new case, and because of the statewide importance of the problems involved, we hold that the petition and alternative writ sufficiently present the issues for our determination. The only ground that might have some merit is to the effect that the alternative writ interferes with the discretion of the trial court and should therefore be quashed. As to this ground, it is unavailing, for it is apparent that respondent considered that the defendants, as a matter of law, were entitled to the information, and it is obvious that no discretion was exercised. Compare Sproles v. McDonald, 1962, 70 N.M. 168, 372 P.2d 122.
Proceeding, then, to the merits, we first consider whether, in advance of trial, those defendants who made the motions are entitled to a transcript of the testimony of all witnesses who testified before the grand jury with respect to the criminal charge out of which the indictments arose.
The New Mexico statute relating to the testimony of witnesses before a grand jury is § 41-5-30, N.M.S.A. 1953, and reads as follows:
"A grand juror may, however, be required by the court, to disclose the testimony of any witnesses examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given before them, by any other person, upon a charge against him for perjury, or in giving his testimony, or upon his trial thereof."
In State v. Morgan, 1960, 67 N.M. 287, 354 P.2d 1002, we determined that where the prosecutor used grand jury testimony at the trial, the defendant should be permitted to examine the grand jury testimony of that witness for the purpose of cross-examination. We see no reason why the rule beyond that enunciated in Morgan should be extended and decline to do so. See also United States v. Tallmadge, 1907, 14 N.M. 293, 91 P. 729, 20 Ann.Cas. 46.
Although counsel strongly relies on Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973, we do not construe that decision as requiring any other result than that which we now reach. In Dennis, the case was reversed because the petitioners there were denied the right at the trial to examine the grand jury testimony of four government witnesses. We would observe that the Dennis decision is in part based upon Rule 6(e) of the Federal Rules of Criminal Procedure, which grants to the trial court power to direct disclosure of grand jury testimony "preliminarily to or in connection with a judicial proceeding." New Mexico has no comparable rule.
Two of our neighboring states have very recently ruled upon the question which we are considering. In State v. Faux, 1959, 9 Utah 2d 350, 345 P.2d 186, the Supreme Court of Utah, by a three-to-two decision, permitted pretrial examination of the grand jury testimony. This decision, however, loses a great deal of its force, not only because of the well-reasoned dissents but because of the differences between the Utah and the New Mexico statutes. We doubt if it is appropriate to announce in an opinion involving but one case such a radical departure from the age-old practice of grand jury secrecy which would apply to all criminal cases. Such a change should be made only after thorough study by the bench and bar of the constitutional and practical aspects of the basic fundamental questions involved. Apparently Utah, as is true in New Mexico, had not seen fit to adopt by rule a procedure applicable to all cases relaxing the rule of secrecy of *418 grand jury proceedings such as has been done not only by Federal Rule of Criminal Procedure 6(e) but in several states, including but not limited to Arizona, California and Missouri. See, 69 Yale L.J. 1149, 1184 (note 116) (1960).
In State ex rel. Ronan v. Superior Court in and for County of Maricopa, 1964, 95 Ariz. 319, 390 P.2d 109, the Supreme Court of Arizona, in a very thorough and exhaustive opinion on the subject, declined to allow defendants access to grand jury testimony on a wholesale basis, even though Arizona had, by rule, permitted a limited relaxation of the traditional principle of grand jury secrecy. The Arizona rule (Rule 107, 17 A.R.S. Rules of Criminal Procedure) permits the discovery of grand jury testimony under three circumstances, (1) after a witness has testified at the trial to determine if his testimony is consistent with that given before the grand jury, (2) where the witness is charged with perjury, and (3) when permitted by the court in furtherance of justice. The Arizona court approved of the "particularized need" interpretation and stated:
"A `particularized need' which in the furtherance of justice would authorize a trial judge to make available to the defendant a transcript of testimony, must be shown by facts and circumstances which demonstrate that unless such relief is forthcoming, the defendant will, in some manner, be prejudiced, or his legal rights adversely affected. Under the law as it exists today, as set forth in this opinion, the defendant is not entitled to a transcript of testimony of any witness solely because he wants to find out what the witness said. To grant him such privilege is not in the `furtherance of justice' because the public interest in preservation of secrecy outweighs the defendant's interest in discovery."
This statement has our approval, although we do not mean to imply that we are thereby adopting the Arizona rule. Here the defendants have failed to show any "particularized need" such as would justify making the grand jury transcript available. See also Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 79 S. Ct. 1237, 3 L. Ed. 2d 1323, which, as in the Dennis case, involved an application of Rule 6 (e) of the Federal Rules of Criminal Procedure.
We proceed to consideration of those portions of respondent's orders requiring the district attorney to furnish police reports and the statements of witnesses. Here, again, we believe the respondent has misconstrued the requirements of the law, for there is no showing of any unusual circumstances by which the defendants might be entitled to examine such reports and statements. It appears obvious that defense counsel wished to examine everything in the files, hoping by such a "fishing expedition" that something could be discovered. We do not believe that such a general request is sufficient justification for the trial court in entering the order which it did.
It is generally held that for an accused to be granted the right to inspect evidence in the possession of the prosecution, he must show something more than a mere desire for all the information obtained by the prosecution. See, State v. Superior Court, 1965, 106 N.H. 228, 208 A.2d 832, 7 A.L.R. 3d 1; Rosier v. People, 1952, 126 Colo. 82, 247 P.2d 448; and Annot., 7 A.L.R. 3d 8, § 7. In particular, production of the state's evidence is not allowed for exploratory purposes, People v. Leahey, 1960, 26 Misc. 2d 438, 207 N.Y.S.2d 619, or for the purpose of prying into the state's preparation of the case for trial, State v. Simon (Mo. 1964), 375 S.W.2d 102; State v. Aubuchon (Mo. 1964), 381 S.W.2d 807; People v. Calandrillo (1961), 29 Misc. 2d 491, 215 N.Y.S.2d 361. A defendant's motion for production must be based upon facts, not conclusions, State v. Brown, 1950, 360 Mo. 104, 227 S.W.2d 646, or mere surmise and conjecture, People v. Gatti, 1938, 167 Misc. 545, 4 N.Y.S.2d 130, and a blanket request will not be granted, because the *419 defendant has no right to examine the state's evidence merely in the hope that something will turn up to aid him, State v. Wallace, 1965, 97 Ariz. 296, 399 P.2d 909; Walker v. Superior Court of Mendocino County, 1957, 155 Cal. App. 2d 134, 317 P.2d 130; Rosier v. People, supra; State v. Stump, 1963, 254 Iowa 1181, 119 N.W.2d 210 cert. den. 375 U.S. 853, 84 S. Ct. 113, 11 L. Ed. 2d 80; State ex rel. Keast v. District Court of Fourth Judicial Dist. of State of Montana, In and for Missoula County, 1959, 135 Mont. 545, 342 P.2d 1071; Linder v. State, 1953, 156 Neb. 504, 56 N.W.2d 734; State v. Goldberg, 1964, 261 N.C. 181, 134 S.E.2d 334, cert. den. 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747, and Melchor v. State (1965, Okl.Cr.App.), 404 P.2d 63.
The rule is well stated in State v. Wallace, supra, wherein the court quoted from State ex rel. Mahoney v. Superior Court of Maricopa County, 1954, 78 Ariz. 74, 275 P.2d 887, 890 as follows:
"The defense has no right to go upon a tour of investigation, in the hope that they will find something to aid them, * * * and if it appears that the request for such an inspection is merely `a fishing expedition to see what may turn up' it should be denied."
See also State v. McCall (Fla.App. 1966), 186 So. 2d 324, and State v. Dickson, 1965, 248 La. 500, 180 So. 2d 403.
Two recent New Mexico cases, Trimble v. State, 1965, 75 N.M. 183, 402 P.2d 162, and State v. Gomez, 1965, 75 N.M. 545, 408 P.2d 48, concerned matters occurring at trial and are therefore not applicable.
We are not unmindful of recent cases from the Supreme Court of the United States, i.e., Brady v. State of Maryland, 1963, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215; Giles v. Maryland, 1967, 386 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737; and Miller v. Pate, 1967, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690, and fully realize the burden under which the prosecution is placed, should it later be discovered that there had been a suppression of evidence which would have materially aided a defendant's case. Compare, State v. Morris, 1961, 69 N.M. 244, 365 P.2d 668.
The necessity for the adoption in New Mexico of a rule somewhat similar to Rule 16, Federal Rules of Criminal Procedure, becomes apparent because of the ramifications of the above-mentioned decisions as to possible violations of the due process clause. However, we agree with Mr. Justice Harlan in his dissent in Giles v. State of Maryland, supra, wherein he said, with three other justices concurring:
"Issues of the obligatory disclosure of information ultimately raise fundamental questions of the proper nature and characteristics of the criminal trial. These questions surely are entirely too important for this Court to implant in our laws by constitutional decree answers which, without full study, might appear warranted in a particular case. There are few areas which call more for prudent experimentation and continuing study."
The alternative writ heretofore issued will be made permanent.
It is so ordered.
CHAVEZ, C.J., and NOBLE, MOISE and COMPTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608553/ | 72 Wash. 2d 264 (1967)
432 P.2d 654
THE STATE OF WASHINGTON, Respondent,
v.
DUANE HASTINGS BELLOWS, Appellant.[*]
No. 39380.
The Supreme Court of Washington, Department Two.
October 19, 1967.
Morrison, Huppin, Ewing & Anderson (Patrick K. Shine, of counsel) and MacGillivray, Jones, Clarke & Schiffner (W. Kenneth Jones, of counsel), for appellant (appointed counsel for appeal).
George A. Kain and John P. Murray, for respondent.
OTT, J.[]
On October 4, 1966, Duane Hastings Bellows *265 and William Richard Bain were jointly charged with four counts of grand larceny and one count of petit larceny. William Richard Bain pleaded guilty to count 1 of the information. On November 7, an amended information was filed charging only Duane Hastings Bellows of the original four counts of grand larceny. Bellows pleaded not guilty. Prior to the trial of the cause Bellows moved to dismiss the cause on the ground that the officers, at the time, had no probable cause to make an arrest without a warrant, and to suppress the evidence because of an alleged illegal search and seizure. After a pretrial hearing the court denied both motions. The cause was tried to the jury on November 21, 1966, and on November 22, the jury returned a verdict of guilty on counts 1, 2, and 3. From the entry of judgment and sentence Duane Hastings Bellows appeals.
Appellant first assigns error to the court's failure to dismiss the charges upon the grounds indicated and to suppress the evidence. At the pretrial hearing the trial court found from the evidence adduced that the officers did have probable cause to arrest the appellant without a warrant. The record establishes that the knowledge the arresting officers had prior to arrest was substantially as follows. On July 9, Ronald E. Davis (Duane Hastings Bellows) had registered at the Maple Leaf Motel near Spokane for a single twin-bed unit. His companion (William Richard Bain) registered as William Richard Lane. They occupied the unit through July 20, 1966. The owner and operator of the motel had become suspicious of the conduct of the two men and called the sheriff's office. Lieutenant Edmund W. Braune, investigating for the sheriff's office, learned from Mrs. McKinnon, the owner, that the two men had departed by taxi about 10 p.m. on the night of July 17. They returned the next morning by taxi at approximately 5 a.m. One carried a case which appeared to be a typewriter case. The other had a smaller plastic case. The next day, while cleaning their room, the owner observed the typewriter case. She also had observed large rolls of money. On July 18, the two men had returned with first one automobile and *266 then another. A guest in the motel told the officer that the two men had been spending a great deal of money, that they had given her son $70 in coins and had him exchange the coins for currency at a local bank, that she had observed the two carrying a bag for either a camera or a tape recorder, that Mr. Lane (Bain) had awakened her husband on the morning of July 18 to give him a bottle of "real fancy whisky" in a velvet bag, and that Mr. Neaman, her husband, had accompanied the two men to a car lot where a Ford was exchanged for an Oldsmobile. Lieutenant Braune later went to the car lot where he learned that the two men had paid $400 cash for the automobile and that they had a large roll of money. He also learned that the two men had given different names on the successive automobile transactions. Lieutenant Braune then contacted the detective division of the Spokane Police Department where he was advised that several breakins and burglaries had occurred on the weekend of July 17. A sum of money in excess of $2,000 in coin and currency, a typewriter case, a tape recorder and a bottle of Crown Royal whisky in a purple container were among items reported stolen. Thereafter, Lieutenant Braune and two other officers went back to the motel to further observe the suspects. Shortly after their arrival Lieutenant Braune saw the Oldsmobile being driven past the motel. The officers followed, overtook it and arrested the two men at approximately 10 p.m. on July 20, 1966.
[1] In determining whether an officer has probable cause to arrest without a warrant, we are governed by the following rules. An officer need not have knowledge of evidence sufficient to establish guilt beyond a reasonable doubt, but only reasonable grounds for suspicion coupled with evidence of circumstances to convince a cautious or disinterested person that the accused is guilty. State v. Green, 70 Wash. 2d 955, 958, 425 P.2d 913 (1967); State v. Massey, 68 Wash. 2d 88, 89, 411 P.2d 422 (1966). We are concerned with probabilities which are not technical, but are factual and practical considerations of everyday life on *267 which prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 69 Sup. Ct. 1302 (1949). Applying these rules to the related facts (all known to the officers at the time of making the arrest), we hold that the officers had probable cause to arrest without a warrant.
Appellant next asserts that the search of the motel unit without a warrant was illegal and hence the trial court erred in failing to suppress the evidence. In this regard appellant contends that he was coerced when he signed a document entitled "Consent to Search." He contends that before the officers obtained his written consent they had implied that if it became necessary to obtain a search warrant from a judge in the early hours of the morning that this inconvenience to the court might prejudice him. The testimony of Lieutenant Braune on cross-examination in this regard is quoted as follows:
Q. Yes. Now, you mentioned in your previous testimony that you told, I believe, Mr. Bain and I don't know whether you told Mr. Bellows or not, that you could get a search warrant to go out and search this room. Isn't that true? A. He mentioned a search warrant. Q. He did? A. He mentioned a search warrant and I said I could get one. Q. And you told him you could get one and you told him how you could get one? Did you tell him how you could get one? A. I don't know if I outlined for him the procedure on a search warrant. Is that what you mean? Q. Did you tell him how you could obtain one that's what I asked? A. I don't believe I did tell him. I told him I could get a judge up and get a search warrant. Q. Isn't that what you told him you could get a judge out of bed that night and get a search warrant if you had to? A. I told him I could. Q. Did you further tell him that if you had to do that it might go a little harder with him if you had to wake a judge up at night? A. No. Q. But you did explain to him you would have to get a judge up to get a search warrant? A. I did. Q. Wasn't your purpose in doing that to try, let's say, to get Mr. Bain to sign this consent which would be easier than getting a judge up? A. No, it was to advise them that I could get a search warrant. Q. You didn't tell him it might go hard with him if you had to have that done? A. You just asked me that and I said no.
*268 Appellant testified at the pretrial hearing. He did not refute Lieutenant Braune's testimony as set out above. The trial court did not err in finding no coercion. In re McNear v. Rhay, 65 Wash. 2d 530, 536, 538, 398 P.2d 732 (1965).
[2] Appellant next asserts that the court erred in failing to suppress the evidence for the reason that he was not informed by the officers, prior to signing the written consent to search the motel unit, that he was entitled to have an attorney forthwith. The trial court did not err in refusing to suppress the evidence. It is not disputed that William Richard Bain had equal right to the occupancy and use of the motel unit and that he knowingly and intelligently gave written consent to search. Where two persons have equal right to the use or occupancy of the premises, either one can authorize a search and the evidence thus seized can be properly admitted into evidence against either or both parties. United States v. Goodman, 190 F. Supp. 847, 850 (N.D. Ill. 1961).
Finally, appellant contends that the court erred in not dismissing the amended complaint for the reason that an information was not filed against him within 30 days after his arrest and no "good cause" was shown as required by RCW 10.37.020. Appellant was arrested on July 20, 1966. On July 21 a complaint was filed in justice court charging appellant with these felonies. Counsel was appointed to represent appellant. The record does not indicate when the justice court proceeding was heard, but it does indicate that from July 21, 1966, to September 26, 1966, appellant had indicated to both his appointed counsel and to the deputy prosecutor that he intended to plead guilty. When he changed his mind in this respect an information was promptly filed on October 4.
[3] The filing of the complaint in the justice court, the day after the arrest, apprised appellant of the nature of the charges against him. When the information was filed the charges were substantially the same as those in the justice court complaint. In addition to this, the appellant had informed his own counsel as well as the prosecuting attorney *269 that he intended to plead guilty. The timely filing of the complaint in the justice court together with his expressed intention to plead guilty constituted "good cause" sufficient to satisfy the statute.
We find no merit in any of the assignments of error. The judgment is affirmed.
FINLEY, C.J., HUNTER, HAMILTON, and NEILL, JJ., concur.
NOTES
[*] Reported in 432 P.2d 654.
[] Judge Ott is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875640/ | 260 S.W.3d 428 (2008)
K.J.J. LTD., John Keeley, Joann Keeley, and Kevin Keeley, Respondents/Cross-Appellants,
v.
REINERT AND DUREE, P.C., Bernard A. Reinert, Defendants/Appellants, and
Robert Carter, Defendant.
Nos. ED 89623, ED 89677.
Missouri Court of Appeals, Eastern District, Division Two.
August 12, 2008.
Anthony R. Behr, Thomas J. Hayek, Julia A. Bruzina, Stacy G. Jackson, St. Louis, MO, for appellants.
John A. Pawloski, St. Louis, MO, for respondents.
LAWRENCE E. MOONEY, Judge.
The defendants, Bernard Reinert ("Reinert") and Reinert & Duree, P.C. n/k/a Reinert & Rourke, P.C. ("the law firm"), appeal the judgment entered against Reinert by the Circuit Court of the City of St. Louis following a jury trial. The plaintiffs, KJJ, Ltd. n/k/a KJJ, Ltd. III, John Keeley, JoAnn Keeley, and Kevin Keeley, also appeal. The judgment, however, is not final because it fails to dispose of the law firm and KJJ. Therefore, we dismiss the defendants' appeal and the plaintiffs' cross-appeal for lack of jurisdiction.
The plaintiffs sued the defendants in connection with their representation of the plaintiffs in an underlying action involving a mechanic's lien and multiple other claims against the plaintiffs' landlord. The jury found in favor of the Keeleys and against Reinert on the plaintiffs' negligence/malpractice *429 claim and awarded $100,000 in damages. The jury also found in favor of the third defendant, Robert Carter. The jury made no finding either in favor of or against the law firm or in favor of or against KJJ.
On every appeal, this Court must determine whether we have jurisdiction. Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 450 (Mo. banc 1994); Columbia Mut. Ins. Co. v. Epstein, 200 S.W.3d 547, 549 (Mo.App. E.D.2006). Appellate review requires a final judgment, and where the judgment appealed from is not final, the Court lacks jurisdiction and must dismiss the appeal. Section 512.020 RSMo. (Supp.2007); Columbia, 200 S.W.3d at 549. A final, appealable judgment disposes of all issues and all parties in the litigation and leaves nothing for future determination. Id.
Here, the jury made no findings concerning either the law firm or KJJ, and the trial court's judgment likewise failed to dispose of these two corporate parties. Because the judgment does not dispose of all parties and issues in the case, it is not a final judgment. Id. Without a final judgment, this Court lacks jurisdiction. Id. Therefore, we dismiss the defendants' appeal and the plaintiffs' cross-appeal.[1]
ROY L. RICHTER, P.J., and GEORGE W. DRAPER III, J., concur.
NOTES
[1] We deny all pending motions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3098938/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00515-CV
IN THE INTEREST OF D.H., A
CHILD
------------
FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION1 AND JUDGMENT
------------
On July 10, 2013, we notified appellant that her brief had not been filed as
required by Texas Rule of Appellate Procedure 38.6(a). See Tex. R. App. P.
38.6(a). We stated we could dismiss the appeal for want of prosecution unless
appellant or any party desiring to continue this appeal filed with the court within
ten days a response showing grounds for continuing the appeal. See Tex. R.
App. P. 42.3. We have not received any response.
Because appellant’s brief has not been filed, we dismiss the appeal for
want of prosecution. See Tex. R. App. P. 38.8(a), 42.3(b), 43.2(f).
1
See Tex. R. App. P. 47.4.
Appellant shall pay all costs of this appeal, for which let execution issue.
PER CURIAM
PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DELIVERED: September 12, 2013
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2608546/ | 67 Cal. 2d 609 (1967)
Estate of AUGUSTA C. CALLAHAN, Deceased. HARRIETT A. FINLEY et al., Plaintiffs and Appellants,
v.
MARGARET C. YOUNG, as Executrix, etc., et al., Defendants and Respondents.
L. A. No. 29255.
Supreme Court of California. In Bank.
Nov. 7, 1967.
Floyd H. King and Julius W. Feldman for Plaintiffs and Appellants.
Charles D. Swanner and John Neil Stanley for Defendants and Respondents.
SULLIVAN, J.
On January 18, 1963, a holographic instrument dated July 7, 1950, was admitted to probate as the last will of Augusta C. Callahan. Within six months after probate (see Prob. Code, 380) Harriett A. Finley and Josie M. Hennenberg [fn. 1] filed their contest of the will on the grounds of lack of testamentary capacity; undue influence and fraud exercised by Margaret C. Young, decedent's niece, guardian, principal beneficiary and one of the proponents of her will; and lack of due execution of said document. The last ground of contest was presented to the court as a separate issue, decision of other issues to be reserved pending its determination. On July 20, 1964, the court revoked probate of the will, finding lack of due execution, and the proponents appealed. In Estate of Callahan (1965) 237 Cal. App. 2d 818 [47 Cal. Rptr. 220], it was held that the will was legally sufficient in its execution, form, and content to constitute a will, and the order of the superior court revoking probate was accordingly reversed, with direction to try the other issues involved in the *612 contest. Upon the ensuing retrial, a judgment of nonsuit was entered at the close of contestants' case, and they appeal.
The unusual nature of decedent's holographic will was fully described in the first Callahan case (237 Cal. App. 2d 818, 820-822). In general, the will consists of three strips of paper fastened together with transparent adhesive tape. The upper portion (sheet A), bears the date July 7, 1950, and declares the instrument to be the last will of decedent. This portion goes on to make certain specific gifts and provides for payment of taxes from the residue. It ends with the following incomplete sentence: "I give, devise and bequeath all of the rest, residue and remainder of my property, whatsoever and wheresoever situated." The word "situated" appears at the lower right-hand corner of sheet A, and it is apparent that that sheet was cut with a scissors from a larger sheet of which it had been a part and joined to sheet B. Sheet B reads as follows: "I will to Helen--Gorge--Willbur--Maurece--the sum of 2000.00 each. I will to Margret all my stocks and bonds to have and to hold." [fn. 2] Sheet C is attached to the bottom of sheet B, and it appoints Margaret C. Young executrix without bond and revokes all former wills. Decedent's signature appears at the bottom of sheet C.
The sole issue in this case is whether the proponents' motion for nonsuit was properly granted. The law applicable to this inquiry was carefully stated by this court in Estate of Lances (1932) 216 Cal. 397 [14 P.2d 768]: [1] "In determining whether, in a proceeding to contest a will, the evidence produced by the contestant is sufficient to require the submission of the case to the jury, the same rules apply as in civil cases. [Citations.] ... [2] A nonsuit or a directed verdict may be granted 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.' [Citations.] [3] Unless it can be said as a matter of law, that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon *613 appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury. [Citation.] ... [4] Although the trial court may weigh the evidence and judge of the credibility of the witnesses on a motion for a new trial, it may not do so on a motion for a directed verdict [or for nonsuit.]" (216 Cal. 397, 400-401.)
With these principles in mind we turn to a consideration of the evidence introduced on behalf of contestants.
Harold Ely, an expert in handwriting comparison, testified in substance that all three portions of the will (sheets A, B, and C) were written by decedent, that sheet C was written prior to sheet A, which bore the date July 7, 1950; and that sheet B was written within three months before or after an exemplar which bore the date "Jan. 1960." All of Mr. Ely's testimony as to the time at which the various portions of the will were written was admitted over objection. On cross-examination it was brought out that Mr. Ely arrived at his opinion through comparing the several portions of the will with only six exemplars of the handwriting of decedent, and that he could have expressed an opinion more precise as to time of execution if he had been provided with a greater number of exemplars representing progressive changes in decedent's handwriting.
Dr. Charles Oliver, a physician experienced in geriatrics, testified in substance that he had treated decedent from 1951 or 1952 until she was admitted to a sanitarium in April of 1960; that in 1958 she was an elderly woman suffering from arteriosclerosis whom he considered "eccentric"; that in April of 1960 he was informed by Margaret C. Young, as well as by the manager of the apartment in which decedent lived, that decedent "apparently was disturbing some of the other occupants of the building by some of her activities, none of which were very wild, but she was apparently parading the halls and so on and was somewhat disoriented"; that as a result of these communications Dr. Oliver examined decedent and determined that her condition required that she be admitted to a sanitarium; that he diagnosed her condition at this time as "generalized arteriosclerosis with senility"; that senile dementia, the mental condition resulting from the effects of arteriosclerosis upon the cells of the brain, is a progressive condition which develops gradually over a period of years, rather than a condition which develops suddenly; that decedent was "incompetent medically" at the time of *614 her admission to the hospital [fn. 3] (April 4, 1960); that it was unlikely that decedent at that time knew the nature and extent of her property, or that she understood her relationship to persons who had claims upon her bounty, or that she would have understood the nature of her act had she executed a will; that decedent's physical condition at that time, which included hand tremors, would render unlikely her accomplishment of the physical acts necessary to tape the three portions of the will together; and that, due to the progressive nature of the disease from which decedent suffered, it was unlikely that decedent, for a period of "two or three years prior to" her admission to the hospital, knew the nature and extent of her property, or understood her relationship to persons who had claims upon her bounty, or would have understood the nature of her act had she executed a will. On cross-examination it was brought out that Dr. Oliver had not seen decedent for a period of two to three years prior to his April 1960 examination of her; that his opinion as to the progression of the disease in her particular case was a "generalized" one based on past experience of other cases; and that decedent might have had lucid moments during the period from 1959 to the date of her admission into the sanitarium.
Lewis K. Cox, a former member of the board of management of the apartment building in which she lived, testified that he considered himself a "good friend" of decedent; that prior to 1958 she was "a brilliant woman, a good business woman"; that after 1958 she became somewhat "erratic" in her conduct, began "wandering in the halls a lot," and was unable to converse with any continuity of thought; that in 1959 she accused him of stealing from her certain securities which later were found to have been misplaced by her in her apartment; that subsequent to 1958 decedent, who was previously quite meticulous in her personal habits, began to appear with her clothes in disarray and began to let her apartment fall into disorder; and that subsequent to 1958 he observed tremors in decedent's hands and on one occasion she told him that she did not write any more because of this condition. On redirect examination Mr. Cox was permitted over objection to give his opinion that decedent, after 1958, was not "of sound mind." *615
Dr. Hayden Rochester, staff psychiatrist at the hospital to which decedent was admitted in 1960 after Dr. Oliver's examination, testified in substance that he examined decedent shortly after her arrival; that in the course of the examination he asked decedent where she was and she replied that she was in the mountains; that he determined as a result of this examination that decedent was suffering from "moderate" senile dementia; and that, in spite of the hand tremors suffered by decedent at that time, it would have been possible for her to write something under the direction of someone else. Dr. Rochester also testified as to the progressive nature of senile dementia and his testimony on this point was substantially identical to that of Dr. Oliver. It was brought out on cross-examination that decedent could have had lucid periods before or after April 1960, but on redirect examination Dr. Rochester testified that the occurrence of such periods was unlikely within six months prior to his examination of decedent in April of 1960.
Plaintiffs also introduced certain documentary evidence, which included (1) medical records from the Parkview Sanitarium (see fn. 3, ante), reflecting decedent's continued mental deterioration from the date of her admission (August 13, 1960) until her death on December 20, 1962; [fn. 4] and (2) the record of proceedings, initiated by Margaret C. Young on April 8, 1960, wherein decedent was declared incompetent and Mrs. Young appointed guardian of her person and estate. [fn. 5]
[5a] In summary, the evidence produced by contestants on the issue of testamentary capacity, viewed in light most favorable to contestants, was that sheet B of the will was executed within three months before or after January of 1960, and that during the indicated period decedent suffered from senile dementia to the extent that she did not know the nature and extent of her property, did not understand her relationship to persons with claims upon her bounty, and would not have understood the nature of her act had she undertaken to execute a will.proponents argue that such evidence would be insufficient to support a jury's finding of lack of testamentary capacity, and that therefore the nonsuit was properly granted as to this ground of contest. We disagree.
In Estate of Fosselman (1957) 48 Cal. 2d 179 [308 P.2d *616 336], proponents offered for probate two alleged holographic codicils to decedent's will, one dated July 17, 1953, and the other January 12, 1955. Contestants, although they offered no evidence as to decedent's mental condition on the indicated dates, produced medical evidence to the effect that from 1952 until the date of her death decedent, due to senile dementia, was unable to comprehend the nature and extent of her property or her relation to those who would be the natural objects of her bounty. The trial court found that decedent lacked testamentary capacity at the time when each of the purported holographic codicils was executed. In a separate finding it was concluded, on the basis of other evidence that on the dates of execution decedent suffered from an insane delusion as to her relationship with proponent, and that this delusion was the effective cause of the execution of said instruments. The trial court accordingly entered judgment denying admission of the proffered documents to probate. This court affirmed the judgment, holding that there was sufficient evidence to support each of the two findings. On the ground of testamentary capacity we held that the absence of evidence showing lack of capacity on the date of execution did not require that the finding be upset. [6] "Testamentary incompetency on a given day ... may be proved by evidence of incompetency at times prior to and after the day in question. [Citations.] Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable [citations], perhaps there is even a legal presumption [citations] that the incompetency continues to exist. Such an inference is particularly strong in a case such as this in which the decedent was suffering from senile dementia, a mental disorder that becomes progressively worse. [Citations.]" (Estate of Fosselman, supra, 48 Cal. 2d 179, 185-186; see also Estate of Lauth (1960) 180 Cal. App. 2d 313, 318 [4 Cal. Rptr. 764]; cf. Estate of Fritschi (1963) 60 Cal. 2d 367, 369-372 [33 Cal. Rptr. 264, 384 P.2d 656].)
[5b] Proponents attempt to distinguish the Fosselman case on the ground that there the precise date of the codicils in question was known, whereas here there was no evidence of the date upon which sheet B of decedent's will was executed. Further, there was no evidence of the date upon which this sheet was integrated into the will. It is clear, however, that the precise dates of execution and integration would be relevant in the premises only insofar as they should indicate that *617 those operative acts occurred within or without the period of alleged testamentary incapacity. In the instant case the testimony of Mr. Ely, the expert in handwriting comparison, was that such acts occurred within the indicated period. [fn. 6] If this be established, the precise dates of execution and integration are, in the circumstances of this case, irrelevant.
[7a] It is contended, however, that the testimony of Mr. Ely purporting to fix the time of execution was erroneously admitted, over proper objection, because it lay outside the scope of his expertise. Since contestants presented no other evidence purporting to place the execution of sheet B within the critical period, it is argued, the nonsuit was properly granted as to this ground of contest. [8] This contention ignores the well-settled rule that, upon a motion for nonsuit, "Evidence, whether erroneously admitted or not, if relevant to the issues joined, must be given the credit and benefit of its full probative strength, ..." (Italics added.) (Berger v. Lane (1923) 190 Cal. 443, 452-453 [213 P. 45]; see also Gregg v. Western Pac. R.R. Co. (1924) 193 Cal. 212, 216 [223 P. 553]; Mitchell Camera Corp. v. Fox Film Corp. (1937) 8 Cal. 2d 192, 197 [64 P.2d 946]; Wulfjen v. Dolton (1944) 24 Cal. 2d 878, 880 [151 P.2d 840]; Van Buskirk v. McClenahan (1958) 163 Cal. App. 2d 633, 636 [329 P.2d 924].) [7b] It is therefore clear that Mr. Ely's evidence as to the time of execution, which was clearly relevant to the issues joined, must be given full effect in the instant case regardless of whether or not its admission was erroneous. If the evidence was improperly admitted, and the jury in due course determines the issues of testamentary capacity adversely to proponents, their remedy lies by way of appeal.
[5c] We have determined that the evidence introduced on the issue of testamentary capacity, viewed in the light required by our Lances and Berger decisions, was sufficient to require submission of that issue to the jury, that the nonsuit was therefore improperly granted, and that the judgment must therefore be reversed. [9] Though this conclusion renders unnecessary a consideration of contestants' additional contention that sufficient evidence of undue influence and fraud was presented to withstand a motion for nonsuit, *618 we briefly address ourselves to this issue for the guidance of the trial court upon retrial. [fn. 7]
[10a] The evidence produced by contestants on the ground of undue influence and fraud, [fn. 8] viewed in a light most favorable to them, may be summarized as follows: Sheet B of the will, which bequeathed the bulk of decedent's property to Margaret Young, [fn. 9] was executed either during the latter's guardianship of decedent or shortly before that period. At the time of execution decedent's mind had deteriorated to such an extent that she was susceptible to influence. Only the children of decedent's deceased brother benefit by the will, and the issue of her other deceased siblings are not provided for. Further, of the nieces and nephews provided for only Margaret will take a substantial portion of the estate. In addition, though decedent could have written sheet B under the direction of someone else during the period of execution, she was incapable of physically integrating it into the will in the manner in which it was integrated. Finally, decedent's interest in her apartment, which was not disposed of in the will, was in fact sold during the period of guardianship.
Although these facts appear sufficient to establish the presence herein of some of the indicia of undue influence (see Estate of Yale (1931) 214 Cal. 115, 122 [4 P.2d 153]; Estate of Lingenfelter (1952) 38 Cal. 2d 571, 585 [241 P.2d 990]) we are satisfied that the evidence is insufficient to establish that Margaret Young was active in procuring execution of the will. [11] "Even though a beneficiary sustains a confidential relationship with the testator ... and although the will may be an 'unnatural one,' " there must be evidence that the *619 beneficiary " 'displayed activity in the preparation of the will to his undue profit. [Citing cases.]' ... In the absence of such evidence, plaintiffs weld no causal link between the ability to influence the testator arising from the confidential relationship and the unnatural document. Mere general influence is not enough. A contestant must show that the influence was brought directly to bear upon the testamentary act. (Estate of Welch, supra, (1954) 43 Cal. 2d 173, 175 [272 P.2d 512]; Estate of Lingenfelter, supra, (1952) 38 Cal. 2d 571.)" (Italics added.) (Estate of Fritschi, supra, 60 Cal. 2d 367, 374.) [10b] The evidence above summarized does not make the required showing. [fn. 10]
Therefore, although we recognize that upon retrial contestants may seek to set forth a prima facie case of undue influence by means of evidence additional to that introduced below, we conclude that the record before us does not contain evidence sufficient to warrant submission of the issue to the trier of fact.
The judgment is reversed.
Traynor, C. J., McComb, J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
NOTES
[fn. 1] 1. Josie M. Hennenberg was a sister of decedent. During the pendency of the action she died, and her sole heir, her son Clarence Fischer, was substituted in her place as one of the contestants. Harriett A. Finley is decedent's niece, the daughter of a deceased sister.
[fn. 2] 2. Margaret, George, Wilbur, Maurice, and Helen are all children of a deceased brother of decedent. All are proponents herein.
[fn. 3] 3. Apparently decedent was in a hospital for examination and treatment from April 4, 1960, until April 18, 1960, at which time she was transferred to the Garden Grove Sanitarium. On August 13, 1960, Mrs. Callahan was transferred to the Parkview Sanitarium.
[fn. 4] 4. Decedent was approximately ninety years of age on the date of her death.
[fn. 5] 5. This record discloses that decedent's interest in her apartment was sold during the period of guardianship.
[fn. 6] 6. Execution necessarily precedes integration, for integration entails the existence of something of testamentary effect to be integrated. In the instant case, where the period of alleged testamentary incapacity extended up to time of death, the fixing of the time of execution within the period of incapacity necessarily fixes the date of integration within that period.
[fn. 7] 7. Although the "propriety of granting a motion for a nonsuit as to some of the grounds of contest and denying it as to others is doubtful when we speak of nonsuit in its true meaning," the court may properly withhold from the jury a particular ground of contest, upon which insufficient evidence has been presented, by instructing the jury to find for the proponent on that ground. (Estate of Jamison (1953) 41 Cal. 2d 1, 5-6 [256 P.2d 984]; see also Estate of Lounsberry (1957) 149 Cal. App. 2d 857, 858 [309 P.2d 554]; Estate of Robbins (1959) 172 Cal. App. 2d 549, 551 [342 P.2d 933].)
[fn. 8] 8. Although "fraud" may be presented as a separate ground of contest (see In re Newhall (1923) 190 Cal. 709, 718 [214 P. 231, 28 A.L.R. 778]), and was so presented by the pleadings herein, no evidence of positive wrongdoing was presented, and contestants appear to have subsumed their arguments on this point into their arguments on undue influence.
[fn. 9] 9. Decedent's estate was appraised at approximately $76,500. About six-sevenths of this appraised valuation is attributable to items of which the phrase "stocks and bonds" is descriptive. Sheet B of the will bequeaths "all my stocks and bonds" to Margaret Young.
[fn. 10] 10. Contestants' reliance on Estate of Beckley (1965) 233 Cal. App. 2d 341 [43 Cal. Rptr. 649], is misplaced. There was evidence in that case that the chief beneficiary of the subject will practiced misrepresentation in order that his own attorney, rather than the attorney who had drawn decedent's former wills, should draw the will. It could reasonably be inferred that this action was taken by the beneficiary so that the former attorney would be unable to dissuade decedent from executing a will consistent with a testamentary plan of whose wisdom the beneficiary-proponent, through his confidential relationship, had persuaded decedent. The instant case contains no evidence showing any specific act of Margaret Young relative to the testamentary act of decedent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1330003/ | 586 S.E.2d 41 (2003)
262 Ga. App. 528
ROSE
v.
COMMERCIAL FACTORS OF ATLANTA, INC.
No. A03A0085.
Court of Appeals of Georgia.
July 8, 2003.
Reconsideration Denied July 29, 2003.
Certiorari Denied November 17, 2003.
*42 Albert A. Mitchell & Associates, Albert A. Mitchell, Atlanta, James E. Kee, for appellant.
Smith, Gambrell & Russell, Thomas M. Barton, Matthew S. Coles, Atlanta, for appellee.
MIKELL, Judge.
Commercial Factors of Atlanta, Inc. ("CFA") filed suit on an open account against Terry Manufacturing Company ("TMC"), Floodgates, Ltd. ("Floodgates"), and its owner and president, Jon L. Pouncey. This interlocutory appeal arises out of the trial court's grant of CFA's motion to compel the deposition testimony of TMC's accountant, Richard S. Rose, C.P.A., and its denial of Rose's motion for protective order. We granted the interlocutory appeal to determine the applicability of the crime-fraud exception to the accountant-client privilege. "We review the court's discovery order under an abuse of discretion standard"[1] and affirm.
The undisputed facts show that CFA is in the business of purchasing accounts receivable, also known as "factoring." On August 10, 1994, CFA and Floodgates executed a security agreement, wherein Floodgates agreed to sell to CFA at a discounted price commercial accounts from Floodgates' sale of goods to customers. TMC was one of Floodgates' customers, and Floodgates sold goods on open account to TMC from 1996 until 1999. Floodgates sold TMC's accounts to CFA. CFA's president, Tracy Eden, deposed that CFA frequently extended credit to Floodgates, paying Floodgates for invoices before the debtor, in this case, TMC, paid CFA on the invoices. Eden explained that in the industry, there was a need constantly to review and increase credit limits to accommodate a client's growth. When TMC failed to pay CFA on its accounts, CFA requested from Floodgates information pertaining to the goods it sold to TMC and the reason that TMC was not paying its accounts. When Floodgates failed to respond, CFA filed this action.
In the course of the litigation, CFA noticed Rose's deposition. Rose had been retained by TMC to perform general auditing services, which included auditing its financial statements. When initially deposed, Rose refused to answer any questions regarding TMC. CFA filed a motion to compel Rose's testimony, which was granted, and Rose was deposed a second time pursuant thereto. In the second deposition, Rose provided general information about the services he provided to TMC but refused to answer any questions about TMC's business operations on the ground that such disclosures would violate the accountant-client privilege.
CFA amended its motion to compel, and Rose filed a motion for protective order. The trial court ordered Rose to "promptly reappear to reconvene his deposition, and answer truthfully and completely, without raising the accountant-client privilege, all questions put to him that relate to his audits of TMC or to his communications with principals of TMC in connection with those audits." The trial court certified its order for immediate review, and we granted Rose's application for interlocutory review. We address simultaneously Rose's two enumerations of error, both of which contend that the trial court abused its discretion by ordering Rose to answer questions related to his audits of TMC's financial statements, which in effect voids the accountant-client privilege.
Generally, communications between accountants and their clients are privileged and may not be inquired into by a third party absent the client's consent.[2] Though the accountant-client privilege, which is analogous *43 to the attorney-client privilege,[3] protects "communications occurring after a fraud or a crime has been completed ..., [it does not protect] those which occur before the perpetration of a fraud or commission of a crime and which relate thereto."[4] "This is referred to as the crime-fraud exception."[5]
The crime-fraud exception does not require proof of the existence of a crime or fraud to overcome the claim that a communication is privileged.[6] Rather, its applicability depends upon whether a prima facie case has been made that the communication was made in furtherance of an illegal or fraudulent activity.[7] Prima facie evidence is that which, on its face, is good and sufficient to establish a given fact, though it can ultimately be rebutted or contradicted.[8] Nonetheless, when prima facie "evidence is supplied [by the discovering party], the seal of secrecy is broken."[9] "The determination that a prima facie showing has been made lies within the sound discretion of the lower court [and] may not be disturbed on appeal absent an abuse of discretion,"[10] which we find did not occur here.
In this case, CFA presented deposition testimony of Floodgates' president, Pouncey, wherein he admits that the defendants submitted fake invoices and related delivery documents to CFA to obtain funds. The following colloquy occurred:
Q. You lied to Commercial Factors, the corporate entity, to secure additional funds from Commercial Factors?
A. Yes....
Q. And Mr. Terry knew you were lying to Commercial Factors back in April of 1997; correct? ...
A. I would have to say yes.
Q. And Mr. Terry knew that you were submitting these pretend delivery documents, bills of lading, purchase orders, with his signature on it, to the corporate entity Commercial Factors in order to obtain more money from Commercial Factors?...
A. Eventually.
Q. And Mr. Terry knew from your discussions with him that the invoices he was paying to the corporate entity Commercial Factors were not legitimate or valid invoices?
A. That's correct.
Q. This scheme continued for two and a half years, ... what would occur is that you would factor an invoice through Commercial Factors, they would disburse funds to you, and then you would give those funds, or part of those funds, to Mr. Terry's company, to either reimburse it or pay it in advance for an older invoice that was coming due that Mr. Terry had to pay?
A. That's correct.
We agree with the trial court that this testimony constituted prima facie evidence of the existence of a fraudulent scheme. Rose argues that there was no prima facie case made because this evidence was not credible. The credibility of evidence was a matter for the trial court. We cannot say that it abused its discretion by deciding that the deposition testimony at least raised a prima facie case.
*44 As to the court's finding that the communications were made in furtherance of the fraudulent scheme, we again find no abuse of discretion. The evidence showed that Rose was TMC's only independent auditor, and he audited the company's financial statements from 1995 to 1998. The financial statements did not detail transactions between TMC and Floodgates, which would have affected CFA's decision to extend credit to Floodgates. But CFA submitted deposition testimony that it relied upon the audit reports generated from Rose's audit of TMC's financial statements to continue to extend credit to Floodgates. Thus, there is evidence that the audit reports were utilized by Pouncey and TMC in furtherance of Pouncey's attempt to secure additional credit from CFA. Whether Rose knew that the reports were used for that purpose is irrelevant.[11] Accordingly, we find no abuse of discretion in the trial court's grant of CFA's motion to compel.
Judgment affirmed.
JOHNSON, P.J., and ELDRIDGE, J., concur.
NOTES
[1] Dikeman v. Mary A. Stearns, P.C., 253 Ga.App. 646, 647(1), 560 S.E.2d 115 (2002).
[2] OCGA § 43-3-32. See also Roberts v. Chaple, 187 Ga.App. 123, 124, 369 S.E.2d 482 (1988).
[3] In re Fulton County Grand Jury Proceedings, 244 Ga.App. 380, 382, 535 S.E.2d 340 (2000); Gearhart v. Etheridge, 232 Ga. 638, 641, 208 S.E.2d 460 (1974).
[4] In re Hall County Grand Jury Proceedings, 175 Ga.App. 349, 350(2), 333 S.E.2d 389 (1985). See also Atlanta Coca-Cola Bottling Co. v. Goss, 50 Ga.App. 637(1), 179 S.E. 420 (1935).
[5] In re Fulton County Grand Jury Proceedings, supra at 382, 535 S.E.2d 340.
[6] In re Hall County Grand Jury Proceedings, supra at 352(3), 333 S.E.2d 389.
[7] Id. See also In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir.1987).
[8] See Coxon v. Lady Jane Shop, Inc., 169 Ga.App. 959, 960(1), 315 S.E.2d 681 (1984) (physical precedent only).
[9] (Citation and punctuation omitted.) Goss, supra at 421(2).
[10] (Punctuation omitted.) In re Hall County Grand Jury Proceedings, supra at 352(3), 333 S.E.2d 389, quoting In re Berkley & Co., 629 F.2d 548, 553 (8th Cir.1980).
[11] See In re Grand Jury Investigation (Schroeder), supra at 1227. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913987/ | 981 A.2d 911 (2009)
COM.
v.
AVILA.
No. 274 EDA 2008.
Superior Court of Pennsylvania.
July 8, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561306/ | FILED
United States Court of Appeals
Tenth Circuit
PUBLISH August 28, 2020
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
ROSA QUINTANA and CORY
HICKERSON, individually, and as
personal representatives of the Estate
of Ricardo Jose Ortiz, deceased,
Plaintiffs - Appellants,
v. No. 19-2039
SANTA FE COUNTY BOARD OF
COMMISSIONERS; ANNE
ROBINSON, in her individual
capacity; DYLAN CHAVEZ, in his
individual capacity; ANTHONY
VALDO, in his individual capacity;
TYLER LOPEZ, in his individual
capacity; LEONARD GARCIA, in his
individual capacity; CRISTOBAL
GALLEGOS, in his individual
capacity,
Defendants - Appellees.
------------------------------------------
THE RODERICK AND SOLANGE
MACARTHUR JUSTICE CENTER,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:18-CV-00043-JB-LF)
Alicia C. Lopez (Carolyn M. “Cammie” Nichols with her on the briefs), Rothstein
Donatelli LP, Albuquerque, New Mexico, for Plaintiffs-Appellants.
Mark E. Komer, Long, Komer & Associates, P.A., Santa Fe, New Mexico (Jonas
M. Nahoum, Long, Komer & Associates, Santa Fe, New Mexico, and Christa M.
Hazlett and Carol Dominguez Shay, Conklin, Woodcock & Ziegler, P.C.,
Albuquerque, New Mexico, with him on the brief), for Defendants-Appellees.
David M. Shapiro, Roderick & Solange MacArthur Justice Center and
Northwestern Pritzker School of Law, Chicago, Illinois, for Amicus Curiae.
Before TYMKOVICH, Chief Judge, BACHARACH, and CARSON, Circuit
Judges.
TYMKOVICH, Chief Judge.
Following the January 2016 death of Ricardo Jose Ortiz at the Sante Fe
Adult Detention Facility (ADF), Ortiz’s personal representatives sued multiple
individual ADF affiliates, alleging state claims under the New Mexico Tort
Claims Act and violations of his Fourteenth Amendment right to medical
treatment under 42 U.S.C. § 1983. The defendants moved to dismiss the first
amended complaint (FAC), and the plaintiffs moved to amend their complaint to
include a claim for municipal liability that was not in any prior complaint. In an
order addressing both motions, the district court dismissed the § 1983 claims,
denied the plaintiffs leave to amend to include that municipal liability claim, and
remanded the state-law claims.
-2-
On appeal, the plaintiffs-appellants argue the district court erred in
dismissing the § 1983 claims against individual prison employees and in denying
leave to amend.
We agree that the plaintiffs-appellants plausibly alleged Officer Chavez
violated Ortiz’s clearly established constitutional right to medical care for acute
symptoms related to his withdrawal from heroin. But we cannot conclude they
plausibly alleged the other individual defendants violated Ortiz’s clearly
established constitutional right to medical care under these circumstances.
Therefore, we VACATE the district court’s dismissal with regard to Officer
Chavez but AFFIRM with regard to the other individual defendants.
Separately, we conclude the district court should not have denied the
plaintiff leave to amend for reasons of futility. The district court determined that
the plaintiff could not state a claim for municipal liability without first properly
stating a claim against an individual, but our court’s precedent allows municipal
liability even where no individual liability exists.
We accordingly VACATE the district court’s denial of leave to amend.
I. Background
Ortiz was arrested and booked into ADF on January 4, 2016. After
booking, Defendant Nurse Anne Robinson conducted a medical intake exam,
apparently without completing various intake forms. During the exam, Nurse
-3-
Robinson determined that Ortiz was dependent on heroin and would likely
undergo withdrawal. She therefore offered Ortiz a set of medications known as a
“kick kit.” The plaintiffs allege the kick kit was never administered.
The other individual defendants—Corporal Gallegos and Officers Chavez,
Valdo, Lopez, and Garcia—supervised or interacted with Ortiz in some capacity
between his medical exam on January 4 and his death on January 7. By their own
admission, they were aware that Ortiz was experiencing withdrawal symptoms.
They did not attempt to provide any further medical assistance, and Ortiz did not
request any further treatment.
On January 7, Officer Garcia found Ortiz unresponsive and disrobed in his
cell, the floors and walls of which were partially covered in feces and bodily
fluids. Attempts to revive him were unsuccessful. Following an autopsy, it was
concluded that Ortiz “died of an acute gastrointestinal hemorrhage due to
probable heroin withdrawal.” App., Vol. 1 at 34.
In January 2018, the plaintiffs filed a law suit in New Mexico state court,
alleging a claim under the New Mexico Tort Claims Act and a claim against only
Nurse Robinson under § 1983 for deliberate indifference to Ortiz’s serious
medical needs. The case was removed to federal district court, and the plaintiffs
filed the FAC, which included claims against all the individual defendants under
§ 1983. Soon thereafter, the defendants filed a motion to dismiss the § 1983
-4-
claims on qualified immunity grounds. The plaintiffs opposed that motion and
moved for leave to file a second amended complaint (SAC).
In their motion to amend, the plaintiffs explained that they wanted to make
several material changes to their complaint. The most significant proposed
amendment was an entirely new claim against Sante Fe County for municipal
liability under Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978). The SAC
also contained amendments to the preexisting claims. According to the motion to
amend, the SAC was meant, in part, to address the defendants’ concerns regarding
the state-law and § 1983 claims. But the motion said that the changes to the
§ 1983 allegations were not material, as the claims were fully stated in the FAC.
App., Vol. 1 at 135 (stating the rewritten paragraphs attempting to state claims
against the individual defendants “contain only allegations previously set forth in
the operative [i.e. First Amended] Complaint”).
The district court granted in full the defendants’ motion to dismiss the
§ 1983 claims based on qualified immunity. In the same order, the court also
denied the motion to amend because the proposed SAC would not have cured the
various deficiencies in the § 1983 claim and because it did not properly state a
Monell claim as a matter of law. Having disposed of the various federal questions
giving rise to the district court’s subject matter jurisdiction, the court remanded
the surviving state-law issues to state court.
-5-
II. Discussion
A. Qualified Immunity
Our qualified-immunity inquiry requires a plaintiff to allege that: (1) the
defendant violated a constitutional right and (2) the constitutional right was
clearly established at the time of the violation. E.g., Lindsey v. Hyler, 918 F.3d
1109, 1113 (10th Cir. 2019) (citing Medina v. Cram, 252 F.3d 1124, 1128 (10th
Cir. 2001)). We have described this burden as “heavy,” in large part because our
qualified-immunity inquiry “is designed to spare a defendant not only
unwarranted liability, but [also] unwarranted demands customarily imposed upon
those defending a long drawn-out lawsuit.” Medina, 252 F.3d at 1128 (quoting
Wilson v. Layne, 526 U.S. 603, 609 (1999) (quotation marks omitted)).
Here, the plaintiff has failed to allege plausibly a clearly established
constitutional violation against any of the six individual defendants other than
Officer Chavez.
In making that determination, we look to the FAC and not the proposed
SAC. As we explain below, a de novo review reveals the district court should not
have denied the plaintiffs’ motion to amend the complaint to add a separate claim
against the county for municipal liability. The district court did not, however, err
in denying the motion with regard to allegations against the various individual
plaintiffs.
-6-
As that court noted, the plaintiffs specifically argued in their motion to
amend that their proposed amendments to Count II—i.e. the count alleging
individual liability—were not “substantive amendments,” clarifying that “while
the paragraphs under Count II are partly rewritten, they contain only allegations
previously set forth in the operative complaint.” App., Vol. 1 at 135. That is, the
plaintiffs themselves explicitly denied that the SAC would in any way cure
deficiencies in the FAC with respect to the allegations in Count II. The district
court was under no obligation to consider an argument that the movant not only
did not raise but explicitly discredited and disowned.
Because any argument that the district court erred in denying the motion to
amend with regard to Count II of the complaint is waived, we do not consider the
allegations made in the SAC as opposed to the allegations made in the FAC.
1. Constitutional Violation
In assessing the plaintiff’s contention that the individual defendants
violated Ortiz’s Fourteenth Amendment rights, we apply the two-part Eighth
Amendment inquiry when a pretrial detainee alleges deliberate indifference to
serious medical needs. 1 E.g., Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.
2009) (citing Garcia v. Salt Lake Cty., 768 F.2d 303, 307 (10th Cir. 1985)). This
1
We also endorse Judge Bacharach’s rejection of the argument that
Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), requires us to conduct only an
objective inquiry.
-7-
exercise requires both an objective and a subjective inquiry. Id. (citing Callahan
v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006)).
The objective inquiry asks whether “the harm suffered rises to a level
sufficiently serious to be cognizable under the Cruel and Unusual Punishment
Clause of the Eighth Amendment.” Id. (quoting Mata v. Saiz, 427 F.3d 745,
752–53 (10th Cir. 2005) (quotation marks omitted)). The subjective inquiry, in
turn, asks whether “the defendants knew [the detainee] faced a substantial risk of
harm and disregarded that risk, by failing to take reasonable measures to abate it.”
Id. (quoting Callahan, 471 F.3d at 1159 (quotation marks omitted)).
a. Objective Inquiry
As we have observed, “[a] medical need is sufficiently serious ‘if it is one
that has been diagnosed by a physician as mandating treatment or . . . is so
obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.’” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quoting
Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). No Tenth Circuit
authorities have concluded that heroin withdrawal presents a “sufficiently
serious” medical need. 2 But the absence of precedent “on all fours” need not
2
Looking primarily to out-of-circuit authorities, Judge Bacharach’s
opinion fashions a reasonable case that symptoms associated with heroin
withdrawal present a “sufficiently serious” medical need. We do, however, note
that three of these cases deal with alcohol withdrawal. See Lancaster v. Monroe
(continued...)
-8-
foreclose this conclusion. We assume—without deciding this question—that the
severe opioid withdrawal Ortiz experienced does satisfy our requirements for a
“sufficiently serious” medical need. We now turn, then, to whether the plaintiffs
alleged the individual defendants knew that Ortiz was experiencing such serious
withdrawal and disregarded that fact.
b. Subjective Inquiry
With respect to the subjective component of our Eighth Amendment
inquiry, we begin by noting the Supreme Court has insisted upon actual
knowledge: “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphases
added). It is true a “factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Id. at 842. But our
precedent effectively cabins this exception by requiring that such risks present
themselves as “obvious” to the so-called “reasonable man.” See Mata, 427 F.3d
at 752 (citing Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
2
(...continued)
Cty., 116 F.3d 1419, 1425 (11th Cir. 1997); Thompson v. Upshur Cty., 245 F.3d
447, 457 (5th Cir. 2001); Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009).
The fourth addresses withdrawal from methadone. See Foelker v. Outagamie
Cty., 394 F.3d 510, 511–13 (7th Cir. 2005).
-9-
We have previously held that unconsciousness presents such an “obvious”
risk. See Garcia, 768 F.2d at 308. We have likewise held that “a gangrenous
hand or a serious laceration” would also present an “obvious” risk. See Self v.
Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) (citing Oxendine v. Kaplan, 241 F.3d
1272, 1279 (10th Cir. 2001)). But—in the case whose circumstances most nearly
match those of this case—we have held that “characteristics . . . common to many
intoxicated individuals” do not present an “obvious” risk. See Martinez, 563 F.3d
at 1091.
In our view, frequent vomiting alone does not present an obvious risk of
severe and dangerous withdrawal. See id. For clarity, as further explained below,
we agree that the bloody vomiting Officer Chavez allegedly knew of does present
an obvious risk. After all, blood would imply to a reasonable detention official
that there is an actual internal injury. But since the complaint limits this
allegation to Officer Chavez, we see no reason to export allegations of this
knowledge onto the other individual defendants.
With this framework in mind, we consider whether the complaint plausibly
alleges that the six individuals at issue—Officer Chavez, Officer Valdo, Nurse
Robinson, Officer Lopez, Officer Garcia, and Corporal Gallegos—knew that Ortiz
“faced a substantial risk of [serious] harm and disregarded that risk, by failing to
-10-
take reasonable measures to abate it.” See id. at 1088 (quoting Callahan, 471
F.3d at 1159 (quotation marks omitted)).
i. Officer Chavez
According to the FAC, Officer Chavez observed Ortiz on January 4 when
the latter “appeared sick and vomited numerous times.” App., Vol. 1 at 27. The
FAC further alleges: “Mr. Ortiz informed Officer Chavez that he was withdrawing
from heroin and was ‘throwing up blood.’” Id. The presence of blood in vomit
makes the presence of a serious medical need more plausible and more obvious.
In our view, taking the allegations as true, a jury could conclude the seriousness
of the medical risks associated with vomiting blood would be obvious to any
reasonable observer. See Mata v. Saiz, 427 F.3d at 752 (citing Garrett, 254 F.3d
at 950).
ii. Officer Valdo
The complaint alleges Officer Valdo met with Ortiz approximately one day
after arriving at ADF in order to assign him a housing unit. It further alleges that,
at the time of the meeting, Ortiz appeared “severely ill” and requested to be
housed in “safe keeping.” App., Vol. 1 at 28. The complaint does not suggest
what symptoms Ortiz was exhibiting that would have made Officer Valdo suspect
he was “severely ill,” nor does it explain how a request for being housed in “safe
keeping” implies a medical need. Given the sparsity of the allegations, we cannot
-11-
conclude the FAC plausibly alleged that Officer Valdo knew that Ortiz “faced a
substantial risk,” let alone disregarded it.
iii. Nurse Robinson
The complaint alleges that Nurse Robinson knowingly disregarded a
substantial risk of serious harm because she conducted a deficient intake and
failed to implement a withdrawal protocol for Ortiz. But so, too, does it
acknowledge that Nurse Robinson offered Ortiz a kick kit, which contained
medication selected to mitigate symptoms associated with withdrawal.
Although the complaint also alleges that Ortiz never received these
medications, it does not allege that Nurse Robinson was responsible for this
failure. Under current law, we do not believe the risk posed by these
circumstances would have been obvious to Nurse Robinson.
We accordingly conclude the complaint does not plausibly allege that Nurse
Robinson disregarded a substantial risk of serious harm to Ortiz.
iv. Officer Lopez
The complaint alleges only that Officer Lopez knew Ortiz had vomited in
his cell and exhibited other common signs of withdrawal. Absent something
more—like knowledge of bloody vomit—the complaint does not plausibly allege
deliberate indifference to serious withdrawal. See Martinez, 563 F.3d at 1091
(concluding that “characteristics . . . common to many intoxicated individuals”
-12-
were not “obvious symptoms indicating a risk of serious harm”). We accordingly
conclude the complaint does not plausibly allege that Officer Lopez disregarded a
substantial risk of serious harm to Ortiz.
v. Officer Garcia
The complaint alleges neither that Officer Garcia actually saw Ortiz in
distress nor that Ortiz ever sought medical assistance from Officer Garcia. We
accordingly conclude the complaint does not plausibly allege that Officer Garcia
disregarded a substantial risk of serious harm to Ortiz. 3
vi. Corporal Gallegos
In much the same vein, the complaint details no specific allegations
regarding Corporal Gallegos’s awareness of Ortiz’s illness. Nor can we impute
actual knowledge of Ortiz’s medical needs upon Corporal Gallegos from the
complaint’s spare observation that he heard Ortiz “pushing” and “making noises”
on the toilet. We accordingly conclude the complaint does not plausibly allege
that Corporal Gallegos disregarded a substantial risk of serious harm to Ortiz.
* * *
3
The dissent contends that Ortiz’s death—which transpired 25 minutes
after the complaint alleges Officer Garcia had seen him last—“was neither quick
nor quiet,” and that his “medical distress would have been obvious.” Bacharach
Op. at 30. The complaint, however tells us only that Ortiz died from a massive
internal hemorrhage. Absent some legal or medical authority that indicates
otherwise, speculation alone cannot impute knowledge of a constitutional
dimension upon Officer Garcia.
-13-
In sum, the complaint does not plausibly allege that Officer Valdo, Nurse
Robinson, Officer Lopez, Officer Garcia, or Corporal Gallegos consciously
disregarded Ortiz’s serious medical needs.
2. Clearly Established Law
We next consider whether any plausibly alleged constitutional violations
satisfy our rigorous standards for “clearly established” law. Officer Chavez’s
alleged conduct did violate clearly established law. Conversely, even if the
complaint had properly alleged constitutional violations against the other
individuals, we would still conclude the relevant violations nonetheless failed to
satisfy our standards.
The Supreme Court has explained “[a] clearly established right is one that
is sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (citations and quotation marks omitted). Although we need not “require a
case directly on point,” it is nonetheless the case that “existing precedent must
have placed the statutory or constitutional question beyond debate.” Id. (citations
and quotation marks omitted).
This requirement reflects the Court’s recognition that qualified immunity is
meant to “protect[] all but the plainly incompetent or those who knowingly violate
the law.” Id. (citations and quotation marks omitted). The Supreme Court has
-14-
“repeatedly told courts . . . not to define clearly established law at a high level
of generality.” Id. (citations and quotation marks omitted). And the Court has
likewise emphasized “[t]he dispositive question is whether the violative nature of
particular conduct is clearly established.” Id. (citations and quotation marks
omitted) (emphasis in original). Such an inquiry “must be undertaken in light of
the specific context of the case, not as a broad general proposition.” Id. (citations
and quotation marks omitted).
The plaintiff contends “the fact that the officials were shown to have
disregarded the plaintiff’s serious medical need was sufficient to establish that
they knew they violated [his] rights.” Aplt. Br. 43. Bearing in mind the Supreme
Court’s insistence upon both specificity and fair notice, we disagree. See
Mullenix, 136 S. Ct. at 308. Where prior cases establish the “obviousness” of a
medical need, conscious disregard of that need alone may suffice. But as we
discussed above, the only individual defendant who consciously disregarded
Ortiz’s serious medical need was Officer Chavez.
a. Nurse Robinson
We have held that need for medical treatment is “obvious” when “a medical
professional completely denies care although presented with recognizable
symptoms which potentially create a medical emergency.” Self, 439 F.3d at 1232.
But the complaint never alleges that Nurse Robinson was presented with
-15-
recognizable symptoms that might create a medical emergency. Nor does it
contend that she completely denied Ortiz care.
Upon intake, the complaint alleges Ortiz informed Nurse Robinson that he
would suffer withdrawal from his heroin addiction. The complaint does not
allege he presented any symptoms of illness to Nurse Robinson, let alone
symptoms that might indicate a medical emergency. Moreover, the complaint
concedes she offered to provide Ortiz with a kick kit, which contained a number
of medications designed to ameliorate the symptoms associated with withdrawal.
Although—for reasons that remain unclear—he never received this medication,
we cannot read the complaint to conclude that Nurse Robinson completely denied
Ortiz necessary medical care.
In the absence of authorities that would alert Nurse Robinson to the fact
that her failure to complete all intake forms and her apparent failure to ensure
Ortiz actually received the kick kit amounted to a violation of Ortiz’s
constitutional rights, we conclude the complaint does not plausibly allege that she
breached clearly established law.
b. Corporal Gallegos and Officers Valdo, Lopez, and Garcia
No Tenth Circuit authorities support the conclusion that Officer Valdo,
Officer Lopez, Officer Garcia, and Corporal Gallegos violated Ortiz’s clearly
established right to medical treatment. Nor can we read out-of-circuit authorities
-16-
that address medical conditions other than withdrawal from heroin to place the
lawfulness of their conduct “beyond debate.” See Mullenix, 136 S. Ct. at 308. 4
No authority, in our view, clearly establishes with the requisite degree of
specificity that the officers violated Ortiz’s constitutional right to medical care
for symptoms associated with heroin withdrawal. See id. (emphasizing that “[t]he
dispositive question is whether the violative nature of particular conduct is
clearly established”(emphasis in original) (quotation marks omitted)). In the
absence of such authorities, we conclude the complaint does not plausibly allege
Corporal Gallegos or Officers Valdo, Lopez or Garcia breached clearly
established law.
4
The dissent cites (1) Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir.
2019), where the Eleventh Circuit denied summary judgment where guards
withheld treatment from a detainee who claimed he had been hit by a car prior to
his arrest; and (2) Westlake v. Lucas, 537 F.2d 857, 859 (6th Cir. 1976), where
the Sixth Circuit denied a motion to dismiss when guards denied an inmate
treatment for a bleeding ulcer. In our view, neither case provides fair notice that
frequent vomiting alone constitutes a serious medical need. Nor does the Eighth
Circuit’s decision in Vaughn v. Gray, 557 F.3d 904, 909 (8th Cir. 2009), where
prison officials had mistakenly attributed a detainee’s repeated vomiting to the
ingestion of shampoo, rather than the heart attack that ultimately killed him.
Although this decision might clearly establish a constitutional right to medical
care for repeated vomiting, no matter the cause, within the Eighth Circuit, we
cannot endorse the suggestion that one out-of-circuit authority has “placed [this]
statutory or constitutional question beyond debate.” See Mullenix, 136 S. Ct. at
308 (citations and quotation marks omitted).
-17-
c. Officer Chavez
That said, Officer Chavez’s conduct did violate clearly established law by
consciously disregarding obvious symptoms not just of heroin withdrawal but of a
serious internal injury. Far before Officer Chavez interacted with Ortiz, we held
“[t]he relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Holland v. Harrington, 268 F.3d
1179, 1186 (10th Cir. 2001) (quotation marks omitted). And we had held that
“[a] prison official’s deliberate indifference to an inmate’s serious medical needs
is a violation of” the detainee’s rights. Mata, 427 F.3d at 745; see also Sealock,
218 F.3d at 1210-11 (holding a prison officer plausibly violated a detainee’s
rights by not addressing the detainee’s symptoms even when he knew they might
be related to a heart attack). Thus, prior to January 2016, it was clearly
established that when a detainee has obvious and serious medical needs, ignoring
those needs necessarily violates the detainee’s constitutional rights. Officer
Chavez’s inaction in the face of Ortiz’s bloody vomiting therefore violated clearly
established law.
B. Leave to Amend
Finally, we consider whether the district court properly rejected the
plaintiffs’ request for leave to amend the complaint. We review the district
-18-
court’s denial of leave to amend for an abuse of discretion. Cohen v. Longshore,
621 F.3d 1311, 1313 (10th Cir. 2010). Although district courts enjoy discretion,
they “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2);
Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (reiterating that courts
should grant leave to amend when an amended complaint could “yield a
meritorious claim”). Thus, “when denial is based on a determination that
amendment would be futile, our review for abuse of discretion includes de novo
review of the legal basis for the finding of futility.” Miller ex rel. S.M. v. Bd. of
Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009).
In this case, the plaintiffs sought leave to amend to add a Monell claim
under § 1983 against Santa Fe County for its allegedly deficient medical intake
protocol. See Monell, 436 U.S. at 690 (providing that plaintiffs may sue local
governing bodies directly under § 1983 for constitutional violations pursuant to a
body’s policy, practice, or custom). The district court concluded that amendment
would be futile because the plaintiffs could not state a Monell claim without a
viable claim against an individual defendant. But that blanket justification does
not square with circuit precedent holding that municipal liability under Monell
may exist without individual liability. 5 Garcia v. Salt Lake Cty., 768 F.2d 303,
5
We determine above that the complaint plausibly alleges only that Officer
Chavez—who had nothing to do with intake protocol—violated Ortiz’s clearly
established right to medical treatment.
-19-
310 (10th Cir. 1985) (“Monell does not require that a jury find an individual
defendant liable before it can find a local governmental body liable.”). Indeed,
we concluded in Garcia that even where “the acts or omissions of no one
employee may violate an individual’s constitutional rights, the combined acts or
omissions of several employees acting under a governmental policy or custom
may violate an individual’s constitutional rights.” Id. Thus, in light of Garcia,
the district court’s legal basis for its finding of futility is contrary to our circuit’s
precedent.
But that does not end the inquiry. Although the district court’s finding of
futility is not consistent with Garcia, the proposed amended complaint must still
allege facts that, under Garcia and Monell, plausibly state a cause of action
against Santa Fe County. To state a claim against the County, the plaintiffs must
allege facts showing: (1) an official policy or custom, (2) causation, and (3)
deliberate indifference. Schneider v. City of Grand Junction Police Dep’t, 717
F.3d 760, 769 (10th Cir. 2013). The plaintiffs’ proposed amendment alleges: (1)
Santa Fe County maintained an unconstitutional custom of failing to treat
detainees for withdrawal, which resulted in a deficient medical intake protocol,
(2) that custom caused Ortiz’s injury, and (3) the County’s actions (or inaction)
stemmed from deliberate indifference. Although we are not sure whether the
plaintiffs can prove each of those elements at trial or even survive summary
-20-
judgment, they allege sufficient facts supporting each element for their claim to
proceed past the motion-to-dismiss stage.
The plaintiffs pleaded facts indicating that Ortiz never received or did not
take the kick kit withdrawal medications. That allegation supports the plaintiffs’
claim that the jail had a process problem—even though we cannot pin the failure
to administer the kick kit on any one individual. The plaintiffs also pleaded that
three other inmates at the same jail recently experienced withdrawal-related
deaths. And a 2003 Department of Justice study put Santa Fe County on notice
about deficiencies in the jail’s “intake medical screening, assessment, and referral
process.” App., Vol. 1 at 183–84. The plaintiffs further allege that these
deficiencies contributed to Ortiz’s death. Finally, the plaintiffs alleged that the
jail previously provided Ortiz with deficient intakes over the course of eight
separate incidents of incarceration at the jail. Altogether, the allegations of
intake failures preceding Ortiz’s death and past process failures sufficiently state
a Monell claim at this early stage in the proceedings. See Barney v. Pulsipher,
143 F.3d 1299, 1307 (10th Cir. 1998) (“The deliberate indifference standard may
be satisfied when the municipality has actual or constructive notice that its action
or failure to act is substantially certain to result in a constitutional violation, and
it consciously or deliberately chooses to disregard the risk of harm.”). Thus, we
conclude that the proposed amendment would not be entirely futile in this case.
-21-
Of course, we cannot determine from the face of the proposed amendment
whether the plaintiffs will be able to substantiate their Monell claim. But “a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof
of those facts is improbable, and that a recovery is very remote and unlikely.”
Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation
marks and citations omitted)). So we conclude—given the low threshold for
amendment and low bar for surviving a motion to dismiss—the plaintiffs alleged
enough to explore their Monell claim in the discovery process. See id. (observing
that “granting a motion to dismiss is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal rules of pleading but also to
protect the interests of justice” (quotation marks, alterations, and citation
omitted)). We thus vacate the district court’s denial of leave to amend and
remand for further proceedings consistent with this Order.
III. Conclusion
In sum, we conclude the complaint does not plausibly allege that Nurse
Robinson, Officer Valdo, Officer Lopez, Officer Garcia, and Corporal Gallegos
each violated Ortiz’s clearly established constitutional right to medical care for
acute symptoms related to his withdrawal from heroin addiction. It does,
however, plausibly allege a claim against Officer Chavez, so we vacate the
dismissal with regard to him. We further conclude the district court abused its
-22-
discretion in denying the plaintiffs leave to amend because they could plausibly
state a claim for Monell liability. Our case law permits a plaintiff to bring a
Monell claim even where there is no individual liability, and the plaintiffs’
allegations satisfy pleading requirements.
-23-
No. 19-2039, Quintana, et al. v. Santa Fe County Board of Commissioners,
et al.
BACHARACH, J., concurring in part and dissenting in part.
Mr. Ricardo Ortiz was arrested for stealing a handbag and booked
into Santa Fe County’s detention facility. When he was booked, Mr. Ortiz
had a heroin addiction and expected to experience severe withdrawal. And
he did. As Mr. Ortiz’s withdrawal spiraled, officials allegedly failed to
provide treatment. He died three days later.
On behalf of Mr. Ortiz’s estate, the plaintiffs sued six employees of
the detention facility, invoking 42 U.S.C. § 1983 1 and alleging that the
employees had violated the Fourteenth Amendment’s Due Process Clause
by exhibiting deliberate indifference to Mr. Ortiz’s serious medical needs.
After an initial amendment, the plaintiffs moved to amend the complaint a
second time, adding allegations against the employees and a § 1983 claim
against Santa Fe County.
In this appeal, we must credit the allegations in the proposed second
amended complaint and construe all reasonable inferences favorably to the
plaintiffs. See pp. 6–7, below. After doing so, we must answer two
questions:
1. Would these allegations state a valid claim against the six
employees for denial of Mr. Ortiz’s constitutional right to
medical care?
1
The plaintiffs also asserted a state-law claim against Santa Fe
County, but this claim is not involved in the appeal.
2. Would these allegations state a valid § 1983 claim against
Santa Fe County?
I would answer “yes” to both questions.
I. Mr. Ortiz’s Detention and Death
Mr. Ortiz entered the detention facility in January 2016, and Nurse
Anne Robinson conducted a medical intake. During the intake, Mr. Ortiz
looked ill (according to another inmate) and told Nurse Robinson that he
would soon go into withdrawal. Nurse Robinson arranged for a doctor to
order medications, but Mr. Ortiz allegedly didn’t receive them.
During Mr. Ortiz’s first day in the facility, his supervising officer
was Officer Dylan Chavez. Mr. Ortiz vomited in front of Officer Chavez
and told him that the vomit was bloody.
The following morning, Mr. Ortiz met with Officer Anthony Valdo.
Officer Valdo was responsible for assigning an appropriate housing unit.
The next day, Officer Tyler Lopez worked in Mr. Ortiz’s housing
unit. Officer Lopez allegedly saw vomit on the floor and watched Mr. Ortiz
dry heaving.
That night, Officer Leonard Garcia came on duty. According to
another inmate, Mr. Ortiz groaned throughout the night.
Officer Garcia and Corporal Cristobal Gallegos contend that they
checked on Mr. Ortiz the next morning and saw that he was not in distress.
For example, Corporal Gallegos states that he was not alarmed after
2
passing Mr. Ortiz’s cell and hearing him pushing and making noises on the
toilet. And Officer Garcia asserts that he saw Mr. Ortiz minutes later.
Within 26 minutes of this alleged interaction with Officer Garcia,
Mr. Ortiz died. His corpse was found in a cell covered with blood and
feces.
II. The District Court’s Rulings
The six employees sought dismissal of the first amended complaint
for failure to state a valid claim, urging qualified immunity based on a lack
of factual allegations reflecting the violation of a clearly established
constitutional right. The plaintiffs objected to dismissal and requested
leave to file a second amended complaint. The amendment would have
supplemented the allegations against the six employees and added a § 1983
claim against the county for an unconstitutional custom and failure to train
staff.
The district court granted the defendants’ motion to dismiss and
denied the motion for leave to amend on the ground that amendment would
have been futile. In disallowing the amendment, the court acknowledged
that the changes would not have prejudiced the defendants. The plaintiffs
appeal the district court’s dismissal and denial of leave to file a second
amended complaint.
3
III. The Denial of Leave to Amend the Allegations Against the Six
Employees Based on Futility
In my view, the proposed second amended complaint sets forth a
valid constitutional claim against each of the six employees. I would thus
reverse the dismissal and the denial of leave to file the second amended
complaint.
A. The Relevance of the Second Amended Complaint
As a threshold issue, we must consider whether to examine the first
amended complaint or the second amended complaint. I would consider the
allegations in the second amended complaint.
The district court concluded that the proposed second amended
complaint was “not the product of the Plaintiffs’ desire to cure
deficiencies.” Appellants’ App’x, vol. 2 at 376. The majority also declines
to consider the second amended complaint, reasoning that “the plaintiffs
themselves explicitly denied that the [second amended complaint] would in
any way cure deficiencies.” Majority Op. at 7. But the plaintiffs didn’t idly
propose the amendments; instead, the plaintiffs proposed these
amendments to cure any perceived shortcomings in the first amended
complaint.
As the majority points out, the plaintiffs did argue that the added
details had already been encompassed in the first amended complaint. But
the plaintiffs recognized that the employees had argued that gaps existed in
4
the allegations. So the plaintiffs said that they had rewritten the allegations
to “summarize” or “better clarify” their allegations. Appellants’ App’x,
vol. 1 at 131. The plaintiffs also stressed that these clarifications were
designed to strengthen their claims against the six employees. For example,
the plaintiffs argued to the district court that
“[t]he proposed Second Amended Complaint . . . attempts to
resolve Defendants’ various issues with the operative
[complaint]” and
“Plaintiffs have taken Defendants’ issues with the operative
Complaint seriously, and the proposed Second Amended
Complaint . . . attempt[s] to clarify allegations that Defendants
have either asserted they find obscure, or that Defendants
purport to have interpreted differently than Plaintiffs
intended.”
Id. at 128–29 (footnotes omitted). On appeal, the plaintiffs similarly
maintain that the second amended complaint “enhanced” the claims against
the individual defendants by making “more explicit” and “emphasiz[ing]”
allegations encompassed in the first amended complaint. Appellants’
Opening Br. at 19–21.
Given the plaintiffs’ explanation for the additional allegations, the
six employees haven’t questioned the need to consider the second amended
complaint. The employees instead try to rebut the substance of the second
amended complaint. See Appellees’ Resp. Br. at 38 (responding to
allegations in the second amended complaint). Yet the majority insists—
sua sponte—that we should completely disregard the proposed
5
amendment’s additional allegations against the six employees. I would
instead follow the lead of the six employees and consider those allegations.
B. The Standard of Review
We review the denial of leave to amend a complaint for an abuse of
discretion. Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010).
Though district courts enjoy discretion, they must “freely give leave [to
amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Leave should be granted when an amendment would “yield a meritorious
claim.” Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). When the
denial was based on futility, we conduct “de novo review of the legal basis
for the finding of futility.” Miller ex rel. S.M. v. Bd. of Educ. of
Albuquerque Pub. Schs., 565 F.3d 1232, 1249 (10th Cir. 2009).
In conducting de novo review, we consider why the district court
regarded amendment as futile. The court reasoned that the second amended
complaint would not survive a motion to dismiss for failure to state a valid
claim. Dismissal for failure to state a valid claim would have been proper
only if the second amended complaint had lacked “enough facts to state a
claim to relief that [had been] plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
As the majority observes, the threshold is “low . . . for amendment
and . . . for surviving a motion to dismiss.” Majority Op. at 22. For
example, if the six employees had moved to dismiss the second amended
6
complaint, the court would have needed to view all well-pleaded factual
allegations as true and all reasonable inferences in the light most favorable
to the plaintiffs. Wyoming v. U.S. Dep’t of Interior, 839 F.3d 938, 942
(10th Cir. 2016).
Viewing the second amended complaint’s allegations in this light, we
must consider whether the six employees would enjoy qualified immunity.
When qualified immunity is asserted, the plaintiffs must show that the
defendants violated a constitutional or statutory right that was clearly
established. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir.
2014).
To decide whether the second amended complaint would have
satisfied this burden, we would consider
whether the plaintiffs adequately alleged that the six employees
had violated Mr. Ortiz’s constitutional right to medical care
and
whether that constitutional right had been clearly established at
the time of Mr. Ortiz’s detention.
C. The Employees’ Assertion of Qualified Immunity
I conclude that (1) the second amended complaint adequately alleged
that the six employees had violated Mr. Ortiz’s constitutional right to
medical care and (2) the constitutional right had been clearly established.
7
1. Violation of the Constitutional Right to Medical Care
We must first consider whether the plaintiffs’ allegations in the
second amended complaint entailed a constitutional violation. Saucier v.
Katz, 533 U.S. 194, 201 (2001).
County employees can incur civil liability under 42 U.S.C. § 1983
for violating pretrial detainees’ constitutional right to medical care. Barrie
v. Grand Cty., 119 F.3d 862, 867–68 (10th Cir. 1997). This right is
violated when county employees act with deliberate indifference to
detainees’ medical needs. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The test for liability consists of objective and subjective prongs. Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). 2
The objective prong is satisfied if the prisoner’s medical need was
“sufficiently serious.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)
(quoting Farmer, 511 U.S. at 834). A medical need is sufficiently serious
if it was “diagnosed by a physician as mandating treatment or . . . [was] so
obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.
2000) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)).
2
The subjective prong has been altered for at least some claims
involving pretrial detainees. See pp. 36–39, below. But we apply the
subjective prong as it was clearly established at the time of Mr. Ortiz’s
detention. See id.
8
The subjective prong addresses the defendant’s state of mind. Mata,
427 F.3d at 751. Under this prong, we ask whether the defendant
was aware of a substantial risk of serious harm and
knowingly disregarded that risk.
See Martinez v. Garden, 430 F.3d 1302, 1304–05 (10th Cir. 2005) (aware
of a “substantial risk of serious harm” (quoting Riddle v. Mondragon, 83
F.3d 1197, 1204 (10th Cir. 1996))); Martinez v. Beggs, 563 F.3d 1082,
1089 (10th Cir. 2009) (knowingly disregards the risk). A plaintiff may
prove awareness of a substantial risk through circumstantial evidence that
the risk was obvious. Farmer v. Brennan, 511 U.S. 825, 842 (1994).
The second amended complaint satisfies both prongs of the test for
deliberate indifference as to each employee.
a. Objective Prong
The parties agree that the plaintiffs have satisfied the objective
prong. But the parties differ on how they define the medical need. In my
view, the medical need involved Mr. Ortiz’s frequent and bloody vomiting.
The defendants assert that the medical need involved a
gastrointestinal hemorrhage, which ultimately led to Mr. Ortiz’s death. But
the gastrointestinal hemorrhage followed frequent vomiting, which itself
could satisfy the objective prong if it was serious enough. See Mata v.
Saiz, 427 F.3d 745, 753–54 (10th Cir. 2005) (concluding that chest pain
9
was sufficiently serious to satisfy the objective prong independently of a
subsequent heart attack).
The second amended complaint alleges that Mr. Ortiz was severely ill
and frequently vomited (sometimes vomiting blood) throughout his time in
detention. Appellants’ App’x, vol. 1 at 159, 163–64, 171 (vomiting on
different days); id. at 160, 168 (vomiting blood); id. at 160, 162 (severe
illness). From these allegations, the fact finder could reasonably infer a
serious medical need. See Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th
Cir. 2014) (stating that pain satisfied the objective prong when the inmate
collapsed, vomited, and suffered severe abdominal pain over a period of
five hours); accord Scinto v. Stansberry, 841 F.3d 219, 231–32 (4th Cir.
2016) (concluding that a reasonable jury could find an objectively serious
medical need based on allegations involving “extreme pain in [the
inmate’s] stomach, . . . throwing up vomit and blood [and] becom[ing]
incontinent”).
Other courts have concluded that severe withdrawal symptoms can
constitute an objectively serious harm. The Eleventh Circuit, for example,
has repeatedly held that “alcohol withdrawal is a serious or urgent medical
problem that requires immediate medical attention.” Lancaster v. Monroe
Cty., 116 F.3d 1419, 1425–26 (11th Cir. 1997), overruled in part on other
grounds by LeFrere v. Quezada, 588 F.3d 1317, 1318 (11th Cir. 2009). The
Second Circuit agrees. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.
10
2009) (noting the lack of a dispute that severe withdrawal from alcohol had
constituted a serious medical condition), overruled in part on other
grounds by Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). And the
Fifth Circuit regards delirium tremens (rapid onset of confusion, shaking,
and hallucinations attributable to withdrawal from alcohol) as a serious
medical need. Thompson v. Upshur Cty., 245 F.3d 447, 457 (5th Cir. 2001).
Just as withdrawal from alcohol can constitute a serious medical need
when the symptoms are severe, so too can withdrawal from opiates like
heroin. See Foelker v Outagamie Cty., 394 F.3d 510, 511–13 (7th Cir.
2005) (concluding that delirium and other symptoms of a forced
withdrawal from methadone created a serious medical need). Indeed, the
six employees concede that serious withdrawal symptoms could satisfy the
objective prong. See Oral Arg. at 20:00–:06 (“[I] agree that withdrawal, if
serious enough, can meet that objective constitutional threshold under the
first prong.”). I thus conclude that Mr. Ortiz’s frequent and bloody
vomiting could plausibly satisfy the objective prong.
The majority assumes, without deciding, that “severe opioid
withdrawal” could satisfy the objective prong. Majority Op. at 9 (emphasis
in original). But the majority concludes that frequent vomiting alone
doesn’t constitute a serious medical need.
Though the majority discounts the severity of “run-of-the-mill”
withdrawal, a fact finder could reasonably find a serious medical need
11
from frequent vomiting associated with heroin withdrawal. Three medical
experts explain the early effects of withdrawal from heroin:
From 6 to 12 hours after stopping heroin . . . , symptoms appear,
such as craving for the substance, anxiety, irritability,
depression, yawning, sneezing, lacrimation, rhinorrhoea,
salivation, sweating, shivering and gooseflesh. The pupils dilate,
there are muscle cramps, anorexia, diarrhoea and vomiting.
I.A. Liappas, F.A. Jenner & B. Vicente, Review Article, Withdrawal
Syndromes, 21 J. Royal Coll. Physicians London 214, 215 (1987). The
vomiting itself can lead to “severe medical complications like dehydration”
that could result in death. Thomas R. Kosten & Louis E. Baxter, Effective
Management of Opioid Withdrawal: A Gateway to Opioid Dependence
Treatment, 28 Am. J. on Addictions 55, 59, 61 (2019). And the plaintiffs
allege that Mr. Ortiz’s withdrawal led to his death from irritation and
tearing of his esophageal lining. Appellants’ App’x, vol. 1 at 171. Given
the plaintiffs’ allegations, the frequent vomiting would satisfy the
objective prong.
The employees present three reasons for us to focus on the
gastrointestinal hemorrhage rather than the frequent or bloody vomiting:
1. In district court, the plaintiffs did not preserve an argument
that the medical need involved frequent vomiting.
2. The plaintiffs do not present any plausible factual allegations
regarding bloody vomiting.
3. The plaintiffs do not allege that any of the employees realized
the frequency of Mr. Ortiz’s vomiting.
12
Appellees’ Resp. Br. at 32–33. Each argument fails.
First, the plaintiffs adequately preserved their argument that the
medical need consisted of frequent vomiting. The second amended
complaint repeatedly refers to the employees’ alleged failure to provide
treatment when they saw Mr. Ortiz “in the throes of severe illness.”
Appellants’ App’x, vol. 1 at 158; see id. at 159 (“Mr. Ortiz’ Display of
Severe Withdrawal Symptoms . . . Goes Unaided and Unmonitored”); id. at
160 (“Staffers Observe Mr. Ortiz in Severe Heroin Withdrawal, but Fail to
Monitor or Assist Him”); id. at 177–78 (“multiple Individual Defendants
observed [Mr. Ortiz] to be severely ill; and failed to perform critical
follow-up monitoring”).
The plaintiffs also presented these allegations in the first amended
complaint. See Appellants’ App’x, vol. 1 at 26–28, 37. Opposing dismissal
of the first amended complaint, the plaintiffs characterized Mr. Ortiz’s
symptoms as sufficient to satisfy the objective prong. Id. at 94–95. The
plaintiffs thus preserved their argument on frequent vomiting by
focusing in both the first and second amended complaints on
the symptoms of Mr. Ortiz’s illness and
relying again on these symptoms when opposing the motion to
dismiss.
Second, the plaintiffs adequately allege that Mr. Ortiz suffered
frequent bouts of vomiting, sometimes with blood. The second amended
complaint contains seven pertinent allegations:
13
1. “Inmate Ronnie Montano – who was housed with Mr. Ortiz
during his initial intake on January 4 and who later shared
a cell in the Alpha Unit with him for ‘approximately one
day’ afterward – later informed investigators that . . . Mr.
Ortiz ‘appeared sick and “vomited” numerous times’ all
over the floor, bed, and toilet.” Id. at 159.
2. On January 4, “Mr. Ortiz informed Officer Chavez that he
was withdrawing from heroin and was ‘throwing up
blood.’” Id. at 160.
3. “Mr. Ortiz’ heroin withdrawal symptoms steadily
worsened throughout the next two days of his confinement
. . . .” Id.
4. On January 6, “[Mr. Ortiz’s] cellmate, Ronnie Montano,
told Officer Lopez that Mr. Ortiz was sick and had vomited
in the cell . . . .” Id. at 163.
5. “Officer Lopez . . . personally observed Mr. Ortiz ‘dry
heaving’ in his cell in the Alpha Unit at an unspecified
time on January 6, 2016, and also saw vomit on the floor.”
Id.
6. “According to Officer Lopez, Mr. Ortiz was ‘very quiet,’
when not excessively vomiting” on January 6. Id.
7. “Significant vomiting from heroin withdrawal caused
irritation and tearing of Mr. Ortiz’ esophageal lining that
resulted in ‘bleeding into the stomach and intestines,’
which resulted in his death.” Id. at 171.
These allegations indicate that Mr. Ortiz was frequently vomiting,
sometimes with blood.
Third, the extent of the employees’ knowledge relates to the
subjective prong of deliberate indifference, not the objective prong. The
objective prong considers only whether the alleged injury “is sufficiently
serious,” not whether the defendants knew about the injury. Mata v. Saiz,
14
427 F.3d 745, 753 (10th Cir. 2005). So the second amended complaint
adequately alleges a severe medical need involving frequent and bloody
vomiting.
b. Subjective Prong
The resulting issue is whether the second amended complaint
satisfies the subjective prong.
If we credit the allegations in the second amended complaint, Mr.
Ortiz experienced “serious harm” consisting of frequent, bloody vomiting
and other severe symptoms of withdrawal. 3 See pp. 9–15, above. Given the
plaintiffs’ burden at the pleading stage, they must plausibly allege that a
substantial risk of serious harm was obvious to a reasonable person in each
employee’s position.
If we credit the allegations in the second amended complaint and
draw all reasonable inferences in favor of the plaintiffs, each employee
3
The majority concedes that “a jury could conclude the seriousness of
the medical risks associated with vomiting blood would be obvious to any
reasonable observer.” Majority Op. at 11. But because frequent vomiting is
itself a serious harm, see p. 9, above, the proper subjective inquiry is
whether
each employee had actual knowledge of Mr. Ortiz’s frequent or
bloody vomiting or
a substantial risk of frequent or bloody vomiting would have
been obvious to a reasonable person in the defendant’s shoes.
See p. 9, above.
15
would have been aware of a substantial risk of serious harm and knowingly
disregarded that risk.
i. Nurse Robinson
The first employee to see Mr. Ortiz was Nurse Robinson, who
conducted the intake. During the intake, Nurse Robinson allegedly failed to
complete many of the required procedures and to make various
assessments. The allegations against Nurse Robinson in the second
amended complaint satisfy the subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
These allegations suffice in part because they showed Nurse
Robinson’s awareness of a substantial risk of serious harm. While
conducting the intake, Nurse Robinson allegedly
had access to records showing a prior diagnosis of Hepatitis C
and
learned that Mr. Ortiz was a heroin user.
And Mr. Ortiz allegedly informed Nurse Robinson that he would undergo
withdrawal. Indeed, Nurse Robinson concedes that she expected Mr. Ortiz
to suffer withdrawal symptoms.
Aware of Mr. Ortiz’s impending withdrawal, Nurse Robinson would
have presumably understood the obvious risk that Mr. Ortiz could suffer
serious symptoms. Indeed, the protocols existed because of this risk. Given
these protocols and Nurse Robinson’s awareness of the impending
16
withdrawal, one could reasonably infer that she was aware of an obvious
risk to Mr. Ortiz. See Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005)
(stating that internal protocols supply circumstantial evidence that a
prison’s “health care gatekeeper knew of a substantial risk of serious
harm”); see also Estate of Miller ex rel. Bertram v. Tobiasz, 680 F.3d 984,
990 (7th Cir. 2012) (concluding that “[i]f the circumstances suggest that
the defendant–official being sued had been exposed to information
concerning the risk and thus ‘must have known’ about it, then such
evidence could be sufficient” to show actual knowledge (quoting Sanville
v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001))). And if Nurse
Robinson would have been aware of the obvious risk, one could reasonably
infer that she would have recognized the potential for serious harm.
Sanville, 266 F.3d at 737.
The defendants argue that Mr. Ortiz did not display withdrawal
symptoms during the intake. But this assertion entails a factual dispute.
The plaintiffs allege that another inmate saw Mr. Ortiz looking sick during
his intake, Mr. Ortiz said that he would experience withdrawal, and Nurse
Robinson knew that Mr. Ortiz suffered from Hepatitis C. Given these
allegations, Nurse Robinson would have plausibly recognized a substantial
risk of serious harm.
The majority questions the obviousness of the risk from Nurse
Robinson’s knowledge of an impending withdrawal. But the second
17
amended complaint also alleges that Mr. Ortiz’s medical needs would have
been obvious to Nurse Robinson based on her awareness of Mr. Ortiz’s
impending withdrawal and his affliction with Hepatitis C. For example, the
plaintiffs allege that a national expert had stated that a licensed medical
professional like Nurse Robinson “would understand that not referring an
inmate suffering from heroin withdrawal – especially one with a serious,
chronic condition like Hepatitis C – to the medical unit would be to expose
the inmate to the substantial risk of serious harm, including the risk of
death.” Appellants’ App’x, vol. 1 at 157. Together, the allegations in the
second amended complaint adequately show Nurse Robinson’s awareness
of a substantial risk of serious harm.
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The second amended complaint also contains allegations showing
that Nurse Robinson knowingly disregarded the risk to Mr. Ortiz. Martinez
v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009).
The second amended complaint alleges that
Nurse Robinson conducted a deficient intake and failed to
implement a withdrawal protocol and
the protocol required monitoring and reassessment.
Nurse Robinson downplays these allegations as criticism of her paperwork.
But the plaintiffs allege that Nurse Robinson failed to complete any of the
18
required intake procedures even though she had expected Mr. Ortiz to
experience severe withdrawal and knew that he suffered from Hepatitis C.
Nurse Robinson also denies deliberate indifference by arguing that
she arranged for a doctor to order medication. But the plaintiffs allege that
Nurse Robinson failed to take any steps to administer the medication 4 or to
implement a protocol for withdrawal.
In the majority’s view, the plaintiffs don’t allege that Nurse
Robinson was responsible for the failure to administer the medication. But
the majority is mistaken. The plaintiffs allege that Nurse Robinson gave a
false account about the medication. According to the plaintiffs, Nurse
Robinson said that Mr. Ortiz had taken the medication, see Appellants’
App’x, vol. 1 at 158, even though Officer Chavez had told investigators
that Mr. Ortiz refused to take any of the medication. Id.
Apart from this inconsistency, the plaintiffs allege that Nurse
Robinson failed to devise a treatment plan, which would have ensured that
Mr. Ortiz received the required medication. Id. at 155. We can reasonably
4
Nurse Robinson relies on her statement that Mr. Ortiz received his
first dose of medication and assumes that Mr. Ortiz declined to take the
subsequent doses. But the plaintiffs allege that Mr. Ortiz did not receive
any of the medication, citing inconsistencies between the employees’
statements and security videos. Because we view these allegations in the
light most favorable to the plaintiffs, see pp. 6–7, above, we may
reasonably infer that Mr. Ortiz did not receive any of the medication.
19
infer that the creation of a treatment plan would have ensured availability
of Mr. Ortiz’s medication.
In the second amended complaint, the plaintiffs adequately allege
that Nurse Robinson’s actions directly resulted in the failure to provide
Mr. Ortiz with medication or any other treatment. Given these allegations,
Nurse Robinson could incur liability even if she had arranged for a doctor
to order medication. See Estate of Miller ex rel. Bertram v. Tobiasz, 680
F.3d 984, 990 (7th Cir. 2012) (holding that a nurse acted with deliberate
indifference even though she referred an inmate to another medical unit
and noted that the inmate should be taking psychiatric medication).
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Nurse Robinson.
ii. Officer Chavez
On Mr. Ortiz’s first day in detention, his supervising officer was
Officer Chavez. The allegations against Officer Chavez satisfy the
subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
The allegations suffice in part because they show Officer Chavez’s
awareness of a substantial risk of serious harm. The second amended
complaint alleges that Officer Chavez
20
saw Mr. Ortiz “experiencing symptoms of severe heroin
withdrawal” and
was told by Mr. Ortiz that he had vomited blood.
Appellants’ App’x, vol. 1 at 159–60. Because vomiting blood can
constitute a serious harm, see pp. 9–15, above, these allegations show
Officer Chavez’s awareness of a substantial risk of that harm.
Officer Chavez argues that as a detention officer, he was “entitled to
defer to the professional medical judgment of medical personnel in the care
and treatment of detainees.” Appellees’ Resp. Br. at 45–46. But this
argument requires us to disregard other allegations in the second amended
complaint. For example, the plaintiffs allege that Mr. Ortiz’s condition
spiraled downward during his detention. Despite this downward spiral, the
second amended complaint does not suggest that Officer Chavez consulted
with medical staff or relied on a medical assessment. And the plaintiffs
allege that Officer Chavez had been trained to recognize the need for
immediate emergency medical attention for inmates vomiting blood during
withdrawal.
Together, the allegations in the second amended complaint
adequately allege Officer Chavez’s awareness of a severe medical need.
21
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The plaintiffs also adequately allege that Officer Chavez knowingly
disregarded Mr. Ortiz’s medical need.
In the second amended complaint, the plaintiffs allege that Officer
Chavez told the next shift about Mr. Ortiz’s condition, but didn’t take any
other steps to help Mr. Ortiz or refer him to the medical unit. Reporting
Mr. Ortiz’s condition would not necessarily constitute a reasonable
measure to avert the harm. See Harper v. Lawrence Cty., 592 F.3d 1227,
1235 (11th Cir. 2010) (holding that the defendant was not entitled to
summary judgment when he had informed the next shift and another
official about medical issues but had not taken “any steps to actually
secure immediate medical attention”), abrogated on other grounds by
Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). So the plaintiffs
adequately allege that Officer Chavez knowingly disregarded a risk of
serious harm.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Officer Chavez. 5
5
The majority concludes that the first amended complaint stated a
valid claim against Officer Chavez. I agree. But the majority has
disregarded the plaintiffs’ effort to supplement their allegations against
Officer Chavez.
22
iii. Officer Valdo
Roughly one day after arriving at the detention unit, Mr. Ortiz met
with Officer Valdo, who was responsible for selecting the appropriate
housing unit. In the second amended complaint, the plaintiffs adequately
allege that Officer Valdo violated the subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
The plaintiffs allege that during the interaction with Officer Valdo,
Mr. Ortiz had a “severely ill appearance” and requested housing in “safe
keeping.” Appellants’ App’x, vol. 1 at 161. The second amended complaint
also alleges that Officer Valdo
was aware of Mr. Ortiz’s diagnosis of Hepatitis C and
knew from experience and Mr. Ortiz’s ill appearance that he
needed immediate medical assistance to prevent “an excessive
risk of serious harm.”
Id.
The plaintiffs further allege that Officer Chavez had informed later
shifts of Mr. Ortiz’s condition. We must view these allegations and
reasonable inferences favorably to the plaintiffs. See pp. 6–7, above. Doing
In my view, the district court erred in disallowing additional
allegations even though the existing allegations had stated a valid claim
against Officer Chavez. The district court disallowed additional allegations
on the ground that amendment would have been futile. Given our
unanimous conclusion that the existing allegations sufficed for a valid
claim against Officer Chavez, the additional allegations would obviously
not have been futile.
23
so, we can reasonably infer that Officer Chavez’s report had reached
Officer Valdo. See Bistline v. Parker, 918 F.3d 849, 888 n.20 (10th Cir.
2019) (applying the plausibility standard and making a “reasonable
assumption” based on facts from a complaint); see also Sepúlveda-Villarini
v. Dep’t of Educ., 628 F.3d 25, 30 (1st Cir. 2010) (“A plausible but
inconclusive inference from pleaded facts will survive a motion to dismiss
. . . .”).
Together, the allegations in the second amended complaint plausibly
establish that Officer Valdo recognized a substantial risk of serious harm.
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The plaintiffs also adequately allege that Officer Valdo knowingly
disregarded this risk. The second amended complaint alleges that Officer
Valdo failed to authorize medical treatment for Mr. Ortiz despite
knowledge of his medical distress. The plaintiffs thus adequately allege
that Officer Valdo knowingly disregarded a risk of serious harm to Mr.
Ortiz.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Officer Valdo.
24
iv. Officer Lopez
On Mr. Ortiz’s third day in detention, Officer Lopez was on duty.
The plaintiffs have adequately alleged that Officer Lopez satisfied the
subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
The plaintiffs adequately allege that Officer Lopez was aware of a
substantial risk of serious harm. Officer Lopez allegedly
knew that Mr. Ortiz was withdrawing from heroin,
knew that Mr. Ortiz was ill and vomiting in his cell,
observed vomit on the floor,
saw Mr. Ortiz “dry heaving,”
saw Mr. Ortiz “look[] sick,” quietly staring with a blank look,
recognized the progression of Mr. Ortiz’s symptoms to the
point that he had become severely ill, and
could recognize the need for immediate medical attention for
inmates experiencing illness and vomiting from opiate
withdrawal.
These allegations showed that the risk of serious harm was obvious
to Officer Lopez, suggesting his awareness of the risk. See Scinto v.
Stansberry, 841 F.3d 219, 232 (4th Cir. 2016) (“Plaintiff’s testimony that
his cell ‘reeked’ and his face exhibited visible signs of illness, as well as
his contemporaneous account of his symptoms create a genuine factual
dispute about whether his need for medical attention was so obvious that
25
an official observing the scene would have . . . inferred that such a
substantial risk was present.”).
Officer Lopez argues that frequent vomiting may be a “common”
characteristic of withdrawal. But a medical need may be severe even when
it is common. Heart attacks may be common, but they are undoubtedly
serious.
The majority contends that the plaintiffs don’t allege that Officer
Lopez knew about Mr. Ortiz’s condition. But the allegations in the second
complaint could reasonably entail awareness of Mr. Ortiz’s condition. For
example, we can reasonably infer that Officer Chavez’s report of Mr.
Ortiz’s serious condition reached Officer Lopez. And the plaintiffs allege
that Officer Lopez observed Mr. Ortiz’s distress. Together, these
allegations indicate that Officer Lopez was aware of an obvious risk to Mr.
Ortiz.
In arguing to the contrary, the majority cites Martinez v. Beggs, 563
F.3d 1082 (10th Cir. 2009). But Martinez involved different circumstances
and a different burden of proof. There Mr. Ginn was arrested for public
intoxication and died of a heart attack while in custody. Martinez, 563 F.3d
at 1084. But the court held that the risk of a heart attack had not been
obvious because Mr. Ginn lacked symptoms suggesting an imminent heart
attack. Id. at 1091. The Court explained that “there was no evidence that
[Mr.] Ginn was in pain or distress.” Id. at 1090.
26
Our facts are different. The plaintiffs allege that Mr. Ortiz was
frequently vomiting, sometimes with blood, over the course of three days.
Indeed, the majority concedes that the fact finder could reasonably infer
that Mr. Ortiz’s distress was obvious and required medical attention. And
the plaintiffs allege that Officer Lopez knew that Mr. Ortiz was ill. In
Martinez, the record contained no evidence that the defendant had known
of the inmate’s pain or distress. Id.
Our case differs not only factually but also procedurally. Martinez
addressed an award of summary judgment, id. at 1084; and we are at the
motion-to-dismiss stage, addressing only the adequacy of the plaintiffs’
allegations about Officer Lopez’s awareness of Mr. Ortiz’s condition. See
Barton v. Taber, 820 F.3d 958, 967 (8th Cir. 2016) (stating that the
plausibility standard “is a highly deferential standard, as opposed to that at
the summary judgment stage”); Davis v. Howard, 561 F.2d 565, 570 (5th
Cir. 1977) (distinguishing cases because they had originated on motions
for summary judgment rather than motions under Rule 12(b)(6)).
Given these factual and procedural differences, Martinez does not
suggest futility of the second amended complaint. If we credit the
allegations in the second amended complaint, Officer Lopez would have
recognized a substantial risk of serious harm to Mr. Ortiz.
27
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
In the second amended complaint, the plaintiffs also allege facts
showing that Officer Lopez knowingly disregarded this risk. Despite
recognizing Mr. Ortiz’s need for medical attention, Officer Lopez
allegedly failed to obtain any medical help or to do anything to treat Mr.
Ortiz’s symptoms. The plaintiffs thus adequately allege that Officer Lopez
knowingly disregarded a risk of serious harm to Mr. Ortiz.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Officer Lopez.
v. Officer Garcia
Two days after arriving at the detention facility, Mr. Ortiz interacted
with Officer Garcia. The second amended complaint shows Officer
Garcia’s awareness of a substantial risk of serious harm and knowing
disregard of that risk.
(a) Awareness of a Substantial Risk of Serious Harm
The plaintiffs allege that (1) another inmate heard Mr. Ortiz
experiencing violent illness throughout the night, (2) Officer Chavez
reported Mr. Ortiz’s condition to the next shift, (3) Officer Garcia saw Mr.
Ortiz sitting on the toilet, breathing hard, “lying on his bed in the fetal
position,” and “in the throes of severe illness,” and (4) Officer Garcia saw
28
Mr. Ortiz “vomiting and defecating blood[] at 8:20 a.m.” Appellants’
App’x, vol. 1 at 165, 167–68.
According to the second amended complaint, Officer Garcia
maintains that he had asked Mr. Ortiz if he was okay and Mr. Ortiz
responded with a hand gesture, which Officer Garcia interpreted as a
“yes.” But the plaintiffs allege that motion-activated security videos show
no sign of an officer approaching Mr. Ortiz’s cell when Officer Garcia says
that the two men interacted.
Soon after the last alleged interaction, Officer Garcia allegedly found
Mr. Ortiz “lying naked across his bed, ‘with his body half off,’” with
brownish “fluid all over the floor and walls of the cell.” Id. at 166. His
boxer shorts were oozing blood and feces, with “blood trails . . . on his
face, coming out of his mouth, his upper arms and shoulders, his rear end,
and his lower legs and feet.” Id. at 169.
Officer Garcia stresses that the plaintiffs do not allege that Mr. Ortiz
requested medical care. But the alleged events would have alerted Officer
Garcia to Mr. Ortiz’s distress even without a request for medical help. See
p. 43, below (discussing a similar argument relating to the lack of an
allegation that Mr. Ortiz had requested medical help). And the plaintiffs
allege that Officer Garcia obtained training to recognize the need for
immediate medical assistance for inmates withdrawing from heroin. Given
this training, a fact finder could reasonably infer that Officer Garcia would
29
have recognized a serious medical need even if Mr. Ortiz had not requested
treatment.
In the second amended complaint, the plaintiffs point out that Officer
Garcia denied awareness of Mr. Ortiz’s distress, stating that (1) he had
checked on Mr. Ortiz three times and (2) Mr. Ortiz had “never presented
any sign of discomfort or distress.” Appellants’ App’x, vol. 1 at 165. But
Officer Garcia’s statements conflict with other allegations in the second
amended complaint, which refer to sounds of Mr. Ortiz’s violent illness
throughout the night. See Taylor v. Hughes, 920 F.3d 729, 733 (11th Cir.
2019) (reversing summary judgment for officials when the guards claimed
that the detainee had “seemed fine,” but other detainees had heard
moaning, cries of pain, and pleas for medical help).
Even if Officer Garcia had checked on Mr. Ortiz, he died within 25
minutes of the alleged interaction in a cell engulfed in blood and feces,
suggesting that his death was neither quick nor quiet. The extreme disarray
in the cell suggests that Mr. Ortiz’s medical distress would have been
obvious to Officer Garcia. And if the medical distress had been obvious,
Officer Garcia presumably would have recognized a substantial risk of
serious harm.
In the majority’s view, the plaintiffs have not alleged in the first
amended complaint that Officer Garcia saw Mr. Ortiz in distress. But the
majority has disregarded these allegations in the second amended
30
complaint. There, for example, the plaintiffs allege that Officer Garcia
“observed Mr. Ortiz violently ill in his cell, vomiting and defecating
blood.” Appellants’ App’x, vol. 1 at 168.
The majority appears to recognize the significance of this allegation,
but disregards it based on the plaintiffs’ characterization of their
additional allegations as clarification. See pp. 4–6, above. The defendants
had argued that the allegations in the first amended complaint were too
“vague.” Appellants’ App’x, vol. 1 at 68. But the plaintiffs disagreed with
the defendants’ narrow reading of the first amended complaint. To
eliminate any doubt, the plaintiffs expressly alleged in the second amended
complaint that Officer Garcia had seen Mr. Ortiz “vomiting and defecating
blood.” Id. at 168.
The majority elsewhere acknowledges the significance of an
allegation that one of the officers had seen blood in the vomit:
The presence of blood in vomit makes the presence of a serious
medical need more plausible and more obvious. In [the
majority’s] view, taking the allegations as true, a jury could
conclude the seriousness of the medical risks associated with
vomiting blood would be obvious to any reasonable observer.
Majority Op. at 11.
Though the majority recognizes that seeing blood in the vomit would
render Mr. Ortiz’s distress “obvious to any reasonable observer,” the
majority disregards this allegation because the plaintiffs called their
changes “clarifying.” We should not disregard admittedly critical
31
allegations based on a distorted interpretation of the plaintiffs’
characterization of their changes—particularly when the majority
recognizes that the additional allegation regarding the observation of
bloody vomit would satisfy the subjective prong.
The fact finder could rely not only on the bloody vomit but also on
the inconsistencies between the security footage, Officer Garcia’s account,
and Mr. Ortiz’s obvious distress in the minutes before he died. See Gaston
v. Coughlin, 249 F.3d 156, 166 (2d Cir. 2001) (concluding that an inmate’s
statement that officers had actual knowledge of inhumane conditions
created a factual dispute for summary judgment because the statement had
been “premised on the assertion that those men ‘made daily rounds’ of [the
unit]”); see also Grajales v. Puerto Rico Ports Authority, 682 F.3d 40, 47
(1st Cir. 2012) (“[F]or pleading purposes, knowledge is inferable from
other allegations.”).
In my view, the plaintiffs’ allegations in the second amended
complaint support a reasonable inference that Officer Garcia was aware of
a substantial risk of serious harm.
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The plaintiffs also adequately allege that Officer Garcia knowingly
disregarded a risk of serious harm. In the second amended complaint, the
plaintiffs allege that Officer Garcia did nothing to avert the harm. This
32
alleged inaction could constitute knowing disregard of a risk of serious
harm to Mr. Ortiz.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Officer Garcia.
vi. Corporal Gallegos
Corporal Gallegos passed Mr. Ortiz’s cell three days after his arrival
at the detention facility. The allegations against Corporal Gallegos in the
second amended complaint suffice under the subjective prong.
(a) Awareness of a Substantial Risk of Serious Harm
These allegations suggest Corporal Gallegos’s awareness of a
substantial risk of serious harm. According to the second amended
complaint, Corporal Gallegos heard Mr. Ortiz “pushing” and “making
noises on the toilet.” Appellants’ App’x, vol. 1 at 166. The plaintiffs also
allege that Mr. Ortiz’s symptoms had advanced to the point that he “was
audibly, seriously ill” while Corporal Gallegos was on duty. Id. If these
allegations are credited, the sounds presumably would have alerted
Corporal Gallegos to Mr. Ortiz’s distress. Corporal Gallegos didn’t just see
and hear the signs of distress; he also presumably received Officer
Chavez’s report on Mr. Ortiz’s medical distress. See pp. 23–24, above.
The plaintiffs also allege that Mr. Ortiz died within 37 minutes after
Corporal Gallegos had passed the cell. When Mr. Ortiz’s corpse was found,
33
his cell was covered with feces, vomit, and blood. Given these allegations,
a fact finder could reasonably infer that the risk would have been obvious
to Corporal Gallegos when he saw Mr. Ortiz minutes before his death in a
cell drenched in feces, vomit, and blood.
Corporal Gallegos also allegedly knew that Mr. Ortiz was
experiencing withdrawal from heroin. And Corporal Gallegos allegedly had
been trained “to recognize the signs of an inmate in need of immediate
medical attention, a category that includes withdrawing inmates . . . who
are suffering from symptoms of gastrointestinal illness.” Appellants’
App’x, vol. 1 at 166–67.
These allegations plausibly suggest that Corporal Gallegos was aware
of a substantial risk of serious harm.
(b) Knowing Disregard of a Risk of Serious Harm to Mr. Ortiz
The second amended complaint also alleges that Corporal Gallegos
failed to obtain any medical assistance for Mr. Ortiz or take any reasonable
steps to avert the harm. These allegations suggest that Corporal Gallegos
knowingly disregarded the risk of serious harm to Mr. Ortiz.
* * *
In my view, the second amended complaint adequately alleges a
constitutional violation by Corporal Gallegos.
34
2. The Existence of a Clearly Established Constitutional Right
I would conclude that the second amended complaint adequately
alleges a constitutional violation by each of the six employees. So even if
the first amended complaint had been deficient, these deficiencies would
have been cured in the second amended complaint. The resulting issue is
whether that constitutional right was clearly established at the time of Mr.
Ortiz’s detention. I would answer “yes.”
a. Determining the Existence of a Clearly Established Constitutional
Right
A right is clearly established when “[t]he contours of the right [were]
sufficiently clear that a reasonable official would understand that what he
is doing violates that right.” Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.
2008) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). This
inquiry is designed “to ensure that . . . officers are on notice their conduct
is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001).
Adequate notice to reasonable officials can come from Supreme
Court precedent, a Tenth Circuit opinion on point, or the weight of
authority from other circuits. Medina v. City & Cty. of Denver, 960 F.2d
1493, 1498 (10th Cir. 1992). Precedent must be particularized to the facts
rather than defined at a “high level of generality.” Apodaca v. Raemisch,
864 F.3d 1071, 1076 (10th Cir. 2017). But “general precedents may clearly
establish the law when the defendant’s conduct ‘obvious[ly]’ violates the
35
law.” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per
curiam)).
b. The Clearly Established Law During Mr. Ortiz’s Detention
We must determine the contours of the constitutional right that was
clearly established during Mr. Ortiz’s detention. The plaintiffs argue that
the district court misapplied the subjective prong in light of the Supreme
Court’s opinion in Kingsley v. Hendrickson, ___ U.S. ___, 135 S. Ct. 2466
(2015). 6 There the Supreme Court held that for excessive-force claims by
pretrial detainees, the test for deliberate indifference was objective rather
than subjective. 135 S. Ct. at 2475–76. But Kingsley did not clearly apply
to pretrial detainees’ claims of inadequate medical care, so the district
court did not err in applying the subjective prong for purposes of qualified
immunity.
Though Kingsley modified the test for deliberate indifference for
pretrial detainees’ claims of excessive force, the scope of this modification
did not become clear until after Mr. Ortiz had died. At the time of his
detention, no circuit court had applied Kingsley outside of the excessive-
force context.
6
The plaintiffs concede the need to show plain error. But the district
court did not err in applying the subjective prong for purposes of qualified
immunity, so we need not consider whether an error would have risen to
the level of “plain error.”
36
Absent such case law, the objective test of deliberate indifference
could have been clearly established only if Kingsley itself had spelled out
its applicability outside of the excessive-force context. Kingsley, however,
had not spoken to this question.
Circuit courts have thus disagreed over its reach. For example, after
Mr. Ortiz’s detention, some circuits have concluded that Kingsley extends
beyond excessive-force claims, effectively abrogating the subjective prong
of deliberate indifference whenever pretrial detainees claim a denial of due
process. 7 But other circuits have limited Kingsley to excessive-force
claims. 8 This circuit split suggests that Kingsley did not definitively settle
the issue.
7
The Second, Seventh, and Ninth Circuits have applied Kingsley to
various claims by pretrial detainees. See Darnell v. Pineiro, 849 F.3d 17,
35–36 (2d Cir. 2017) (applying Kingsley to a claim involving conditions of
confinement and indicating that the same objective test for deliberate
indifference applies to all claims involving the Fourteenth Amendment’s
Due Process Clause); Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir.
2018) (applying Kingsley to all Fourteenth Amendment claims involving
pretrial detainees); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124–25 (9th
Cir. 2018) (stating that Kingsley applies to a pretrial detainee’s claims
involving deficient medical care).
8
The Fifth, Eighth, and Eleventh Circuits have declined to extend
Kingsley beyond excessive-force claims. See Alderson v. Concordia Par.
Corr. Facility, 848 F.3d 415, 419 n.4 (5th Cir. 2017) (declining to apply
Kingsley because the Fifth Circuit had continued to apply a subjective
standard post-Kingsley); Whitney v. City of St. Louis, 887 F.3d 857, 860
n.4 (8th Cir. 2018) (“Kingsley does not control because it was an excessive
force case, not a deliberate indifference case.”); Dang ex rel. Dang v.
Sheriff, Seminole Cty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017) (noting
37
After Mr. Ortiz’s death, we applied Kingsley outside of the
excessive-force context in Colbruno v. Kessler, 928 F.3d 1155 (10th Cir.
2019). Colbruno involved a conditions-of-confinement claim, and we held
that Kingsley had eliminated the need for a pretrial detainee to show an
intent to punish. 928 F.3d. at 1163.
According to the plaintiffs, Colbruno shows that Kingsley abrogated
the need for pretrial detainees to satisfy a subjective test for deliberate
indifference. But Colbruno did not address Kingsley in the discussion of a
clearly established right. See id. at 1163, 1165–66 (examining the
applicability of Kingsley, but not discussing whether Kingsley had clearly
established the law prior to the alleged violation). And even after Mr.
Ortiz’s detention, many Tenth Circuit opinions before Colbruno had
expressly declined to address Kingsley’s applicability to pretrial detainees
outside of excessive-force cases. 9
that Kingsley applied to an excessive-force claim but not to a claim of
inadequate medical treatment).
9
See, e.g., Clark v. Colbert, 895 F.3d 1258, 1269 (10th Cir. 2018)
(declining to “revisit the applicable law” because the plaintiff argued only
that Kingsley had “‘held open the possibility that an objective-only
standard should apply’ . . . [y]et he [did] not argue that Kingsley actually
displaced any precedent”); Perry v. Durborow, 892 F.3d 1116, 1122 n.1
(10th Cir. 2018) (declining to address the applicability of Kingsley because
the parties had not briefed the issue and resolution of the issue would not
affect the outcome of the appeal); Estate of Duke ex rel. Duke v. Gunnson
Cty. Sheriff’s Office, 752 F. App’x 669, 673 n.1 (10th Cir. 2018)
(unpublished) (declining to consider the Kingsley issue because both
parties agreed on the use of the subjective standard); Crocker v. Glanz, 752
38
Given the existence of a circuit split and our circuit’s frequent
avoidance of the issue even after Mr. Ortiz’s detention, we conclude that
Kingsley itself did not clearly establish a purely objective test for all
pretrial detainees’ claims of deliberate indifference. So even if Kingsley
applies to medical-care claims, the six employees would have lacked notice
of a purely objective test for deliberate indifference. 10 Given the lack of
notice, the clearly established right in January 2016 included a subjective
test for deliberate indifference.
c. Application to the Employees’ Conduct During Mr. Ortiz’s
Detention
The second amended complaint adequately alleges that the six
employees violated Mr. Ortiz’s clearly established constitutional right to
medical care. These allegations would defeat qualified immunity if the six
employees had moved to dismiss the second amended complaint.
F. App’x 564, 569 (10th Cir. 2018) (unpublished) (declining to consider
the applicability of Kingsley because it had not been raised in district court
and would not affect the substantial-rights prong under the plain-error
test).
10
The plaintiffs urge us to clarify the applicability of Kingsley even if
it does not affect the outcome. But as discussed, Kingsley did not clearly
apply to medical-care claims at the time of Mr. Ortiz’s detention. I
wouldn’t expound on an issue that’s immaterial to the outcome.
39
i. Nurse Robinson
Urging qualified immunity, Nurse Robinson points to a lack of
precedent stating that intake deficiencies would violate a pretrial
detainee’s constitutional rights. But a lack of precedent is not fatal here.
In our circuit, a claim is actionable when the need for medical
treatment is obvious. The need for treatment is obvious when
a medical professional completely denies care although
presented with recognizable symptoms which potentially create
a medical emergency, e.g., a patient complains of chest pains and
the prison official, knowing that medical protocol requires
referral or minimal diagnostic testing to confirm the symptoms,
sends the inmate back to his cell.
Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) (citing Mata v. Saiz,
427 F.3d 745, 755–59 (10th Cir. 2005), and Sealock v. Colorado, 218 F.3d
1205, 1211–12 (10th Cir. 2000)).
In the second amended complaint, the plaintiffs adequately allege
that Nurse Robinson failed to address an obvious need for medical
treatment. The plaintiffs do not allege just “mistakes in filling out forms,
making a diagnosis or predicting future possible complications.”
Appellees’ Resp. Br. at 41. Rather, the plaintiffs allege that Nurse
Robinson failed to address an obvious need for medical treatment. See pp.
16–20, above.
The plaintiffs’ allegations indicate that Nurse Robinson
knew that Mr. Ortiz was addicted to heroin and had been
diagnosed with Hepatitis C,
40
expected him to suffer withdrawal,
knew that the medical protocol required intake assessments and
continued monitoring, and
failed to take steps to make sure that Mr. Ortiz received any
treatment.
Her inaction in the face of an obvious medical risk would inherently
violate a clearly established constitutional right. See, e.g., Phillips v.
Roane Cty., 534 F.3d 531, 545 (6th Cir. 2008) (noting that the law is
clearly established that “where the circumstances are clearly sufficient to
indicate the need of medical attention for injury or illness, the denial of
such aid constitutes the deprivation of constitutional due process” (quoting
Estate of Carter v. City of Detroit, 408 F.3d 305, 313 (6th Cir. 2005)));
Orlowski v. Milwaukee Cty., 872 F.3d 417, 422 (7th Cir. 2017). For
example, in Orlowski v. Milwaukee County, the Seventh Circuit stated:
The violation alleged by [the plaintiffs] is “clearly established”
if [the two correctional officers] had fair and clear warning that
their alleged actions (or inaction) would be constitutionally
offensive. We find that, assuming the facts most favorable to [the
plaintiffs], they did. Correctional officials have long been
warned that they cannot ignore an inmate’s known serious
medical condition. . . . Where a duty imposed by law is obvious
to a reasonable officer, we consider it “clearly established.” . . .
Here, the [plaintiffs’ evidence] indicates that [the inmate]
presented obvious symptoms of a serious medical condition. So,
if we accept these facts as true, any reasonable officer would
know he had a duty to seek medical attention. If [the correctional
officers] chose to do nothing despite this duty, they violated
“clearly established” Eight [sic] Amendment law.
872 F.3d at 422 (citations & footnote omitted).
41
I agree with the Seventh Circuit’s reasoning. Because a fact finder
could reasonably infer that Mr. Ortiz had obviously needed medical
attention, nurses couldn’t reasonably think that the Constitution would
permit them to do nothing. So if a nurse chose not to respond to an obvious
medical need, the nurse would have violated a clearly established
constitutional right. Id.
According to the plaintiffs, Nurse Robinson simply arranged for
medications without taking any steps to ensure delivery to Mr. Ortiz or to
complete the required protocols for inmates facing withdrawal. If we credit
these allegations, as required, Nurse Robinson’s inaction would have
violated a clearly established constitutional right.
ii. Officer Chavez, Officer Valdo, Officer Lopez, Officer Garcia, and
Corporal Gallegos
The other five employees also deny violating a clearly established
right, pointing to a lack of precedents with analogous facts. But prior to
Mr. Ortiz’s detention, circuit courts had often characterized similar
conduct as unconstitutional. See, e.g., Taylor v. Hughes, 920 F.3d 729, 733
(11th Cir. 2019) (holding that guards may have violated the constitutional
rights of a detainee who had “spent several hours moaning, crying out in
pain, and begging for medical help”); Westlake v. Lucas, 537 F.2d 857, 859
(6th Cir. 1976) (holding that a complaint adequately stated a claim under
Fed. R. Civ. P. 12(b)(6) when jail officials were aware of a prisoner’s
42
ulcer, but did not allow a medical examination even after he had begun
vomiting blood).
The defendants try to distinguish these opinions, pointing out that
Mr. Ortiz
didn’t ask for medical assistance,
experienced withdrawal, and
allegedly declined to take withdrawal medication.
Each argument fails.
First, Mr. Ortiz’s constitutional right does not turn on whether he
asked for medical assistance. A request for assistance could affect a fact
finder’s conclusions on the obviousness of the medical need, but a request
is not necessary to establish the defendant’s recognition of a medical need.
See Youmans v. Gagnon, 626 F.3d 557, 566 n.12 (11th Cir. 2010) (per
curiam) (“A person is not required to request medical care to prevail on a
claim of deliberate indifference to a serious medical need.”); see also
McCaster v. Clausen, 684 F.3d 740, 748 (8th Cir. 2012) (concluding that
correctional officers could incur liability for deliberate indifference even
though the ill prisoner had not personally requested medical help).
Second, Mr. Ortiz had a constitutional right to treatment for his
serious medical need even though the need stemmed from heroin
withdrawal. See Vaughn v. Gray, 557 F.3d 904, 909 (8th Cir. 2009)
(concluding that even if the defendants had attributed a prisoner’s
43
vomiting to his ingestion of shampoo, the defendants could have
recognized a need for medical attention). And other courts of appeals have
concluded that the need for medical attention was obvious in similar
situations. See Harper v. Lawrence Cty., 592 F.3d 1227, 1237 (11th Cir.
2010) (stating that prior cases “should have put any government actor on
notice that delayed or inadequate treatment of alcohol withdrawal would be
unlawful”), abrogated on other grounds by Randall v. Scott, 610 F.3d 701,
709 (11th Cir. 2010).
The majority likewise determines that a clearly established
constitutional violation is not foreclosed by withdrawal from heroin;
otherwise, the claim against Officer Chavez would fail. See Majority Op. at
18. Indeed, the majority assumes (without deciding) that Mr. Ortiz’s severe
withdrawal from opioids would have constituted a serious medical need.
Id. at 9.
Third, the second amended complaint alleges that the detention
facility’s staff didn’t supply “Mr. Ortiz with the opiate-withdrawal
medications he [had] paid for.” Appellants’ App’x, vol. 1 at 158. In
response, the employees argue that Mr. Ortiz declined the medications. But
the plaintiffs have adequately alleged contradictory accounts from the
employees, id. at 157–58, and discrepancies between these accounts and
security footage, id. at 162–63. The court can’t resolve this factual dispute
44
when assessing whether the proposed second amended complaint states a
valid claim. See p. 19 n.4, above.
The majority asserts that the cases do not offer “the requisite degree
of specificity,” contending that the cases “address medical conditions other
than withdrawal from heroin.” Majority Op. at 17. Yet the majority
concedes that for Officer Chavez, it’s enough to show that Officer Chavez
had ignored obvious and serious medical needs. Id. at 18. Why isn’t this
enough for Officer Valdo, Officer Lopez, Officer Garcia, and Corporal
Gallegos? All of them allegedly knew about the frequent vomiting, and
Officer Garcia allegedly knew that Mr. Ortiz had blood in his vomit and
feces.
The majority argues that only a few circuit cases have recognized a
constitutional violation in similar circumstances. But the majority
concedes that a fact finder could reasonably infer an obvious medical need.
See p. 15 n.3, above. Given this concession, what more did the plaintiffs
need to allege to defeat qualified immunity? Surely employees in a
detention unit didn’t need a precedent to tell them that the Constitution
prohibited them from ignoring an inmate’s frequent and bloody vomiting
over a three-day period?
The employees never made such an argument, and it would have been
remarkable if they had. Any reasonable employee would have realized that
the Constitution wouldn’t allow conscious disregard of an inmate
45
experiencing severe withdrawal symptoms and frequent vomiting
(sometimes with blood) over the course of three days.
* * *
In sum, the plaintiffs adequately allege in the second amended
complaint that
Mr. Ortiz suffered an objectively serious medical need
consisting of frequent vomiting (sometimes with blood) and
Nurse Robinson, Officer Chavez, Officer Valdo, Officer Lopez,
Officer Garcia, and Corporal Gallegos knowingly disregarded a
risk of serious harm to Mr. Ortiz.
These employees’ alleged disregard of Mr. Ortiz’s medical need would
have violated a clearly established constitutional right. I would thus
reverse the district court’s dismissal and the denial of leave to file the
second amended complaint to supplement the allegations against the six
employees.
IV. The Denial of Leave to Amend by Adding a § 1983 Claim Against
Santa Fe County
The plaintiffs also challenge the denial of their motion to amend by
adding a § 1983 claim against Santa Fe County. The district court denied
the motion as futile, concluding that the additional claim against the
county would not survive a motion to dismiss. I disagree, as the majority
does. 11
11
Though I agree with the majority on the outcome as to this issue, our
reasoning differs.
46
A. The Standard of Review
As noted above, the district court disallowed amendment solely on
the ground of futility. So we must apply de novo review. See p. 6, above.
B. Municipal Liability
When engaging in de novo review of a futility determination, we
consider the claim that the plaintiffs wanted to add. Here the additional
claim would involve municipal liability under 42 U.S.C. § 1983. The
plaintiffs contend that Santa Fe County incurs liability based on a custom
reflecting deliberate indifference to the serious medical needs of inmates
experiencing withdrawal. 12
For this claim, the plaintiffs must allege a plausible basis to infer
a custom or official policy,
causation, and
deliberate indifference.
Schneider v. City of Grand Junction Police Dep’t., 717 F.3d 760, 769, 771
n.5 (10th Cir. 2013). 13
12
The plaintiffs also allege that the county failed to adequately train its
employees to respond to medical needs. Given the adequacy of the
plaintiffs’ allegation of an unconstitutional custom, we need not address
the allegation of inadequate training.
13
The county also argues that the plaintiffs must allege a constitutional
violation by at least one individual defendant to trigger municipal liability.
For the sake of argument, I assume that the county is right. In my view, the
second amended complaint adequately alleges constitutional violations by
each of the six employees. See pp. 7–34, above.
47
The plaintiffs should have been able to amend the complaint to assert
a § 1983 claim against Santa Fe County. The second amended complaint
alleges that
Santa Fe County maintained an unconstitutional custom of
failing to treat detainees for alcohol or narcotics withdrawal,
the county’s custom caused Mr. Ortiz’s injury, and
the county’s action stemmed from deliberate indifference.
1. Santa Fe County’s Alleged Custom
In the second amended complaint, the plaintiffs allege that (1) the
county acted with deliberate indifference to “the serious medical needs of
inmates suffering from alcohol and narcotics withdrawals” and (2) the
deliberate indifference was “so persistent, continuing, and widespread as to
constitute a custom.” Appellants’ App’x, vol. 1 at 183.
Plaintiffs can allege an informal custom through a “longstanding
practice or custom which constitutes the ‘standard operating procedure’ of
the local governmental entity.” Jett v. Dall. Indep. Sch. Dist., 491 U.S.
701, 737 (1989) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,
485–87 (1986) (White, J., concurring)).
To allege an unconstitutional custom, the plaintiffs point to three
pieces of information in the second amended complaint:
1. Mr. Ortiz’s history after his prior arrests of “eight inadequate
withdrawal evaluations and no follow-up monitoring of his
withdrawal symptoms,”
48
2. the Department of Justice’s 2003 findings that the detention
facility’s “‘intake medical screening, assessment, and referral
process’ [had] violated [pretrial] detainees’ constitutional
rights, including the rights of inmates experiencing
withdrawals,” and
3. the 2015 and 2016 withdrawal-related deaths of three other
pretrial detainees involving the same facility—Dr. Thomas
Pederson, Mr. John DeLaura, and Ms. Stacy Lynn Gambler.
Appellants’ Opening Br. at 52 (quoting Appellants’ App’x, vol. 1 at 183).
Together, these allegations reflect an unconstitutional custom.
a. History of Mr. Ortiz’s Intakes
The plaintiffs rely in part on Mr. Ortiz’s history of inadequate
intakes. The county contends that Mr. Ortiz’s history of inadequate intakes
cannot contribute to liability because the past deficiencies did not cause an
injury. But the plaintiffs need not allege that every deficient intake
resulted directly in an injury. Rather, the alleged custom must have been
“maintained with deliberate indifference to an almost inevitable
constitutional injury.” Schneider v. City of Grand Junction Police Dep’t.,
717 F.3d 760, 769 (10th Cir. 2013) (emphasis added). In my view, the
plaintiffs’ allegations indicate that the improper intakes created the near
inevitability of a constitutional injury.
The county argues that Mr. Ortiz’s history of inadequate intakes does
not imply a custom because the prior intakes didn’t involve identical
failings within the intake procedure. But the county urges an unreasonable
level of specificity. The plaintiffs allege a pattern of inadequate intakes,
49
not routine disregard of one particular requirement. See Appellants’ App’x,
vol. 1 at 148–52 (detailing a lack of monitoring and incomplete, inaccurate
forms at Mr. Ortiz’s intakes between June 2013 and February 2015). The
alleged pattern of inadequate intakes could reasonably constitute a custom.
b. The DOJ Report
The plaintiffs also rely on a 2003 DOJ report, which concluded that
the facility’s intake process had violated the constitutional rights of
pretrial detainees, including those experiencing withdrawal. The county
attaches little importance to the report, arguing that (1) it is old and (2) the
detention facility was operated by a different entity when the violations
took place. The passage of time and change in operators could diminish the
persuasive value of the report. But the report could still contribute to the
existence of a custom involving deficient intakes.
c. The Withdrawal-Related Deaths of Other Pretrial Detainees
The plaintiffs also point to the withdrawal-related deaths of Dr.
Pederson, Mr. DeLaura, and Ms. Gambler. The county points out that in
each case, the withdrawal involved alcohol rather than heroin. But a fact
finder need not disregard the prior incidents just because the withdrawal-
related deaths had involved a different substance.
For Dr. Pederson, the plaintiffs allege that the intake nurse didn’t
“perform a Poly Substance Abuse Assessment ‘that would have indicated
[a] drinking and complication history and would have helped triage him
50
into the medical unit.’” Appellants’ App’x, vol. 1 at 173 (emphasis
deleted) (quoting an internal investigation conducted after Dr. Pederson’s
death). That alleged lapse resembles Nurse Robinson’s alleged failure to
perform a complete assessment for Mr. Ortiz’s heroin withdrawal. See id.
at 155–56. Given the similarity in the alleged lapses, we can reasonably
infer that the intake deficiencies contributed to an unconstitutional custom
even though Dr. Pederson’s substance differed from Mr. Ortiz’s.
The county also argues that an alleged pattern of conduct based on
another substance (like alcohol) should require a correspondingly greater
“number of similar incidents . . . to show a persistent, continuing,
widespread practice.” Appellees’ Resp. Br. at 65–66. And the plaintiffs do
not allege any incidents between 2004 and 2015. At this stage, though, the
plaintiffs need only plausibly allege the existence of a custom, which was
reflected in these incidents.
2. Causation
The plaintiffs must also allege a direct causal link between the
custom and the alleged injury. Schneider v. City of Grand Junction Police
Dep’t., 717 F.3d 760, 770 (10th Cir. 2013). The plaintiffs satisfy this
51
requirement by linking Mr. Ortiz’s injury to the custom of inadequate
intakes.
The county argues that the proposed second amended complaint does
not link the three other deaths to withdrawal or deficient intakes. I
disagree.
The proposed second amended complaint adequately alleges that the
prior deaths stemmed from withdrawal. See Appellants’ App’x, vol. 1 at
173 (“Dr. Thomas Pederson collapsed and died . . . while suffering from
severe alcohol withdrawal.”); id. at 174 (“John DeLaura died of
complications from severe alcohol withdrawal.”); id. at 175 (“Stacy Lynn
Gambler was . . . suffering from . . . severe alcohol withdrawals . . . [and
subsequently] died.”).
The second amended complaint also adequately links the deaths to
the deficiencies in the intakes, for the plaintiffs allege that
Dr. Pederson suffered because “the intake nurse [had] failed to
perform critical assessments or sign appropriate forms,” id. at
173,
officials had denied “proper medical attention” to Mr. DeLaura,
id. at 174, and
officials violated facility policy by improper monitoring and
treating Ms. Gambler “with only over-the-counter painkillers
and routine alcohol withdrawal medication, even as her
condition rapidly deteriorated,” id. at 175.
And the plaintiffs allege that an internal report linked Dr. Pederson’s death
to deficiencies in his intake. Id. at 173.
52
* * *
In combination, the plaintiffs’ allegations satisfy the element of
causation.
3. Deliberate Indifference
Finally, the plaintiffs must plausibly allege facts showing that the
municipal action stemmed from “‘deliberate indifference’ as to its known
or obvious consequences.” Schneider v. City of Grand Junction Police
Dep’t., 717 F.3d 760, 770 (10th Cir. 2013) (quoting Bd. of Cty. Comm’rs v.
Brown, 520 U.S. 397, 407 (1997)). A municipality is deliberately
indifferent when it “has actual or constructive notice that its action or
failure to act is substantially certain to result in a constitutional violation.”
Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). Notice can
come from “the existence of a pattern of tortious conduct” or facts showing
that a constitutional violation is a “‘highly predictable’ or ‘plainly
obvious’ consequence of a municipality’s action or inaction.” Id. at 1307–
08 (quoting Brown, 520 U.S. at 409).
The second amended complaint alleges that the county had actual or
constructive notice. For instance, an internal report highlighted intake
deficiencies, which resulted in constitutional violations. The report also
identified actions that could prevent additional deaths from withdrawal,
including better documentation, orientation for medical personnel, and
improved procedures to designate inmates needing medical attention. This
53
internal investigation, which preceded Mr. Ortiz’s death, could have
alerted the county to a need for corrective action. 14
The 2003 DOJ report also could have given the county notice that
intake deficiencies had been commonplace. Although a private company
ran the facility at the time, the report could still render a constitutional
violation “highly predictable.” Barney, 143 F.3d at 1308 (quoting Brown,
520 U.S. at 409). We can also reasonably infer an absence of corrective
action in light of Mr. Ortiz’s death and the alleged deficiencies in his
intake.
* * *
In the second amended complaint, the plaintiffs adequately allege
deliberate indifference by Santa Fe County. The district court thus erred by
denying leave to amend by adding a § 1983 claim against the county.
V. Conclusion
In my view, the proposed second amended complaint states a valid
claim against Nurse Robinson, Officer Chavez, Officer Valdo, Officer
14
The county argues that Mr. DeLaura’s death is immaterial because it
occurred after Mr. Ortiz had died. But this argument misunderstands the
inquiry. The other incidents need not have caused Mr. Ortiz’s injury.
Instead, the other incidents must contribute to a custom that caused Mr.
Ortiz’s injury. Mr. DeLaura’s subsequent death could contribute to the
inference of an unconstitutional custom, and the preceding deaths and
reports could help establish notice.
54
Lopez, Officer Garcia, and Corporal Gallegos. Based on the plaintiffs’
allegations, a fact finder could reasonably infer that
Mr. Ortiz’s serious risk of harm would have been obvious to
these employees and
these employees knowingly disregarded that risk.
Their alleged inaction would have violated Mr. Ortiz’s clearly established
constitutional right, so I would reverse the dismissal and the denial of
leave to amend the allegations against the six employees.
The district court also erred in disallowing an amendment to add a
§ 1983 claim against Santa Fe County.
I would thus (1) reverse the dismissal and denial of leave to file a
second amended complaint and (2) remand for further proceedings.
55 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2611781/ | 15 Cal. 2d 527 (1940)
IRENE E. MORAN, Petitioner,
v.
DISTRICT COURT OF APPEAL, THIRD APPELLATE DISTRICT, Respondent.
S. F. No. 16420.
Supreme Court of California. In Bank.
May 27, 1940.
McAllister & Johnson and J. W. Dignan for Petitioner.
Johnson & Curtright, P. H. Johnson and C. K. Curtright for Respondent.
SHENK, J.
This is a proceeding in certiorari to annul an order of the District Court of Appeal, Third Appellate District.
In an action pending in the Superior Court in and for the County of Sacramento, entitled Irene E. Moran, Plaintiff, v. Arthur R. Moran, Defendant, the plaintiff sought a divorce on the ground of extreme cruelty. The defendant husband answered and filed a cross-complaint, in which he alleged that the purported marriage between himself and the plaintiff was void for the reason that the plaintiff was formerly married to Paul R. Hendricks, who is still alive, and from whom she had not been divorced. The defendant prayed that the plaintiff be denied a divorce and that he be granted a decree of annulment.
At the time of the trial of the action, the defendant was unable to locate Hendricks, without whose testimony he was unable to prove the alleged prior and undissolved marriage relationship. An interlocutory decree of divorce was entered in favor of the plaintiff on March 1, 1940, and it was further determined that the defendant take nothing by his cross-complaint. On March 4th the defendant served a notice of motion for a new trial upon several grounds, including newly discovered evidence. In support of the motion an affidavit *529 was filed in which it was averred that since the divorce case had been determined the defendant had discovered that Paul R. Hendricks resides at Waukegan, Illinois, and that he had refused to make an affidavit concerning his marital status with the plaintiff. On March 11th the defendant applied to the superior court for an order to take the deposition of Hendricks to establish the newly discovered evidence on the motion for a new trial. The application was denied.
On March 15th the defendant served and filed in the respondent District Court of Appeal a notice of motion for a peremptory writ of mandamus to compel the superior court to direct the issuance of a commission to take the deposition of Hendricks. After a hearing of the motion and under date of April 4, 1940, the District Court of Appeal handed down its opinion and decision in the matter, concluding with an order as follows: "The writ of mandamus is granted and the court is directed to issue the commission to take testimony as prayed for." (Moran v. Superior Court, 38 Cal. App. 2d 328 [100 PaCal.2d 1096].)
On April 23d, the defendant, on notice, moved the District Court of Appeal for an order directing the issuance of the writ of mandamus forthwith. This motion was supported by an affidavit stating "that unless said clerk shall forthwith issue said writ, the whole benefit of said proceeding to petitioner will be lost to him, for the reason that the time within which respondent court has and retains jurisdiction to review and consider said deposition of said witness on motion for a new trial now pending before it, will long since have expired before said commission can be issued and said deposition taken and returned to said court."
[1] On the hearing of this motion the District Court of Appeal made and entered an order in its minutes in which it was "directed and ordered that the writ of mandamus issue forthwith and that the remittitur go down immediately." The present proceeding is an attack on that order, and the question is whether the District Court of Appeal exceeded its jurisdiction in directing the immediate effectiveness of said writ.
Prior decisions disclose that the question is not an open one in this state. (People v. District Court of Appeal, 193 Cal. 19 [222 P. 353].) It was there held that since the creation of the District Courts of Appeal in 1904, a proceeding in *530 mandamus has been deemed a "cause", as that term was used in the following portion of section 4 of article VI of the Constitution, as originally adopted in 1904:
"The Supreme Court shall have power to order ... any cause pending before a district court of appeal to be heard and determined by the Supreme Court. The order last mentioned may be made before judgment has been pronounced by a district court of appeal, or within thirty days after such judgment shall have become final therein. The judgments of the district courts of appeal shall become final therein upon the expiration of thirty days after the same shall have been pronounced."
The foregoing language was continued in effect, so far as mandamus proceedings are concerned, as a part of section 4c of article VI, as adopted in 1928.
[2] The order of the respondent District Court of Appeal of date April 4, 1940, directing that a writ of mandamus issue as prayed was unquestionably a "judgment" in that proceeding, as contemplated by the constitutional provision, and since the proceeding was a "cause" under the same provision, the judgment did not become final in the District Court of Appeal until the expiration of thirty days after its pronouncement on April 4, 1940. During the next thirty-day period the cause was subject to transfer to this court, as in the Constitution provided. In the absence of a transfer, the judgment of the District Court of Appeal could not be enforced until the expiration of sixty days from and after its pronouncement, and therefore the remittitur could not issue from that court until the expiration of that period. If a transfer to this court be made, the cause is removed from the jurisdiction of the District Court of Appeal and is then pending in this court the same as if originally lodged here.
It follows that the respondent District Court of Appeal exceeded its jurisdiction in attempting to make its judgment directing the writ of mandamus effective immediately, and the order of April 23, 1940, purporting to do so, must be set aside.
The order is annulled.
Curtis, J., Spence, J., pro tem., Carter, J., and Gibson, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611780/ | 15 Cal. 2d 502 (1940)
JACOB LOWEN, Appellant,
v.
M. A. FINNILA, Respondent.
S. F. No. 16326.
Supreme Court of California. In Bank.
May 14, 1940.
Cross & Brandt for Appellant.
Hone & Hone and Bronson, Bronson & McKinnon for Respondent.
SHENK, J.,
The plaintiff sued to recover damages for personal injuries suffered as the result of alleged negligence of the defendant. The case was tried with a jury. Pursuant to the court's instructions, the jury returned a general verdict and an answer to a special interrogatory. Notwithstanding the general verdict for the plaintiff, the trial court upon motion rendered judgment for the defendant pursuant to section 625 of the Code of Civil Procedure. The plaintiff appealed.
[1] On this appeal we are not concerned with the question whether the evidence was sufficient to sustain the general verdict, nor the question whether, upon the evidence, it must be said as a matter of law that the plaintiff was guilty of negligence which proximately contributed to his injury and barred a recovery. The disposition of the appeal is governed by the considerations surrounding the question whether the trial court correctly concluded that the special verdict was so inconsistent with the general verdict as to control it as a matter of law. That question is determinable on the pleadings and the findings of the jury. It is assumed for the purposes of this appeal that the evidence was sufficient to support the allegations of the complaint and the general verdict of the jury. (Law v. Northern Assur. Co., 165 Cal. *504 394, 406 [132 P. 590]; 64 Cor. Jur., p. 1182.) [2] Every reasonable intendment in favor of the general verdict must be indulged in order to reconcile all findings of the jury. Thus, "the general verdict will stand unless the facts found by the jury in answer to special interrogatories are so clearly antagonistic to it as to be absolutely irreconcilable, the conflict being such as to be beyond the possibility of being removed by any evidence admissible under the issues, so that both the general verdict and special findings cannot stand". [3] Under this test it has been determined that "a special finding is inconsistent with the general verdict only when, as a matter of law, the special finding when taken by itself would authorize a judgment different from that which the general verdict will permit". (Law v. Northern Assur. Co., supra, 406, 407; 38 Cyc., p. 1928; 24 Cal.Jur., pp. 906, 910-912.)
[4] In the complaint it is alleged that the defendant owned and conducted in San Francisco the premises known as the "Finnish Baths", for the use and convenience of patrons; that on October 10, 1936, the plaintiff entered the premises, paid the charge requested, and was directed to a private steam room; that in said room the defendant maintained for the use of patrons a shower having pipes and faucets for the use of hot and cold water. The complaint then contains the following allegations: "That said shower bath was so carelessly and negligently constructed and maintained by the defendant, that the pipe carrying hot water to said shower bath, when the valve or faucet attached to said pipe was opened, first emitted from said shower cold water before emitting therefrom hot water, that said cold water, without any intermediate change in temperature, suddenly without notice or warning changed from cold water to hot water and that said shower emitted boiling, scalding water; that said defendant carelessly and negligently failed and neglected to notify the plaintiff which of said pipes leading to said shower carried hot water and which of said pipes carried cold water, or to designate by sign, writing or in any other manner, which of said pipes leading to said shower bath carried hot water and which of said pipes carried cold water thereto."
"That plaintiff had no knowledge of any kind as to which of said pipes carried cold water to said shower bath and which *505 of said pipes carried hot water thereto; that desiring and intending to take a shower bath of cold water, and for the purpose of ascertaining which of said pipes carried and conducted cold water to said shower, plaintiff opened the faucet or valve attached to one of the said pipes leading to said shower bath; that when the water was emitted therefrom, plaintiff felt and tested the same with his hand and ascertained that the water flowing therefrom was cold water; that believing, as a result of said test, that said valve or faucet controlled the cold water flowing to said shower, plaintiff started to step into said shower; that said defendant so negligently and carelessly maintained and operated said shower that without any notice or warning of any kind whatsoever, scalding water suddenly flowed from said shower, impinging upon and striking the body of the plaintiff."
"That as a direct and proximate result of the aforesaid neglect, negligence and carelessness of defendant, plaintiff was severely scalded and burned. ..."
The defendant denied the allegations charging negligence and interposed the affirmative defense of contributory negligence on the part of the plaintiff. The case was submitted to the jury upon the instruction, among others, that if the jury should find that the plaintiff "in the exercise of ordinary care, could or should have determined which faucet was hot and which was cold before using the shower bath, and you further find that Mr. Lowen did not so ascertain which was hot and which was cold, but nevertheless used the shower bath, and if you further find that such action on his part, if any, proximately contributed to his injury, then you are instructed that your verdict must be in favor of defendant." There was also submitted to the jury the following special interrogatory: "At the time and place of plaintiff's accident, were there any signs or lettering plainly designating as to which faucet was hot and which was cold? The answer is to be 'yes' or 'no' and signed by the foreman of the jury." The jury returned a general verdict for the plaintiff in the sum of $8,000 and answered "yes" to the special interrogatory. As noted, the court granted the defendant's motion for judgment on the ground that the general and special verdicts were inconsistent. *506
[5] The judgment herein may be sustained only if it may be said that under no circumstances within the issues could the defendant be held liable to a plaintiff who had turned on the hot water without any admixture of cold water. We think the case does not permit of so positive a statement. Such a statement would be tantamount to a declaration that a plaintiff could not recover even though it could be found that, irrespective of the plaintiff's negligence, the defendant's negligence was the sole proximate cause of the injury. If under the pleadings evidence might be introduced showing the defendant's negligence, which, apart from any negligence on the part of the plaintiff, could be found to be the proximate cause of the injury, the judgment herein may not be sustained. It is apparent that under the issues of the defendant's negligence and the plaintiff's contributory negligence, the issuable facts might develop a situation where the defendant's negligence could be deemed to be the sole contributing and proximate cause of the injuries suffered by the plaintiff. In other words, it may not be said that, on the pleadings, the question of liability may be disposed of by an answer to the question contained in the special interrogatory submitted to the jury, namely, whether the designations of hot and cold were plainly indicated with reference to the shower taps. Therefore, if the jury found, as we must assume it did, that although the plaintiff was negligent the defendant also was negligent and that the negligence of the defendant was the sole proximate cause of the injury, the verdicts cannot be said to be so inconsistent as to be irreconcilable. The court's instruction covered the subjects of contributory negligence and proximate cause. If the special interrogatory had been as comprehensive, the ambiguity between the general and the special verdicts would have been obviated. On the record presented, we must conclude that there is no failure of consistency between the special and general verdicts, and that the intendments in favor of the general verdict should govern. By that verdict the jury must be deemed to have found that the defendant was negligent and that his negligence was the sole proximate cause of the plaintiff's injuries. On this record the answer to the special interrogatory was not irreconcilable with those findings. Judgment should have been entered in accordance with the general *507 verdict. (Tremble v. Tuman, 175 Cal. 696 [167 P. 142]; Hudgins v. Standard Oil Co. of California, 136 Cal. App. 44 [28 PaCal.2d 433]; Koskela v. Albion Lumber Co., 25 Cal. App. 12 [142 P. 851].)
The judgment is reversed with directions to the trial court to enter judgment for the plaintiff on the general verdict.
Curtis, J., Gibson, J., Edmonds, J., Waste, C.J., and Carter, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3959899/ | The announcement made in the original opinion to the effect that when the order overruling the motion for new trial states that the evidence was heard thereon this court is not in a position to know what influenced the trial judge *Page 524
when the record is void of statement of facts or bills of exception revealing the evidence before him is supported by the precedents. On appeal the presumption is conclusive that the ruling of the trial court was warranted by the evidence heard by it when considering the motion for new trial. Fisher v. State, 5 S.W.2d 996. Part of the alleged newly discovered evidence is cumulative of the conceded fact that Bill Turner was an accomplice witness and in part tends to impeach his credibility. There was no abuse of discretion in overruling the motion for new trial. Cooper v. State, 103 Tex.Crim. Rep.; Vernon's Tex. C. C. P., 1925, Vol. 3, pp. 29-30, notes 32-33.
The bill of exceptions is imperfect but if given full effect the evidence sought was not of importance such as would warrant a reversal. From the bill it appears that counsel asked in what business other than farming the witness Bill Turner was engaged. As shown by the motion for new trial the answer expected was that he peddled meat. It is suggested that the facts covering the matter are set out in the motion for new trial. That a motion for new trial cannot be made a substitute for a bill of exceptions has been a rule of practice throughout the history of the court. See Jones v. State, 9 S.W.2d 347; Ramos v. State, 298 S.W. Rep. 431; Holmes v. State, 293 S.W. Rep. 571; Holliday v. State, 100 Tex.Crim. Rep.; Burrell v. State, 11 S.W.2d 795.
Upon the record before us, we are constrained to overrule the motion for rehearing.
Overruled. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2608504/ | 432 P.2d 929 (1967)
Edward Mark HARRIS, Appellant,
v.
The STATE of Nevada, Respondent.
No. 5303.
Supreme Court of Nevada.
October 25, 1967.
Melvin Schaengold, of Reno, for Appellant.
Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., and Virgil D. Dutt, Deputy Dist. Atty., Reno, for Respondent.
OPINION
ZENOFF, Justice.
This is an appeal from the conviction of Edward Mark Harris for the possession of a tear gas weapon in violation of NRS 202.380.
*930 On July 27, 1966 Harris entered a super market in Reno and was observed by store personnel to be shoplifting several cartons of cigarettes. A police officer was summoned. The officer placed him under arrest and searched him. The search produced a tear gas pen. He was convicted for possession of a tear gas device in violation of the statute. This appeal followed. We affirm.
1. As his first assignment of error Harris challenges the constitutionality of NRS 202.380[1] as an infringement of the Second Amendment of the U.S. Constitution. The amendment reads: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
That amendment applies only to the Federal Government and does not restrict state action. United States v. Cruikshank, 92 U.S. 542 23 L. Ed. 588 (1875); Presser v. Illinois, 116 U.S. 252 6 S. Ct. 580, 29 L. Ed. 615 (1886). The right to bear arms does not apply to private citizens as an individual right. United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1938); Cases v. United States, 131 F.2d 916 (1st Cir.), cert. denied 319 U.S. 770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1942), rehearing denied 324 U.S. 889, 65 S. Ct. 1010, 89 L.Ed 1437 (1945); United States v. Tot, 131 F.2d 261 (3rd Cir.1942), reversed on other grounds 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943); United States v. Adams, 11 F. Supp. 216 (S.D.Fla. 1935).
2. In the absence of state or federal constitutional restraints authority of the states to regulate weapons comes from their police powers. Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182 (1917); People v. Brown, 253 Mich. 537, 235 N.W. 245 82 A.L.R. 341 (1931). Tear gas pens are a proper subject for state regulation. People v. Anderson, 236 A.D. 586, 260 N.Y.S. 329 (1932); Village of Barboursville ex rel. Bates v. Taylor, 115 W.Va. 4, 174 S.E. 485, 92 A.L.R. 1093 (1934).
3. Further, the appellant seeks to declare NRS 202.400[2] an unconstitutional delegation of authority because it enables the Director of the Nevada Highway Patrol to issue permits for these devices "upon proof that good cause exists for issuance thereof," urging this statute affects the validity of NRS 202.380. However, Harris was not charged under that statute. He was charged and convicted of violating NRS 202.380, having the tear gas pen in his possession.
A violation of the possession statute is distinct from violation of the permit statute. Castellano v. United States, 350 F.2d 852 (10th Cir.1965); certiorari denied, 383 U.S. 949, 86 S. Ct. 1207, 16 L. Ed. 2d 211 (1966); see also Haynes v. United States, 372 F. Supp. 651 (5th Cir.1967), now before *931 the U.S. Supreme Court, 388 U.S. 908, 87 S. Ct. 2130, 18 L. Ed. 2d 1347. Harris never made application for a permit. Thus, it is not necessary to determine the validity of NRS 202.400 since the appellant's rights are not affected. He is without standing to challenge the constitutionality of that statute. Ex parte Zwissig, 42 Nev. 360, 178 P. 20 (1919).
4. The appellant contends the lower court committed reversible error in refusing to give two requested instructions, to wit:
"1. You are instructed that the word, `knowingly,' as used in NRS 202.380, implies on the part of the defendant a knowledge and a purpose to do wrong and unless you find in the evidence that the defendant had no reasonable grounds for believing his possession of a tear gas pen to be lawful he is entitled to be acquitted.
"2. You are instructed that the word, `wilful,' as used in these instructions means an act done with a bad purpose or without justifiable excuse or without ground for believing that the conduct for which the defendant is charged was lawful."
Citations are unnecessary for the proposition that requested instructions must properly state the law. The appellant can claim no right to have requested instructions given when they do not correctly state the law. Without such right a refusal is not error.
The requested instructions do not correctly state the law regarding the possession of weapons. Possession statutes require no particular scienter, only knowledge of the presence and character of the object. It is not necessary that there be knowledge on the defendant's part that possession was in violation of a statute. United States v. DePugh, 266 F. Supp. 417 (W.D.Mo. 1967); People v. Prochnau, 59 Cal. Rptr. 265 (Dist.Ct.App. 1967); People v. Weisman, 229 N.Y.S.2d 171 (1962); People v. Taylor, 40 P.2d 895 (Cal. 1935).
Affirmed.
THOMPSON, C.J., COLLINS, J., BATJER, J., and MOWBRAY, J., concur.
NOTES
[1] NRS 202.380. "Sale, possession of tear gas bombs, weapons without permit unlawful; exceptions.
"1. After March 26, 1955, every person, firm or corporation who within the State of Nevada knowingly sells or offers for sale, possesses or transports any form of shell, cartridge or bomb containing or capable of emitting tear gas, or any weapon designed for the use of such shell, cartridge or bomb, except as permitted under the provisions of NRS 202.370 to 202.440, inclusive, shall be guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for a term not to exceed 2 years or by a fine not to exceed $2,000, or by both fine and imprisonment. * * *"
[2] NRS 202.400. "Permit for possession, transportation, protective system, to be issued by director of Nevada highway patrol.
"1. It shall be lawful for the director of the Nevada highway patrol to issue a permit for the possession and transportation of such shells, cartridges, bombs or weapons upon proof to the director that good cause exists for the issuance thereof to the applicant for such permit.
"2. The permit may also allow the applicant to install, maintain and operate a protective system involving the use of such shells, cartridges, bombs or weapons in any place which is accurately and completely described in the application for the permit." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608506/ | 432 P.2d 825 (1967)
78 N.M. 469
Ray E. CHRISTIE, Plaintiff-Appellant,
v.
NINTH JUDICIAL DISTRICT, Defendant-Appellee.
No. 8311.
Supreme Court of New Mexico.
October 23, 1967.
George Murphy, Clovis, for appellant.
Boston E. Witt, Atty. Gen., Donald W. Miller, Ass't Atty. Gen., Santa Fe, for appellee.
OPINION
OMAN, Judge, Court of Appeals.
Defendant has sought post-conviction relief under Rule 93 (§ 21-1-1(93), N.M.S.A. 1953, Supp. 1967). The grounds relied upon in his motion, and which he now urges upon us, are all concerned with claimed mistreatment and deprivation of his rights prior to the time he was arraigned in the district court on October 5, 1964 on a charge of burglary.
At his arraignment he entered a plea of not guilty. The case was thereupon set for trial on November 12, 1964. When he appeared before the court on November 12, 1964, he withdrew his plea of not guilty and entered a plea of guilty. A judgment of guilty was entered and he was sentenced on November 18, 1964 to confinement in the State Penitentiary.
He was at all times represented in the district court by competent counsel, and he and his counsel were both present in court on all three occasions when the actions of the court were taken.
Competent counsel was appointed to represent him in these Rule 93 proceedings. He was granted a full hearing on his motion. He personally appeared and testified at this hearing. His motion was denied. He has taken this appeal, and we affirm.
He argues all his points together and relies upon the cases of Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Miranda v. State of Arizona, 384 *826 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Jackson v. United States, 214 F.2d 485 (4th Cir.1954); and State v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966). Nothing said in any of these cases can possibly be construed as suggesting that under the facts of this case defendant was denied any of his constitutional rights, which would entitle him to relief under Rule 93.
We shall dispose of his complaints in the order in which they were presented in his motion and are presented in his brief in chief.
He first complains that from about 12:30 A.M. on the day of his arrest, until some hours later on the same morning, when he was taken before a justice of the peace, he was placed in a jail corridor, outside the regular cell block; that his shoes were taken from him; that the floor in the corridor was of concrete; and that he was not furnished a blanket or a place to sleep.
He cites no authority in support of his contention that by this treatment he was denied due process and equal protection under the law. Some personal discomfort, occasioned by being jailed for a few hours awaiting preliminary examination, does not constitute a denial of due process or equal protection, nor can it be said to constitute cruel and unusual punishment. Cf. Ex parte Pickens, 101 F. Supp. 285, 13 Alaska 477 (D.C. Alaska, 1951).
He next complains that on the morning following his arrest he was taken by the police to a room for questioning, and was not advised of his rights to counsel and to remain silent. However, in his motion he states that he refused to answer any questions, and he so testified at the hearing on his motion. The mere failure of the police to advise him of his constitutional rights to counsel and to remain silent, without any showing of prejudice, is no basis for relief. State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967).
He did offer some confused testimony about a statement which he claims he later gave, but the statement or the substance thereof is not before us, and there is nothing to indicate that any use whatsoever was ever made of this statement, if in fact such a statement ever existed. Under these circumstances he could not have been prejudiced. State v. Elledge, 78 N.M. 157, 429 P.2d 355 (1967).
His next two complaints relate to his contentions that he was charged with three counts of burglary; that bond was set by the justice of the peace at $3,000 on each of these counts; that he was advised that if he would plead guilty to one of these counts the other two would be dropped and the bond lowered; that at the time he had a wife and two small children to support; that later the justice of the peace dropped two of the charges; and that the bond was reduced to $3,000.
The record fails to support his contentions that three charges were filed against him, or that the bond ever exceeded $3,000. The trial court found against his contentions, and the record and testimony of the justice of the peace support the finding.
His next complaint is that he was held in jail about four days and nights following his arrest, that during this time he was not allowed to see or communicate with anyone, and that, therefore, he was denied due process and equal protection under the law. The trial court found these contentions to be without merit, and the evidence supports the findings. The record shows he was arrested on September 29; that he appeared before a justice of the peace the same morning; that at that time he was offered the opportunity to telephone or send word to an attorney of his choice; that he was advised of his right to counsel, and that counsel would be appointed to represent him, if he was indigent and financially unable to employ counsel; and that he was advised of his right to a preliminary hearing. He chose not to call an attorney of his choice, and he waived the appointment of counsel and a preliminary hearing. The trial court found these waivers were knowingly and intelligently made, and there is substantial support in the record for this finding. *827 Under the circumstances disclosed by the record, the suggestion in his brief that any waiver of constitutional rights resulted from ignorance so as to amount to a denial of due process under the rule enunciated in Jackson v. United States, supra, is totally without substance.
Although we are of the firm conviction that defendant has failed to show the violation of any of his constitutional rights, any irregularities or defects which may have occurred prior to his plea of guilty on November 12, and which he urges as grounds for relief, were waived when he entered his plea of guilty. See State v. Williams, 78 N.M. 211, 430 P.2d 105 (1967); State v. Elledge, supra; State v. Gonzales, 77 N.M. 583, 425 P.2d 810 (1967); State v. Robbins, 77 N.M. 644, 427 P.2d 10 (1967); State v. Romero, 76 N.M. 449, 415 P.2d 837 (1966); Sanders v. Cox, 74 N.M. 524, 395 P.2d 353 (1964).
The order denying defendant's motion should be affirmed.
It is so ordered.
MOISE and CARMODY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608507/ | 432 P.2d 495 (1967)
GARDNER HOTEL SUPPLY OF HOUSTON, Appellant,
v.
ESTATE of Wilbur I. CLARK, deceased, Respondent.
SOUTHERN NATIONAL BANK OF HOUSTON, Appellant,
v.
ESTATE of Wilbur I. CLARK, deceased, Respondent.
Nos. 5292, 5293.
Supreme Court of Nevada.
October 18, 1967
*496 Singleton, DeLanoy & Jemison, Las Vegas, for Appellants.
Foley Brothers, of Las Vegas, for Respondents.
OPINION
ZENOFF, Justice.
These appeals arise from orders denying motions for leave to file late creditor's claims. Both cases involve similar fact situations and present the same legal issue, and are therefore joined for appellate consideration.
On July 22, 1965 Wilbur Clark and William Ward executed an agreement with General Electric Credit Corporation guaranteeing the conditional sales contract entered into on that date by Wilbur Clark's Crest Hotel and the appellant, Gardner Hotel Supply of Houston. On that date also, Gardner assigned the conditional sales contract to General Electric Credit Corporation. The guaranty agreement provided that the death of the guarantor should not discharge or affect the agreement.
On August 28, 1965 Wilbur Clark died. Alton Lipkin, a Vice-President of the appellant corporation, noted the death as published in the Houston newspaper, August 29, 1965.
On October 18, 1965 General Electric reassigned the conditional sales contract to the appellant. On October 19, 1965 the appellant assigned the same to C.I.T. Corporation of Houston. No further assignment back to the appellant appears from the record, but since no issue is raised as to the status of Gardner as a claimant, and we affirm the trial court, that question becomes moot.
On September 17, 1965 notice was published pursuant to NRS 147.010.[1] On December 17, 1965 the period for filing claims against the estate had run.
On April 12, 1966 Gardner filed a motion for leave to file a creditor's claim in the amount of $13,157.26. In support of said motion, Gardner presented the affidavit of Lipkin, copies of the conditional sales agreement, the guaranty contract and various assignments and reassignments. In his affidavit, Lipkin stated that he first became aware of the notice to creditors on March 25, 1966 through his attorney, who had been sent to Las Vegas sometime in March. The motion to file the claim was denied.
As to the appeal of Southern National Bank of Houston, the record discloses that sometime prior to his death, Wilbur Clark and William Ward secured a loan from the bank in the amount of $300,000 for two hotel projects. They both signed a note and personally guaranteed repayment of the loan. Neither the note, nor the guaranty agreement, nor any other writing concerning this transaction were made a part of the record.
On August 29, 1965 Mr. H.H. Kuhlmann, a Vice-President of the bank, noted Clark's death in the Houston newspaper. On November 12 he was advised by Ward that J.L. Donnelly, whom Kuhlmann knew to *497 be Clark's attorney in the past, had been named executor and, in truth, he was so advised several times subsequent.
Donnelly stated in his affidavit that he had conversed with Kuhlmann concerning the bank loan and the estate's financial status. The record further shows that Kuhlmann had been advised by others of the estate proceedings, and that Donnelly and Herbert Clark were coexecutors. The bank moved, after the time for filing claims had expired, to file its claim, which was denied.
The sole issue is directed to the refusal of the trial court to allow the appellants to file late claims against the decedent's estate pursuant to NRS 147.040.
Nevada's nonclaim statute, NRS 147.040, provides:
"1. All persons having claims against the deceased must, within 3 months after the first publication of the notice specified in NRS 147.010, file the same, with the necessary vouchers, with the clerk of the court, who shall file and register each claim.
"2. If a claim be not filed with the clerk within 3 months after the first publication of the notice, it shall be forever barred; but when it shall be made to appear by the affidavit of the claimant, or by other proof, that he had no notice as provided in this chapter, to the satisfaction of the court or judge, it may be filed at any time before the filing of the final account."
Notice as provided in NRS 147.040 was duly published and posted on September 17, 1965. The statute provides for publication in some newspaper in the county or as designated by the court. It informs the creditors of the identity of the executor and the court which made the appointment, that the claims are to be filed with the clerk of the court, and that all claims must be filed within three months. There is no dispute that the notice filed, posted, and published complied with the statute. Appellants contend that the mere posting and publishing of the notice was not enough to bind them if they did not have actual knowledge of the existence of the estate proceedings, and that absent such knowledge, the trial court was bound to allow them to file their claims.
1. The spirit and letter of the Nevada statutes relating to the filing of claims and the administration of estates, speak to the policy of our laws that efficient and expedient administration is essential. In re Delaney's Estate, 41 Nev. 384, 171 P. 383 (1918). Our nonclaim statute, NRS 147.040, is plainly written and should be enforced as designed. Pacific States S.L. & B. v. Fox, 25 Nev. 229, 59 P. 4 (1899). The statute contemplates all claims, whether contingent or noncontingent, to be filed within three months. The holding of Pruett v. Caddigan, 42 Nev. 329, 176 P. 787 (1918), to the extent that it suggests the contrary, is hereby overruled. Further, the statute makes no distinction due to residence and applies equally to resident claimants as well as nonresident claimants. Messenger v. Rutherford, 225 N.E.2d 94 (Ill. 1967). Such construction in no way causes claimants to suffer injustice where the purpose of the statute is to bar those who are indifferent, careless or dilatory in their attitude toward filing claims. See In re McCracken, 224 N.E.2d 181 (Ohio 1967).
2. Our reading of NRS 147.040 warrants the conclusion that Nevada's nonclaim statute permits trial court discretion, upon good cause shown, to either allow the filing of a claim after it is barred; or upon failure to show good cause for not having filed, to refuse permission to file a late claim.
3. Knowledge of death is sufficient to put the claimant on notice that probate proceedings will follow, and charges him with the responsibility of further inquiry. Knowledge of death, or any knowledge of the estate proceedings, coupled with the failure to act after receipt of the information are enough to support the exercise of the lower court's discretion either to grant permission to file the claim, or to deny it. Cf. Pacific States S.L. & B. v. Fox, supra (where permission to file a late *498 claim was granted). See also: Chalaby v. Driskell, 390 P.2d 632 (Ore. 1964); In re Marrs' Estate, 107 N.E.2d 148, 159 (Ohio 1952); In re Wyckoff Estate, 152 N.E.2d 141 (Ohio 1958); In re Rathe's Estate, 59 N.W.2d 164 (Neb. 1953); Federal Land Bank of Omaha v. Bonnett, 284 N.W. 97 (Iowa 1939).
The claimants knew of Clark's demise and several conversations were held with the executors and other interested persons. Both claimants are sophisticated in the business world, experienced in the significance of filing claims in the given situations. That the filing period in this state is shorter than that of their own state is insufficient reason to excuse their failure to file on time. The trial court properly denied the motions for leave to file late claims.
Affirmed.
THOMPSON, C.J., COLLINS, J., BATJER, J., and MOWBRAY, J., concur.
NOTES
[1] NRS 147.010: "Notice to creditors: Publication, posting and form.
"1. Immediately after his appointment, every executor or administrator shall:
(a) Cause to be published a notice of his appointment as executor or administrator in some newspaper published in the county, if there be one; if not, then in such newspaper as may be designated by the court or judge.
(b) Post a copy of the notice at the courthouse of the county. The notice shall be published at least once a week for 4 weeks.
"2. If any executor or administrator shall neglect, for 15 days after his appointment, to give notice of his appointment as prescribed in subsection 1, the court shall revoke his letters.
"3. The notice shall be substantially in the following form:
"NOTICE TO CREDITORS
"Notice is hereby given that the undersigned has been duly appointed and qualified by the (giving the title of the court and the date of appointment), as executor or administrator, as the case may be, of the estate of _______________, deceased. All creditors having claims against the estate are required to file the same, with proper vouchers attached, with the clerk of the court, within 3 months after the first publication of this notice.
"Dated ___________________." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608509/ | 19 Utah 2d 414 (1967)
432 P.2d 45
IN THE MATTER OF THE ESTATE OF ANDREW EKKER, DECEASED. RICHARD EKKER, APPELLANT.
No. 10677.
Supreme Court of Utah.
September 25, 1967.
George E. Bridwell, Salt Lake City, for appellant.
Dan Keller, Price, Arthur H. Nielsen, Salt Lake City, for respondent.
CALLISTER, Justice.
This is a will contest between the two surviving sons and sole heirs of Andrew Ekker, decedent. Andrew, at the age of 75, executed a will on June 12, 1957; he died May 18, 1965. By the terms of the will, the testator left his entire estate to his son, Lawrence A. Ekker. Lawrence filed a petition for admission of the will to probate and Richard filed objections alleging that the will was obtained by undue influence, that, at the time of executing the will, the testator was not competent and was not of sound and disposing mind, and that the will was not executed with the formalities required by the laws of Utah.
The matter was tried to a jury. However, at the conclusion of the protestant's evidence, the court below granted the motion of petitioner for an involuntary dismissal. The court concluded that the evidence adduced by Richard was insufficient as a matter of law to submit to the jury the issue of fraud, undue influence and lack of testamentary capacity and therefore admitted the will to probate. From this order Richard appeals.
Upon this appeal, the protestant, Richard, raises three points on appeal: (1) That the will is void because of material mistake of fact and law appearing on the face of the will; (2) that the testator was suffering an insane delusion at the time he executed the will; and (3) that the will was executed as a result of the undue influence of Lawrence and his wife, Susan.
Neither of the first two points were raised in the pleadings nor put in issue at the trial. Therefore, they cannot be considered for the first time on this appeal.[1]
As to the third point, Richard contends, basically, that the will itself is evidence of undue influence because of its unnatural and unjust disposition and complete disregard for one of the natural objects of the testator's bounty, namely, his son, Richard.
The facts surrounding the execution of the will are as follows: The testator, who lived in Hanksville, went to the office of an attorney in Price, Utah, on June 12, 1957. The attorney had previously done legal work for Andrew, who was alone on this particular visit. The testator discussed the specific disposition he wished made of his property. He related that Lawrence had remained on the ranch and has assisted him in building and preserving the property. He explained that after the death of his unmarried son, Eugene, he had given to Richard, Eugene's livestock with the understanding that Richard would work with him and Lawrence on the ranch. Richard remained a short time thereafter and then married and moved to Torrey, taking his cattle with him, and conducted his livestock operation there. Andrew stated that his ranch was only large enough for a one-family operation.
The will was prepared and executed the same day. The attorney and his secretary were the attesting witnesses. At the request of Andrew, the attorney retained the will in his office where it remained until the death of the testator. No evidence was presented to indicate an intention on the part of the testator to alter the disposition provided in his will.
During the trial of the case, there was no evidence presented to indicate that decedent's mental faculties were impaired, that a confidential relationship existed between him and Lawrence, or that Lawrence participated in the formulation and execution of the will or knew of the disposition of the property therein. Except for the testimony of the attorney and the other attesting witness, the testamentary capacity of the decedent was largely ignored during the trial, which digressed into an unfortunate family feud directed to the undermining of the characters of the respective parties.
The record is totally void of any evidence that the will was drawn by other than the testator's own free will and choice. The will was in existence for a number of years after its execution and the testator had ample opportunity to revoke or repudiate it, if he so desired.
The fact that Andrew preferred to leave his property to the son who had assisted him in his ranch operations does not present an unnatural disposition. He left a reason behind him showing clearly what induced him to make his will as he did. If he were of sound and disposing mind and memory (and there is no evidence to the contrary) when he made his will, then, under the law, he had the sole right to choose the objects of his bounty.[2]
It is presumed that the testator was competent and acting of his own free will and not under duress or undue influence. The initial burden of proof on those issues is upon the objector. In the instant case, the objector, Richard, did not meet this burden.[3]
Affirmed. Costs to respondent.
CROCKETT, C.J., and TUCKETT, HENRIOD and ELLETT, JJ., concur.
NOTES
[1] Westerfield v. Coop, 6 Utah 2d 262, 311 P.2d 787; Dolores Uranium Corp. v. Jones, 14 Utah 2d 280, 382 P.2d 883; Nielson et al. v. Eisen, 116 Utah 343, 209 P.2d 928.
[2] In re Hanson's Will, 50 Utah 207, 167 P. 256 (1917); In re Lavelle's Estate, 122 Utah 253, 248 P.2d 372 (1952).
[3] In re Lavelle's Estate, supra, n. 2; In re Holten's Estate, 17 Utah 2d 29, 404 P.2d 27 (1965); see also: Bradbury v. Rasmussen, 16 Utah 2d 378, 401 P.2d 710 (1965) for a discussion as to the relationship of parent and child as it relates to the issue of undue influence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608570/ | 621 P.2d 489 (1980)
HOWARD HUGHES MEDICAL INSTITUTE, Appellant,
v.
June GAVIN, Special Administratrix of the Estate of Annette Gano Lummis, Deceased, Respondent.
No. 12416.
Supreme Court of Nevada.
December 29, 1980.
Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, Sherwin J. Markman and Joseph M. Hassett, Hogan & Hartson, Washington, D.C., for appellant.
Echeverria & Osborne, Chartered, Reno, Morse-Foley, Las Vegas, Andrews, Kurth, Campbell & Jones, Houston, Tex., for respondent.
*490 OPINION
BATJER, Justice:
Howard R. Hughes, Jr., died on April 5, 1976. To date, no will executed by Hughes has been found. The appellant, Howard Hughes Medical Institute (HHMI), seeks to establish the terms of a lost will leaving most of the Hughes estate to HHMI.
HHMI filed its petition to probate a lost or destroyed will of Howard Hughes on January 12, 1977. Respondent, the estate of one of Hughes' next-of-kin, contested the probate. Following extensive discovery and will-search activities, respondent moved for summary judgment, which was granted on February 1, 1980.
As grounds for reversal of the trial court's action, appellant claims:
(a) that alleged declarations of the testator may be considered testimony of one of the two credible witnesses required under NRS 136.240 to prove the contents of a lost will;
(b) that declarations of a deceased person who had personal knowledge of the contents of a lost will can also be considered as testimony of one credible witness required under NRS 136.240; and
(c) that summary judgment was improperly granted.
In this state, a will may not be proved as a lost or destroyed will unless it was in existence at the death of the testator and unless its provisions can be clearly and distinctly proved by at least two credible witnesses.[1]
The evidence in the record on appeal tends to show that Hughes may have executed a will in 1925, although only an unexecuted, unconformed draft has been found. There are also indications that other wills were drafted in 1930, 1938 and sometime during the 1940's. It is claimed that all alleged wills benefited medical research.
Only John T. Pettit, whose deposition was presented to the trial court, allegedly read a will signed by Hughes, which left all his estate to HHMI. The trial court, in granting respondent's motion for summary judgment, reasoned that the failure to show the existence of the two testifying witnesses required by NRS 136.240(3) entitled the respondent to judgment as a matter of law.
1. HHMI argues that declarations made by Hughes, and others with personal knowledge of the alleged will, may be substituted for the second credible witness. We do not agree.
While NRS 51.105(2)[2] makes hearsay evidence admissible relative to the execution, revocation, identification or terms of the declarant's will, the testator's declarations cannot be used to supply one of the credible witnesses required by NRS 136.240(3). Courts in jurisdictions with statutes similar to NRS 136.240(3) have required that each of the two witnesses be able to testify from his or her personal knowledge, not from the declarations of others. This court, in In re Duffill's Estate, 57 Nev. 224, 61 P.2d 985 (1936), rejected one witness' testimony because his only knowledge of the contents of the will was based upon statements of the deceased. See e.g., In re Estate of Gardner, 69 Wash.2d 229, 417 P.2d 948 (1966); Loy v. Loy, 246 S.W.2d 578 (Ky. 1952); Day v. Williams, 184 Okl. 117, 85 P.2d 306 (1938); see also 3 Page on Wills (3d ed. 1961) §§ 29.157, 29.161.
The strict statutory requirements for executing a valid will would be rendered ineffectual if a deceased's declarations were sufficient to dispose of his estate. NRS 133.040. While a testator's declarations *491 may be useful in interpreting ambiguous terms of an established will or in corroborating other competent evidence, they cannot be substituted for one of the witnesses required by NRS 136.240(3).
2. HHMI contends that declarations of a deceased person who had knowledge of the contents of a lost will should be considered testimony of one of the two credible witnesses required by NRS 136.240 to prove the contents of a lost will. HHMI asserts that statements by Hughes' attorneys Cook and Andrews should be admissible under NRS 51.315[3] because they were made under circumstances free from any motivation to lie and they are necessary to prove the contents of the will. See e.g. Johnstone v. State, 92 Nev. 241, 548 P.2d 1362 (1976).
We cannot agree. NRS 136.240[4] requires living witnesses or signed, sworn testimony reduced to writing.
Strict compliance with the requirements of NRS 136.240 precludes proof of the contents of a lost will by hearsay declarations of deceased people, unless the declarant's testimony is written and signed by the declarant. While declarations not in this form may be admissible for other purposes, if trustworthy and necessary, they are not sufficient to prove a lost will under the statute.
3. Summary judgment is proper when the moving party is entitled to judgment as a matter of law. Harvey's Wagon Wheel v. MacSween, 96 Nev. 215, 606 P.2d 1095 (1980). In reviewing a summary judgment, this court must accept as true the allegations and reasonable inferences favorable to the position of the non-moving party. Round Hill Gen. Improvement v. BNeva, 96 Nev. 181, 606 P.2d 176 (1980).
HHMI claims that Dan Newburn[5] may change his mind and testify as a second necessary witness at the trial and therefore a factual issue exists precluding summary judgment. Neither mere conjecture nor hope of proving the allegations of a pleading is sufficient to create a factual issue. See NRCP 56(e); Garvey v. Clark County, 91 Nev. 127, 532 P.2d 269 (1975).
HHMI has failed to provide evidence sufficient to support its petition to probate the lost will, and summary judgment was properly granted.
Because of the requirement of strict compliance with NRS 136.240, the existence of a draft of a will allegedly executed by Hughes in 1925, without more, does not create a factual issue which would preclude summary judgment.
Affirmed.
FONDI,[6] District Justice, THOMPSON, *492 J., ZENOFF,[7] Senior Justice, and GREGORY,[8] Senior District Justice, concur.
NOTES
[1] NRS 136.240(3) provides:
No will shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the death of the person whose will it is claimed to be, or be shown to have been fraudulently destroyed in the lifetime of such person, nor unless its provisions shall be clearly and distinctly proved by at least two credible witnesses.
[2] NRS 51.105(2) provides:
A statement of memory or belief to prove the fact remembered or believed is inadmissible under the hearsay rule unless it relates to the execution, revocation, identification or terms of declarant's will.
[3] NRS 51.315 provides:
1. A statement is not excluded by the hearsay rule if:
(a) Its nature and the special circumstances under which it was made offer strong assurances of accuracy; and
(b) The declarant is unavailable as a witness.
2. The provisions of NRS 51.325 to 51.355, inclusive, are illustrative and not restrictive of the exception provided by this section.
[4] NRS 136.240 provides:
1. The petition for the probate of a lost or destroyed will must state, or be accompanied by a written statement of, the testamentary words, or the substance thereof. If the will is established the provisions thereof must be set forth in the order admitting the will to probate, and the order must be so entered at length in the minutes or a written order signed, filed and recorded.
2. The testimony of each witness must be reduced to writing; signed by him and filed, and shall be admissible in evidence in any contest of the will, if a witness has died or has permanently removed from the state.
3. No will shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the death of the person whose will it is claimed to be, or be shown to have been fraudulently destroyed in the lifetime of such person, nor unless is provisions shall be clearly and distinctly proved by at least two credible witnesses.
[5] In April, 1978, Newburn purportedly told representatives of the Hughes estate that he had read an executed copy of Hughes' will. He refused to be deposed, claiming the news media privilege. See Newburn v. Howard Hughes Med. Institute, 95 Nev. 368, 594 P.2d 1146 (1979).
[6] Chief Justice John Mowbray voluntarily disqualified himself and took no part in this decision. The Governor, pursuant to art. 6, § 4, of the Constitution, designated Judge Michael E. Fondi of the First Judicial District to sit in his stead.
[7] The Chief Justice designated the Honorable David Zenoff, Senior Justice, to sit in the place of the Honorable E.M. Gunderson, who voluntarily disqualified himself in this case. Nev.Const. art. 6, § 19; SCR 10.
[8] Mr. Justice Noel Manoukian voluntarily disqualified himself and took no part in this decision. The Governor, pursuant to art. 6, § 4, of the Constitution, designated the Honorable Frank B. Gregory, Senior District Judge, to sit in his stead. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875639/ | 490 So.2d 1370 (1986)
STATE of Florida, Appellant,
v.
John Henry BOOM, Appellee.
No. 85-1350.
District Court of Appeal of Florida, Second District.
July 11, 1986.
Jim Smith, Atty. Gen., Tallahassee and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellant.
William L. Blackwell of Blackwell & Beal, P.A., Naples, for appellee.
RYDER, Judge.
The state appeals a trial court order which granted appellee's motion to dismiss an information. We reverse.
The fact that the state filed a sworn traverse which disputed the material facts was enough to require the trial court to deny appellee's motion to dismiss. State v. Dixon, 450 So.2d 1280 (Fla. 2d DCA 1984); State v. Cook, 354 So.2d 909 (Fla. 2d DCA), cert. dismissed, 359 So.2d 1212 (Fla. 1978); State v. Wood, 299 So.2d 111 (Fla. 2d DCA 1974). In this case, the state's sworn traverse presented additional facts upon which it hoped to prove that appellee intended to assist another person to commit a crime. Although appellee argues that the state's additional factual allegations did not create any factual dispute, as long as the undisputed facts "permit the conclusion that the defendant could be found guilty, the motion must be denied." State v. Upton, 392 So.2d 1013, 1015 (Fla. 5th DCA 1981) (emphasis added.) It is not the trial court's function to determine whether the state's evidence excluded all reasonable hypotheses of innocence. State v. Fry, 422 So.2d 78, 79 (Fla. 2d DCA 1982). As long as the state shows the barest prima facie case, it should not be prevented from prosecuting it. State v. Hunwick, 446 So.2d 214, 215 (Fla. 4th DCA 1984). All inferences must be resolved against the defendant and in favor of the state. Id. at 215; Vanhoosen v. State, 469 So.2d 230, 231-32 (Fla. 1st DCA 1985). The inferences which arise from the facts of this case when viewed in favor of the state require us to reverse the trial court order which granted appellee's motion to dismiss. State v. Fuller, 463 So.2d 1252 (Fla. 5th DCA 1985).
Reversed and remanded.
SCHEB, A.C.J., and CAMPBELL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2235988/ | 929 N.E.2d 171 (2006)
367 Ill. App.3d 1097
SANTANNA NATURAL GAS CORP.
v.
CONTINENTAL FINANCIAL MORTG. GROUP, INC.
No. 1-05-3522.
Appellate Court of Illinois, First District.
September 22, 2006.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3354436/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: DEFENDANTS' MOTIONS FOR ORDER OF NON-SUIT AND PLAINTIFFS' MOTION FOR MODIFICATION OF SCHEDULING ORDER
This litigation concerns a tragic explosion which occurred in Danbury, Connecticut on May 19, 1999, resulting in the loss of life, personal injuries to surviving victims, and property damage. In the revised complaint, which is nearly 900 pages in length, the plaintiffs essentially contend that the defendants have various interests in neighboring properties used for gasoline service stations, and are responsible for the explosion. The plaintiffs' theory is that as a result of spills on the defendants' property, gasoline or gasoline products migrated to the building that exploded on May 19, 1999. The explosion was preceded by a torrential rainstorm which, pursuant to the plaintiffs' theory, resulted in gasoline products migrating from the defendants' property to the site where the explosion occurred.
The defendants filed requests to revise which were granted in part by the court on November 29, 2001, and November 30, 2001. The effect of the orders was to require the plaintiffs to file within fifteen days, pursuant to Practice Book § 10-37, a substitute pleading in compliance with the revision orders.
The plaintiffs on January 25, 2002, filed a motion to enlarge time to respond to the court's November 2001 orders to revise their complaint. The court granted the motion only to allow the plaintiffs time to file the revised complaint, as ordered, no later than April 22, 2002.
The court also issued a modified pretrial scheduling order on January 31, 2002. That order required the plaintiffs to reply to written discovery on various dates between March 20, 2002 and May 4, 2002.
The defendants moved on April 15, 2002, and May 1, 2002, for orders of non-suit, in the first motion with respect to failure to comply with discovery obligations, and in the second motion with respect to the CT Page 7562 plaintiffs' continued failure to revise the complaint, as well as to comply with court-imposed discovery deadlines.
The defendants requested adjudication of their motions for orders of non-suit and a hearing was scheduled for June 10, 2002, at which time the motions were heard. The plaintiffs, on June 7, 2002, filed a revised complaint and provided answers to a majority of the defendants' discovery requests.
The plaintiffs concede that their liability theory initially relied on a preliminary State of Connecticut Department of Environmental Protection (DEP) report citing the defendants' properties as potential sources of the contamination that ultimately caused the explosion. The DEP, on January 9, 2002, issued a final report indicating that the defendants' properties were probably not the source of the contamination.
The plaintiffs have represented to the court that a substantial investment of time and money has been made in this case. Many experts have been retained and they have had unanticipated difficulties with respect to access to the Danbury sewer systems (requiring litigation with the City of Danbury) and an inability to replicate the torrential rain conditions that preceded the May 19, 1999 explosion. These obstacles encountered by the plaintiffs should have been presented by affidavit in a timely fashion prior to their failure to comply with specific court orders.
A non-suit, though authorized and justified by the plaintiffs' conduct in ignoring specific court orders, would nevertheless constitute an unduly harsh sanction on the plaintiffs, who appear to have been the innocent victims of this tragic explosion. Whether the defendants have any liability with respect to this tragedy, of course, remains to be proven. However, in view of the complex circumstances, the tragedies that did occur, and the good faith of the plaintiffs' counsel demonstrated by their substantial investments of time and money in the prosecution of this case, the court will not enter a non-suit at this time.
For their failure to timely respond to the court's discovery and pleading orders, the court orders as sanctions that the plaintiffs pay to the defendants the costs of their motions for non-suit, including reasonable attorneys' fees.
If the parties are unable to agree on the amount of reasonable attorneys' fees and costs associated with the motions for non-suit, the defendants are directed to file affidavits with respect to requests of an award of attorney's fees. The request will be set down for a hearing, if necessary. CT Page 7563
The plaintiffs must complete their discovery compliance by June 20, 2002.
With respect to their April 12, 2002, motion for modification of the scheduling order, the plaintiffs seek a six-month extension of all pretrial matters. The court grants the motion to the extent that the scheduled events under all numbered paragraphs of the current schedule, with the exception of paragraphs 2, 3 and 9, shall be extended by a period of four months.
___________________, J. ROBERT F. McWEENY | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2608571/ | 621 P.2d 69 (1980)
49 Or.App. 763
Larry R. BOUSKA, Respondent,
v.
David B. WRIGHT, Appellant.
No. L78-1112; CA 16110.
Court of Appeals of Oregon.
Argued and Submitted October 3, 1980.
Decided December 15, 1980.
*70 Nick Chaivoe, Portland, argued the cause for appellant. With him on the brief was David S. Paull, Portland.
Gary L. Hill, Roseburg, argued the cause for respondent. With him on the brief was Slocum & Hill, Portland.
Before JOSEPH, P.J., and WARDEN and WARREN, JJ.
JOSEPH, Presiding Judge.
Plaintiff brought an action against defendant, a former employee, alleging lost profits as damages for breach of a non-competition clause in an employment contract. The jury found on special interrogatories that the defendant had breached the contract, and plaintiff had a judgment for $4,372.80. Plaintiff joined in his complaint a suit to enjoin defendant from doing business in violation of the contract. After the jury's verdict, the court granted an injunction. Defendant recovered a judgment for $700 on his counterclaim for unpaid wages, together with a penalty of $700 under ORS 652.150.
Defendant appeals and tenders three assignments of error, only two of which require decision on the merits.[1]
Plaintiff had an exclusive license to use a bookkeeping system designed for service station operations. He hired defendant as a "field consultant" with the responsibility for servicing existing clients and developing new ones. Defendant's service was completely successful and satisfactory. After about three years plaintiff and defendant began to negotiate for defendant to buy plaintiff's Douglas County business. When those negotiations foundered, defendant quit. Shortly thereafter defendant and his wife opened their own bookkeeping and accounting business, and plaintiff sued. The complaint alleged that defendant had breached a written employment contract by which he had agreed not to compete with plaintiff for three years after terminating employment.
At the trial plaintiff first offered in evidence a set of miscellaneous documents consisting of the license agreement for the bookkeeping system, a number of written policies prepared by the licensor and a blank form employment contract. The exhibit was received without objection. Plaintiff then offered in evidence a photostatic copy of what purported to be the employment agreement in issue. Defendant objected to its admission on the ground that it was not the "best evidence." Plaintiff then testified about his unsuccessful search for the original[2] in his own files, his request to the licensor's Seattle regional office for a search of the files and the failure to find the contract there and his similarly unproductive request to the licensor's home office in Santa Barbara, California. The exhibit was then received; it was in some respects substantially illegible, so plaintiff had attached to it a copy of the blank employment agreement form that was a part of the first exhibit.[3] Defendant *71 relies on ORS 41.610[4] and ORS 41.640(1)(b)[5] and argues that plaintiff totally failed to demonstrate that the absence of the original was not due to his default or neglect.
The trial court was satisfied from plaintiff's testimony about his efforts to find the original that the statutory conditions for admission of the secondary evidence were established. That particular determination generally lies within a trial court's discretion. Stipe v. First National Bank, 208 Or. 251, 262, 301 P.2d 175 (1956). This is not an instance where we can say the evidence furnished no basis for the court's exercise of that discretion. See Velasquez v. Freeman, 244 Or. 40, 415 P.2d 514 (1966).
The second assignment of error is that the employment agreement was unenforceable for lack of consideration. As best we can determine, if this issue was effectively tendered at all, it was done in a pre-trial memorandum wherein defendant said:
"* * * The evidence will also reveal that the alleged agreement was entered into after employment had commenced and that the salary and benefits that were to accrue to Defendant had already been agreed upon.
"Testimony at trial will also reveal that there was no consideration granted to the defendant in return for his alleged acceptance of the agreement and the harsh restrictions imposed therein. * * *"
It is by no means clear that the matter was raised again in the trial. Defendant denied that he ever signed the agreement at all. The jury was instructed[6] on what plaintiff had to prove about the existence of the agreement before it could find for him.[7] No exceptions were taken.
*72 Defendant now claims that because he started work on April 1, 1975, and the agreement is dated April 4, 1975, plaintiff had to prove a separate, new consideration for the obligations undertaken thereby.[8] He relies on McCombs, et al v. McClelland, 223 Or. 475, 354 P.2d 311 (1960) and Mail-Well Envelope Co. v. Saley, 262 Or. 143, 497 P.2d 364 (1972), but they are inapposite. In each of those cases it was clear that the non-competition agreement was separate from the original employment agreement. Here the evidence was sufficient for the jury to conclude that the promise not to compete and the initial employment were contemporaneous. So, even assuming the issue was before the trial court, it was properly disposed of in the jury trial phase of the case, and the court was entitled to make the same finding in determining to give equitable relief.
Affirmed.
NOTES
[1] Defendant's third assignment of error asserts "that the trial court erred in specifically enforcing the agreement * * * because the agreement lacked consideration and because plaintiff himself breached the agreement." The first ground is disposed of under the second assignment of error, and defendant concedes that the second was not urged at trial. We will not consider it.
[2] The photostatic copy, as well as the copy attached to the first exhibit, suggested that there had been duplicate executed originals. Neither was produced. There was no testimony that duplicate originals were in fact executed. How plaintiff happened to have a photostatic copy of the agreement but not the original was never explained.
[3] Defendant denied signing the agreement or, if he did sign it at some time, that he had known and understood its contents. He also argued that if he did sign it, it was done much later than it showed on its face. Aside from the question of the admissibility of the exhibit, the issues relating to whether there was a meeting of the minds, a written agreement, consideration and other matters concerning the formal validity of the agreement were resolved by the jury under instructions to which no exceptions were taken. Defendant's post-trial efforts to prove that his purported signature was a forgery present no issue on appeal.
[4] ORS 41.610:
"The original writing shall be produced and proved except as provided in ORS 41.640. If the writing is in the custody of the adverse party and he fails to produce it after reasonable notice to do so, the contents of the writing may be proved as in the case of its loss. However the notice to produce it is not necessary where the writing itself is a notice or where it has been wrongfully obtained or withheld by the adverse party."
[5] ORS 41.640(1)(b):
"(1) There shall be no evidence of the contents of a writing, other than the writing itself, except:
"* * *
"(b) When the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default."
[6] The requested instructions are not in the trial court file.
[7] turning to the issues. The first issue in this case is whether the parties entered into an enforceable noncompetition contract, and this issue, that is, the first issue, subdivides into two issues. The first subissue, then, is did they reach an agreement[?] And then, if you find that they did, the second subissue is [is] the agreement that they reached an agreement that the law considers valid and enforceable[?]
"On that first subissue, that is, whether they reached an agreement at all, before there can be a valid contract there must be a meeting of the minds as to all of its terms. Nothing can be left for future negotiations, and if any portion of the contract is not agreed upon or if no method is agreed upon by which such term or provision can be settled, there is no contract. That is to say there must be a meeting of the minds as to the obligations each party assumes under the contract before it can be said that a contract exists.
"Now, under these instructions if you find that the parties did reach an agreement, including a noncompetition clause, then you must determine the subissue whether the agreement reached is one which the law considers valid and enforceable.
"In that regard, before a noncompetition agreement will be enforced, consideration for such an agreement must not be grossly inadequate and its terms must not otherwise be unfair. In that regard, just nominal consideration is not enough. Three things are essential to the validity of a contract in restraint of trade, which a noncompetition agreement is. First, it must be partial or reasonably restricted in its operation in respect to time and place. Second, it must be based upon some good consideration, and, third, it must be reasonable, that is, it shall afford only a fair protection to the interests of the party in whose favor it is made and must not be so large in its operation as to interfere with the interests of the public at large.
"* * *
"The alleged employment contract in consideration here involves a post-termination noncompetition agreement. If you find that the Defendant entered into the said employment contract and that the contract was reasonable and was so entered into pursuant to a good and valid consideration, as those terms have been defined for you, then you must find that the Defendant was bound by the terms of the contract, including the non-competition provision. On the other hand, if you find that the Plaintiff has failed to prove by a preponderance of the evidence that the parties entered into an enforceable noncompetition contract as claimed, then your answer to question one on the verdict would be no and you would go directly to the Defendant's counterclaim for alleged unpaid wages.
"As I say, the burden of proof is on the Plaintiff who has claimed the existence of this contract, to prove its existence and its enforceability under the law. Now, if you find that the Plaintiff has sustained his burden of proof to show that the parties entered into a contract and that under the rules that I have given you it was and is an enforceable contract, then the next issue for you to decide is whether or not the Defendant breached the alleged contract. * * *"
[8] The purported agreement here was made before the effective date of ORS 653.295. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608526/ | 432 P.2d 498 (1967)
NEVADA STATE BOARD OF CHIROPRACTIC EXAMINERS, Appellant,
v.
Morton M. BABTKIS, D.C., Respondent.
No. 5195.
Supreme Court of Nevada.
October 17, 1967.
Harvey Dickerson, Atty. Gen., George G. Holden, George H. Hawes, and Peter Breen, Deputy Attys. Gen., Carson City, for appellant.
Ross, Snyder & Goodman, Las Vegas, for respondent.
OPINION
THOMPSON, Chief Justice.
This appeal is from a district court review of an order of the Nevada State Board of Chiropractic Examiners permanently revoking the license of Morton M. Babtkis to practice chiropractic. The district court modified the Board's order by substituting *499 for revocation, a six months suspension to be followed by two years probation. The Board contends that the court modification should not be allowed to stand, since substantial evidence was presented at the hearing before the Board to support its order of revocation. We agree with the Board and reinstate the order which it entered.
The revocation order rests upon evidence that a major part of the healing art of chiropractic conducted in the office of Babtkis at Henderson, Nevada, was a "local" massage an act of hand masturbation performed by female employees upon male customers. The fee was ten dollars. Customers were lured to his office by advertisements in the Las Vegas newspapers. An example: "Relaxing massage, 567-7301, Joanne, Henderson." The number was the telephone number of Babtkis' office Joanne was a "masseuse" employed by him. There were others.
The Board found that such activity was "unprofessional conduct" within the meaning of NRS 634.010(3)(j),[1] and evidence that Babtkis no longer possesses "good moral character" within the intendment of NRS 634.140(1)(b).[2] Either finding allows the penalty of revocation or the discipline of suspension. NRS 634.140; 634.150.[3] The Board chose revocation. We cannot fault the Board for its view.
Chiropractic is a healing art. Hand masturbation is not. One in the practice of chiropractic must be dedicated to the ideal of serving those who are ailing and in need of professional attention. Hand masturbation bears no relationship to that ideal and, in the present context, is a vulgar, base act, reflecting adversely upon the moral character of Babtkis, who knowingly allowed such to regularly occur in his office.
The district court approved the Board's finding of unprofessional conduct, but believed that the practice of hand masturbation by his female employees did not show the absence of the good moral character required of a professional man. It was for this reason that the court modified the Board's revocation order to suspension of license and probation. Although there may be instances of unprofessional conduct which do not reflect adversely upon a practitioner's moral character, the condoning of hand masturbation by female employees is not one of them. We do not accept the distinction drawn by the district court.
When the determination of an administrative board is challenged, the function of this court is identical to that of the district court. Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d 466 (1963); McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). It is to review the evidence presented to the board and ascertain whether that body acted arbitrarily or capriciously and, therefore, abused its discretion. As already indicated, our review discloses that the Chiropractic Board acted within the permissible limits of its discretion.
Counsel for Babtkis suggests that we honor the district court modification on the authority of In re Reno, 57 Nev. 314, 64 P.2d 1036 (1937). In that case the Medical Board permanently revoked a doctor's license to practice medicine. The district court affirmed, and the Supreme Court modified the penalty to a temporary revocation of license, since it found no clear evidence that the conduct in issue was *500 willful and intentional. The case at hand presents a different picture. The record sustains the Chiropractic Board's view that Babtkis knowingly allowed the conduct for which his license was revoked.
The district court order modifying the Board penalty of permanent revocation is reversed, and the order of the Chiropractic Board is reinstated.
ZENOFF, BATJER, MOWBRAY, and CRAVEN, JJ., concur.
NOTES
[1] NRS 634.010(3): "Unprofessional conduct" means: * * * (j) Conduct unbecoming a person licensed to practice chiropractic or detrimental to the best interests of the public."
[2] NRS 634.140(1): "Upon complaint of the board, * * * his license shall be revoked if it is found: * * * (b) That he no longer possesses good moral character."
[3] NRS 634.150: "The board shall have additional power: * * * 2. To revoke any license, either permanently or temporarily, and suspend the person found guilty of unprofessional conduct from the practice of chiropractic, either permanently or for a time determined by the board." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2983716/ | Dismissed and Memorandum Opinion filed June 19, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00888-CR
WILLIAM MARK RHODES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1259408
MEMORANDUM OPINION
This is an appeal from a judgment of guilt following a deferred adjudication.
Appellant pleaded guilty without an agreed recommendation to the offense of
burglary of a habitation. The trial court deferred adjudication and placed appellant
on probation for five years. Subsequently, on the State’s motion, the trial court
adjudicated guilt and sentenced appellant to prison for six years.
Sentence was imposed on September 4, 2012. Appellant’s notice of appeal
was not filed until October 2, 2013.
A defendant’s notice of appeal must be filed within thirty days after sentence
is imposed when the defendant has not filed a motion for new trial. See Tex. R.
App. P. 26.2(a)(1). A notice of appeal which complies with the requirements of
Rule 26 is essential to vest the court of appeals with jurisdiction. Slaton v. State,
981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected,
a court of appeals does not obtain jurisdiction to address the merits of the appeal.
Under those circumstances it can take no action other than to dismiss the appeal.
Id.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Boyce, Busby and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
2 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1875641/ | 458 F.Supp. 1357 (1978)
In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor.
In re SETTLEMENTS WITH AMTRAK, CONRAIL, NEW YORK STATE AND SIX MONTHS CREDITORS.
No. 70-347.
United States District Court, E. D. Pennsylvania.
August 11, 1978.
*1358 James E. Howard, John J. Ehlinger, Jr., Robert Szwajkos, Philadelphia, Pa., for Penn Central Trustees.
Laurence Z. Shiekman, Philadelphia, Pa., for ConRail.
Douglas G. Sanborn, Deputy Atty. Gen., Trenton, N. J., for State of New Jersey.
Edward C. Toole, Jr., Philadelphia, Pa., for Committee of Interline Railroads.
Walter H. Brown, Jr., New York City, for Institutional Investors Penn Central Group.
David S. Hope, Philadelphia, Pa., for American Telephone & Telegraph Co. and other Bell System Companies, General Motors Corp., Syntonic Technology, Inc., Federal Transportation Co., Frank and Vincent Viseglia, et al.
Kenneth M. Kramer, New York City, for Citibank, as agent for the Committee of Secured Bank Creditors.
Spencer Ervin, Jr., Philadelphia, Pa., for New Haven Trustee.
Vincent P. Hatton, Philadelphia, Pa., for Girard Trust Bank.
Joseph A. Schafer, for Self and Class of Minority stockholders of Penn Central Co.
Brice Clagett, Washington, D. C., Carl Helmetag, Jr., Andrew P. Corcoran, Jr., Philadelphia, Pa., for Penn Central Trustees.
Robert H. MacKinnon, New York City, for Citibank, N. A., as Agent for the Committee of Secured Bank Creditors.
F. Hastings Griffin, Jr., Philadelphia, Pa., for Amtrak.
Morris Raker, Boston, Mass., for Richard Joyce Smith, New Haven Trustee.
F. L. Ballard, Jr., Philadelphia, Pa., for Institutional Investors, Penn Central Group.
Michael Patterson, for Provident National Bank.
OPINION RE SETTLEMENTS WITH AMTRAK, CONRAIL, NEW YORK STATE, AND THE SIX MONTHS CREDITORS
FULLAM, District Judge.
In the Approval Opinion, a pending settlement of Amtrak's claims and the dispute with respect to the amount and character of ConRail's claims were discussed. The Trustees and ConRail have resolved their disputes and a settlement has been presented to the Court. Settlements with the State of New York and the Six Months Creditors have also been presented to the Court for approval. All four settlements will be approved.
SETTLEMENT WITH AMTRAK
The proposal is to settle a large number of reciprocal claims between the Trustees and Amtrak by paying to Amtrak, partly in cash over a period of time, and partly in securities of the new company, a total of approximately $40 million. The claims and counterclaims which would thus be released fall into five categories, of which two are relatively insignificant: (1) adjustments in the proper accounting for Amtrak's share of certain costs; and (2) miscellaneous claims. *1359 The remaining three categories are more significant, at least in terms of the potential theoretical exposure: (3) Amtrak's claims for track maintenance; (4) the final compensation to be paid to the Trustees for furnishing facilities and services to Amtrak after the initial start-up period; and (5) Amtrak's claims for maintenance of highway bridges over the Northeast Corridor.
The Trustees assert claims against Amtrak in the first two categories which, if the Trustees were completely successful, would mean that Amtrak owes the Trustees $16.3 million for accounting adjustments and $2.8 million for miscellaneous claims, or a total of $19.1 million. Many of the Trustees' claims are tenuous, however, and it is fair to state that the Trustees would undoubtedly consider it a victory if they established liability on the part of Amtrak for $8.8 million in accounting adjustments, and $1 million on the miscellaneous claims, for a total of $9.8 million. If Amtrak were totally successful on its claims in these categories, the Trustees would owe Amtrak $6.8 million for accounting adjustments, and $3.7 million for miscellaneous claims, for a total of $10.5 million. Here again, however, the likelihood of such a totally favorable outcome for Amtrak seems remote. I have no doubt that it would generally be considered a victory for Amtrak and a loss for the Trustees if the slate were wiped clean with respect to claims in these two categories. The realistic range of litigation possibilities, therefore, is probably between a $9 or $10 million recovery by the Trustees, on the one hand, and no recovery by either party, on the other.
Pursuant to the Amtrak statute, the parties have attempted to agree upon the appropriate level of compensation to be paid by Amtrak to the Trustees for furnishing facilities and services, covering the period from June 1, 1973 to April 1, 1976 (the date of the conveyance to ConRail), and, upon being unable to agree, submitted the dispute to the Interstate Commerce Commission for resolution. The ICC rendered an interim opinion, establishing certain guidelines.[1] The parties then worked out a tentative compromise settlement agreement, in light of the ICC guidelines and an amendment to the statute which Congress enacted in the meantime. I rejected the proposed settlement, as providing inadequate compensation to the Trustees, and Amtrak simultaneously announced its withdrawal from the settlement agreement.[2] Further litigation before the ICC would be required to resolve this dispute. If the Trustees were fully successful, Amtrak would owe the Trustees as much as $147 million. However, such complete success is unlikely. The theories on which the Trustees would be most likely to recover would generate a return of approximately $85 million. If Amtrak were completely successful, it would owe the Trustees nothing. Here again, however, the likelihood of such a result appears remote. It seems doubtful that the Trustees could fail to establish liability on the part of Amtrak for much less than $30 million additional compensation.
Thus, combining all claims in the categories thus far analyzed, it appears that the range of probable recoveries by the Trustees extends from a high of $94 or $95 million to a low of about $30 million.
Offsetting these reasonably predictable favorable results are the claims asserted by Amtrak in the remaining two categories. Amtrak asserts that it has claims against the Trustees for as much as $30 million, representing a rough estimate of what it might cost to rebuild a large number of highway bridges crossing the Northeast Corridor. The facts are these: Pursuant to the RRRA, the Trustees conveyed the railroad, including the Northeast Corridor, to ConRail. ConRail then sold the Northeast Corridor to Amtrak, at the (very low) valuations tentatively specified by USRA in the Final System Plan. ConRail conveyed the properties to Amtrak "as is." Amtrak takes the position that various highway *1360 bridges crossing the Northeast Corridor should have been better maintained by Penn Central during its ownership, and that, as the present owner of the property, Amtrak may find it necessary to rebuild or restore these bridges. Amtrak expresses considerable uncertainty as to just what interest in the bridges passed to Amtrak from ConRail, but I am not aware of any contention that Penn Central retained any ownership rights in the Corridor.
In presenting objections to the Reorganization Plan on the basis of its failure to provide for this claim, Amtrak was unable to articulate any legal theory which would support the imposition of liability upon the Penn Central estate in these circumstances, and, so far as I am aware, no such legal theory has yet been developed by anyone. The benefit to the Debtor's estate from release of this claim in connection with the settlement agreement is therefore plainly minimal, namely, avoiding the costs of defending the action, if Amtrak were to attempt to pursue it.
The final category of claims to be considered is Amtrak's claims for the costs of upgrading trackage which the Trustees were required to maintain at the "level of utility" prevailing on May 1, 1971. A reasonable estimate of the aggregate amount of claims which Amtrak has asserted, or might be able to assert, in this category, is approximately $178 million. The gist of this controversy may be summarized as follows: The contract between Amtrak and Penn Central required Penn Central to maintain its tracks, for use by the passenger service, at the same "level of utility" which prevailed on May 1, 1971. The contract had many years to run when the trackage was conveyed to ConRail pursuant to the RRRA. There is a dispute between Amtrak and ConRail as to whether or not ConRail has the same maintenance obligations which Penn Central would have had. If ConRail does have those same obligations, the damages sustained by Amtrak by reason of Penn Central's alleged failures to meet its maintenance obligations would be relatively modest. If ConRail does not have the same maintenance obligations, then Amtrak may, in the future, be required to spend money upgrading the tracks used by its passenger trains which it would not have been required to spend, if Penn Central had fulfilled its maintenance obligations. On the other hand, if Penn Central had fulfilled its maintenance obligations, the tracks would have been in better condition and presumably more valuable, and thus the price to be paid for the tracks by ConRail would have been higher. More importantly, Penn Central would have been improving its own tracks, and would have had the benefit of those improvements in connection with its operation of freight service.
Amtrak will not have suffered any damage unless and until it actually does spend money to upgrade the tracks. If Penn Central is required to reimburse ConRail for such expenditures, it is difficult to avoid the conclusion that Penn Central should be in a position to recover from ConRail, the owners of the improved tracks, at least a significant portion thereof on the theory of unjust enrichment. Thus far, ConRail and Amtrak have successfully asserted that no liability may be imposed upon ConRail, except by the Special Court, While that position is certainly correct with respect to the rights and obligations arising by virtue of the conveyance under the RRRA and the contract between Amtrak and ConRail, it seems reasonably clear that the RRRA does not exonerate ConRail from liability which might arise in the future by reason of post-conveyance events, and that litigation seeking to impose such liability might be pursued in other courts, so long as it did not impinge upon the Valuation Case or the Orders of the Special Court stemming from the conveyance.
During the period from February 1974 to the date of conveyance, Penn Central's expenditures for track maintenance and upgrading were largely controlled by USRA, under the § 213 and § 215 programs. There is therefore an additional uncertainty concerning the legal liability of Penn Central for alleged undermaintenance during that period. More importantly, under the complex arrangements governing the amounts of money Amtrak was required to pay Penn *1361 Central for the use of its facilities and services, at least a significant portion of the additional sums which Amtrak now claims Penn Central should have spent for track maintenance would have been reflected in increased payments from Amtrak to Penn Central. And finally, there is room for the argument that by virtue of the RRRA and the mandated conveyance to ConRail, the doctrine of contract-frustration comes into play, and that Amtrak's claim would therefore be limited to any increased costs it actually incurred during the pre-conveyance period.
If these matters were to be litigated further, Amtrak would assert that the vast sums it has already spent in upgrading the Northeast Corridor satisfy the requirement that damages must be actually incurred before they can be recovered. But no claim for undermaintenance of the Northeast Corridor has ever been suggested (with respect to the off-Corridor passenger lines, Amtrak did pursue an arbitration proceeding in connection with certain lines in Indiana (National Arbitration Panel 11), and, on the eve of the conveyance to ConRail, filed a notice of intent to arbitrate this issue with respect to other lines); moreover, there is the problem arising from the fact that Amtrak now owns the Northeast Corridor, which it purchased at a price reflecting its "as is" condition.
Perhaps the strongest argument in favor of Amtrak's claim is the "confirmed" award of the arbitrators in the NAP 11 proceeding, which, shortly before conveyance, directed the Trustees to perform certain track upgrading and maintenance which would have cost about $22 million. The Court of Appeals for the Third Circuit upheld this Court's denial of Amtrak's petition for specific performance of that arbitration award, but left open the possibility that damages in some amount might be appropriate. In the Matter of Penn Central Trans. Co., 560 F.2d 169 (3d Cir. 1977). See, also National Railroad Passenger Corp. v. Blanchette, 551 F.2d 127 (7th Cir. 1977), reversing National Rail Passenger Corp. v. Blanchette (S.D.Ind., Civil No. IP 76-274-C, June 25, 1976). The Court of Appeals directed this Court to make ConRail a party to the proceeding; the Special Court thereafter entered a "stay" purportedly precluding this Court from deciding issues relating to ConRail, see Consolidated Rail Corp. v. National Rail Passenger Corp., et al., Civil Action No. 77-39 (Special Ct., Dec. 7, 1977). And the issue remained unresolved until the present settlement agreement was reached. The award of the NAP 11 panel gives Amtrak two principal points of strength: It defined "level of utility" by reference to scheduled performance rather than actual performance as of May 1, 1971, and it directed Penn Central to perform the track rehabilitation "at no cost to Amtrak." With respect to the first point, the confirmed award may well be no longer subject to challenge, since that issue was within the scope of the jurisdiction of the arbitrators. (Whether other arbitrators, in other proceedings, would be required to resolve the level-of-utility issue the same way is somewhat less clear.) The "at no cost to Amtrak" language raises several issues.
If the arbitrators meant that the work was to be done at no initial cost to Amtrak, there is no problem. But if, as Amtrak contends, the arbitrators intended to preclude Penn Central from taking those additional costs into account in the determination of the compensation to be paid to Penn Central by Amtrak, then it would seem the arbitrators acted without jurisdiction. All issues related to determining the amount of compensation to be paid by Amtrak are committed to the ICC by statute, and the arbitration provisions of the contract specifically exclude such issues from the arbitration process. On the other hand, the ICC might be persuaded to exclude those costs from its calculation of compensation, in any event.
With respect to the additional arbitrations which Amtrak has noticed, but not pursued as yet, Amtrak would no doubt argue for consistency with the NAP 11 award, and the Trustees would contend that this would be inappropriate, in view of the impact of the RRRA conveyance (an issue which the NAP 11 panel expressly refrained from addressing), and would also assert defenses in the nature of laches.
*1362 As the foregoing review demonstrates, I am not persuaded that there is any great likelihood of the eventual imposition of any substantial net liability against the Penn Central estate by reason of these track maintenance claims. On the other hand, the record has not been completely developed; moreover, decision of these issues by this Court would not represent the last word on the subject.
Another factor which bears mention is the distinct possibility that some or all of the issues involved in both the track maintenance and compensation disputes between Amtrak and Penn Central might be substantially affected by subsequent legislation. For example, there is a pending proposal to amend the Amtrak statute so as to overcome the present ICC requirement that compensation for use of tracks and facilities must include some return on investment (S. 2478). The Trustees are justifiably apprehensive that the rules of the game will again be altered retroactively. Their desire to avoid such adverse consequences, and further rounds of litigation concerning them, is indeed understandable.
Notwithstanding these problems, it would be difficult to approve the settlement now proposed were it not for another factor which tips the scale in favor of approval: Regardless of the merit or lack of merit in Amtrak's claims, they are so large that their pendency virtually precludes consummation of a Plan of Reorganization. That is, Amtrak is in a position to object to the Plan, and has objected to the Plan, on the ground that the Plan does not fully provide for its claims in all of their ramifications. I believe the Plan could properly be confirmed notwithstanding these objections, but Amtrak would have the right to appeal, and the amount and potential priority of its claims are such that if its appeals were successful, the existing Plan could not be carried out.
It is significant that no one having standing to do so has expressed any objection to the proposed compromise settlement. This means that the Trustees, the other parties to the proceeding, and their experienced and knowledgeable counsel, are all of the view that the advantages of prompt consummation of the Plan justify the cost represented by the settlement agreement. While I am not at all sure that I agree with that business judgment, I believe the choice is appropriately left to the parties most directly affected.
In the view I take of this matter, it is disturbing to see a federally funded agency exploiting the leverage produced by its threat to block reorganization efforts on the basis of claims which I regard as lacking in substance. On the other hand, there is some consolation in the thought that the proceeds of the settlement agreement will inure to the benefit of the public, rather than private interests.
SETTLEMENT WITH CONRAIL
The parties have proposed a settlement of a large number of very substantial claims asserted by ConRail, and partially offsetting claims asserted against ConRail by the Trustees. These include: a claim by ConRail in the amount of $54.6 million for payments made by ConRail on account of equipment obligations, allegedly chargeable against the Trustees as related to the pre-conveyance period, and certain offsets claimed by the Trustees; ConRail's contentions that the settlement agreement between the Trustees and the Government does not adequately protect ConRail's interest in connection with the § 211(h) program; disputes concerning the status of certain non-current debt interests of subsidiaries, assigned to ConRail pursuant to the RRRA and the Orders of the Special Court; and ConRail's claim to escrow accounts, in the aftermath of the Court of Appeals' decision in In the Matter of Penn Central Trans. Co., 570 F.2d 118 (3d Cir. 1978).
In essence, the parties propose to settle all of these disputes by the payment to ConRail of $6.5 million in cash on consummation date, and distribution of Series C-2 Notes in the principal amount of $35 million.
No one has objected to the substance of the proposed settlement, it appears to be well within the range of reasonably foreseeable *1363 litigation outcomes, and, since it would eliminate a potential obstacle to the prompt consummation of the Plan of Reorganization, it is in the best interests of the estate.
I have carefully considered the objections filed on behalf of the State of New Jersey, to some extent joined in by other parties, and have concluded that they are lacking in merit. The unfortunate problems relating to the payment of 1976 taxes are not germane to the settlement, and are not within the province of this Court. The somewhat more refined definition of what constitutes a § 211(h) claim is in conformity with the RRRA, and does not amount to a modification of the Plan of Reorganization. The $6.5 million cash payment can properly be regarded as a lump sum payment for ConRail's continued agency services. And the further concession made by providing that ConRail as well as USRA is entitled to insist upon retirement of the Series B Notes on schedule (with penalties for non-compliance) is entirely consistent with the Plan, does not amount to a modification thereof, and appears entirely reasonable, in view of the unique relationship between ConRail, USRA and the Debtor's estate (reorganized company) under the § 211(h) program.
While the overall impact of the proposed settlement is substantial, it does not impair the feasibility of the Plan. The proposed settlement will be approved.
SETTLEMENT WITH THE STATE OF NEW YORK
Before bankruptcy, the State of New York performed certain work in eliminating grade crossings, generating claims against Penn Central aggregating some $25.3 million, payable over a period of years. $7.7 million of this amount fell due between June 21, 1970, and December 31, 1977, and remains unpaid. The State claims that the entire balance is now payable, that it represents an administration claim against the estate, and that it must be paid in cash in full.
The State of New York also has asserted claims aggregating some $20.3 million in unpaid sales and use taxes, allegedly owing with respect to leased equipment and per diem charges for the use of equipment. These claims present novel legal issues, and extremely complex factual disputes.
The proposal is to resolve all of these disputes by liquidating all of these claims for a total of $19 million, to be classified and satisfied under the Plan as a tax relating to conveyed property. This result is well within the range of reasonably foreseeable litigation possibilities, does not impair the feasibility of the Plan, and represents an entirely satisfactory resolution of complex and difficult issues. The settlement will be approved.
SETTLEMENT WITH SIX MONTHS CREDITORS
The Plan provides that if any creditor is found to have a claim entitled to priority treatment under the "six month" rule, such claim would be included in Class H, and satisfied by the issuance of Series C-2 Notes. However, the Trustees contended, and this Court decided, that no claims were entitled to the six months priority. Rather, all such claims are included within Class M, general unsecured pre-bankruptcy claims.
The claims for which six month priority status is asserted aggregate approximately $60 million. Substantially all of these claimants have filed appeals from the Order approving the Plan. If it were ultimately held that this Court erred in denying six months priority status to such claims, the impact upon the reorganization would be very great indeed. Moreover, if such priority were established as a result of the appellate process, there can be no complete assurance that payment in C-2 Notes would be satisfactory.
Under the terms of the proposed settlement, all of these issues would be resolved, and the appeals would be withdrawn. Fifty percent of the amount of each claim which would qualify for six months priority if there were a fund available for payment of such claims within the meaning of the six months rule will be classified within Class H, and paid in C-2 Notes; the balance of such claims will continue to be classified within Class M, and treated accordingly. *1364 In short, the parties have agreed that the provisions of Class H are adequate for claims entitled to six months priority, and have settled the dispute over applicability of the six months rule itself on a 50-50 basis.
I remain persuaded that none of these claims is entitled to six months priority in this case, for the reasons set forth at length in the Plan Approval Opinion. I must recognize, nevertheless, that this issue has not been squarely decided in the Third Circuit. While I found the decisions from other circuits, particularly the Second Circuit, persuasive, and believe they would be followed in this Circuit, there is room for the possibility that a different view which probably prevails in the Fourth Circuit might be adopted here.
The Trustees and the other parties have presumably carefully weighed the risks involved, and the desirability of eliminating another potential obstacle to prompt consummation of the Reorganization Plan, and have reached a business judgment. I see no reason to disturb that business judgment. The settlement will be approved.
ORDER NO. 3722
AND NOW, this 5th day of Sept., 1978, upon consideration of the "Petition of Trustees for Approval of Settlement with Six-Month Creditors" (Petition), Order No. 3693 and the record in these proceedings, is hereby ordered that Order No. 3693 is amended to read:
1. The settlement of the claims of six-month creditors, on the terms set forth in paragraph 5 of the Petition, is approved.
2. The resolution of the issue raised by the Committee of Interline Railroads, relating to the satisfaction of the Plan of Reorganization, on the terms described in paragraph 6 of the Petition, is approved.
3. The Trustees or any one of them or their designees are authorized to take such action as may be necessary and appropriate to implement the settlement.
NOTES
[1] Determination of Compensation under Section 402(c) of the Rail Passenger Service Act of 1970, as amended (ICC Rep. Finance Docket No. 27353, sub. no. 1).
[2] See In re Penn Central Trans. Co., 440 F.Supp. 1069 (E.D.Pa.1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608527/ | 102 Ariz. 443 (1967)
432 P.2d 455
J.H. WELSH & SON CONTRACTING COMPANY, Appellant (Petitioner),
v.
ARIZONA STATE TAX COMMISSION, Appellee (Respondent).
No. 8910-PR.
Supreme Court of Arizona. In Banc.
October 18, 1967.
Lewis, Roca, Beauchamp & Linton, by John P. Frank, Phoenix, for appellant (petitioner).
Darrell F. Smith, Atty. Gen., and Philip M. Haggerty, Asst. Atty. Gen., for appellee (respondent) Arizona State Tax Commission.
UDALL, Justice:
The instant matter is before us on a petition for review of the decision of the Arizona Court of Appeals, Division 1, as reported in 4 Ariz. App. 398, 420 P.2d 970. In its opinion the Court of Appeals affirmed the judgment of the Superior Court, Maricopa County, which decreed in part that certain monies paid by employers in the construction industry, under the provisions of collective bargaining agreements, to trust funds created to finance programs for apprenticeship training and industry promotion were not amounts "paid by the contractor for labor" and hence exempt from taxation under A.R.S. § 42-1310, subsec. 2(i) which provides for payment of a transaction privilege tax pursuant to A.R.S. § 42-1301 et seq.
We accepted the petition for review on this matter for the limited purpose of determining the jurisdiction of the Court of Appeals on an appeal from a ruling of the Superior Court. A.R.S. § 42-1339, subsec. B provides in pertinent part:
"After payment of any tax, penalty or interest under protest verified by oath and setting forth the grounds of objection to the legality of the tax, a taxpayer may bring action against the commission in any superior court of the state for the recovery of the tax, interest or penalty so paid under protest. * * *"
After a ruling by the Superior Court on the matter the statute further provides: "Either party to such action may appeal to the supreme court as provided by law * * *." The troublesome issue which drew our attention here was whether because of the wording of the statute this court was solely invested with jurisdiction for such an appeal.
The precise issue has been decided by this court in the recent case of Arizona Podiatry Association v. Director of Insurance, 101 Ariz. 544, 422 P.2d 108. Therein we construed a statute which provided that, "Appeal may be taken to the supreme court * * *." A.R.S. § 20-166. After reading the involved statute with these *444 provisions creating and establishing the jurisdiction of the Court of Appeals, we concluded that jurisdiction for such an appeal rests concurrently with both the Court of Appeals and the Supreme Court.
Here we find that interpretation applicable and thus we conclude that the Court of Appeals properly accepted the appeal of the instant matter.
Judgment of the Superior Court affirmed.
BERNSTEIN, C.J., McFARLAND, V.C.J., and STRUCKMEYER and LOCKWOOD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608531/ | 432 P.2d 675 (1967)
Charles Edward SKINNER, Appellant,
v.
The STATE of Nevada, Respondent.
No. 5290.
Supreme Court of Nevada.
October 16, 1967.
Charles L. Kellar, Las Vegas, for appellant.
*676 Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., and James D. Santini, Deputy Dist. Atty., Las Vegas, for respondent.
OPINION
COLLINS, Justice.
Appellant Charles Edward Skinner was convicted by a jury of second degree murder for the unlawful killing of Roosevelt Wright in Las Vegas, Nevada. He appeals from the conviction and from denial of a writ of habeas corpus. We find no merit to either appeal and sustain the conviction.
On April 29, 1966, Skinner and Wright entered Bruce's Liquor Store in Las Vegas, Nevada, with three other men. Skinner and Wright there engaged in intermittent argument. The two men departed from the store. Two shots were heard and Wright stumbled back into the store, followed by Skinner who shot Wright again with a .22-caliber rifle as he lay on the floor. Wright stood up and lurched toward Skinner who shot him again. Wright staggered from the store holding his stomach. Skinner followed and shot him again. Skinner tried to shoot Wright several more times but the gun misfired. Skinner stepped away from Wright but returned and attempted several times to shoot him. Wright died from the wounds.
Skinner fled from the scene and went to the residence of Cornelius Lee approximately one block from the liquor store. He attempted to gain entrance but when denied access, threatened to break down the door. He finally gained admission to the house by breaking a window. Skinner, after gaining entrance to the house, told Johnny Williams and others that he had just killed Roosevelt Wright by shooting him five times. A few minutes later Skinner was arrested in Doolittle Park, one-half block from the scene of the killing, still carrying a .22-caliber rifle.
Skinner was indicted by the grand jury of Clark County for the murder of Wright. No reporter's transcript of those proceedings was made. The indictment was dismissed through habeas corpus on the authority of Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966).
The same day Skinner was re-arrested under a new complaint charging murder, and was held without bail. He sought another writ of habeas corpus urging several statutory deficiencies. The second writ was also denied, from which Skinner appeals. His appeal from that denial following trial and conviction comes too late. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966); Ex parte Merton, 80 Nev. 435, 395 P.2d 766 (1964). He was thereafter bound over to the district court following a preliminary hearing, convicted by a jury of second degree murder and sentenced to imprisonment of not less than 10 years nor more than life. He appeals additionally from the conviction and sentence.
Twelve assignments of error are urged by appellant. We shall consider but three, the others being either abandoned by appellant or patently not supported by the record.
Appellant contends that the state was powerless to proceed against him by way of complaint and information following dismissal of the grand jury indictment. He contends that the requirements of NRS 173.030[1] were not followed in that: (1) there was no order by the court to resubmit the matter; and (2) the state did not resubmit the matter to the grand jury but instead chose to proceed against the appellant by complaint and information. Respondent, on the other hand, contends that NRS 174.200[2] authorizes the state to proceed *677 in such a manner. Although that statute is not directly in point, because this was not a dismissal "under this chapter," we agree with the principle set forth therein. The procedure used in this case was collaterally upheld in In re Hironymous, 38 Nev. 194, 147 P. 453 (1915), where the court stated that since "* * * power existed to proceed further against the petitioner after the dismissal of the first indictment, such proceeding might * * * be by information." Id. at 203. Such procedure is not inherently prejudicial to the appellant. Alderman v. State, 38 N.W. 36 (Neb. 1888). The California court, in an analogous case, approved of an indictment following proper dismissal of an information for the same crime. The court held that following dismissal of the information, it was as though no information had been filed. People v. Grace, 263 P. 306 (Cal. 1928). The dismissal under Shelby, required because of a failure to report the proceedings, in no way affected the merits of the case. The lower court simply acknowledged it had no way to test the sufficiency of the evidence by which Skinner was charged by the grand jury. We hold that under these circumstances, the state could proceed against appellant by way of complaint and information, and that the court's permission was not required.
Appellant next urges it was error for the trial court to fail to instruct the jury, prior to any evidence being taken, that they could take notes as NRS 175.166 provides.[3] Neither the state nor appellant made timely request of the trial judge. Not until the state's second witness was testifying did appellant's counsel object to the failure of the court to give the instruction. We hold the statute is directory only and failure to invoke it in a timely manner constitutes a waiver by the objecting party. The procedure of jurors taking notes may be helpful to them, but the lack of notes will not destroy the inherent fairness of the trial, at least without a cogent showing of prejudice. None was shown here. We are not dealing with a substantive right of appellant, but a procedural directive incident to trial and available to either party.
Appellant says it was error for the trial court to admit testimony by state's witnesses of incriminating statements made to them immediately following the shooting. Appellant's counsel did not refer in his brief to the page and line, or the folio, in the record where the evidence objected to could be found as required by SCR 23(1),[4] and we could ignore the point. We prefer not to however, because it concerns important rights of appellant, not counsel.
Apparently the incriminating statements referred to are those of Cornelius Lee, Lee Edward Toston and John B. Williams. Appellant told these various witnesses, within one-half hour of the shooting of Roosevelt Wright at the liquor store, "I killed this boy;" "Open the door or I'll shoot it down;" "I just shot Roosevelt Wright five times;" that he (Skinner) "had just killed Roosevelt Wright at Bruce's Liquor." Appellant's counsel objected on the grounds the statements were prejudicial, improper, not part of the res gestae, they were ex post facto, embarrassing to the defendant, and beclouded the issue. The objection is not sound. The statements were voluntarily made and were admissible as extrajudicial admissions by the accused. See State v. Johnson, 16 Nev. 36 (1881); Beasley v. State, 81 Nev. 431, 404 P.2d 911 *678 (1965). Furthermore, they were not objectionable under Miranda v. Arizona, 384 U.S. 436 (1966). The mandate of Miranda applies only to "custodial interrogation initiated by police officers." Id. 457. See Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967).
The conviction is sustained.
Appellant's counsel was appointed to take this appeal. We direct the lower court to give him the certificate specified in subsections 3 and 4 of NRS 7.260, to enable him to receive compensation for his services on appeal.
THOMPSON, C.J., and ZENOFF, J., concur.
NOTES
[1] "Dismissal of charge does not bar further indictment. The dismissal of the charge shall not, however, prevent the same charge from being again submitted to a grand jury or as often as the court shall so direct. But, without such direction, it shall not be again submitted."
[2] "Order setting aside indictment or information no bar to future prosecution. An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense."
[3] "Judge to inform jury of right to take notes. Before any evidence has been introduced the judge shall inform the jury they may individually take notes during the trial."
[4] "1. A brief must designate the page and line, or the folio, in the record where the evidence or matter referred to may be found, and in case of failure to do so the court may ignore the point made." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608532/ | 432 P.2d 326 (1967)
James R. GORESEN, Appellant,
v.
STATE of Alaska, Appellee.
No. 812.
Supreme Court of Alaska.
October 9, 1967.
M. Ashley Dickerson, Anchorage, for appellant.
D.A. Burr, Atty. Gen., Juneau, Thomas E. Curran, Jr., Dist. Atty., Anchorage, for appellee.
Before NESBETT, C.J., and DIMOND and RABINOWITZ, JJ.
DIMOND, Justice.
This is an appeal from a judgment of conviction for assault and battery.
Appellant had been arrested by police officers of the City of Seward for drinking intoxicating liquor in a public place.[1] There is a conflict in the testimony as to what occurred after appellant had been brought to the police station. Police officer Bern testified that appellant "cussed and swore" at Bern, that he got very mad and insulting after being informed by Bern that appellant's father would not "go his bail", that appellant charged and hit Bern as the latter approached appellant to take him downstairs to a cell, that he struggled and wrestled with both Bern and another officer named Fillingim and hit Bern a second time, that Bern and Fillingim had to exert force to get appellant down the stairs and in doing so pushed him a little so that he went down the first three steps "before he had complete control of his weight again", that after reaching the bottom of the stairs appellant "just pulled up and laid on the floor", and that Bern and Fillingim then dragged appellant *327 into a cell, made sure he still had a pulse and locked the cell door.
Appellant's account of what took place at the police station differed from Bern's. Appellant testified that the police officers picked on him, called him dirty names, struck him in the mouth and choked him, shoved him down a flight of stairs, and threw him into a cell "like a bag of wheat".
On this appeal appellant argues that police officers Bern and Fillingim conspired and colluded to entrap appellant into committing an assault and battery on Bern by harassing and brutalizing appellant for the purpose of goading him into striking one or both officers so that he could be charged with assault and battery. The defense of entrapment was not raised at the trial. Nevertheless, appellant contends that the evidence of entrapment was so clear that the trial court was duty bound to recognize it and on its own motion grant appellant a judgment of acquittal.
It is true, as appellant contends, that we may consider questions raised for the first time on appeal if necessary to effect substantial justice or prevent the denial of fundamental rights. This is required by a specific rule of procedure in criminal cases[2], and we have applied the same standard apart from rule in civil cases.[3]
Application of that rule does not persuade us that the judgment of conviction must be reversed. Appellant's argument is that entrapment was shown by the evidence as a matter of law. This would be true only if the evidence on the question were substantially undisputed,[4] which is not the case. The evidence is in conflict. Viewing the evidence in a light most favorable to the state,[5] it does not show entrapment, i.e., that the criminal design originated not in the mind of appellant but in the minds of the police officers, and that appellant was induced by the officers to commit the offense of assault and battery which he would not otherwise have committed.[6] Instead, the evidence is substantial in giving rise to the inference that the intent to commit the assault and battery originated in appellant's mind and not in the minds of the police officers. The trial court did not err in failing to direct a judgment of acquittal on the ground that entrapment was shown as a matter of law.
The judgment is affirmed.
NOTES
[1] AS 11.45.030 makes it a misdemeanor to drink intoxicating liquor in a public place not permitted under license to dispense intoxicating liquor.
[2] Crim.R. 47(b) provides:
Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
Noffke v. State, 422 P.2d 102, 107 (Alaska 1967); Lapham v. City of Haines, 374 P.2d 239, 240 (Alaska 1962).
[3] Merrill v. Faltin, (opinion No. 425) 430 P.2d 913 (Alaska Aug. 7, 1967); Meyst v. East Fifth Ave. Serv., Inc., 401 P.2d 430, 434 (Alaska 1965).
[4] Enciso v. United States, 370 F.2d 749, 751 (9th Cir.1967).
[5] United States v. Lauchli, 371 F.2d 303, 308 (7th Cir.1966).
[6] People v. Sweeney, 55 Cal. 2d 27, 9 Cal. Rptr. 793, 357 P.2d 1049, 1062 (1961). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608533/ | 67 Cal. 2d 527 (1967)
PEARL THUMA HUMPHREY, Plaintiff and Appellant,
v.
THE EQUITABLE LIFE ASSURANCE SOCIETY OF AMERICA, Defendant and Respondent.
Sac. No. 7796.
Supreme Court of California. In Bank.
Oct. 26, 1967.
William H. Phelps for Plaintiff and Appellant.
Allan F. Grossman as Amicus Curiae on behalf of Plaintiff and Appellant.
Glenn D. Newton for Defendant and Respondent.
Chandler P. Ward as Amicus Curiae on behalf of Defendant and Respondent.
MOSK, J.
Plaintiff is the widow of Edgar C. Humphrey, who died while he was insured by defendant under a policy of group insurance issued to his employer, Pacific Gas and Electric Company (hereinafter called the employer). She brought this action to collect $13,000 allegedly due her as the beneficiary under the policy. [fn. 1] The trial court, sitting without a jury, found in defendant's favor, and plaintiff appeals from the ensuing judgment. *529
The controversy here does not involve the broad question whether Humphrey was insured under the policy but whether he was insured for $1,000 as a retired employee or for $14,000 as an employee in his first year of disability as defined by the policy. This is reduced to two problems: first, whether under the provisions of the certificate issued to Humphrey by defendant he was entitled to $14,000 because he occupied the dual status of a retired and a disabled employee at the time of his death; and second, whether the provisions of the certificate prevail if, as we may assume for the purpose of this discussion, they provide broader coverage than the text of the master policy. Both of these questions, as hereinafter appears, will be answered in the affirmative.
The policy in the instant case, like those which were the subject in Elfstrom v. New York Life Ins. Co., ante, p. 503 [63 Cal. Rptr. 35, 432 P.2d 731], and Walker v. Occidental Life Ins. Co., ante, p. 518 [63 Cal. Rptr. 50, 432 P.2d 746], required the employee to contribute a portion of the premium. The employer dealt directly with its employees in regard to the insurance, and the certificates were issued by defendant and distributed through the employer. Humphrey commenced working for the employer in 1945 and a few years thereafter he applied for and was issued a policy of group insurance in the amount of $14,000.
The certificate issued thereunder contained, under the heading "Amount of Insurance," a table indicating the amount of coverage to which employees in various salary classifications were entitled. Those who earned between $550 and $600 a month, as did Humphrey, were eligible for $14,000 in life insurance. After this table appeared the statement, "The amount of insurance of any employee shall be reduced upon retirement to $500 [later amended to $1,000]." The next paragraph was headed "Termination of Insurance." It provided: "The insurance upon the life of the Employee under said Group Life Insurance policy shall automatically cease upon the occurrence of any of the following events ... (c) the termination of his employment in the classes of employees insured thereunder. Note: Cessation of active work by an employee will constitute termination of his employment except (1) where the employee is retired, in which case his insurance will be continued during the period of such retirement but at the reduced amount of $500 [later amended to $1,000]; (2) where the employee becomes disabled by injury or disease, in which case his insurance will be continued for *530 the full period of such disability up to but not beyond one year. ... At the expiration of the period mentioned in (2) ... unless the employee shall then return ... to active work, his insurance shall terminate automatically." (Italics added.)
The master policy, in a paragraph headed "Amount of Insurance," provided that if an employee ceased active work because of retirement, the amount of his insurance was subject to reduction to $1,000.
In March 1961 Humphrey was found by his doctor to be suffering from pulmonary emphysema, a severe, chronic and incurable disease. Although advised to retire from work because he was very ill, he continued his regular duties until July 27, 1962. Between that date and December 25, 1962, he took accumulated sick leave and vacation and was paid his regular salary. Thereafter, he requested and was granted a leave of absence without pay "to recover from illness." In his application he stated that he would return to work when his leave of absence expired or when he received permission from his doctor to do so.
Under the employer's regulations a leave of absence could not be granted for more than one year and if, after that period, an employee who had taken a leave for illness was not well enough to return to work, he could apply for retirement benefits. Humphrey's physical condition deteriorated rapidly and, on April 23, 1963, Arthur M. Kezar, the employer's local personnel manager, visited him at his home and discussed the possibility of retirement. He outlined the various benefits to which Humphrey would be entitled in the event he retired and, although Kezar could not recall specifically whether he mentioned the group insurance policy, he testified he ordinarily told an employee who was considering retirement that he "gains a $1,000.00 paid up life insurance policy." Two days later Humphrey executed an application for retirement, to be effective July 1, 1963.
On June 13, the employer sent him a letter congratulating him on his retirement and reviewing the benefits to which he was entitled. The letter stated in part, "As a member of the Group Life Insurance Plan, your insurance terminates thirty-one days after you are retired on pension. The Company will continue on your behalf paid-up insurance in the amount of $1,000 entirely at its own expense and you will receive a policy for this coverage." Sometime in June, Kezar and two other officials of the employer came to Humphrey's *531 home and presented him with a wallet and a $1,000 life insurance policy issued by defendant. At this time Humphrey was gravely ill, required the frequent use of an apparatus to assist him in breathing, and would occasionally lapse into unconsciousness. He died on August 26, 1963, and defendant later paid $1,000 to plaintiff under the policy.
The trial court found that Humphrey was totally disabled from July 27, 1962, to the time of his death on August 26, 1963, that he left his employment because of the disability, and that under the terms of the master policy his coverage was reduced to $1,000 on retirement.
Plaintiff maintains that Humphrey was insured for $14,000 under the provisions of the certificate quoted above because he occupied the status of a disabled employee under subdivision (2) of the "Termination of Insurance" clause, that subdivision (1), relating to reduction of insurance on retirement, was an independent provision and the benefits set forth thereunder were cumulative to those of subdivision (2), and that there was no language in the certificate requiring the reduction of insurance of a disabled employee who retired while he was entitled to coverage as such. She points out correctly that under the master policy the one-year period during which the insurance of a disabled employee was continued commenced to run either on the date his disability actually began, or if later, one year from the date his regular sick leave with pay had terminated. [fn. 2] Here, as we have seen, Humphrey was on either vacation or sick leave with pay until December 25, 1962. Therefore, if we accept plaintiff's construction of the certificate, Humphrey would have been covered one year thereafter for the full $14,000 and he died on August 26, 1963, within that year.
[1] We find plaintiff's contention regarding proper construction of the certificate to be persuasive. Nothing in the language of this document indicates that once an employee has attained the status of a disabled employee, as that term is defined in the policy, and he is thereby entitled to one year of coverage under subdivision (2), his retirement within the *532 one-year period will result in the forfeiture of his right to full coverage for the full year of disability. The retirement and disability subdivisions appear to be independent of one another, each setting forth separate circumstances under which termination of active work will not be deemed to constitute termination of employment. [2] Even if there were some doubt about the matter, we would be compelled to hold, in view of the rule that any uncertainties in an insurance policy must be construed in favor of imposing liability (California Comp. & Fire Co. v. Industrial Acc. Com. (1965) 62 Cal. 2d 532, 534 [42 Cal. Rptr. 845, 399 P.2d 381]), that Humphrey's right to one year of full coverage during disability was not defeated by his retirement.
[3] Defendant relies upon provisions of the certificate entitled "Total and Permanent Disability" and urges that because Humphrey never made application for disability payments and would not have qualified for such payments in any event, since he became disabled after having reached the age of 60, he could not be viewed as a disabled employee under subdivision (2). There is no merit in this contention. The provisions cited by defendant relate to periodic payments to a disabled employee for inability to work. There is no compulsion to hold that merely because Humphrey would not have qualified for disability payments of this type he would also fail to qualify as an employee entitled to coverage during his first year of disability under the life insurance provisions of the policy.
[4] Defendant also insists that when Humphrey retired, the $14,000 policy was canceled because no premiums were paid on it. If, as we conclude, defendant wrongfully canceled the $14,000 policy and substituted therefor a policy with a value of $1,000, it cannot now assert that the cancellation of the larger policy occurred because of failure to pay premiums. The abortive cancellation was solely the act of defendant for which no responsibility may be shifted to Humphrey.
[5a] We come, then, to the question whether the certificate affording Humphrey coverage will prevail over the provisions of the master policy, assuming arguendo that the latter document would defeat his rights to $14,000 in coverage. Defendant relies on the following paragraph in the certificate: "This individual certificate is furnished in accordance with and subject to the terms of the said Group Life Insurance policy, which policy, and the application therefor, constitute the entire contract between the parties. This certificate *533 is merely evidence of insurance provided under said Group Life Insurance policy, which insurance is effective only if the Employee is eligible for insurance and becomes and remains insured in accordance with the provisions, terms and conditions of the said policy."
It is urged by defendant that the provisions of the master policy prevail because, under the quotation above, the insurance extended to Humphrey is specifically subject to the provisions of the policy and the stipulation as well as section 10207 of the Insurance Code provide that the certificate is not a part of the insurance contract. [fn. 3] We cannot agree that the master policy must prevail under these circumstances.
[6] Section 10209 of the Insurance Code requires a group policy of insurance to contain a provision that the insurer will issue to the employer for delivery to the insured employee an individual certificate setting forth a statement as to the insurance protection to which the employee is entitled. The purpose of the section is to provide persons insured under group policies with information regarding the coverage afforded. Obviously, only accurate information will satisfy the statutory requirement. To hold that an incorrect description of coverage is adequate would thwart the legislative purpose.
[5b] In a case involving statutory, master policy and certificate provisions almost identical to those involved here, the Wisconsin Supreme Court in Risk v. National Cas. Co. (1954) 286 Wis. 199 [67 N.W.2d 385], held that the stipulations of the certificate prevailed. There, the master policy afforded medical benefits only to the "wife" of an employee, whereas the certificate stated that such benefits were payable to the "spouse."
In holding that an employee's husband was entitled to medical payments, the court stated (at p. 389) "we see no possible purpose in the requirement of a certificate by sec. 204.32(2) (b)2, Stats., supra, if the certificate so demanded is to be without effect. We perceive no persuasion in respondent's proposal that the certificate may misrepresent the insurance protection without redress so long as it refers the holder to the master policy. Under such an emasculation of the purpose of the statute the representations of the certificate *534 merely set a trap for the insured. On the contrary, if the statute is to be credited with any virility, the insured is entitled to rely on the certificate which the law requires the insurer to give him, at least in so far as the certificate purports to deal with those subjects which the statute commands it to cover,--namely, 'the insurance protection to which he is entitled, and to whom payable.' Benefits for disability of dependents are a part thereof." The court held that the question whether the certificate was a part of the insurance contract was irrelevant to its conclusion and that the insurer was estopped from showing that the coverage of the policy was more limited than that afforded by the certificate.
Although there are some decisions contrary to the holding of the Riske case (see, e.g., Boseman v. Connecticut General Life Ins. Co. (1937) 301 U.S. 196, 203 [81 L. Ed. 1036, 1040, 57 S. Ct. 686, 110 A.L.R. 732]; Chrysler Corp. v. Hardwick (1941) 299 Mich. 696 [1 N.W.2d 43, 45]; Germain v. Aetna Life Ins. Co. (1938) 285 Mich. 318 [280 N.W. 773, 776]; Seavers v. Metropolitan Life Ins. Co. (1928) 132 Misc. 719 [230 N.Y. Supp. 366, 370]), the weight of authority holds that the terms of the certificate are binding on the insurer (see e.g., Prudential Ins. Co. of America v. Roberts (5th Cir. 1966) 358 F.2d 394, 395-396; John Hancock Mut. Life Ins. Co. v. Dorman (9th Cir. 1939) 108 F.2d 220, 222; Clauson v. Prudential Ins. Co. of America (D.Mass. 1961) 195 F. Supp. 72, 78-79; United Security Life Ins. Co. v. Harden (1963) 275 Ala. 169 [153 So. 2d 246, 247]; Missouri State Life Ins. Co. v. Foster (1934) 188 Ark. 1116 [69 S.W.2d 869, 870]). This result is easily justified upon the grounds that the individual certificate is the only document which the employee sees or is given at any time and that the insurer, who drafts the instrument in language it selects, cannot thereafter complain that it does not express the intention of the parties. (See 1 Appleman, Insurance Law and Practice (1965) pp. 68-70.)
[7] Finally, defendant contends that Humphrey knew he was not entitled to $14,000 in coverage under the policy and was given notice that he would receive a $1,000 policy prior to his retirement. [fn. 4] This suggests that by accepting a *535 policy for the smaller amount Humphrey waived the rights accorded him by the certificate. There being no valid express waiver, we cannot find that an implied waiver occurred under the circumstances of the instant case. (See City of Ukiah v. Fones (1966) 64 Cal. 2d 104, 107-108 [48 Cal. Rptr. 865, 410 P.2d 369].)
In view of our conclusion that the provisions of the certificate prevail, it is unnecessary to consider plaintiff's additional contention that regardless of the certificate she would have been entitled to the full $14,000 coverage under the master policy.
The judgment is reversed and the trial court is directed to enter a judgment in favor of plaintiff for $13,000, less the amount of insurance premiums, if any, which Humphrey would have been required to pay for a policy of this amount from December 25, 1962, to the date of his death on August 26, 1963, plus interest at the rate of 7 percent per annum from September 27, 1963. (Civ. Code, 3287.)
Traynor, C. J., McComb, J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
NOTES
[fn. 1] 1. Although the complaint prayed for judgment in the amount of $14,000, it appears that after the complaint was filed plaintiff accepted $1,000 of this amount paid to her by defendant. Thus, plaintiff asks for only $13,000 on appeal.
[fn. 2] 2. The policy in a provision entitled "Individual Terminations" stated that the insurance of an employee would cease upon cessation of active work except that employees were to be regarded as continuing their employment "where the employee becomes disabled by injury or disease; for the full period of such disability but not exceeding a maximum period of one year from the later of (i) the date of its commencement or (ii) the date of the termination of regular sick leave with pay granted directly because of such disability."
[fn. 3] 3. Section 10207 of the Insurance Code provides: "The policy shall contain a provision that .... The policy, the application of the employer and the individual applications, if any, of the employees constitute the entire contract of insurance."
[fn. 4] 4. In this connection defendant quotes from a memorandum of decision of the trial court in which, after concluding that Walker was bound by the provisions of the master policy reducing coverage to $1,000 upon retirement, the court wrote: "Decedent, when on April 25, 1963 he requested retirement, was competent to transact business; he was not deceived or misled by defendant or by decedent's employer on the question of the amount of insurance coverage; and whether or not in April he had the question of reduced insurance coverage specifically in mind, he was placed on explicit notice thereof in June, prior to his retirement (Letter of June 13, 1963 ...)." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608534/ | 248 Or. 152 (1967)
432 P.2d 691
REED, Appellant, v. COMMERCIAL INSURANCE COMPANY, Respondent.
Supreme Court of Oregon.
Argued October 9, 1967.
Affirmed October 25, 1967.
*153 Maurice V. Engelgau, Coquille, argued the cause and filed the brief for appellant.
Jack L. Hoffman, Portland, argued the cause for respondent. With him on the brief were Pendergrass, Spackman, Bullivant & Wright, Portland.
Before PERRY, Chief Justice, and SLOAN, GOODWIN, HOLMAN and WOODRICH, Justices.
AFFIRMED.
WOODRICH, J. (Pro Tempore).
This is an action on an insurance contract covering plaintiff's tractor. The court tried the case without a jury and found for the defendant on the ground that plaintiff's action was not brought within the 12-month limitation provision of the insurance contract. Plaintiff on trial asserted, but did not plead, that defendant was estopped from relying on the limitation provision. The trial court found against the plaintiff on this contention and plaintiff assigns this ruling as error.
The insured tractor was damaged when it proceeded unattended into a log pond during the course *154 of a dredging operation. The occurrence took place when plaintiff's policy was in effect, but the policy contained a limitation provision that "No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in a court of law or equity, unless the same be commenced within twelve (12) months next after the discovery by the Assured of the occurrence which gives rise to the claim * * *." Plaintiff was present on March 12, 1965, when the tractor submerged. He "discovered the occurrence" on that date. Plaintiff did not file this action until July 19, 1966, more than the 12 specified months after the discovery of the occurrence.
1, 2. In his amended complant, plaintiff alleged that he performed all conditions upon his part to be performed except as waived by defendant. Defendant pleaded the contract limitation in its affirmative defense. Plaintiff filed a reply generally denying the affirmative matter alleged in the answer, except plaintiff admitted the insurance contract as set out in defendant's answer. Plaintiff did not plead an estoppel either in his amended complaint or in his reply.
We have held that one seeking the benefit of an estoppel must plead the facts out of which an estoppel arises. Walker v. Fireman's Fund Ins. Co., 114 Or 545, 234 P. 542 (1925); Haun v. Martin, 48 Or 304, 86 P. 371 (1906).
Plaintiff could argue that he was misled in framing his pleadings by the use of the term "waiver by estoppel" in the case of Kimball v. Horticultural Fire Relief, 79 Or 133, 154 P. 578 (1916). The Kimball case holds that where an amended complaint purports to allege "waiver" of a 12-month contract limitation provision and also alleges facts from which an estoppel would arise, the trial court was justified in treating *155 the issue of "waiver by estoppel" as a fact question. The plaintiff in the instant case did not allege facts in his complaint or reply that would put defendant on notice concerning the claimed estoppel, so the instant case is distinguishable from the Kimball case. Notwithstanding that the court uses the term "waiver by estoppel" in the Kimball case and other cases, [see e.g., Fagg v. Massachusetts B. & I. Co., 142 Or 358, 19 P2d 413 (1933)] we feel that the term "waiver by estoppel" is confusing and tends to blur the useful distinction between "waiver" and "estoppel." The "waiver by estoppel" term in our previous cases has always been applied in estoppel situations and should be understood to refer to estoppel and not waiver.
Because the plaintiff has failed to allege any facts giving rise to an estoppel, the estoppel issue was not properly before the court. Abrahamson v. Brett, 143 Or 14, 21 P2d 229 (1933). The trial court correctly ruled that the action was barred by the 12-month limitation provision of the contract.
3-7. As mentioned earlier plaintiff in framing his pleadings may have been misled by the term "waiver by estoppel" in our previous cases, which we now have clarified, so we prefer to rest our decision in the instant case on an additional ground.
Plaintiff was charged with the burden of proving that the damage to his tractor resulted from a peril covered in the policy. Jarvis et ux v. Indemnity Ins. Co., 227 Or 508, 363 P2d 740 (1961). The tractor was insured against "upset or overturn" among other perils. Plaintiff contends that the tractor "upset" within the meaning of the policy.
The only evidence of the occurrence was offered by plaintiff. He was engaged in the sand and gravel *156 and excavating business. On March 12, 1965, plaintiff was dredging the mud and bark from a log pond owned by a plywood manufacturing company. Plaintiff used the 22,000-pound tractor in question to anchor a block through which a light steel line was passed. The line in turn was fastened to the drag bucket and was the means whereby the bucket was returned after being emptied on the side of the pond opposite the tractor. The tractor was parked unattended on the top of the dike of the log pond in a direct line with the light cable. At this point, the top of the dike was about 10 or 12 feet across. The pond was about 9 or 10 feet deep and the dike was about 2 feet higher than the water level in the pond. The slope of the dike into the pond was about 45 degrees. Plaintiff was working on the opposite side of the pond from the tractor and looked up just as the smokestack on the top of the tractor disappeared beneath the water. The tractor was not visible in the muddy pond water after it was completely submerged and no one saw the descent of the tractor into the water. There was no direct evidence of the tractor's position after the descent. Plaintiff and his employe observed the stack on the top of the tractor as it was submerging. The tractor was pulled out of the pond on the side opposite its entrance into the water and at the time of its removal the tractor was right-side up. The bank of the pond was caved in at the point of entry and the tractor apparently was on its tracks at the time it descended the bank.
An insurance contract having been drafted by the insurer is to be construed liberally in favor of the insured. Burns v. A.G.C. and Local 701, 240 Or 95, 400 P2d 2 (1965); Finley v. Prudential Ins. Co., 236 Or 235, 388 P2d 21, 4 ALR3d 1161 (1963). No Oregon *157 cases have defined the term "upset" so we look to cases from other jurisdictions. At a minimum, these cases seem to require a loss of equilibrium, to some extent, as an essential ingredient of "upset."[1] The evidence indicated that plaintiff's tractor began and ended upright. There was no evidence as to the posture of the tractor in the interim except for the precise moment of total submergence. It descended a 45 degree slope and when last seen the top of the tractor was uppermost. There was no evidence from which the trier of *158 the facts could determine how steep an embankment will cause equipment of this kind to lose its equilibrium. This is not a matter of such common knowledge that the court may take judicial notice thereof. The tractor was aligned with the direction of the cable pull rather than at right angles to the pull. We find that there was no evidence of even minimal loss of equilibrium, i.e., tilting. Hence, even under a liberal interpretation of "upset" plaintiff has not sustained his burden of proof.
In view of our holding in the above two grounds, we find it unnecessary to consider the policy provision excluding coverage where the tractor is used "in connection with logging, sawmill or wood working operations."
Affirmed.
NOTES
[1] In defining the coverage of a policy insuring a vehicle against loss from "overturning" or "upset," courts in other jurisdictions have, at the least, required that the damage result from a temporary loss of equilibrium. Carl Ingalls, Inc. v. Hartford Fire Ins. Co., 137 Cal App 741, 31 P2d 414 (1934); Orlando v. Manhattan Fire & Marine Ins. Co., 266 App Div 319, 42 NYS2d 228 (1943); Ferguson v. Farm Bureau Mut. Ins. Co., Inc., 171 Kan 679, 237 P2d 234 (1951).
A more stringent test as to what constitutes a "loss of equilibrium" was formulated in Jack v. Standard Marine Ins. Co., 33 Wash2d 265, 270, 205 P2d 351, 8 ALR2d 1426 (1949), as follows: "* * * Once a vehicle loses its equilibrium and the overturning process has commenced and proceeded beyond the power of those in charge of the vehicle to stop its progress * * * It should be held that the vehicle had overturned or upset * * *." This test has been applied in most of the cases involving the question of coverage for damages from upset. In Espree v. Western Pioneer Ins. Co., 159 Cal App2d Supp 875, 324 P2d 749 (1958), the court held that a dump truck had upset when it lost its equilibrium while unloading a load of fill dirt and would have tipped over completely had not one corner of the truck bed come to rest on soft earth. In Grimh v. Western Fire Ins. Co., 5 Wis2d 84, 92 NW2d 259 (1958), where a tractor had broken through the frozen surface of ground in a marshy area into mud and water, nosed down, tipped to the right, and stuck in the mud, the court held that it was a factual question whether the tractor would have returned to its normal position but for the mud and ground around it; whether the plaintiff could recover turned on the resolution of that question. In American Liberty Insurance Company v. Moore, 276 Ala 634, 165 S2d 724 (1964), the court held that there was no "upset" when a trailer, partly raised by a hoist which the hoist operator stopped after he noticed one side of the trailer had bowed out, had not tipped sufficiently to lose its equilibrium and the hoist operator had not lost control of it. See 7 Am Jur2d, Automobile Insurance § 62. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608538/ | 102 Ariz. 416 (1967)
432 P.2d 428
STATE of Arizona, Appellee,
v.
Frank COTA, Appellant.
No. 1603.
Supreme Court of Arizona. In Banc.
October 19, 1967.
Rehearing Denied November 21, 1967.
Darrell F. Smith, Atty. Gen., Philip M. Haggerty, Sp. Counsel to the Atty. Gen., and Robert K. Corbin, County Atty., Maricopa County, for appellee State of Arizona.
Lawrence C. Cantor and Theodore Matz, Phoenix, for appellant.
Robert J. Corcoran, Phoenix, Counsel Arizona Civil Liberties Union, amicus curiae.
UDALL, Justice:
The appellant, Frank Encisco Cota, hereinafter referred to as defendant, was charged by information with first degree murder in the death of a state narcotics agent, Roy Singh. One Pedro Flores Valenzuela was a co-defendant. A first trial of the defendant and Valenzuela resulted in a mistrial.
After the second trial had commenced, Valenzuela pled guilty and the trial continued as to defendant. The defendant was subsequently convicted of murder in the first degree and sentenced to the death penalty. On appeal the conviction was reversed.
*417 Defendant on retrial was reconvicted and the penalty was set at life-imprisonment. From this conviction the defendant appeals, having used as a basis therefor numerous assignments of error.
Of the assignments of error the ones which necessitated our consideration were related to the basic defense contention that the calling of Valenzuela as a prosecution witness in the defendant's trial with the knowledge of Valenzuela's intention to invoke the privilege against self-incrimination when no valid probative value would be received thereby and, while such action would have a tremendously derogatory effect on the case for the defense, was reversible error in the context of this cause. With this contention we take exception.
The defense theory is as follows: that in his opening argument the County Attorney frequently mentioned Valenzuela by name and makes reference to three conversations between the defendant and Valenzuela. Throughout the prosecution's case Valenzuela and defendant are joined. The jury was told that defendant and Valenzuela went out with the deceased liquor agent the night of the latter's death, and that Valenzuela and the defendant were seen later that night after the disappearance of the liquor agent. Therefore it is contended that at this point the defendant and Valenzuela had been inextricably associated. Thus the defense argues, when Valenzuela was called as a witness and refused to testify both Valenzuela and Cota would appear guilty to the jury.
The facts show that on taking the witness stand Valenzuela answered several preliminary questions. Then in answer to a number of questions relating to his activities on the night of the narcotics agent's death Valenzuela invoked the Fifth Amendment privilege against self-incrimination. In answer to questions concerning those persons with whom the defendant and Valenzuela were alleged to have kept company on the night of the agent's death Valenzuela invoked the Fifth Amendment. To the questions concerning his residence in Phoenix, the place of the agent's death, during May of 1963, the time of the agent's death, Valenzuela refused to answer on the Fifth Amendment ground as he did when questioned as to his acquaintance with the defendant. With the court sustaining Valenzuela's claim of privilege to this line of questioning, the prosecution then dispensed with any further questions.
The counsel for the defense first objected to the calling of Valenzuela when a hearing in the court's chambers disclosed the prosecutor's intention concerning Valenzuela. Defense counsel then renewed his objection in open court. At the conclusion of Valenzuela's testimony the defense moved for a mistrial, for the reason that the presentation in front of the jury in open court of the former co-defendant, Valenzuela, served only to prejudice the defendant's case rather than to present any probative matter. The trial court declined to sustain the defense objections or to grant the motion for mistrial.
In closing argument the prosecution made the following remarks:
"In the upstairs apartment, there was LeRoy Pino, Frank Cota, Pedro Valenzuela and Roy Singh, the undercover narcotics agent. Roy Singh left the room. He went to another room, an adjoining room. At which time, Cota pointed to Valenzuela and said, `There is that rat.'"
"Pino then goes downstairs. A few minutes later who comes downstairs, Ladies and Gentlemen, but the defendant, Frank Cota, Pedro Valenzuela, who refused to testify, and who else but the person whose picture you saw and who has been identified as Roy Singh, the undercover state narcotics agent." [Emphasis supplied]
The defense contends that the basic error of calling Valenzuela was further aggravated when combined with the prosecution's comment on the failure of Valenzuela to testify. Such is the defense contention because this allegedly wrongful combination used the circumstance of Valenzuela's refusal *418 as an incriminating fact against the defendant; which argument the defense was unable to rebut since Valenzuela could not be cross-examined to bring out a theory contrary to the inference of a jointly committed crime.
Initially we must state that we feel the law to be that there is no error in calling as a witness a person, involved in the offense with which the accused is charged, who claims his privilege against self-incrimination when there is no obvious reason for his invoking the privilege against self-incrimination and when there was no basis for anticipating a refusal to testify. United States v. Cioffi, 2 Cir., 242 F.2d 473, cert. den. 353 U.S. 975, 77 S. Ct. 1060, 1 L. Ed. 2d 1137. See also United States v. Romero, 2 Cir., 249 F.2d 371. In this case however the defense argues that a distinction should be made since the prosecutor was aware of the intention of the witness to invoke the privilege of self-incrimination; and that here, with knowledge gained in a hearing in chambers, that the witness would invoke the Fifth Amendment, and the court would sustain the claim of privilege, the prosecution called the witness only to elicit the witness' claim of privilege.
There are a number of cases which we feel deserve consideration in determining the propriety of the prosecution's acts and the court's orders concerning the calling of Valenzuela as a witness.
An early California case, People v. Plyler, 121 Cal. 160, 53 P. 553, found that it was not, despite the prejudice to the defendant, error for the prosecution to call as a witness one who was awaiting trial on the same offense although that witness refused to testify on the basis of a claim of the Fifth Amendment and even though there was no reasonable basis for believing that the witness would waive his constitutional rights.
The Supreme Court of Iowa went even further in State v. Snyder, 244 Iowa 1244, 59 N.W.2d 223, where it reasoned that immunity is a personal privilege of the witness and may not be urged by the party against whom the witness is offered. While a witness may refuse to give incriminating testimony, if properly summoned, he must appear and be sworn. The privilege is available to him when he is a witness, and does not excuse him from appearing. Thus if a witness cannot escape appearing and taking the oath by claiming in advance that he will refuse to testify, the party against whom the testimony is offered cannot claim greater rights.
Other states have taken a contrary view to the above cited cases. In Johnson v. State, 158 Tex. Crim. 6, 252 S.W.2d 462, concerning their applicable state law, the Texas Court of Criminal Appeals stated that,
"The action of the court, in permitting the state to call a co-defendant to the stand and require him to claim his privilege against self-incrimination after being informed that the witness would decline to answer if so called, has been held to constitute reversible error."
An even more outstanding Texas case is that of Washburn v. State, 164 Tex. Crim. 448, 299 S.W.2d 706, wherein the Texas court found that the calling of a codefendant, under indictment as an accomplice of the accused, requiring him to claim the privilege against self-incrimination in the presence of the jury constituted reversible error under the facts of that case because such refusal could be used as an incriminating fact against the defendant.
DeGesualdo v. People, 147 Colo. 426, 364 P.2d 374, 86 A.L.R. 2d 1435, found reversible error in the calling of an alleged accomplice for the purpose of extracting a claim of privilege, the lower court having taken no steps to prevent such and not having given the jury a cautionary instruction to disregard the incident. Therein the court said,
"* * * the question is whether the district attorney can call as a witness an accomplice or co-conspirator (where the accused is charged with conspiracy) in the hope that the accomplice will have suffered a change of heart, or in the alternative *419 so as to get before the jury the fact that he, as least considers that his testimony would be incriminating to him, the accomplice. The effect of such a device is clear. The jury is told of the whereabouts of the missing defendant and is also told that he at least considers it impossible to testify without incriminating himself. Does such a scene create prejudice in the minds of the jury?"
The Colorado Supreme Court in answer to its own question found that the case for the defense was improperly prejudiced. See also, Commonwealth v. Granito, 326 Mass. 494, 95 N.E.2d 539; Rice v. State, 121 Tex. Cr.R. 68, 51 S.W.2d 364; Rice v. State, 123 Tex. Crim. 326, 59 S.W.2d 119; McClure v. State, 95 Tex. Crim. 53, 251 S.W. 1099; Garland v. State, 51 Tex. Crim. 643, 104 S.W. 898.
The U.S. Court of Appeals in United States v. Hiss, 2 Cir., 185 F.2d 822, cert. denied 340 U.S. 948, 71 S. Ct. 532, 95 L. Ed. 683, found no commission of reversible error by the prosecution in calling two persons as witnesses, who had been involved with the accused in crimes other than those for which he was on trial, when said witnesses refused to testify on the ground of privilege against self-incrimination. The court there said that a finding of reversible error on this issue would require a showing of "a successful effort to influence the jury against a defendant by some means clearly indefensible as a matter of law" at page 832.
The court therein also stated, in quoting from an earlier federal case, United States v. Five Cases, 2 Cir. 179 F.2d 519, 523, that:
"* * * we are not prepared to say that it would not be a ground for reversal if the party who called a witness connected with a challenged transaction knew, or had reasonable cause to know, before putting the witness on the stand that he would claim his privilege." 185 F.2d at 832.
The Seventh Circuit of the U.S. Court of Appeals in United States v. Amadio, 7 Cir., 215 F.2d 605, while finding that the lower court's cautionary instruction partially erased the effect of the error of allowing the prosecution to call witnesses with the knowledge of their intention to invoke a claim of privilege and that reversible error was thereby avoided, made the following statement:
"We think it is clear that the government knew before these two witnesses were called to testify that they intended to refuse to answer the questions deemed by the government to be pertinent to the case on trial, on the ground of their constitutional privilege against self-incrimination. In view of that fact it was improper for the government to attempt to force them to testify." 215 F.2d at page 613.
The next prominent federal case in this area is United States v. Gernie, 2 Cir., 252 F.2d 664, cert. denied 356 U.S. 968, 78 S. Ct. 1006, 2 L. Ed. 2d 1073, rehearing denied 357 U.S. 944, 78 S. Ct. 1383, 2 L. Ed. 2d 1558. Certain language therein has been relied on by the state in the instant matter, as sustaining their position that no reversible error was involved in the instant case. Hence the state contends that the following language is applicable here:
"The government had a right to call Harell to testify. The testimony * * * was material and relevant to the case. Had the government not produced him the defense could have argued that its failure to call him showed that he would not corroborate the testimony of the agents. Under such circumstances it makes no difference whether the government has reason to believe that the witness will refuse to testify. It has a right to produce the witness and thus show the jury that it is bringing forward such witnesses as may have knowledge bearing on the case." 252 F.2d at page 669.
A more recent federal case, United States v. Maloney, 2 Cir., 262 F.2d 535, is more closely related to the facts of the instant matter. Therein the prosecution called to the stand witnesses who refused to give testimony on the basis of their privilege *420 against self-incrimination when questioned as to their relationship with the defendant and crimes with which the defendant had been charged. The court there determined that the calling by the prosecution of such witnesses with the knowledge that the witnesses would refuse to testify and the use of such refusal as corroboration of the state's case constituted reversible error in absence of a cautionary instruction by the court to disregard such refusal as evidence, even though the defense made no request for such instruction.
Another noteworthy case, United States v. Tucker, 3 Cir., 267 F.2d 212, though reversing on other grounds stated that,
"In our view an interrogating official himself gravely abuses the privilege against self incrimination when, believing a truthful answer will incriminate a witness, he nevertheless insists on asking the incriminating question with a view to eliciting a claim of privilege and thereby creating prejudice against the witness or some other party concerned." 267 F.2d at page 215.
Such is the basis of the defense claim herein.
This court has said that a defendant is not entitled to have a witness' testimony that tends to incriminate the witness and defendant excluded on the ground that it violates the witness' constitutional immunity against self-incriminating evidence, since the privilege against self-incrimination is personal to the witness. State v. Cassady, 67 Ariz. 48, 190 P.2d 501.
We take the basic principle at issue here to be whether a defendant should be allowed to have any control over a witness' privilege against self-incrimination. We have concluded that this privilege is for the benefit of the party claiming it and not some third person. See State v. Addington, 158 Kan. 276, 147 P.2d 367. Further we feel bound by the principle that this privilege belongs exclusively to the witness and cannot be taken advantage of by the defendant. See State v. Britton, 27 Wash.2d 336, 178 P.2d 341.
While we do not state here that a case cannot contain such improper behavior on the part of the prosecution in relation to a witness' claim of privilege as to deprive a defendant of a fair trial, we do not feel that the jury herein was improperly influenced by the calling of Valenzuela. The testimony of other witnesses supported the state's theory of a crime jointly perpetrated by Valenzuela and the defendant. In fact the pleadings offered by Valenzuela in support of his own case showed that the prosecutor's repeated references jointly to Valenzuela and the defendant could have been justified had Valenzuela given only as much testimony concerning the alleged crime as he had sworn to in his motion to withdraw plea. Valenzuela, in support of a motion to withdraw a plea of guilty, swore to the validity of his attorney's statement of the facts relating to the night of the alleged murder. This statement reads in relevant part:
"The defendant Valenzuela now states that he changed his plea because of fear for himself and his family and because of his greatly agitated and disturbed state of mind at the time. He states that he truly did not commit the murder, that in fact the defendant Cota committed it, without any intent to kill on the part of the defendant Valenzuela.
"While the defendant Valenzuela has made statements wholly contradictory to each other, the other evidence in the case would indicate that in truth Valenzuela was present at the scene of the killing but did not commit the killing and did not intend it. For example, there is evidence that the ripple-soled shoes admittedly owned by Valenzuela, left distinct foot prints at the scene of the crime, however, the clothing of the defendant Valenzuela which was recovered by the police was virtually free of any bloodstains, strongly indicating that he could not have stabbed the victim for more than twenty times without himself being heavily blood stained. There is also the testimony of Leroy Pino who stated that on the day of the *421 killing the defendant Cota stated that he had stabbed a rat and that the defendant Valenzuela had thereafter become highly angry and stated `go ahead and tell what a big man you are, stabbing a man in the back.'"
The prosecutor did, as the defense points out, repeatedly refer to Valenzuela throughout the trial; further the defendant and Valenzuela were frequently joined so as to be thought of together. However the prosecution went on to show, by testimony, that the defendant and Valenzuela were together with the victim of this crime shortly before the latter's death. Thus to deprive the state of such argument by disallowing the calling and mention of Valenzuela would have in effect disallowed the state's theory of the case that defendant and Valenzuela together perpetrated the crime of murder.
For the state to have presented its theory without calling Valenzuela would have meant leaving an obvious step out of its argument. Then the defense could have argued that the state's failure to produce the alleged accomplice meant that no corroboration for its theory would have come from such testimony. United States v. Gernie, supra.
There could have been no testimony more material to the prosecution of this case than that of Valenzuela. Further, since the privilege against self-incrimination is a personal immunity for the witness and does not disqualify him from being called, we cannot conclude otherwise but that, regardless of its reason to believe that Valenzuela would choose to invoke the privilege against self-incrimination, the state had the right to show that it was presenting all the relevant evidence at its disposal in order to prove its theory of the case.
As to the prosecution's comment on Valenzuela's failure to testify, while we cannot say that such is desirable or even proper behavior, on the other hand we do not feel that recalling this fact to the jury's attention could cause such prejudice to an otherwise fair trial as to necessitate a reversal.
We find further that the other issues raised by the defense are either devoid of merit or fail to be substantiated by the record and thus need not be discussed herein.
For the foregoing reasons, the judgment and sentence of the court below are affirmed.
BERNSTEIN, C.J., McFARLAND, Vice C.J., and STRUCKMEYER and LOCKWOOD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608543/ | 67 Cal. 2d 620 (1967)
CARL NEWMAN, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.
L. A. No. 29491.
Supreme Court of California. In Bank.
Nov. 7, 1967.
Charles M. Berg for Petitioner.
Harold W. Kennedy, County Counsel, and Donald K. Byrne, Deputy County Counsel, for Respondents.
PETERS, J.
Petitioner seeks a writ of mandate directing the Appellate Department of the Superior Court for Los Angeles County to take jurisdiction and hear his appeal from an order by Judge Otto B. Willett denying a motion to vacate the forfeiture of an undertaking for bail and to exonerate the undertaking. The writ should issue. [1] [See fn. 1.]petitioner also requests that the forfeited bail be posted with the superior court pending the outcome of the appeal. [fn. 1]
Ernest Nielsen was charged by complaint with two violations of section 274 of the Penal Code. A warrant was issued for his arrest with bail set at $16,500. On July 12, 1966, an undertaking in that amount was posted by petitioner as authorized representative of United Bonding Insurance Company. On August 5, when Nielsen failed to appear for preliminary examination before Judge Willett of the Municipal Court of the South Bay Judicial District, the undertaking for bail was ordered forfeited and notice of forfeiture was mailed. A motion to set aside the bail forfeiture was made and denied on January 31, 1967, and the following day petitioner filed his notice of appeal to the appellate department of the superior court. No fee was paid in connection with the appeal.
On February 9, 1967, the files and records on appeal were returned by the appellate department to the municipal court.petitioner alleges that the appellate department refused to accept the appeal because it appeared that the issue involved the sum of $16,500 which it is claimed is beyond the jurisdictional limits of the appellate department, and because the appeal was a civil appeal and the required filing fee had not been paid.
Subdivision (g) of section 77 of the Code of Civil Procedure *622 provides that the appellate department of the superior court shall have jurisdiction on appeal "from the municipal and justice courts within the county or city and county in all cases in which an appeal may be taken to the superior court as is now or may hereafter be provided by law, except such appeals as require a retrial in the superior court."
[2a] It is settled that an order refusing to set aside a forfeiture of bail is appealable. (E.g., People v. Durbin, 64 Cal. 2d 474, 476 [50 Cal. Rptr. 657, 413 P.2d 433]; see People v. Wilcox, 53 Cal. 2d 651, 654-655 [2 Cal. Rptr. 754, 349 P.2d 522].) In the latter case, the court reasoned that the forfeiture of bail is an independent, collateral matter, and is civil in nature. (53 Cal.2d at p. 654.)
[3a] The statutory provisions providing for the granting of bail, and motion to set aside forfeiture, make it clear that the Legislature intended that a municipal court shall have jurisdiction to consider motions to set aside a forfeiture of bail where the amount of the bail exceeds the ordinary jurisdictional amount in civil actions. A judge of the municipal court like all other judges and justices in this state is a magistrate (Pen. Code, 808), and when he issues a warrant of arrest for a bailable offense, he shall fix the amount of bail which in his judgment shall be reasonable and sufficient for the appearance of the defendant following his arrest (Pen. Code, 815a). Section 1305 of the Penal Code provides for forfeiture of bail if, "without sufficient excuse, the defendant neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court is lawfully required, ..." The section further provides that under certain circumstances the court may discharge the forfeiture. Section 1306 of that code provides that if the forfeiture has not been set aside within 180 days, the court which declared the forfeiture shall enter a summary judgment against the bondsman if it has jurisdiction to render judgment in an action arising upon contract of similar nature and amount but if the court declaring the forfeiture "has not jurisdiction to give judgment in an action arising upon a contract of similar nature and amount," the court shall deliver to the district attorney the bond and a certified copy of the forfeiture order and the district attorney shall file those documents in a court having jurisdiction to render judgment in a contract action of similar nature and amount, which court shall enter the summary judgment.
Section 1306 makes it abundantly clear that a municipal *623 court has jurisdiction to order a forfeiture of bail where the amount exceeds the amount of its jurisdiction in contract actions. [4] The order is appealable, and no provision appears limiting the jurisdiction of the appellate department to any fixed amounts in hearing appeals from the municipal court, but to the contrary the appellate department's jurisdiction extends to "all" cases in which an appeal may be taken to the superior court. (Code Civ. Proc., 77, subd. (g).)
Thus, the statutory scheme establishes that the amount of the bail is not determinative as to the court which may order a forfeiture or as to the appropriate court for appeals from such an order.
[3b] The county counsel does not claim that the amount of bail determines the court which may order a forfeiture or the appropriate court for appeal. His position is that, when a judge of the municipal court orders a forfeiture of bail for failure to appear at a preliminary hearing on a felony charge, the judge is acting as a magistrate and that therefore subdivision (g) of section 77 of the Code of Civil Procedure is not applicable because it deals with appeals from the municipal court and not with appeals from a "magistrate's court." He relies upon County of Tulare v. Fenn, 47 Cal. App. 413 [190 P. 855].
That case is in point, but due to legislative changes, no longer is authoritative. In that case the accused failed to appear for preliminary hearing before the recorder of the City of Lindsay, sitting as a magistrate, and the bail was ordered forfeited. The bail was paid to the City of Lindsay. The issue was whether the city was entitled to the bail under then sections 1457 and 1570 of the Penal Code providing that all forfeitures collected in any police or justice's court are payable to the city treasurer or whether the county was entitled to the money under section 1307 of that code providing that deposits in lieu of bail which are forfeited are payable to the county treasurer. In holding for the county, the court reasoned that in collecting the money the judge acted not as a judge of a police court but as a magistrate, and was sitting in a "magistrate's court." [fn. 2]
An examination of the history of section 1457, former section 1570, and the present provision in section 1463 of the Penal Code indicates that the Legislature has repudiated the *624 rule of Fenn and that bail forfeitures in municipal and justice courts due to failure to appear at preliminary hearings do not go solely to the county but are to be apportioned between the city and the county. Fenn was decided in 1920. Municipal courts were provided for by a 1924 amendment to article VI, section 11 of our Constitution. In 1925 the Legislature adopted section 1463 of the Penal Code which deals with the allocation between city and county of fines and forfeitures collected by the municipal courts. (Stats. 1925, ch. 439, p. 949.) The section did not make any special provision for forfeitures which might be collected for failure to appear at a preliminary hearing. In 1927 the Legislature adopted the rule of Fenn by amending sections 1457 and 1570, which then dealt with recorder's courts, city justice courts, and police courts, to provide that forfeitures collected by a judge of one of those courts sitting as a magistrate were exempt from the provisions of the section governing the allocation of fines and forfeitures. (Stats. 1927, chs. 197, 198, pp. 355- 356.) No similar amendment was made to section 1463 governing municipal court fines and forfeitures. Then, in 1949, as part of the reorganization of inferior courts, section 1570 and the portion of section 1457 dealing with allocations of fines and forfeitures were repealed, and section 1463 was amended to deal with fines and forfeitures in justice courts as well as municipal courts. (Stats. 1949, ch. 1517, pp. 2699-2700.) Thus the Legislature repealed the special provisions with regard to magistrates and did not re-enact them, although it amended the provisions for allocation in section 1463 of the same chapter.
The theory for which the county counsel relies upon Fenn, that the forfeiture is by a "magistrate's court," is no longer tenable in view of the provisions of section 1, article VI, of our Constitution which vests the judicial power of this state in certain enumerated courts and does not include a "magistrate's court" among those enumerated, nor does the Constitution authorize the Legislature to create inferior courts. (Prior to 1950 the constitutional provision authorized the Legislature to create inferior courts.) It is clear that, in the light of the subsequent changes in the constitutional provisions and the code sections, neither the holding nor the reasoning of Fenn are any longer authoritative.
Strong support for the view that an order by a municipal judge denying a motion to vacate a forfeiture of bail is an order of the municipal court appears from the provisions of *625 section 1305 and 1306 of the Penal Code, which govern forfeiture of bail, discharge of the forfeiture, and enforcement of the forfeiture. Those sections refer to the "court," not to the magistrate, and the Legislature has shown that when it contemplates that certain action may be accomplished by either the court or a magistrate it has used both terms as in section 1308 of the Penal Code. The county counsel's position is not well taken.
[5a] County counsel also urges that petitioner should be denied relief because he did not pay the requisite filing fee for an appeal in a civil action. Such fee was not paid. [2b] The forfeiture of bail is an independent, collateral matter, civil in nature. (People v. Wilcox, supra, 53 Cal. 2d 651, 654-655; People v. Doe, 172 Cal. App. Supp. 2d 812, 815 [342 P.2d 533].) In Wilcox it was held that the People could appeal from an order granting a motion to set aside the forfeiture notwithstanding the fact that section 1238 of the Penal Code, which lists the orders from which the People may appeal in a criminal case, does not include an order setting aside a forfeiture of bail. Thus the fee should have been offered.
[5b] The failure to pay the fee, however, does not preclude relief. When the appellate department refused to accept the appeal, petitioner was told that this was not only because the filing fee was not paid but also because the appellate department would not have jurisdiction. In these circumstances it would have been an idle act for petitioner to have tendered the fee.
The request to have the bail posted is denied. Let a peremptory writ of mandate issue directing the appellate department to accept petitioner's appeal on condition that petitioner first pay the required filing fee.
Traynor, C. J., McComb, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
NOTES
[fn. 1] 1. Petitioner, however, has not alleged any facts to indicate that there is any danger that he may not be able to recover the forfeited bail should he ultimately prevail in having the forfeiture vacated. Accordingly, the request to have the bail posted is denied.
[fn. 2] 2. Section 1307 of the Penal Code except for a few matters not relevant here has not been changed since the decision in Fenn. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608548/ | 248 Or. 38 (1967)
432 P.2d 319
CREDITORS PROTECTIVE ASSOCIATION, Respondent, v. BALCOM ET AL, Appellants.
Supreme Court of Oregon.
Argued September 12, 1967.
Affirmed as modified October 4, 1967.
*39 Robert J. Morgan, Milwaukie, argued the cause for appellants. With him on the brief were Erlandson, Morgan & McClain, Milwaukie.
Seymour L. Coblens, Portland, argued the cause for *40 respondent. With him on the brief were Reinhardt, Coblens, Stoll & Winkel, Portland.
Before PERRY, Chief Justice, and SLOAN, GOODWIN, HOLMAN and WOODRICH, Justices.
AFFIRMED AS MODIFIED.
WOODRICH, J. (Pro Tempore).
This is a creditor's bill brought against judgment debtors, Balcom, their corporate employer, Silver Shed Logging Co., and their daughter, Shirley Roberts, who is the principal shareholder and an officer and director of the corporate employer. Defendants appeal from the decree granting equitable relief to the plaintiff.
Defendants' first assignment of error attacks the propriety of the trial court's overruling of defendants' demurrer. In support of their demurrer, defendants argue that the complaint shows on its face that plaintiff's remedies at law for collection of its judgment are adequate.
1-3. This court has held that the judgment creditor's failure to fully pursue his legal remedies under garnishment and proceedings supplementary to execution does not preclude a creditor's bill. Hall's Western Auto v. Brock, 240 Or 85, 400 P2d 5 (1965); Matlock v. Babb, 31 Or 516, 49 P. 873 (1897); Sabin v. Anderson, 31 Or 487, 49 P. 870 (1897). Defendants concede this rule, but argue that the rule should be limited to situations where the debtor has transferred assets to third persons. This court does not feel that the creditor's bill remedy should be so narrowly circumscribed. In Hall's Western Auto v. Brock, supra, it was held that a judgment creditor may proceed alternatively at law or in equity to recover assets which *41 have been fraudulently transferred. Garnishment and attachment statutes do not afford an adequate remedy at law to uncover assets fraudulently concealed, because the creditor cannot both unmask the fraud and prevent the disposal of the property as he can by a creditor's bill in equity. Sabin v. Anderson, supra. The ground for equitable jurisdiction in such cases is fraud in the concealment or disposal of the debtor's property, which will defeat the collection of the debt unless equitable remedies are applied. While such cases classically involve fraudulent conveyances, the same considerations apply when assets are placed beyond the reach of creditors, either by fraudulent transfer or some other fraudulent scheme. The existence of fraud and the multiplicity of actions at law render the statutory remedies cumbersome and inadequate. The facts alleged by plaintiff specify its status as a judgment creditor; the return of executions unsatisfied; and each defendant's participation in a scheme to hinder, delay and defraud creditors. Under the facts alleged a creditor's bill will lie.
The defendants next contend that the trial court erroneously determined that the defendants participated in actions or practices which tended to hinder, delay and defraud the creditors of the defendants Balcom. This contention requires a de novo review of the evidence produced in the trial court. Malick et ux v. Malick, 208 Or 107, 298 P2d 841 (1956).
From 1959 until September of 1963, defendants Leo A. Balcom and Dorothy L. Balcom were engaged in a logging partnership. Their daughter, defendant Shirley Roberts, was employed by the partnership as a bookkeeper. The partnership suffered financial reverses and on September 3, 1964, plaintiff recovered a judgment in excess of $16,500 against the defendants *42 Balcom. At that time Balcoms were heavily indebted to other creditors as well. In September, 1963, defendants organized the Silver Shed Logging Co., and transferred all of the partnership assets to the corporation in exchange for the corporation's agreement to assume partnership liabilities. The corporation continued the logging business. The defendants Balcom each owned one percent of the corporate stock and were members of the board of directors. Leo Balcom became president and general manager. Defendant Dorothy Balcom became vice president and treasurer. Defendant Shirley Roberts was given 98 percent of the stock, was a member of the board, and became bookkeeper and secretary of the corporation.
Between April 27, 1965, and October 3, 1966, plaintiff served nine garnishments on Silver Shed. All of the garnishments were answered "none" except on one occasion the registered agent amplified the answer, "No wages due defendants are still indebted to the company." Shirley Roberts furnished the information for the garnishment returns.
In July, 1964, Leo Balcom purported to borrow $1300 from the corporation on his unsecured note. At this time there was not sufficient money in the corporate bank account to pay Leo and Dorothy's wages. The corporation made little, if any, attempt to enforce the note. Defendant Leo Balcom purported to remain perpetually indebted to the corporation on this note. Substantial sums were paid to Leo Balcom in wages after the due date of the purported loan. Balcoms rented certain property to the corporation for $60 per month. Notwithstanding some initial crediting of the rent on Leo's note, Leo was paid substantially all of the rent rather than applying it to the note. Leo testified, in effect, that he would repay *43 the loan when he could afford to. The sums paid Leo for wages and rent after the due date of the note far exceeded the sum due on the note.
The Balcoms fixed and were paid a monthly wage from the corporation. Any one of the individual defendants, as officers of the corporation, was authorized to and did sign checks on the corporate bank account. It was a frequent practice for the Balcoms to be paid their wages in advance. Checks for these advance wages were signed either by Leo Balcom or Shirley Roberts. Shirley testified that the regular corporate pay day was the 10th of the month, "But every day can be an advance day." In December, 1965, Leo and Dorothy were paid bonuses from the corporation, even though their wage accounts were overdrawn. As a result of the payment of wages in advance, the corporation repeatedly contended that no wages were due to Balcoms when served with notices of garnishment.
The corporation paid premiums on certain of Leo's life insurance policies. Dorothy was the beneficiary. The corporation had no interest in these insurance policies. Leo testified that some of these premium payments were wage advances and some were, in effect, further loans.
The corporate records were inadequate. No balance sheet or profit and loss statements were ever prepared. The corporation filed no income tax returns. A Mercedes-Benz automobile was maintained in the corporate name, but used by Balcoms for personal use. Shirley Roberts and her husband borrowed substantial funds from the corporation. The corporation wrongfully used the PUC permits of the pre-existing logging partnership.
As bookkeeper, secretary, and 98-percent shareholder *44 in the corporation, Shirley Roberts knew intimately of these practices and took an active personal part in many of them.
Shortly after plaintiff filed an amended and supplemental complaint in this proceeding, seeking to subject Balcoms' shares in Silver Shed to plaintiff's judgment claim, Balcoms transferred these shares to Dorothy Balcom's parents, in violation of a restraining order in the original action against Balcoms.
4. The foregoing brief summary of the evidence compels the conclusion that the defendants Balcom sought to insulate their income, some of their personal, and all of their business assets, from creditors' claims, primarily by using the device of the family corporation; that each of the defendants participated fully in the scheme to hinder, delay and defraud Balcoms' creditors; and that this participation was engaged in knowingly and with the intent that plaintiff's claim would be rendered uncollectible or substantially delayed. The trial court correctly so found.
The case at bar is to be distinguished from the situation in Coastal Adj. Bureau v. Hutchins, 229 Or 418, 367 P2d 430, 93 ALR2d 992 (1961). In the case at bar, the employee, as manager, in making advance payments on wages, was dealing with himself, not at arm's length. The other means employed to totally insulate income demonstrate an integrated, collusive scheme to defraud.
The remaining assignments of error attack the scope of relief granted by the trial court. The decree, among other things, ordered that the plaintiff have judgment for and recover from the defendants Leo Balcom, Dorothy Balcom, Silver Shed Logging Co., and Shirley Roberts, and each of them, the sum of $4,276.66. This was the amount determined to have *45 been wrongfully withheld from the garnishment process. The propriety of this order is challenged on appeal.
Inasmuch as the judgments against Leo Balcom and Dorothy Balcom are cumulative of the original judgment, the only question is the propriety of the judgments against Silver Shed Logging Co., and Shirley Roberts. As set forth above, the evidence clearly supports the finding that Shirley Roberts actively participated with her parents in a scheme to hinder the Balcoms' creditors from reaching their income and assets. In Sabin v. Anderson, supra, this court held that a fraudulent grantee whose purpose and intent was to aid the debtor in a scheme to defraud his creditors, was personally liable to the creditors of the fraudulent grantor, not only for proceeds which he retained, but also for those which he had paid over to the fraudulent grantor.
5, 6. While not in form a fraudulent conveyance, the purpose and effect of these transactions was similar, in that in each instance the debtors' property was placed beyond the reach of their creditors. Here the holder of the debtors' property, Shirley Roberts, in concert with the debtors, wrongfully paid over, or allowed to be paid over, amounts due to debtor in order to prevent the plaintiff from reaching the property. We hold that one who actively participates with the debtor in a fraudulent scheme to hinder the creditor's enforcement of his judgment, and, pursuant to that scheme, withholds amounts due on garnishment, is personally liable for the amount that garnishment would have realized. The fact Shirley Roberts received no pecuniary benefit from the transactions is not decisive. It is not essential to the liability of a person who commits fraud that he should have obtained any *46 benefit or advantage from the transaction. Sorenson et ux v. Gardner et ux, 215 Or 255, 334 P2d 471 (1959).
Under the facts of this case, having held Shirley Roberts liable, the trial court correctly found that Silver Shed Logging Co., was likewise liable. Abundant evidence shows that the corporation was a sham and that its incorporators and stockholders so regarded it. A court of equity will not allow the corporate form to be utilized as a vehicle for fraud. Bennett v. Minott, 28 Or 339, 39 P. 997, 44 P. 288 (1896).
With respect to that part of the decree which orders that the rents due and to become due on the Balcom property be paid to the plaintiff until the original judgment is fully satisfied, the decree must be modified. The decree enjoins defendants from using as offsets to any further garnishments served upon the corporation any alleged debts owed by the defendants, thus the rents will be available for garnishment when they become due. There is no occasion for a court of equity to afford greater relief.
Affirmed as modified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608552/ | 248 Or. 16 (1967)
432 P.2d 167
FERRANTE, Appellant, v. AUGUST, Respondent.
Supreme Court of Oregon.
Argued July 13, 1967.
Reversed and remanded October 4, 1967.
*17 Philip A. Levin, Portland, argued the cause for appellant. On the brief were Pozzi, Levin & Wilson and Tyler E. Marshall.
Frederic P. Roehr, Portland, argued the cause for respondent. On the brief were Vergeer, Samuels, Cavanaugh & Roehr.
Before PERRY, Chief Justice, and McALLISTER, O'CONNELL, HOLMAN and LUSK, Justices.
REVERSED AND REMANDED.
LUSK, J.
Plaintiff was injured when an automobile in which she was riding sustained a collision with another car. She brought this action for damages against the defendant, the driver of the other car. The jury returned a verdict for the plaintiff in the sum of $205.20. From the consequent judgment plaintiff has appealed, assigning errors which she contends require reversal because they prejudicially affected the jury's consideration of her damages.
Plaintiff alleged in her complaint that as a proximate result of the negligence of the defendant plaintiff "suffered a tearing, twisting and wrenching of the muscles, tendons, and ligaments of the low back, and a lumbosacral strain, from all of which this plaintiff *18 has been rendered sick, sore, nervous and distressed * * *."
The accident occurred on December 11, 1964. Plaintiff consulted a physician, Dr. Richard Hopkins, who diagnosed her injury as an acute lumbosacral strain. He prescribed certain exercises and other treatment for her and by the early months of 1966 her condition was considerably improved. About May 26, 1966, however, she felt a very sharp pain in her back as she was getting out of her chair. According to her testimony the chair did not move or slip she simply felt pain in her back when she was "about half-way out of" her chair.
Plaintiff reported the incident to Dr. Hopkins. He had last seen her on May 1, 1966, and testified that she had improved considerably though she still manifested symptoms. Regarding her condition later Dr. Hopkins testified:
"* * * In my office on May 27, she indicated she had had an acute onset of pain in the low back which occurred when she arose from a chair, that this was a sudden snap in the back and she had had pain in the low back ever since this time, and at this time she again demonstrated limited motion of forward bending, splinting of the spine, limited hyperextension. She was again placed on therapy as of May 31, 1966, to include injections to the low back area, the use of a muscle relaxant and pain medication."
It was Dr. Hopkins opinion that "the cause of her acute strain was related to her accident of December 11, 1964." Again, he testified:
"What occurred on May 31 [sic], 1966, she got up from a chair and got a strain again. The only compatability between the December injury and this *19 one is because the patient has been disabled and because she has had continued symptoms she is more vulnerable to a strain, but I would say you would have to say she had a re-attack or a re-strain on May 31 [sic] that produced this rather acute episode at this time."
Responding to questions by counsel for defendant in aid of an objection, the witness testified:
"Q (By Mr. Vergeer) Doctor, was the strain she suffered in 1966 caused by the accident in 1964?
"A No, the strain wasn't caused by the accident, but the patient was disabled still from her previous accident and would be more likely to get herself into a pain problem with this causative factor.
"Q As a matter of fact, this was an entirely new cause, wasn't it?
"A Not wholly, no. I didn't mean to imply that. This patient was not completely well."
Finally, in answer to further questions by counsel for the plaintiff relating to the causal connection between the May twenty-sixth strain and the original accident, the witness testified:
"Yes. This minor incident that occurred recently occurred because this patient has had a strain and a chronic difficulty throughout these many months preceding. She was not completely well and had not built up enough musculature guarding by therapy and therefore this strain is attributable to the original accident to the fact that she had not completely recovered. This will ____"
Counsel for defendant thereupon moved the court to strike the testimony and instruct the jury to disregard *20 it and the court allowed the motion. The ruling is assigned as error.
The trial court stated as matter of law that the May twenty-sixth incident was an "independent factor," which, not having been pleaded, could not be proved. We do not agree.
1. In an action to recover damages for personal injuries the tortfeasor is liable for all the natural, direct and proximate consequences of his wrongful act or omission: Gilman v. Burlingham, 188 Or 418, 423, 216 P2d 252; 22 Am Jur 2d 116, Damages § 81. In the Gilman case plaintiff pleaded that she had sustained injuries to her back, neck and spine, an abrasion over her right eye and a contusion on the right side of her head. On the trial evidence was admitted of a swelling of her body caused by novocaine injections given by a physician in the course of his treatment of her injuries. We held that the evidence was properly admitted, although the complaint contained no allegations as to the swelling of the body.
In McDonough v. National Hospital Ass'n, 134 Or 451, 460, 294 P. 351 (cited in the Gilman case) we gave our approval to the line of cases which hold that an injured person may recover from a tortfeasor damages for the aggravation of his injuries caused by the negligence, mistake or lack of skill of his physician.[1]
*21 Numerous cases hold that where the injured person meets with a subsequent accident which would not have occurred but for the original injury the defendant may be held liable for the enhancement of plaintiff's damages caused by the subsequent accident. A typical case is Hartnett v. Tripp, 231 Mass 382, 121 N.E. 17. There the plaintiff suffered a broken leg and after about nine weeks in bed in a hospital he was able to get up by the use of crutches and sit in a wheelchair. On one occasion in getting out of the chair one of his crutches slipped and he fell back into the chair breaking his leg at the place of the original fracture. The court held that evidence of the subsequent injury was properly admitted, and said:
"While a wrongdoer cannot be charged with liability for the result of a separate, independent and intervening act for which he is in no way responsible, he is liable for the direct and proximate result of the first injury. The second injury, caused by the slipping of the plaintiff's crutch, could have been found to have had a causal relation to the original injury for which the defendant would be liable. It does not appear that the plaintiff acted carelessly or improperly; he had so far recovered from his first injury that he was permitted to use crutches, although still being treated at the hospital. In attempting to get out of the chair with the aid of his crutches, he was performing a natural and necessary act, which it could not be ruled was negligent or so distinct from his original injury as to be a separate and independent act. The presiding judge clearly and accurately instructed the jury that the plaintiff could not recover for the second fracture as an element of damages unless they were satisfied that it was a natural and proximate result of the original injury. (Citations omitted.)" 231 Mass at 385.
*22 Similar cases are cited in the Annotations, 20 A.L.R. 524, 9 A.L.R. 255. Cf. Baker v. State Industrial Acc. Com., 128 Or 369, 274 P. 905.
2. Upon the pleading question we think the applicable rule is correctly stated in 22 Am Jur 2d 374, Damages § 278, as follows:
"If the defendant is informed by the pleading generally as to the effects produced by the wrong, he is bound to anticipate evidence as to the extent of the plaintiff's injuries, the origin or aggravation of which can be reasonably traced to such wrong."
See, also, Denver & R.G.R. Co. v. Roller, 100 Fed 738, 758 (CCA 9), 49 LRA 77; Myers v. Hagert Construction Co., 74 ND 435, 441, 23 NW2d 29; York Transport Co. v. Moreland (Tex Civ App), 224 S.W.2d 899.
3. We are not advised as to the fashion in which the case was submitted to the jury by the judge, as the instructions have not been brought to this court. We think, however, that the jury could have found under proper instructions and upon consideration of the stricken evidence that but for the original injury the back strain of May 26, 1966, would not have occurred and that the latter injury was the natural and probable consequence of the former. Dr. Hopkins' testimony, when read in its entirety, supports this conclusion.
Defendant argues that the ruling was not prejudicial because all the facts of plaintiff's injury and re-injury were allowed to go to the jury together with the evidence of her weakened condition and her susceptibility to re-injury. This is true. But the evidence of causal connection between the original injury and the re-injury was withheld from the jury *23 and, in addition, the court ruled, in effect, in the presence of the jury that evidence of the doctor's charge for medical services rendered plaintiff after May twenty-sixth was inadmissible. In this state of the record we cannot say with any assurance that the jury's verdict for $205.20 the exact amount of special damages proved was not influenced to the detriment of the plaintiff by the ruling in question. We are, therefore, constrained to hold the error ground for reversal.
4. Another assignment of error is directed to the court's sustaining an objection to a question asked on recross-examination by counsel for plaintiff of a doctor who testified as an expert witness for the defendant. The question would have injected into the case an issue of whether the plaintiff had a herniated disk. This was a collateral inquiry and we think that the court did not abuse its discretion to control cross-examination, since the tendency of the questioning would have been to divert the attention of the jury from the real issues and, perhaps, to bring prejudicial matter into the case.
The final assignment of error, which relates to the validity of the verdict, does not call for disposition, as it is unlikely that a similar verdict will be again returned.
The judgment is reversed and the cause remanded for a new trial.
NOTES
[1] "One of the reasons which the courts assign for holding the wrongdoer responsible in a common-law action for the negligence of a physician whose unskillful treatment aggravated the injury is that such unskillful treatment is a result which reasonably ought to have been anticipated by the wrongdoer. But the principal reason and the one most generally assigned is that the injury caused by the malpractice would not have occurred but for the original injury and was a proximate result thereof, which is in law regarded as one of the immediate and direct damages resulting from the primary injury." McDonough v. National Hospital Ass'n, supra, 134 Or at 460. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326474/ | McEvoy, Christine M., J.
INTRODUCTION
The Plaintiffs, ten former package delivery drivers who owned their own delivery vehicles and who worked for the defendant, Staples, Inc. (“Staples”), brought this action alleging that they were misclassified as independent contractors. They claim a violation of G.L.c. 149, §148B (Count I) and that, as a result, they are owed wages under G.L.c. 149, §148 (Count II) and overtime pay under G.L.c. 151, §1A and Massachusetts common law (Count III).2 This matter came before the court on Staples’ Motion to Dismiss pursuant to Mass.R.Civ.P. 12(b)(6).
DISCUSSION
Staples argues the Plaintiffs’ state law claims are preempted by federal motor carrier deregulation statutes, in that the application of the Massachusetts Independent Contractor Statute, G.L.c. 149, §148B, *262would necessarily affect Staples’ prices, routes and services and ignores the integral role that independent contractors play in meeting the Congressional goals of motor carrier deregulation.
I. Standard of Review
Pursuant to the standard of review adopted by the Supreme Judicial Court in 2008 for motions to dismiss, “a plaintiffs obligation to provide the ‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint axe true (even if doubtful in fact) . . .’’ Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). At the pleading stage, the plaintiff is required to present “factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect the threshold requirement. .. that the plain statement possess enough heft to sh[ow] that the pleader is entitled to relief.” Id. at 637, quoting Bell Atl. Corp., 550 U.S. at 557 (internal quotations omitted).
II. Preemption Under the Federal Aviation Administration Authorization Act
Staples contends the Plaintiffs’ claims are preempted by the Federal Aviation Administration Authorization Act of 1994 (the “FAAAA”). The FAAAA was aimed at deregulating the trucking industry and provides, in pertinent part, that “a State... may not enact or enforce a law. . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U.S.C. §1450(c)(1).
In Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), the Supreme Court explained that the purpose of the this provision was to prevent the states from undoing what the federal regulations had accomplished. Id. at 378-79. It does not, however, follow that all state statutes which relate in any way to the trucking industry are preempted. See Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 375 (2008). Whether the effect is direct or indirect, the analysis is whether the state law has a significant impact on a carrier’s “price, routes, or service” or whether the impact is tenuous, remote, or peripheral. See id. (stating “federal law does not preempt state laws that affect rates, routes, or services in ‘too tenuous, remote, or peripheral a manner’ ”), citing Morales, 504 U.S. at 390. If the state statute has a significant impact on the FAAAA’s objective to assure transportation rates, routes and services that reflect competitive market forces, then it is preempted. See id. (“the state laws whose ‘effect’ is ‘forbidden’ under federal law are those with a 'significant impact’ on carrier rates, routes, or services”), citing Morales, 504 U.S. 390 (emphasis added). If, however, the state statute’s impact is merely tenuous, remote or peripheral, then there is no preemption. Id.
Furthermore, preemption analysis begins with the presumption against preemption and this presumption is heightened in areas of traditional state law regulation. DiFiore v. American Airlines, Inc., No. 07-10070, 2009 WL 5103179, at *3 (D.Mass. Dec. 23, 2009), citing New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995). Employment and wage laws are traditionally governed by state law and the presumption against preemption is, accordingly, heightened. See id. at *4-5 (stating “eveiy circuit court but one to consider employee claims has held the claims at issue not preempted”), and cases cited; see also Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) (“Preemption of employment standards within the traditional police power of the State should not be lightly inferred”) (internal citations and quotations omitted).
Staples relies heavily on Rowe, which establishes that state law will only be preempted under the FAAAA when there is a significant impact on carrier prices, routes or services. 552 U.S. at 375-76. In applying this analysis to the statute at issue in Rowe, Justice Breyer concluded that a Maine law, which allowed retailers to sell tobacco only if they utilized delivery by a carrier who complied with certain recipient verification procedures and imposed on the carriers themselves constructive knowledge that the packages being delivered contained tobacco product, was preempted by the FAAAA. Id. at 371. According to Justice Breyer, the Maine law had a direct connection and significant impact on motor carrier services as it obligated the carriers to perform certain services and functions which the federal law does not require. Id. at 371. In addition, he reasoned that to require carriers to examine each package and to compare it against the Maine attorney general’s list of proscribed shippers would directly affect the carrier’s pickup and delivery services. Id. at 371-72. Ultimately, the Supreme Court reasoned that the impact of the Maine laws on prices, routes and services was significant and not tenuous, remote or peripheral, specifically stating
[t]he state statutes aim directly at the carriage of goods, a commercial, field where carriage by commercial motor vehicles plays a major role. The state statutes require motor vehicle carrier operators to perform certain services, thereby limiting their ability to provide incompatible alternative services; and [the statutes] do so simply because the State seeks to enlist the motor carrier operators as allies in its enforcement efforts.
Id. at 375-76. It is clear from Rowe that a case by case analysis must be undertaken and that the FAAAA’s preemption provision is not without limits. Id.; see also DiFiore, 2009 WL 5103179, at *7.
Applying this analysis to the case at bar, it is clear that the effect of the law classifying independent contractors, G.L.c. 149, §148B, and the Massachusetts wage laws, G.L.c. 149, §148 and G.L.c. 151, §1A, do *263not significantly affect carrier prices, routes and services. Here, the Plaintiffs’ claim is that in delivering goods for Staples they have certain rights under the prevailing wage statutes which were violated because they were employees and not independent contractors. Claims under these employment provisions pertain to all workers and therefore, are of general applicability. The effect on Staples’ routes, prices and services is not significant, but merely remote, tenuous or peripheral. Staples’ core business function is not comprised of its delivery services; rather, it is primarily an office supply store. The Plaintiffs do not claim that Staples cannot ever employ independent contractors; rather, they assert that, in the circumstances presented here, they were, in fact, employees and thus, protected by the wage laws. The employment provisions at issue in the current case affects Staples only in its capacity as an employer, and not as to the tangential delivery of its goods. The Massachusetts laws at issue in this case do not infringe on Congress’ objective, i.e., they do not prevent Staples from relying on competitive market forces in setting its rates, routes, and services. Rowe, 552 U.S. at 371.
Courts have consistently found that employment laws are of general applicability. See DiFiore, 2009 WL 5103179, at *4-5, and cases cited. Here, the wage laws relating to the terms of employment and the classification of whether a person is an independent contractor are to protect worker’s rights. Whether or not the Plaintiffs are employees or independent contractors is to be determined at trial. The effect of the Massachusetts laws is not to prohibit companies from utilizing independent contractors and Staples has every right to do so; the laws are to protect workers who are, in fact, employees so that they can enjoy the benefits of that status. This is not to say that certain state laws relating to employment might be preempted as they would have a significant impact on prices, routes or services, but this is not the case here. Applying the presumption against preemption applicable to employment laws, there is no significant effect on the prices, routes or services of Staples; any effect is peripheral, tenuous, or remote. The court finds no preemption by the FAAAA.
ORDER
For the reasons set forth above, it is hereby ORDERED that Staples’ Motion to Dismiss is DENIED.
The Plaintiffs have not brought this suit as a class action and do not seek injunctive relief. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2983780/ | Motion Granted; Appeal Dismissed and Memorandum Opinion filed June 10, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00284-CV
ROBIN D. BAIWIR AND STACY L. BAIWIR, Appellants
V.
BANK OF AMERICA, N.A., OCWEN LOAN SERVICING, LLC AND U.S. BANK,
NATIONAL ASSOCIATION, Appellees
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2011-43636
MEMORANDUM OPINION
This is an appeal from a judgment signed January 10, 2014. On June 4, 2014,
appellants filed a motion to dismiss the appeal. See Tex. R. App. P. 42.1. The motion is
granted.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Donovan and Brown. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1903232/ | 873 A.2d 997 (2005)
273 Conn. 929
Walber GONZALEZ
v.
COMMISSIONER OF CORRECTION.
Supreme Court of Connecticut.
Decided April 21, 2005.
David B. Rozwaski, special public defender, in support of the petition.
Leon F. Dalbec, Jr., senior assistant state's attorney, in opposition.
The petitioner Walber Gonzalez' petition for certification for appeal from the Appellate Court, 87 Conn.App. 744, 867 A.2d 134 (2005), is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608556/ | 127 Ariz. 335 (1980)
621 P.2d 22
STATE of Arizona, Appellee,
v.
Joseph Edward VAN DYKE, Appellant.
No. 4734.
Supreme Court of Arizona, En Banc.
October 27, 1980.
Rehearing Denied December 16, 1980.
*336 Stephen D. Neely, Pima County Atty. by Kenneth J. Peasley, Deputy County Atty., Tucson, Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Greg A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.
Redondo & Sherman, P.C. by James E. Sherman, Tucson, for appellant.
HAYS, Justice.
Appellant Joseph Edward Van Dyke, convicted of two counts of first degree murder and one count of armed burglary, was sentenced to concurrent terms of life imprisonment without possibility of parole for 25 years for each murder count and 5 to 15 years on the burglary count. Taking jurisdiction pursuant to A.R.S. § 13-4031 (Supp. 1979),[1] we affirm.
Over a period of two and one-half years, appellant and Pearl Cumbie enjoyed an on-again, off-again relationship. Appellant on occasion lived with Pearl Cumbie during the last year of their affair but the relationship was a stormy one resulting in frequent fights. During those times appellant would either stay at a room he kept or with friends. On September 13, 1978, following one such incident, appellant was staying at a friend's trailer. That evening, after consuming a considerable quantity of beer and taking a number of illicit pills purchased on the street, appellant went to the apartment he shared with Pearl and her 27-year-old son, Richard Waddell, carrying a loaded .30-.30 rifle.
In a statement made to police, appellant said he went to the apartment to scare Pearl into going out with him; however, the end result was that Pearl Cumbie and Richard Waddell were shot and killed by appellant.
I
Initially, appellant maintains that his armed burglary conviction must be reversed because, as a matter of law, one cannot commit burglary in one's own place of residence. We disagree with appellant's statement of the law.
While there is support for appellant's contention in the common law, see LaFave & Scott, Handbook on Criminal Law 708 (1972), in this state the common law is only viable insofar as it is consistent with statutes enacted in its stead. A.R.S. § 1-201.[2] Arizona's statutory crime of burglary differs greatly from the one found in the common law. See A.R.S. §§ 13-301 and 13-302. The elements of common law burglary traditionally included breaking and entering the dwelling of another at night with the intent to commit a felony. LaFave & Scott, supra. The Arizona statutory version of burglary merely requires entry into one of several designated buildings or enclosures with the intent to commit a felony and nothing more. A.R.S. §§ 13-301 and 13-302.
We have on many occasions said a breaking or otherwise unlawful entry are not elements of burglary, State v. Pittman, 118 Ariz. 71, 574 P.2d 1290 (1978); State v. Calvery, 117 Ariz. 154, 571 P.2d 300 (1977); State v. Madrid, 113 Ariz. 290, 552 P.2d 451 (1976); In re Appeal in Maricopa Juvenile Action No. J-75755, 111 Ariz. 103, 523 P.2d 1304 (1974); State v. Owen, 94 Ariz. 354, 385 P.2d 227 (1963); State v. Hogue, 15 Ariz. App. 434, 489 P.2d 281 (1971). These Arizona cases clearly establish that even where the physical entry is objectively legitimate, entry will be illegal if the defendant's subjective intent is to commit a felony. Walking into an open telephone booth, *337 the office of an open service station, or an open convenience market may be objectively legitimate entries but if one makes such an entry with the intent to commit a felony, the crime of burglary is complete. State v. Owen, supra; State v. Hogue, supra; State v. Madrid, supra.
We think the jury was properly instructed on burglary and there is evidence to support the jury's verdict.
II
Appellant next contends the failure to instruct the jury that a gun must be pointed in a threatening manner in order to constitute assault with a deadly weapon is reversible error. We disagree.
In order to establish its felony-murder theory by way of the armed burglary count, the state introduced evidence that the crime appellant intended to commit upon entry was, among others, assault with a deadly weapon. The instruction relating to assault with a deadly weapon included language that it is sufficient to merely point a deadly weapon at a victim to constitute the crime. Appellant's position is that the weapon must be pointed in a threatening manner. Our search of the authorities, including those cited by appellant, do not support his contention.
We note at the outset that no objection was raised at trial with respect to this instruction. As we have said before, absent fundamental error, in order to preserve an objection to a proposed instruction on appeal, counsel must object at trial and state with particularity the grounds of the objection. 17 A.R.S. Rules of Criminal Procedure, rule 21.3(c); State v. Edgar, 126 Ariz. 206, 613 P.2d 1262 (1980); State v. Toney, 113 Ariz. 404, 555 P.2d 650 (1976).
Moreover, Arizona authority is quite clear "[t]here is no question but what the pointing of a loaded pistol at another ... is an assault with a deadly weapon." State v. Gortarez, 103 Ariz. 395, 396, 442 P.2d 842, 843 (1968). There is no requirement that the weapon must be pointed in a threatening manner. State v. Bustamonte, 122 Ariz. 105, 593 P.2d 659 (1979); State v. Gordon, 120 Ariz. 172, 584 P.2d 1163 (1978); State v. Duncan, 105 Ariz. 426, 466 P.2d 380 (1970).
In the case at bar the relevant inquiry is not what appellant in fact did with the rifle but what he intended to do. By his own admission appellant went to the apartment to scare Pearl into going out with him. The fact he intended to do so with a loaded rifle supports the armed burglary conviction.
III
Appellant next alleges the jury should not have been instructed concerning a stipulation that the death penalty would not be sought regardless of the verdict.
Before trial the parties stipulated that no matter what the outcome of the case, the death penalty would not be sought. It was also "STIPULATED AND AGREED by and between the parties herein that at the time of trial, the jury shall be instructed that irrespective of the verdict, the Defendant will not be subject to the death penalty."
During jury selection the panel was informed that if defendant was convicted of a crime carrying the possibility of a death sentence, none would be sought. There was no defense objection. At the close of the prosecution's case-in-chief, several stipulations were read to the jury including the death penalty stipulation. Again, there was no defense objection. While settling instructions, the state proposed an instruction which recited the death penalty stipulation and also directed the jury not to consider punishment in reaching a verdict. This time the defense objected, claiming the stipulation had already been fulfilled.
It is true a defendant is entitled to a jury verdict based on the evidence and without regard to the possible punishment, State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956), but here, by agreement of the parties, the jury was informed that no death sentence would be rendered. It was not only proper according to the very terms of the stipulation to "instruct" the jury but *338 necessary to direct that this stipulation was to play no part in its deliberations. Further, it was important to let this jury know how to deal with this particular stipulation in regard to all other stipulations.
The jury was properly instructed.
IV
Appellant next argues he was denied a fair trial because the rule excluding witnesses from the courtroom was invoked and a witness admitted discussing his testimony with another person.
When Detective George Olsen of the Tucson Police Department took the stand the following colloquy occurred:
Q Do you recall assisting Mr. Van Dyke in any way walking down from where he was seated to another location?
A Well, I believe Mr. Sherman had asked me this in a pre-trial interview and I didn't recall helping him. I still don't recall helping him, but Detective Martin in talking to him today indicated to me I did have a hold of his arm walking him down to the car.
It is appellant's contention that when the two detectives discussed the testimony they violated the court's order precluding witnesses from communicating with each other.
Our rule excluding witnesses from the courtroom when not testifying, 17 A.R.S. Rules of Criminal Procedure, rule 9.3(a), states:
Prior to or during any proceeding the court may, and at the request of either party shall, exclude prospective witnesses from the courtroom and direct them not to communicate with each other until all have testified. (Emphasis added).
Since Detective Martin was neither disclosed as a possible witness at trial nor called as a witness to testify, it does not appear to us the rule was violated.
V
In "Appellant's Supplement to Appeal," appellant maintains that he never had an initial appearance on the armed burglary charge. The allegation appears from the record to be true; however, we see no prejudice nor do we see error demanding reversal.
The purpose of an initial appearance is to get a person who has been arrested before a magistrate "without unnecessary delay," 17 A.R.S Rules of Criminal Procedure, rule 4.1(a), so that the individual can be told of the charges underlying his arrest; his rights to counsel, to remain silent, and to a preliminary hearing to determine if there exists probable cause to be bound over for trial; and to establish conditions of release. 17 A.R.S. Rules of Criminal Procedure, rule 4.2(a). Essentially the initial appearance is designed to inform the defendant of why he has been arrested, when he must next appear, and to release him if possible. Indeed, the complaint itself need not be filed until 48 hours after the initial appearance so there can be no requirement that every detail of the complaint must be revealed at the initial appearance. 17 A.R.S. Rules of Criminal Procedure, rule 4.1(b).
Here, appellant had an initial appearance which informed him of the first degree murder charges underlying his arrest. A complaint was subsequently filed containing the charges revealed at the initial appearance plus the armed burglary count. The complaint was available in sufficient time to afford appellant an opportunity to challenge each count at the preliminary hearing. We find no error.
Having reviewed the record for fundamental error and finding none, A.R.S. § 13-4035 (Supp. 1979), the judgment of conviction and the sentence are affirmed.
CAMERON and GORDON, JJ., concur.
HOLOHAN, Vice Chief Justice (dissenting):
The court today holds that a man can be guilty of burglary of his own home. This novel principle comes about according to the majority opinion, because of the wording of the burglary statute. If that is what the law means, one cannot help but agree *339 with the often quoted remarks of Mr. Bumble, the Charles Dickens character from Oliver Twist (Chapter 51).
The majority ignores the long-standing principle that statutes should be construed to avoid an absurd conclusion or result, and the majority must admit that their construction of the burglary statute results in an absurd conclusion and result. No attempt is made by the majority to give the statute a sensible construction as an appellate court should. See Arnold Const. Co., Inc. v. Arizona Board of Regents, 109 Ariz. 495, 521 P.2d 1229 (1973); Mendelsohn v. Superior Court, 76 Ariz. 163, 261 P.2d 983 (1953).
Today's decision is in sharp contrast with our decision in State v. Billhymer, 114 Ariz. 390, 561 P.2d 311 (1977), in which we construed a section of the old criminal code A.R.S. § 13-135 dealing with lunacy. Although the old code stated that lunatics were incapable of committing crime, we held that there was no distinct defense of lunacy different from the usual defense of insanity. In Billhymer, supra, we avoided a literal construction of the statute. For reasons unknown to me, the majority feels compelled to follow a literal interpretation which results in applying the burglary statute to achieve an obviously absurd result.
STRUCKMEYER, Chief Justice (dissenting):
I concur in the dissent of Vice Chief Justice Holohan.
NOTES
[1] Unless otherwise indicated, Title 13 citations in this opinion refer to the Arizona Criminal Code as it existed prior to the revisions effective October 1, 1978.
[2] The new criminal code expressly abolishes all common law offenses, see A.R.S. § 13-103 (Supp. 1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608569/ | 27 Wash. App. 848 (1980)
621 P.2d 176
THE STATE OF WASHINGTON, Respondent,
v.
AUGUSTUS JOSEPH WILLIAMS, JR., Appellant.
No. 7828-3-I.
The Court of Appeals of Washington, Division One.
December 15, 1980.
A.J. Meyers and Hane & Meyers, for appellant (appointed counsel for appeal).
Norm Maleng, Prosecuting Attorney, and Marc Boman, Deputy, for respondent.
DORE, J.
Defendant appeals from his conviction on three counts of assault in the second degree. We affirm.
ISSUES
1. Did the trial court err in refusing defendant's requested instruction which placed the burden on the State to prove, beyond a reasonable doubt, the absence of justification?
2. Was the jury correctly instructed as to the standard for determining whether the defendant had probable cause to effectuate a lawful citizen's arrest?
3. Did the trial court give the jury contradictory instructions regarding culpability for injuring an innocent bystander?
FACTS
Defendant was married for 11 years to Pam Williams. Subsequent to the couple's dissolution of marriage, the defendant continued to frequently see his ex-wife and their children. Pam Williams began living with Ricky Lee Jones about one and a half years after she and the defendant *850 were divorced. Pam and Jones had an argument and on July 18, Jones broke some items in Pam's house. Jones had previously threatened and slapped Pam. Pam filed a criminal complaint against Jones. All of this information was communicated to defendant, who was also aware that Jones was involved in prostitution and narcotics.
On July 30, Jones destroyed much of Pam's personal property in her home. Defendant believed that Jones and a friend, Young, had threatened to kill Pam and defendant's two children. Defendant looked for Jones and Young on July 30. His intention was to apprehend Jones for the police so that Jones could answer for the damage done to Pam's house. Defendant believed that Jones and Young would be armed; therefore he armed himself with a .38 revolver.
Defendant located Jones and Young at a park on the evening of July 30. Defendant admits shooting at Jones (count 1, assault in the first degree), and Young (count 2, assault in the first degree). Jones was hit by a bullet as was Natasha Carroll (count 3, assault in the second degree), an 11-year-old innocent bystander.
Defendant contended that the shooting was in self-defense, in defense of others, and for the purpose of effecting a lawful citizen's arrest. Defendant was found guilty as charged on count 3, and found guilty of the lesser included offense of assault in the second degree on counts 1 and 2.
DECISION
ISSUE 1: Trial court properly denied defendant's proposed instruction.
Defendant contends that it was error for the trial court to refuse his proposed instruction on the burden of proving justification. That instruction[1] placed the burden on the *851 State to prove, beyond a reasonable doubt, the lack of justification, once the defendant has produced some evidence of self-defense or other justification.
[1] Defendant relies on State v. Roberts, 88 Wash. 2d 337, 346, 562 P.2d 1259 (1977), which held:
If evidence is presented which is deemed sufficient by the court to raise an issue as to the question of possible justification, that element should be treated in the same manner as any other. The jury should be instructed as to the pertinent aspects of the law of justification in homicide cases and then simply informed that the State has the burden to prove absence of self-defense beyond a reasonable doubt.
Under the old statute, which was before the Roberts court, the absence of justification was an element of the crime. It is settled law that the State has the burden of proving beyond a reasonable doubt every element of the crime[2] included in the definition of the offense charged. Patterson v. New York, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977).
[2] Under the current assault and homicide code sections (RCW 9A.36 and RCW 9A.32 respectively) the absence of justification is no longer an element of these crimes. This court has consistently held that Roberts does not apply to self-defense instructions in prosecutions for assault and homicide under the new criminal code.[3]State *852 v. Bradley, 20 Wash. App. 340, 343, 581 P.2d 1053, review denied, 91 Wash. 2d 1002 (1978), and cases cited therein. No longer is the burden on the State to prove, beyond a reasonable doubt, the absence of justification.
Issue 2: Standard for determining probable cause to arrest properly given to jury.
Defendant objects to the court's instruction No. 15 which follows:
A private person who has probable cause to believe that a felony has been committed by another may lawfully arrest that person. Probable cause exists where the facts and circumstances within the private person's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in a belief that an offense has been or is being committed.
He argues that it was error to require defendant to show the trustworthiness of the information.
[3] The standard of probable cause for a warrantless arrest on a felony by a police officer was enunciated in State v. Gluck, 83 Wash. 2d 424, 426-27, 518 P.2d 703 (1974).
Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in a belief that an offense has been or is being committed.
This language from Gluck was transformed into instruction No. 15, changing the words "arresting officer" to "private citizen."
The probable cause standard for felonies applicable to police officers has been applied when the arrest is made by a citizen. State v. Darst, 65 Wash. 2d 808, 811-12, 399 P.2d *853 618 (1965); State v. Jack, 63 Wash. 2d 632, 637, 388 P.2d 566 (1964). The Gluck standard applies when the arrest is made by a private citizen.
Issue 3: Jury properly instructed regarding bystander.
Through instruction No. 12, the jury was instructed that to find defendant guilty of a second degree assault against the 11-year-old girl, it must be proven that (1) the defendant caused her injury, (2) the injury was caused by a weapon, (3) the defendant acted with criminal negligence, and (4) the act occurred in King County. Through instruction No. 13, the jury was instructed that the defendant would not be culpable for injuring the young girl if defendant "was justified under the circumstances in using or attempting to use force in self-defense or in defense of another; or in making a lawful arrest."[4] Defendant argues that these instructions require him to prove justification or excuse as to his assaults on Jones and Young before he can claim excuse for his causing injury to the bystander. He asserts that proof as to the assault on the girl must be independent of the other counts.
The defendant cites no authority for his contention that instruction No. 13 was erroneous, therefore we need not consider it on appeal. State v. Wood, 89 Wash. 2d 97, 569 P.2d 1148 (1977); State v. DeCuir, 19 Wash. App. 130, 574 P.2d 397 (1978). Inasmuch as exceptions were taken to two related instructions, we will rule on the merits.
[4] The instructions, when read as a whole, permit the defendant to argue his theories of the case. Furthermore, instruction No. 13 is a correct statement of the law. It was not error for those instructions to be given to the jury.
*854 Affirmed.
SWANSON and WILLIAMS, JJ., concur.
NOTES
[1] Proposed instruction No. 11 reads as follows:
"A person claiming self-defense or the defense of others has the obligation to produce some evidence tending to establish self-defense or defense of others, but the prosecution retains the burden of proving the absence of self-defense or the defense of others, beyond a reasonable doubt."
[2] Defendant also objected to the court's refusal to give its proposed instruction No. 12, which would include lack of justifiable cause as an element of the crime of assault.
[3] Defendant asserts that our state Supreme Court has indicated that it will find Roberts applicable even under the new criminal code. Defendant relies on State v. King, 92 Wash. 2d 541, 599 P.2d 522 (1979) for support. We believe this reliance is misplaced. In King, defendant contended that even under the new criminal code, the State has the burden of proving absence of self-defense beyond a reasonable doubt. The Court of Appeals held Roberts inapplicable. The legislature had shifted the burden from the State to the accused by removing excuse or justification from the language of the statute. This shift was constitutionally permissible under Patterson v. New York, supra. State v. King, 22 Wash. App. 330, 589 P.2d 306 (1979). On review, the Supreme Court construed the instructions given as keeping the burden with the State. Therefore, even accepting King's argument that Roberts should apply, the court reasoned that King was not prejudiced by the refusal of his instruction. The state Supreme Court explicitly refused to review the Court of Appeals determination that the legislature had shifted the burden.
[4] This instruction also informed the jury that the defendant would be removed from culpability for this assault if the defendant "unintentionally injured the bystander; and [defendant] did not act with criminal negligence which resulted in the injury to the bystander." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875668/ | 490 So. 2d 248 (1986)
Hermione Dealmeida WOOD, Cross-Appellant,
v.
Thomas R. WOOD, Cross-Appellee.
No. 85-2694.
District Court of Appeal of Florida, Third District.
July 1, 1986.
*249 Fine, Jacobson, Schwartz, Nash, Block & England and Linda Ann Wells, Miami, for cross-appellant.
No appearance for cross-appellee.
Before NESBITT, BASKIN and FERGUSON, JJ.
PER CURIAM.
It is undisputed that the disastrous economic situation that befell the marriage partners was caused by intentional acts of the now elusive husband. The trial court's refusal to consider that fact and to grant cross-appellant/wife the husband's interest in the home, the single marital asset, as an equitable distribution, was an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Williamson v. Williamson, 367 So. 2d 1016 (Fla. 1979).
Reversed and remanded for further consistent proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3768050/ | Thomas Anthony Taylor was arrested and incarcerated on May 23, 1974. He was bound over to the grand jury and on June 19, 1974, he was indicted for kidnapping, rape and aggravated robbery (six counts).
On July 12, 1974, a pre-trial hearing was held. As Taylor maintained his innocence, a trial was set for September 25, 1974, by agreement between the prosecutor, defense counsel, and an officer of the court.
On September 4, 1974, Henderson (defense counsel) withdrew as counsel and attorney Larry Coey was appointed to represent Taylor. On September 19, 1974, attorney Coey filed a motion to dismiss the indictment because the defendant had not been granted a speedy trial. This motion *Page 172
was overruled. A trial was had on four counts of the indictment (a motion to sever two counts having been sustained) and defendant was found guilty of all counts. On October 7, 1974, Taylor entered a plea of guilty to the remaining two counts. He was sentenced on all counts pursuant to law.
In his appeal, he asserts that the court erred when it overruled his motion to dismiss the indictment for failure to provide him with a speedy trial. Taylor was confined in jail for more than 90 days before he was brought to trial. R. C. 2945.71
provides, in substance, that a person who is confined in jail must be brought to trial within 90 days after his arrest.
If he is not and no valid reason is given for such failure, he must be discharged pursuant to R. C. 2945.73. A request by a defendant for continuance beyond the 90 day period is sufficient cause to prevent his discharge. See, R. C. 2945.72(H). We hold that the voluntary agreement of defendant's counsel, on behalf of his client, for a trial date beyond the 90 day period is a continuance pursuant to R. C. 2945.72(H) which will bar defendant's discharge. Such action by counsel cannot be repudiated by the defendant and constitutes a waiver of his statutory right to trial within the 90 day period. We affirm the judgment.
Judgment affirmed.
BRENNEMAN, J., concurs.
MAHONEY, J., concurs in the judgment only. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2430563/ | 339 S.W.2d 539 (1960)
William Leo GREGG, Appellant,
v.
STATE of Texas, Appellee.
No. 32058.
Court of Criminal Appeals of Texas.
June 8, 1960.
Rehearing Denied October 12, 1960.
*540 Mac L. Bennett, Jr., Normangee, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Judge.
The complaint and information alleged that appellant "was a person whose operator's license had theretofore been suspended and did then and there unlawfully while his said operator's license was so suspended, drive and operate a motor vehicle upon a public highway."
Tried before a jury, appellant was convicted and assessed a fine of $250, from which he appeals.
Bill of Exception No. 1 complains of the overruling of motion to quash the information, the ground for said motion being that it charged no violation of the penal laws of Texas.
The allegations are deemed sufficient. In Rushing v. State, 161 Tex. Crim. 334, 277 S.W.2d 104, 105, the allegations held sufficient to charge the offense defined by Art. 6687b, Sec. 34, Vernon's Ann.Civ. St., were that the defendant "did then and there unlawfully drive and operate a motor vehicle upon a public highway, there situate, when the Texas Operator's license of the said (defendant) was suspended."
It is contended that the evidence is insufficient to sustain the conviction.
On or about December 19, 1959, appellant was driving a pickup on a road in Brazos County, and was stopped by officers of the Texas Department of Public Safety.
*541 When asked for his license he first "said he had his license at home" * * * "he said he had a Louisiana driver's license and that is the one he left at home * *." "Then I asked him if he had a Texas driver's license and he said no. * * * After he said he had never had a Texas license * * * then I asked him if his Texas driver's license were ever suspended and asked him if they were still under suspension and he said yes."
Records of the Driver's License Division of the Texas Department of Public Safety were introduced relative to William Leo Gregg, No. 3639274, including notice of conviction for driving while intoxicated in Cause No. 148 in County Court, Brazos County, Texas, July 28, 1959, and showing license suspended for 6 months.
The entry "Surrendered license, Op in 4/14/60" appearing on the record was explained by the witness who had custody of it as meaning that the operator's license of William Leo Gregg was issued 4-14-58 and would be valid until 4-14-60. It was also explained that the license was kept in another file to be mailed "when he has served his suspension".
Appellant questions whether the evidence shows that the road upon which appellant was driving the pickup was a public road.
Patrolman Williams testified:
"Q. Under what circumstances did you have contact with Mr. Gregg? A. We were on a County Road leading from State Highway 21, from Highway 21 to the Tabor community here in Brazos County * * * I pulled into a private driveway to turn and go back to State Highway 21 when a pickup coming along in the same direction as mine, the same line of travel, and I tried to stop him and I was unable to pull along the side by the pickup and finally I got behind him and flew the horn and pulled him over, * * * and Mr. Gregg was driving the pickup.
"Q. That was William Leo Gregg? A. Yes."
As we understand the record, this testimony shows that the pickup was driven on the county road and not on the private driveway.
Appellant's identity as the same person who was the defendant in the driving while intoxicated conviction and whose license was suspended by reason of such conviction is challenged.
The Deputy County Clerk identified the report of such conviction which she signed and which the defendant who surrendered his license signed. The records of the Department of Publis Safety relating to such driver include his original application signed and sworn to which contains a full description of the applicant. If there was any discrepancy between the description of the licensee and the defendant the jury was in position to discover it. Goolsby v. State, Tex.Cr.App., 312 S.W.2d 654.
Appellant's statement that his "Texas Driver's License was under suspension", with the other evidence above mentioned, was sufficient to sustain the jury's finding that appellant had been issued an operator's license which would not expire until April 14, 1960; that such license was under suspension by reason of his conviction for driving while intoxicated when he was apprehended driving a pickup on a public road in Brazos County, Texas.
The judgment is affirmed.
On Appellant's Motion for Rehearing
DICE, Commissioner.
In his motion for rehearing, appellant insists that the court erred in permitting Patrolman Williams to relate the conversation which he had with appellant *542 after he had stopped him relative to his driver's license, over appellant's objection that he was then under arrest. We need not pass upon the question as to whether appellant was at such time under arrest because the conversation between appellant and the officer was, under the record presented, shown to be a part of the res gestae of the transaction and admissible as such. Cline v. State, 163 Tex. Crim. 141, 289 S.W.2d 291 and Suiter v. State, 165 Tex. Crim. 578, 310 S.W.2d 81.
Appellant further insists that the court erred in admitting in evidence the records of the Driver's License Division of the Texas Department of Public Safety relative to William Leo Gregg, over appellant's objection that the same were not certified to by the proper officer having legal custody thereof and were hearsay. The records introduced were original records of the Driver's License Division and were identified as such by the witness Goodman, a driver's license examiner for the department, who the record shows had been designated deputy custodian of such records by Chief A. F. Temple of the Driver and Vehicle Records Division of the department. The records, being identified and attested in open court by the officer having legal custody thereof, were admissible in evidence under the provisions of Art. 3731a, Vernon's Ann.Civ.St. Such records were not subject to appellant's objection that they were hearsay. Rice v. State, 163 Tex.Cr.P. 367, 292 S.W.2d 114 and Tennison v. State, Tex.Cr.App., 327 S.W.2d 575.
Remaining convinced that the evidence is sufficient to sustain the conviction and that no reversible error is shown;
The motion for rehearing is overruled.
Opinion approved by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608582/ | 621 P.2d 466 (1980)
NILSON ENTERPRISES, INC., Plaintiff and Appellant,
v.
CITY OF GREAT FALLS, Defendant and Respondent.
No. 80-110.
Supreme Court of Montana.
Submitted November 24, 1980.
Decided December 18, 1980.
As Corrected on Denial of Rehearing January 13, 1981.
*467 Jardine, Stephenson, Blewett & Weaver, Gary W. Bjelland, Great Falls, argued for plaintiff and appellant.
David V. Gliko, City Atty., Great Falls, argued for defendant and respondent.
HARRISON, Justice.
Nilson Enterprises (taxpayer) appeals an adverse decision of the Cascade County District Court, upholding an annexation by the City of Great Falls (City).
Taxpayer filed a complaint against the City on January 28, 1974, attempting to recover a special improvement district assessment for the fiscal year ending June 30, 1974. The taxpayer had made the payment under protest on November 30, 1973. The taxpayer charged that the City had no jurisdiction to create a special improvement district, and, therefore, the assessment was invalid as it was based on an invalid annexation.
On November 21, 1974, the City and the taxpayer entered into a stipulation agreeing that, if taxpayer made any further payments under protest before the final determination of the suit, it would not be required to initiate any other suit. On June 21, 1977, the parties further stipulated to a set of facts, agreed that no evidentiary hearing or trial would be required, agreed *468 that all parties would file their motions for summary judgment on the record as it stood, and finally agreed that the case would be ultimately decided at the District Court level, subject to appeal. The City and the taxpayer both filed motions for summary judgment with supporting briefs. On January 16, 1980, the District Court found in favor of the City, determining that the assessment and annexation were proper. Taxpayer appeals.
The facts are undisputed. Taxpayer is a Montana corporation doing business and owning real property in Cascade County. The City of Great Falls is a municipal corporation. In September 1972, the city council passed a resolution to extend the boundaries of the City to include two additional tracts of land, which were contiguous to the municipal city limits. Taxpayer's property, prior to annexation, was not contiguous to the city limits.
At all times during this action the State has had and still does have an interest in the real property described as Tracts 1 and 2 namely, a highway pursuant to a right-of-way deed. The annexation was approved by the mayor on September 12, 1972. On September 25, 1972, the City declared its intention to create a special lighting district, relying on the annexation for its validity. Taxpayer was assessed and ordered to pay taxes of $389.81 and did so under protest. Taxpayer has paid its assessment under protest every fiscal year since 1974.
At the heart of the issues raised by the taxpayer is a challenge to the validity of the City's jurisdiction to make assessments against the taxpayer's property. Taxpayer argues that the actions by the City, both the annexation and the assessments, are void ab initio. Involved here is a statute which, if properly followed, authorizes a city to assess a special improvement tax on property outside of, yet contiguous to, the city limits. The tax liability depends on whether the property in issue has been properly made contiguous to the city's boundaries. If it has not, there is no liability.
Taxpayer submits three issues for review:
1. Does a taxpayer who has been assessed special improvement taxes under a statute authorizing taxation of land which is "contiguous" to a city have the capacity to challenge the annexation proceeding which made its own land contiguous to the city?
2. Does a city's failure to file a land description, certificate of ownership, or owner's statement of a desire to have the land annexed render annexation proceedings void ab initio?
3. Does a taxpayer's failure to protest annexation or a special improvement tax immediately after notice estop it from challenging later?
Section 11-511, R.C.M. 1947 (now section 7-2-4402 et seq., MCA), restricts the right of a municipality to annex land in which the State of Montana has any beneficial interest, such as the State of Montana had in the property designated as Tracts 1 and 2 in this case. This statute provides in pertinent part:
"Contiguous land owned by government desire for annexation procedure. Whenever any land contiguous to a municipality is owned by the United States or by the state of Montana, or by any agency, instrumentality, or political subdivision of either, or whenever any of the foregoing have a beneficial interest in any land contiguous to a municipality, such land may be incorporated and included in the municipality to which it is contiguous, and may be annexed thereto and made a part thereof, in the following manner:
"1. The administrative head of the owner of the land, or the administrative head of the holder of a beneficial interest in the land, shall file with the clerk of the municipality a description of the land, a certification of ownership or of beneficial interest therein, and a statement that the owner of, or the holder of, the beneficial interest in the land desires to have it annexed. Whereupon, the governing body of the municipality shall pass a resolution reciting its intention to annex the *469 land and setting a time and place for a public hearing thereon." Section 11-511, R.C.M. 1947. (See sections 7-2-4402, -4403, -4404, MCA). (Emphasis added.)
On May 24, 1972, in response to the City's request for the Montana State Highway Department's policy on annexation of state highway land, Robert E. Champion, supervisor of the right-of-way section of the Montana Highway Department, stated: "In general there would be no objections to annexation providing such action precludes the levy of any assessment against the highway right of way." The City asserts that Champion's letter substantially complies with the requirements of the statute even though nothing was filed with the city clerk.
In its decision in favor of the City, the District Court reasoned:
"To prove that the annexation was void ab initio, the plaintiffs argue that the filing requirements of M.C.A., 1979, Section 7-2-4403, requiring filing by the owner of a land description, a certification of ownership, and a statement that the owner desired to have the land annexed, were not followed. These irregularities do not seem glaring enough to deprive the City of jurisdiction. The Courts which have considered the matter have generally found that a City's annexation is void for lack of jurisdiction in only three (3) instances: 1) Where one city attempts to annex part of another city; 2) Where a city attempts to annex property not adjacent to it in a contravention of statute, and 3) Where a city attempts to annex without consent of the landowners of the new territory. Annot., 13 A.L.R. 2d 1279, 1292 (1950); Barton v. Stucky, 121 Okl. 226, 248 P. 592 (1926). Plaintiffs allege none of these."
Taxpayer asserts that there exits a fourth ground for invalidating a city's annexation as being void ab initio: where a city fails to comply with all the mandatory requirements of statutory law. 2 McQuillin, Municipal Corporations, Sec. 7.29 at 422; Pool v. Town of Townsend (1920), 58 Mont. 297, 304, 191 P. 385, 386.
"... If, then, the Codes provide the means by which an addition becomes a part of a city or town and subject to its jurisdiction, the means so provided must be held to be exclusive." Pool, 58 Mont. at 304, 191 P. at 386.
The continued validity of Pool was recently underscored twice by this Court in Gregory v. City of Forsyth (1980), Mont., 609 P.2d 248, 37 St.Rep. 277, 279, and Balock v. Town of Melstone (1980), Mont., 607 P.2d 545, 37 St.Rep. 288, 291.
The Court in Gregory, 609 P.2d at 252, stated:
"The general rule is that municipal boundaries may be extended only as prescribed by law. 2 McQuillin, Municipal Corporations, Sec. 7.14 at 317 (3rd rev. ed. 1979). Since the jurisdiction of a city to extend its boundaries is a special power, conferred by the legislature, a substantial compliance with all the mandatory requirements of statutory law is essential. McQuillin supra, Sec. 7.29 at 422; Pool v. Town of Townsend (1920), 58 Mont. 297, 304, 191 P. 385, 386."
The gist of taxpayer's argument is that the City neither complied with the statutory requirements nor secured the State's consent, and that either failure denied the City of the jurisdiction to validly annex the property and levy assessments against it. The City's view is that Champion's letter served as evidence of the State's consent and that it also served as substantial compliance with statutory requirements. We find for the taxpayer.
As to the issue of consent, we conclude that the City had a qualified or conditional consent at best. The consent by the State of Montana, tacitly given by Champion in his May 24 letter, was clearly subject to the absence of any levy against the highway right-of-way. Although notified of the conditional nature of the State's consent to the annexation, the City promptly levied an assessment against the property interest of the State. By affidavit in the record, Champion stated with regard to his May 24 letter:
*470 "This statement embodied the policy of my office and subject to the provision regarding assessment against the Montana Department of Highways right of way, my office had no objection to such annexation on the date of that letter. However, since the annexation took place, the City of Great Falls has levied assessments against the property of the State of Montana highway right of way. These assessments have not been paid by the State and have been strongly resisted.
"...
"Also, neither my office nor, to the best of my knowledge and belief, any other office of the State of Montana, Department of Highways, has ever filed with the Clerk of the City of Great Falls a description of the land to be annexed, a certification of ownership or of beneficial interest therein, or a statement that the Department of Highways desired to have the land annexed.
"The Department of Highways has and will continue to resist any levy of assessments against its highway right of way pursuant to the annexation of this land and the creation of the appurtenant special lighting district."
Contrary to the finding of the District Court, the taxpayer did challenge the annexation on the issue of the State's consent. Any consent given by the State was clearly forsaken by the City's decision to levy an assessment against the State's property. Without the property owner's consent the City was without the jurisdiction to proceed with the annexation. The annexation was void ab initio. Annot., 13 A.L.R. 2d 1279, 1292 (1950).
Moreover, we reaffirm this Court's decisions in Pool, Balock and Gregory, supra. When statutory language provides the manner in which a city or town may annex a portion of contiguous property, it must completely and strictly comply with the statute's requirements. Annexation, and the taxation implications that accompany it, should not be approached lightly. The procedure should not be haphazard. Although Gregory reaffirmed the rule of substantial compliance, the complete failure to secure the documents necessary to the proper annexation of property is not substantial compliance. The complete disregard of the mandates of what is now section 7-2-4403, MCA, was an error fatal to the City's power to annex.
As to this taxpayer's standing to challenge the annexation, we concur with the District Court's citation of the applicable law. Applying the rule of Sharkey v. Butte (1916), 52 Mont. 16, 155 P. 266, the lower court quoted this Court: "... where such proceedings are void ab initio for want of jurisdiction of the subject matter, as here, equity will afford relief to the property owner whose taxes would be increased if his property were included within the city's limits." 52 Mont. at 23, 155 P. 266. See also 62 C.J.S. Municipal Corporations, § 66 at 178 (1949).
Having determined that the proceedings by the City of Great Falls were indeed void at inception for want of proper jurisdiction, we are convinced that this taxpayer has standing and is entitled to relief.
This Court is further persuaded that the principles of estoppel do not serve to deny the taxpayer relief. Although the City cites our decision in Power v. City of Helena (1911), 43 Mont. 336, 116 P. 415, and persuaded the District Court that a failure by a taxpayer to protest a special assessment or improvement tax when given an opportunity to do so at a public hearing, estops the taxpayer from a later challenge, the reliance on that decision is improper. In Power, the jurisdiction of the City to annex and assess was not challenged as being void ab initio. In that opinion, although we found Power to have been estopped from challenging the assessment, we also wrote:
"Of course, if the fact that plaintiff's property cannot receive any benefit from the improvement appeared from the face of the city's proceedings, the want of jurisdiction would be apparent, and a collateral attack upon the assessment could be maintained. But such is not the case *471 here." 43 Mont. at 343, 116 P. 415. (Emphasis added.)
Where there is a substantial defect in the original proceedings, which operates to deprive a city of the jurisdiction to act from the outset, estoppel will not bar a taxpayer's prayer for relief.
We note with disapproval that this case, after submission to the trial judge, languished in the hands of the district judge some 415 days. In our opinion, this period between submission and decision was far too long and unnecessary. Judicial delay in this decision has caused additional costs to the City and unnecessary expense to the taxpayer.
For lack of the State's consent and failure of the City of Great Falls to comply with the requirements of the statute, we reverse.
HASWELL, C.J., and DALY, SHEA and SHEEHY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608545/ | 432 P.2d 271 (1967)
In the Matter of the Parental Rights of Mervin SHREVE, Eugene Shreve, Leva Shreve, Theresa Shreve and Karen Shreve.
Dona DISSELLE, Appellant (Respondent below),
v.
The STATE of Wyoming ex rel. SHERIDAN COUNTY WELFARE DEPARTMENT, Appellee (Petitioner below).
No. 3591
Supreme Court of Wyoming.
October 6, 1967.
Bruce P. Badley, Sheridan, for appellant.
William D. Norman, Special Asst. Atty. Gen., Cheyenne, for appellee.
Before HARNSBERGER, C.J., and GRAY, McINTYRE, and PARKER, JJ.
Mr. Justice PARKER delivered the opinion of the court.
The County Attorney of Sheridan County, purporting to act under the authority of § 14-53 ff., W.S. 1957, filed a petition *272 alleging that Dona Griffen (formerly Dona Shreve and at the time of the trial Dona Disselle) was the natural mother of five Shreve children: Mervin, age nine; Eugene, age seven; Leva, age six; Theresa, age four; Karen, age three; then living with Leva Anderson, their grandmother; that the mother was an unfit person to have the permanent care, custody, and control of the children by reason of her abuse and neglect of them; and that the best interests of the children required their being placed under the jurisdiction of the court and the custody and guardianship awarded to the father, Alvin Shreve, or another suitable person. Petitioner upon these allegations sought termination of the parental rights of the mother, the appointment by the court of a suitable guardian for the minor children, and the granting of temporary custody to a suitable person. Summons and citation was served upon Dona Griffen and also upon Alvin Shreve, who had been previously married to the children's mother, divorced from her in 1956, remarried the same year, and again divorced in 1960 by a Montana court. He filed an answer, praying that the parental rights of the mother be terminated and that the children be placed in the care, custody and control of his sister and brother-in-law, Margaret and Vern Dillon of Odessa, Missouri. Mrs. Disselle filed an answer, denying generally all of the state's allegations and asserting that she was capable of taking care of the children and requesting the dismissal of the petition. The Dillons filed a written offer to accept the custody of the minor children, and Leva Anderson, the maternal grandmother, filed a similar offer.
Following a hearing, before the trial court without a jury, where evidence was adduced, the court issued two orders, the first finding that the natural mother had neglected the children and was therefore an unfit parent, terminated her parental rights by reason of neglect, and decreed the temporary care, custody and control to the Sheridan County Department of Public Welfare as guardian. Thereafter, the court, upon the petition of the welfare director, issued the second order, providing that the department place the minor children with the Dillons at Odessa, Missouri, on a trial, foster-home basis, and that the father, Alvin Shreve, make his current, child-support payments to the Dillons, the trial court retaining jurisdiction over all parties.
Mrs. Disselle has appealed, urging that the evidence produced by the State was insufficient to support the decision of the trial court, that the court erred in receiving into evidence three different exhibits consisting of reports of the welfare department, and that the Act under which the proceedings were brought is unconstitutional.[1]
An examination of the record discloses in the evidence adduced by the State in its case in chief little which could be interpreted as substantial evidence that Mrs. Disselle was an unfit person by reason of neglect of the children to warrant a termination of her parental rights. The most shown was that a place where the children had lived was dirty, foul smelling, and contained what appeared to be human excrement on the floor where the baby's bed had been; that in their home dirty clothes were strewn about and dishes were piled in the sink; and that at least once for about an hour the children had been left alone. While these circumstances might show a situation consistent with the lack of care they do not necessarily prove this, and if the propriety of the basic decree depended solely upon the evidence *273 adduced by the State in chief it might be subject to challenge. However, notwithstanding Mrs. Disselle's motion to dismiss after the State had rested, the case proceeded and a consideration of the evidence, at the time the parties had rested and the motion to dismiss was renewed, shows it to sufficiently make out a case for the State and to disclose that Mrs. Disselle had neglected the children. Under past holdings of this court, error, if any, in overruling a motion for dismissal at the close of a plaintiff's case is cured where the defendant introduces evidence and at the time the parties finally rest the evidence is sufficient to make out a case for the plaintiff. Marsh v. Butters, Wyo., 361 P.2d 729, 732; Boyle v. Mountford, 39 Wyo. 141, 270 P. 537, 539.
Appellant urges that the reports of the welfare department were improperly received. At the time of the trial, the view of the court seemed to be that the reports were admissible as being official records of a governmental agency. We find no justification for such a holding. The Uniform Official Reports as Evidence Act, § 1-165 ff., W.S. 1957, at § 1-166 provides that written reports or findings of fact made by officers of this State shall be admitted as evidence of matters therein stated. Nothing is before the court to indicate that any of the persons making the proffered welfare reports were officers, and there is no contention of admissibility on any other basis. Such reports were not within the statute. Richardson v. Farmers Union Oil Company, 131 Mont. 535, 312 P.2d 134, 144. The error in receiving them is, however, not prejudicial, it being generally accepted in this jurisdiction that in a trial by court without a jury where there is sufficient, competent evidence without that claimed to be erroneously admitted to sustain a judgment such admission is not a ground for reversal. York v. Torbert, Wyo., 355 P.2d 205, 209; Arnold v. Jennings, 75 Wyo. 463, 296 P.2d 989, 991.
As to the charged unconstitutionality of § 14-53 ff., it is not shown that this matter was raised in the trial court, and it will not therefore be heard here. Sorenson v. School District No. 28, in the County of Big Horn, Wyo., 418 P.2d 1004, 1005.
Affirmed.
NOTES
[1] Although at the time of the hearing there was some apparent contention by Mrs. Disselle's attorney that the proceeding for the termination of parental rights was improper since the only notice given was for a temporary order to show cause, the court asserted that all counsel had agreed that the matter would then be heard and fully determined and error on that ground is not asserted in the appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875717/ | 176 B.R. 483 (1994)
In re Kyle P. DOHERTY, Annette L. Doherty, Debtors.
Kyle P. DOHERTY, Plaintiff,
v.
Robert A. KLIMEK, III, Defendant.
Bankruptcy No. 84-50263. Adv. No. 94-5018.
United States Bankruptcy Court, S.D. Illinois.
December 13, 1994.
*484 Timothy C. Hinrichs, Bethalto, IL, for debtors.
William A. Mueller, Belleville, IL, for defendant Robert A. Klimek, III.
OPINION
LARRY L. LESSEN, Bankruptcy Judge.
Before the Court is Debtor's Complaint to Determine Dischargeability of Debt.
In or about October 1978, Kyle Doherty ("Doherty"), who was enlisted in the United States Navy, sold his automobile to Robert Stafford ("Stafford"), who was also in the Navy. Three days later, and before title to the vehicle was transferred from Doherty's name to Stafford's name, Stafford was involved in an automobile accident wherein Stafford, while driving the subject vehicle, struck Robert A. Klimek III ("Klimek"), causing injuries to Klimek. Doherty was neither a passenger in Stafford's vehicle, nor in any other way involved in the accident; his connection to the accident is based solely upon the fact that title to the vehicle had not been transferred out of his name at the time of the accident.
In or about December 1978, Klimek commenced a civil action against Stafford and Doherty in the United States District Court for the District of Columbia. Doherty was notified of the pendency of this action by certified mail in January 1979 which, although the record is unclear, the Court will construe to be legal and valid service of process under the applicable rules of civil procedures in the U.S. District Court for the District of Columbia at that time. Doherty testified that he contacted "legal aid" on board the ship, and was advised that no action was required on his part. Doherty claims that he never again gave the matter any real thought until March 1994.
In February 1982, Klimek obtained a default judgment against Doherty in the sum of $10,756.42 plus interest and costs.
On July 12, 1984, Debtors filed their petition under Chapter 7 of the Bankruptcy Code. Debtors did not list Klimek as a creditor, nor did they list Klimek's civil judgment as a debt. During administration of the bankruptcy, it was determined that their bankruptcy estate would have no assets from which any dividend could be paid to general unsecured creditors. Accordingly, a notice was sent to creditors advising that it was unnecessary to file their claims.
On October 16, 1984, Debtors were issued their general discharge, and on November 8, 1984, the case was closed and the trustee discharged.
Years later, in November 1993, Klimek was finally able to locate Doherty through a process known as "skip tracing". Klimek arranged for the renewal and transfer of the civil judgment against Doherty, and subsequently recorded the judgment with the Madison County Recorder of Deeds, thereby causing the judgment to attach to any real estate owned by Doherty in Madison County.
In or about March 1994, Klimek mailed a certified letter to Doherty notifying him of the filing of the judgment with the Madison County Recorder of Deeds. Doherty then moved to reopen his bankruptcy, which was allowed. On April 13, 1994, Debtors filed this adversary complaint, seeking a determination that the corresponding debt is dischargeable under the provisions of 11 U.S.C. § 523.
Klimek originally argued that the subject debt was nondischargeable under both 11 U.S.C. § 523(a)(6) and § 523(a)(3), but later conceded that he could not prove a willful and malicious injury as required by § 523(a)(6). Accordingly, Klimek argues that the debt is nondischargeable under the provisions of 11 U.S.C. § 523(a)(3)(A), which provides:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt
*485 (3) neither listed nor scheduled under section 521(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit
(A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing(.)
It is clear from this language that the mere failure to schedule a claim is not enough to bring that claim within the purview of § 523(a)(3)(A). The failure to schedule the subject claim must result in denying the creditor the opportunity to timely file a proof of claim. This subsection protects only the creditor's right to file a proof of claim, nothing else. In re Stark, 717 F.2d 322, 324 (7th Cir.1983); In re Crum, 48 B.R. 486, 490 (Bankr.N.D.Ill.1985); In re Barrett, 24 B.R. 682, 684 (Bankr.M.D.Tenn.1982).
In this case, the Court has already allowed Debtors' Motion to Reopen, and the corresponding order is final and binding. In no-asset Chapter 7 cases in which a notice of insufficient assets to pay a dividend was sent to creditors, as was the case here, the provisions of Bankruptcy Rule 3002(c) which require the filing of a proof of claim within 90 days after the first date set for the meeting of creditors do not apply. Accordingly, Mr. Klimek has not been prejudiced in that he has not been precluded from filing a claim herein because of Debtors' failure to schedule him as a creditor. Of course, the right to file a proof of claim based on an unsecured, non-priority debt in a no-asset liquidation case is not of much value unless subsequent assets are found; however, because Mr. Klimek has not been denied the opportunity to file a timely proof of claim, § 523(a)(3) is not applicable, and the corresponding debt is dischargeable.
As a final matter, in In re Stark, supra, the Seventh Circuit held that a debtor could reopen a bankruptcy estate to add an omitted creditor where there was no evidence of fraud or intentional design in the omission. While this Court has already allowed the motion to reopen, and while this Court has, in this Opinion, determined that § 523(a)(3)(A) does not apply, other courts in this Circuit have considered sanctioning debtors or denying their motions to reopen in cases where the court finds evidence of fraud or intentional design in the omission. See In re Crum, supra (on issue of sanctions); In re Smith, 68 B.R. 897 (Bankr.N.D.Ill.1987) (on issue of permission to reopen). This Court wishes to point out that it would be inclined to make similar rulings in cases where there is a finding of fraud or intentional design in the omission. That being said, the Court expressly finds no evidence that Debtors' failure to schedule the subject debt in this case was as a result of fraud or intentional design, and expressly rejects Mr. Klimek's arguments to the contrary.
For the reasons set forth above, the debt represented by the judgment against Mr. Doherty in favor of Mr. Klimek is dischargeable in these proceedings.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2783036/ | FILED
NOT FOR PUBLICATION FEB 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMIDA RIVERA, No. 12-16474
Plaintiff - Appellant, D.C. No. 2:11-cv-01695-KJD-PAL
v.
MEMORANDUM*
RECONTRUST COMPANY, NA, a
wholly owned subsidiary of Bank of
America, NA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Armida Rivera appeals pro se from the district court’s judgment dismissing her
action arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court did not abuse its discretion by dismissing Rivera’s action
on the basis of judicial estoppel because Rivera’s position in her complaint is
clearly inconsistent with her statement in the bankruptcy court, and the bankruptcy
court accepted her prior position in granting her a discharge. See Hamilton v. State
Farm Fire & Cas. Co., 270 F.3d 778, 782-83 (9th Cir. 2001) (setting forth the
standard of review and explaining the doctrine of judicial estoppel). Accepting
Rivera’s current, inconsistent position would provide her with an unfair advantage
in light of the bankruptcy discharge. See id. at 782 (“Judicial estoppel is an
equitable doctrine that precludes a party from gaining an advantage by asserting
one position, and then later seeking an advantage by taking a clearly inconsistent
position.”).
AFFIRMED.
2 12-16474 | 01-03-2023 | 02-27-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1334840/ | 228 S.C. 88 (1955)
88 S.E.2d 880
THE STATE, Respondent,
v.
MARVIN H. CHASTEEN, Appellant.
17059
Supreme Court of South Carolina.
August 24, 1955.
*89 *90 Messrs. Frank E. Harrison, of McCormick, and Felix L. Finley, Jr., of Pickens, for Appellant.
*92 Hubert E. Long, Esq., Solicitor, of Leesville, for Respondent.
August 24, 1955.
OXNER, Justice.
Upon an indictment charging him with the murder of Roy Wiggins on November 5, 1953, appellant was tried at the June, 1954, term of the Court of General Sessions of McCormick County. He was found guilty and sentenced to death by electrocution.
By the first two exceptions appellant challenges the sufficiency of the evidence to sustain the verdict. This question was timely raised in the Court below by a motion for a directed verdict and for a new trial.
The deceased and his family lived near Easley, South Carolina. His wife, Rose Wiggins, worked in the weave room of the Glenwood Cotton Mill. Appellant worked in the same room. He and Mrs. Wiggins operated adjoining looms.
Around noon on November 10, 1953, two Negroes, who had been directed by their employer to cut some wood, found the body of the deceased near a sawdust pile in a rural *93 section of McCormick County, about five miles from the town of McCormick. They notified the Sheriff who went immediately to the scene. According to this officer, deceased was lying in the woods on his stomach with his hands folded under him. There was considerable blood under his head but none on his clothing. He was neatly dressed. There were beggar lice on his trousers. The body was removed to an undertaking establishment where that night it was examined by a physician. He found two bullet wounds in the head. One entered on the left side behind the ear, passed through the brain and lodged over the right eye. The other entered just behind the forehead, passed through the brain and lodged at the back of the head. According to this physician, either wound was sufficient to have caused death. It was his opinion that the deceased had been dead at least two or three days before he was found. The bullets were removed from the head and delivered to a ballistic expert of the South Carolina Law Enforcement Division, who was present when the autopsy was performed.
A son-in-law of appellant testified that one night (he was unable to recall the date) appellant came to his home and borrowed a rifle, stating that he wanted to go squirrel hunting. He returned it the next afternoon, saying that he went hunting but did not kill anything. During the investigation of the homicide, the officers came to the home of this witness, seized the rifle and turned it over to the ballistics expert. Later this expert fired several bullets from the rifle and compared them under a microscope with those removed from the head of deceased. He was quite positive that all of the bullets came from the same rifle.
On November 11, 1953, the day following the discovery of the deceased's body, several members of the State Constabulary, along with a number of local officers, started an intensive investigation. Early Monday night, November 16th, they took appellant from his home at Easley to the Sheriff's office at Pickens, where he was questioned for several hours. Shortly before eleven o'clock he was released *94 so as to enable him to go to work on the third shift in the mill that night. He promised to be back in Pickens at eleven o'clock the following morning. He failed to meet this engagement. It developed that he had disappeared.
About 8:30 on Monday morning, November 23rd, the Sheriff of Pickens County was called over the telephone by a Mr. Ellis, an Easley minister, and informed that appellant was there and desired to surrender. As a result of this conversation, Ellis took appellant to Pickens and delivered him to the Sheriff. According to the officers, appellant seemed tired and worried and said that he had been to Mexico and had lost a lot of sleep. His first statement with reference to the homicide was made about nine or ten o'clock that morning at Pickens, when he said that Mrs. Wiggins met him on a highway with the body of the deceased in the trunk of her car, which was then placed in the trunk of his car and taken by them to McCormick County. Shortly thereafter the officers proceeded with appellant to McCormick. En route he remarked that he had not told the truth. He then said that he and Mrs. Wiggins went to Greenville on the morning of November 5th and picked up the deceased, telling him that they were going squirrel hunting, after which the three of them drove to McCormick County, where Mrs. Wiggins shot her husband. After making this statement, the officers stated that appellant, without any aid, directed them to the alleged scene of the crime. Upon arrival there, appellant stated that he was the one who shot the deceased while the latter was looking at a squirrel's nest. That afternoon the officers took him to the headquarters of the Law Enforcement Division near Columbia where he was questioned for several hours. About nine o'clock that night he made a lengthy statement which was taken down and transcribed by a stenographer, after which it was signed by appellant who was given a copy.
It would unnecessarily add to the length of this opinion to relate the details of the foregoing confession. In substance *95 it was as follows: Appellant, a 39-year old married man with two children, first met Mrs. Wiggins while both worked in the weave room of the Glenwood Cotton Mills at Easley. In January, 1952, after knowing her about six months, he had a "date" with her, in the course of which they went into the woods and had sexual relations. From that time on they went out regularly, at first about every two weeks and later once or twice a week. Occasionally they would be accompanied by another couple. On Wednesday, November 4, 1953, they had sexual intercourse near a cemetery in Pickens County. It was here that they had their first affair almost two years previously. Both expressed affection for each other and discussed the possibility of being able to live together. Finally, Mrs. Wiggins told him that she was sending her husband to Greenville the next morning and "for me to meet him over there and straighten things out and we would go together and be happy always." That night he went to the home of his son-in-law and borrowed a rifle, stating that he wanted to go squirrel hunting. Early the next morning, November 5th, he bought some cartridges for the rifle, came to Greenville and picked up the deceased. After suggesting that they go squirrel hunting, appellant drove to McCormick County where he shot the deceased while the latter was looking at a squirrel's nest. Deceased fell and appellant shot him a second time. He then returned to Easley. He continued to work in the mill. On Wednesday morning, November 11th, he learned that the body of deceased had been found. On Monday night following he was picked up by the officers and questioned for several hours, but denied any connection with the homicide. The next day he left Easley and went to Mexico. He finally decided that he would return home and surrender. He reached Easley on Monday morning, November 23rd, and found his family at the home of his mother-in-law. He was then informed that a warrant had been issued for him. He indicated a desire to surrender in Columbia but his wife and mother-in-law advised him to *96 report to the Sheriff at Pickens. He requested that Mr. Ellis, a minister, be called. Mr. Ellis came and after prayers, appellant requested him to call the Sheriff of Pickens County. Following this conversation, he was taken by Mr. Ellis to Pickens where he surrendered.
After signing the above confession, appellant was brought back to the jail at McCormick. A day or so later he indicated a desire to make a further statement. On November 25th, he was again taken to the headquarters of the Law Enforcement Division at Columbia, where shortly after midnight a second confession was signed, which in most particulars was similar to the first. The differences are not very material. In the second statement appellant said he induced the deceased to go out with him on the pretext that he (the deceased) was to be initiated by the "Secret Service" in connection with a job which appellant claimed to have arranged for him with that organization.
Many of the facts stated in the confessions were corroborated by other evidence. To illustrate: In the second statement appellant said that after the homicide he found the deceased's watch in the car and upon returning home near Easley, he threw it in his outside toilet. Later the officers found the watch where appellant said he placed it. In both confessions he stated that on several occasions in going out with Mrs. Wiggins he double-dated with one Charles Gibson. This was confirmed by the testimony of Gibson. The description given in the confessions as to the manner in which deceased was shot and the physical surroundings at the scene was remarkably in harmony with the facts developed at the trial.
The foregoing constitutes a brief summary of the State's testimony. Appellant elected not to take the stand. The principal testimony for the defense related to appellant's intelligence and reputation.
Appellant contends that in considering the sufficiency of the evidence to sustain the verdict, the confessions, to which objection was made at the trial, *97 must be eliminated because involuntary. The officers denied that appellant was intimidated, abused or threatened in any manner. They said the confessions were made without inducements of any nature and that appellant was repeatedly warned that any statement made by him might be used against him. All of the evidence tends to show that the statements were freely and voluntarily given. No evidence was offered in behalf of appellant to the contrary. We think the confessions were properly admitted. State v. Grant, 199 S.C. 412, 19 S.E. (2d) 638; State v. Judge, 208 S.C. 497, 38 S.E. (2d) 715; State v. Scott, 209 S.C. 61, 38 S.E. (2d) 902; State v. Miller, 211 S.C. 306, 45 S.E. (2d) 23; State v. Brown, 212 S.C. 237, 47 S.E. (2d) 521; State v. Livingston, 223 S.C. 1, 73 S.E. (2d) 850; State v. Waitus, 224 S.C. 12, 77 S.E. (2d) 256. The mere fact that they were made by appellant while in the custody of the officers does not render them inadmissible. State v. Judge, supra; State v. Brown, supra.
Appellant's exceptions imputing error in not granting his motion for a directed verdict of not guilty are clearly without merit.
In considering the other exceptions, it is well to keep in mind the rule that where, as here, the only rational conclusion warranted by the evidence is that the accused is guilty, the "judgment of conviction should not be set aside because of unsubstantial errors not affecting the result." State v. Evans, 202 S.C. 463, 25 S.E. (2d) 492, 495. Also, see State v. Gilstrap, 205 S.C. 412, 32 S. E. (2d) 163; State v. Hariott, 210 S.C. 290, 42 S.E. (2d) 385.
It is argued that the Court erred in conducting the preliminary inquiry as to the voluntariness of the confessions in the presence of the jury. On several occasions the jury was excused during such examination but in one or two instances the preliminary examination was made and the trial Judge announced his ruling in the presence of the jury.
*98 The question of whether a confession is voluntary is one which is addressed to the Court in the first instance. If there is an issue of fact as to the voluntariness of a confession, it should be admitted and the jury, under proper instructions, allowed to make the ultimate determination as to its voluntary character and also its truthfulness. State v. Scott, supra, 209 S.C. 61, 38 S.E. (2d) 902; State v. Brown, supra, 212 S.C. 237, 47 S.E. (2d) 521; State v. Livingston, supra, 223 S.C. 1, 73 S.E. (2d) 850.
The better practice is for the trial Judge to conduct the preliminary inquiry and determine the admissibility of the confession in the absence of the jury. 20 Am. Jur., Evidence, Section 534; Annotation 148 A. L.R., beginning on page 546. There is authority to the effect that where this is not done and the Court thereafter determines the confession to be inadmissible, prejudicial error results. That question is not now presented and we intimate no opinion thereabout. The great weight of authority is that where, as here, the confessions are finally determined to be admissible, any error in conducting the preliminary examination in the presence of the jury is cured. On page 550 of the annotation in 148 A.L.R., it is stated: "If the trial court after the preliminary examination determines that the confession was voluntarily made, its failure to conduct such examination in the absence of the jury is not ordinarily regarded as reversible error." In addition to the cases cited by the annotator in support of this view, see Kirk v. Territory, 10 Okl. 46, 60 P. 797.
We conclude that no harm resulted in the instant case from the fact that on several occasions the preliminary examination as to the voluntariness of the confessions was made in the presence of the jury. Nor do we think there was any prejudicial error in ruling in the presence of the jury that the confessions were admissible. The trial Judge announced his decision in a most formal way without any intimation as to the weight of the evidence. *99 In State v. Marlowe, 156 S.C. 363, 153 S.E. 340, the Court, in an opinion by Mr. Chief Justice Watts, held it was not reversible error to hear and refuse a motion for a directed verdict of not guilty in the presence of the jury. The better practice, however, is to excuse the jury.
It is argued that the trial Judge erred in conducting the preliminary examination as to the voluntariness of the confessions and in doing so, further erred in asking leading questions. Ordinarily examination of witnesses should be left to counsel. State v. Vickers, 226 S.C. 301, 84 S.E. (2d) 873. However, the trial Judge is vested with a wide discretion in the conduct of a trial. "It is his duty to see to it that justice be done in every case, if it can be done according to law; and, if he thinks that the attorney for either party, either from inadvertence or any other cause, has failed to ask the witnesses the questions necessary and proper to bring out all the testimony which tends to ascertain the truth of the matter under investigation, we can see no legal objection to his propounding such questions; but, of course, he should do so in a fair and impartial manner and should not by the form or manner of his questions express or indicate to the jury his opinion as to the facts of the case, or as to the weight or sufficiency of the evidence." State v. Anderson, 85 S.C. 229, 67 S.E. 237, 238.
A careful examination of this record fails to show that the trial Judge transcended the foregoing limitations. The questions propounded by him were not objectionable in form. He had the responsibility of determining whether a prima facie case was made for the admission of these confessions and the right, as well as the duty, to see that the proper questions were asked relating to the issue of whether they were voluntarily obtained.
The further contention is made that on one occasion when the preliminary examination was made in the absence of the jury, the facts and circumstances relating to the procurement of the confessions were not repeated *100 when the jury was recalled. It is said that this was prejudicial error under the case of State v. Rogers, 99 S.C. 504, 83 S.E. 971. In that case no testimony was offered on the question of voluntariness of the confession after the jury was recalled. The Court held that this was error because the burden was upon the State to show the voluntary character of the confession. In the instant case enough was asked of the witness when the jury was recalled to show that the confessions were voluntary.
The only other exception relating to the confessions imputes error in admitting that portion in which appellant stated that on several occasions when he went out with Mrs. Wiggins, they were accompanied by another couple who also had sexual intercourse. It is also argued that the Court further erred in permitting one of the State's witnesses to testify that on two occasions he and another woman "double dated" with appellant and Mrs. Wiggins. We find no error in the admission of this testimony. Testimony relating to the illicit relations between appellant and Mrs. Wiggins was entirely competent as showing motive for the crime. There was nothing in the testimony complained of showing that on these occasions appellant had illicit relations with any person other than Mrs. Wiggins.
We shall next consider the complaint that the solicitor was permitted to comment on the failure of appellant to testify. In the course of his argument, he discussed at length the confessions made by appellant. He sought to point out that the oral statements first made were untrue. He then proceeded to discuss the written confessions. He conceded that one or two statements contained therein were probably incorrect but argued that the material portions were true and corroborated by other evidence. He then said: "The poor man is dead and gone, but it certainly stands to reason that's probably what happened. Of course we'll never know exactly what happened, because he was the only one here who can tell us, but he ain't going to tell us, *101 you know. If he told us, that must be as plain as possible, because it checks with the facts."
Counsel for appellant strenuously argue that the effect of the italicized language was to direct the jury's attention to appellant's failure to take the stand and testify as to what happened. While the meaning of some of the language quoted is not entirely clear, due no doubt to inaccuracies in the stenographic report, we are not in accord with the interpretation advanced by appellant's counsel. The language complained of must be considered in connection with that which the solicitor used before and afterward. After pointing out the conflict between appellant's verbal statements and his later written confessions, we think the solicitor was endeavoring to argue that while all said in the latter may not be entirely true, the material portions represented what probably happened and checked with the facts established by other evidence. The phrase, "but he ain't going to tell us," considered in connection with the context can be reasonably interpreted as meaning that appellant in his written confessions had not disclosed everything that occurred.
Evidently appellant's counsel did not at the time construe this language as commenting on the failure of the appellant to testify, for no objection was made. Neither did the trial Judge receive that impression. The question now complained of was first raised on a motion for a new trial. It is certainly doubtful whether the inference now sought to be drawn by appellant's counsel registered in the mind of any juror. But if by any chance a juror received such an impression, its effect was doubtless removed by the following instruction: "Mr. Foreman and Gentlemen, I charge you that the failure of any defendant to take the witness stand and testify in his own behalf does not create any presumption against him. The jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant. Nor should this fact enter into the discussions or deliberations of the jury in any manner." See State v. Wilkins, 217 S.C. 105, 59 S.E. (2d) 853.
*102 The remaining exceptions relate to the charge. It is claimed that appellant was required to rebut the presumption of sanity "with reasonable certainty", which was equivalent to saying that he must establish his plea of insanity beyond a reasonable doubt. We doubt if the charge, considered as a whole, justifies that construction. Just before using the phrase complained of the jury was charged that appellant must overcome the presumption of sanity by the preponderance of the evidence. Later it was expressly stated that appellant must prove his plea of insanity "not beyond all reasonable doubt but by the greater weight or preponderance of the evidence." The jury was also instructed that if they had a reasonable doubt as to whether he had made out his plea of insanity, he was entitled to the benefit of such reasonable doubt. However, we need not pursue this phase of the case any further because we do not find in the record any evidence of insanity.
While several lay witnesses testified that appellant, who quit school in the third grade, was "to a certain extent weak minded" and had subnormal mentality, none gave any evidence from which it could reasonably be inferred that he was unable to distinguish between right and wrong. All of these witnesses conceded that for a number of years preceding the homicide, he had been regularly employed in a cotton mill. The only expert testimony on the subject of insanity was given by a psychometrist from the South Carolina State Hospital where appellant was taken for observation. He testified that appellant's mental age was eight years and six months and that he had "an intelligence quotient of 71", which he classified as "at least borderline intelligence." This witness stated that the top mental age in such a test is sixteen. He further said that the accuracy of the examination depends to some extent on cooperation and that they found appellant had not cooperated on the first test. This expert conceded that a person of appellant's intelligence could carry on a normal occupation and provide *103 for his family. He was definitely of the opinion that appellant was able to distinguish between right and wrong.
We held in State v. Gardner, 219 S.C. 97, 64 S.E. (2d) 130, 135, that evidence of the character offered in the instant case was insufficient to raise an issue of insanity. It was there stated: "Criminal responsibility does not depend upon the mental age of the defendant, nor upon whether his mind is above or below that of the average or normal man. Subnormal mentality is not a defense to crime unless the accused is by reason thereof unable to distinguish between right and wrong with respect to the particular act in question." Also, see State v. Fuller, S.C. 87 S.E. (2d) 287. The record in this case is devoid of any evidence that appellant was unable to distinguish "moral or legal right from moral or legal wrong." The trial Judge would have been fully justified in declining to submit the plea of insanity to the jury.
Finally, it is contended that the Court erred in failing to charge the following request:
"If you should conclude that the defendant is guilty, and further if upon a consideration of all evidence presented you have a reasonable doubt as to whether or not the defendant should be recommended to the mercy of the Court, the law requires that you resolve such reasonable doubt in favor of the defendant and recommend him to the mercy of the Court."
On the question of recommending mercy, the Court charged:
"And if you should conclude that the defendant was guilty of murder and if you had a reasonable doubt as to whether or not you could recommend mercy, you may recommend mercy for any reason you want or for no reason at all. That's left up to you."
In the request presented, appellant was apparently seeking to invoke the well settled rule that where there are several grades of the offense charged in an *104 indictment, if the jury finds the defendant guilty but from the evidence or lack of evidence have a reasonable doubt as to whether he is guilty of the higher or lower grade, they should resolve such doubt in his favor and find him guilty of the lower grade. But the effect of our statute, Section 16-52 of the 1952 Code, authorizing a jury where a defendant is found guilty of murder to add a recommendation to mercy, thereby reducing the punishment to life imprisonment, is not to fix two grades of murder. The discretion of the jury as to recommending mercy is an unlimited one. As pointed out in State v. Jones, 201 S.C. 403, 23 S.E. (2d) 387, a recommendation to mercy does not have to be based on evidence. It was held in State v. King, 158 S.C. 251, 155 S.E. 409, that it was sufficient to simply inform the jury that they may recommend the defendant to mercy, the effect of which is to reduce the punishment to life imprisonment.
Appellant's request was not presented until the conclusion of the charge. It is obvious that the trial Judge sought to make it conform to the foregoing rule that a recommendation to mercy rests entirely in the discretion of the jury and may be exercised independently of whether the evidence warrants it. The instruction given fully protected the rights of appellant in respect to the question of recommending mercy.
As usual in cases of this kind, we have, in favorem vitae, carefully examined the record for any errors affecting the substantial rights of the accused, even though not made a ground of appeal. We find none.
We think it is appropriate to state that appellant did not employ counsel. The Court appointed two capable and experienced attorneys to represent him, which they have done with commendable zeal and ability. Their services are acknowledged with appreciation.
Affirmed.
BAKER, C.J., and STUKES, TAYLOR and LEGGE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1500880/ | 109 F.2d 128 (1940)
NATIONAL LABOR RELATIONS BOARD
v.
NORFOLK SHIPBUILDING & DRYDOCK CORPORATION.
No. 4545.
Circuit Court of Appeals, Fourth Circuit.
January 8, 1940.
*129 Gerhard Van Arkel, Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Samuel Edes and William F. Guffey, Jr., Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.
Leon T. Seawell, of Norfolk, Va., for respondent.
Before PARKER and SOPER, Circuit Judges, and COLEMAN, District Judge.
PARKER, Circuit Judge.
This is a petition to enforce an order of the National Labor Relations Board issued against the Norfolk Shipbuilding and Dry Dock Corporation. Three questions are presented for our consideration: (1) Whether, in view of the character of respondent's business, there was jurisdiction on the part of the Board to enter the order; (2) Whether the findings of the Board with respect to respondent's dominance of and interference with an employees' association, which it ordered disestablished as a bargaining agency, were supported by substantial evidence; and (3) whether the finding as to the discriminatory discharge of one Creecy was so supported.
Little need be said as to the first question. Respondent is chiefly engaged in repairing and overhauling vessels which are used in interstate and foreign commerce, and during the year 1937 it repaired four hundred and forty-four vessels at an aggregate billing price in excess of $1,000,000. Of this amount, sixty-three per cent was for repairs on vessels engaged in interstate commerce and twenty-six per cent was for repairs on vessels owned and operated by foreign shipping interests. In making the repairs, respondent used materials of a value of $250,000, ten per cent of which was purchased from without the state and the remainder had been brought into the state in interstate commerce prior to purchase. A stoppage of the operations of respondent by industrial strife would result, therefore, in substantial interference with the free flow of interstate commerce, both because of interference with purchases of materials and also, and chiefly, because of interference with repairs necessary to the continued operation of vessels used in interstate commerce. Newport News Shipbuilding & Dry Dock Co. v. National Labor Relations Board, 4 Cir., 101 F.2d 841; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126; Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S. Ct. 592, 81 L. Ed. 789.
On the second question, it appears that the employees' association was organized through the efforts of one Bozarth, a lumber inspector, whose position with respondent was one of supervisory character although he had supervision of only a few employees. Bozarth was assisted in organizing the association by employees of respondent who were designated for this service by the foremen under whom they worked. Respondent permitted solicitation for membership in the association to be made during working hours, and an assistant foreman was shown to have distributed applications for membership. Meetings of the association were permitted on respondent's property and in a room the key of which was held by Bozarth. Respondent's stationery and mimeographing machine were used by Bozarth without objection. The association was organized shortly after an attempt was made to organize respondent's employees by an outside union; and Bozarth made no secret of the fact that his purpose in organizing it was to forestall organization by the union. Its by-laws, modelled upon those of the employees' association of the Newport News Shipbuilding & Dry Dock Co., provided for agreement by respondent before action by the governing body of the association should "be final and become effective". Respondent recognized the association as a bargaining agency for employees immediately upon its organization without going to the trouble to ascertain whether or not it represented a majority. Notice of an agreement with the association affecting wages and hours of work was immediately posted by respondent, and the association was credited with having secured by negotiation the advantages therein accorded. All of this was in marked contrast with the treatment accorded organizers of an outside union, who were not permitted to solicit members during working hours and were ordered off the premises.
We pass, without deciding, the question as to whether the provision in the by-laws of the association to which we have adverted is not sufficient of itself to show lack of that complete freedom of action on the part of the employees guaranteed them by the National Labor Relations Act, 29 U.S.C.A. § *130 151 et seq. Cf. National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 60 S. Ct. 203, 84 L. Ed. ___. We think that there can be no question, however, that the other facts and circumstances in evidence, particularly the preferential treatment accorded the organizers of the association as compared with that accorded the organizers of the outside union, furnish substantial basis for the finding of the Board that respondent had interfered with the right of self organization on the part of its employees and had thereby engaged in unfair labor practices within the meaning of sec. 8(2) of the Act, 29 U.S. C.A. § 158(2). National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 262, 59 S. Ct. 490, 83 L. Ed. 627, 123 A.L.R. 599; National Labor Relations Board v. J. Freezer & Son, 4 Cir., 95 F.2d 840; National Labor Relations Board v. Wallace Mfg. Co., 4 Cir., 95 F.2d 818.
On the third question, we do not think that the finding of the Board as to the discriminatory discharge of Creecy is sustained by substantial evidence. There is no direct evidence whatever that his discharge was on account of union membership and we can find no evidence of circumstances from which such conclusion can legitimately be drawn. On the contrary, the evidence is that Creecy was a dock hand, that the force in which he was working was ordered reduced because the number of ships docked had decreased and that he was laid off because he was junior in point of service to the other dock hands. The Board finds that there was increase in respondent's general business and deduces from this the conclusion that the reason given for the laying off of Creecy was not genuine. It appears, however, that the number of ships docked had in fact decreased; and this might certainly be ground for reducing the number of dock hands, whatever the state of the general business of respondent. The fact that Creecy was a member of an outside union may furnish ground for suspicion that his discharge was on that account; but on the other hand it does not appear that the company discharged any other union members, or that Creecy was an officer or organizer of the union or important in any way in its organization, or that his discharge had any importance in combatting union organization. The Board adverts to the fact that Creecy was not as helpful as he might have been in securing members for the association and that Bozarth dropped him as an organizer on that account, but this furnishes no basis for a finding that respondent discharged him from its employment on account of union membership. The record shows that Creecy was not only a member of the employees' association but also a member of its executive committee, that he was promised employment as soon as conditions warranted it, and that respondent's general manager, upon his request, agreed to recommend him for employment elsewhere. Efforts to show statements by an assistant foreman that he was discharged because of union activities failed entirely.
Findings of the Board must have substantial support in the evidence, i. e., they must be based upon facts in evidence from which the fact in issue can reasonably be inferred. As we said in Appalachian Electric Power Co. v. National Labor Relations Board, 4 Cir., 93 F.2d 985, 989: "We are bound by the Board's findings of fact as to matters within its jurisdiction, where the findings are supported by substantial evidence; but we are not bound by findings which are not so supported. 29 U.S.C.A. § 160(e) (f); Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142, 57 S. Ct. 648, 650, 81 L. Ed. 965. The rule as to substantiality is not different, we think, from that to be applied in reviewing the refusal to direct a verdict at law, where the lack of substantial evidence is the test of the right to a directed verdict. In either case, substantial evidence is evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences."
This we understand to be the rule laid down by the Supreme Court in the later case of Consolidated Edison Co. et al. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126, where the court said: "We agree that the statute, in providing that `the findings of the Board as to the facts if supported by evidence, shall be conclusive', * * * means supported by substantial evidence. Washington, V. & M. Coach Co. v. National Labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 L. Ed. 965. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
*131 For the reasons stated, the order of the Board will be modified by eliminating therefrom paragraphs (b) and (c) of section 2, which relate to the reinstatement of Creecy with back pay; and, as thus modified, the order of the Board will be enforced.
Modified and enforced. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1875672/ | 260 S.W.3d 461 (2008)
In the Interest of J.J., a Child.
No. 08-0299.
Supreme Court of Texas.
July 25, 2008.
Tim Curry, Tarrant County Criminal District Attorney, Charles M. Mallin, Anne E. Swenson, David M. Curl, Assistant Criminal District Attorneys, Fort Worth, TX, Kim Leah Burkley, Dallas County District Attorney's Office, Dallas TX, for Texas Department of Family and Protective Services.
Marc Franklin Gault, Fort Worth, TX, for Robert Jackson.
Sylvia R. Andrews, Fort Worth, TX, for J.J.
Kee Alice Ables, Arlington, TX, for Jamell J.
Kevin S. Williams, Burleson, TX, for Harland Cornelius.
PER CURIAM.
The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561307/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL PUBLIC RADIO, INC., et al.,
Plaintiffs,
v. Civil Action No. 1:18-cv-03066 (CJN)
FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.
MEMORANDUM OPINION
In this suit under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Plaintiffs
National Public Radio (NPR) and Rebecca Hersher seek to compel the FBI to release a collection
of videos depicting ballistics tests of certain types of ammunition. See generally Am. Compl.,
ECF No. 10. The FBI claims that the videos are subject to FOIA exemptions authorizing the
withholding of law enforcement records that, if made public, might increase the risk of evasion
of the law or harm to any individual. See generally Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”),
ECF No. 23. Both Parties have moved for summary judgment. Id.; Pls.’ Mot. for Summ. J.,
ECF No. 24. Because the Court concludes that the claimed exemptions do not apply, it awards
summary judgment to NPR and grants it in part and denies it in part to the FBI.
I. Background
Over the years, NPR has “published a series of reports on the increasing lethality of, and
injuries sustained from, common gun ammunition.” Pls.’ Resp. in Opp’n to Defs.’ Mot. for
Summ. J. (“Pls.’ Opp’n”) at 1, ECF No. 26. Hersher, an NPR journalist, filed a FOIA request
with the FBI in 2018 seeking “video recordings of ballistics tests conducted with common
1
handgun and rifle ammunition, fired into ballistics gelatin, . . . including but not limited to:
.9mm (sic) full metal jacket, .9mm (sic) expanding, .22 full metal jacket, and .223 full metal
jacket.” Pls.’ FOIA Req. at 2, ECF No. 23-3 at 3. The FBI denied the request in full without
conducting a search for responsive records, stating that it would categorically withhold ballistics
videos under FOIA Exemption 7(E). See David M. Hardy’s Ltr. of May 22, 2018, ECF No. 23-3
at 9. The FBI denied NPR’s administrative appeal on the same grounds. See Sean R. O’Neill’s
Ltr. of Sep. 28, 2018, ECF No. 23-3 at 25–26.
NPR and Hersher filed this suit against the FBI and the Department of Justice. See
generally Compl., ECF No. 1; see also Am. Compl. The FBI then agreed to conduct a search.
See David M. Hardy Decl. (“1st Hardy Decl.”) ¶ 12, ECF No. 23-2. The FBI determined that the
records were likely to reside in either the Laboratory Division’s Firearms/Toolmarks Unit or the
Training Division’s Defensive Systems Unit Ballistic Research Facility. Id. ¶ 14. The
Firearms/Toolmarks Unit indicated that it does not maintain any video records, id., and though it
has assisted the Ballistics Research Facility with such tests, it deals only with internal firearm
mechanics and does not research ballistics matters once the bullet leaves the gun, David. M.
Hardy Decl. (“2d Hardy Decl.”) ¶¶ 8–9, ECF No. 31-1.
The FBI therefore confined its search to the Ballistics Research Facility. A Supervisory
Special Agent searched the Facility’s shared network drives and a standalone desktop computer
for all video file types. Id. ¶ 10. He then watched each resulting video to determine which ones
contained recordings of ballistics gelatin tests and then further screened the results for the
ammunition types NPR sought. Id. That process located 97 responsive videos: “76 videos
showing testing of .223 Remington / 5.56 mm NATO ammunition . . . and 21 videos with 9 mm
Luger ammunition . . . .” David M. Hardy’s Ltr. of Jun. 10, 2019, ECF No. 23-3 at 28. After
2
reviewing the records, the FBI again decided to withhold them completely under FOIA
Exemptions 7(E) and 7(F). See id.
Both Parties subsequently moved for summary judgment. See generally Pls.’ Mot. for
Summ. J.; Defs.’ Mot. The Cross-Motions focus on two disputes: whether the FBI adequately
searched its records for potentially responsive video recordings and whether the records are
properly within the scope of either exemption. Id.
II. Legal Standard
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Office of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). “FOIA . . . mandates
that an agency disclose records on request, unless they fall within one of nine exemptions.”
Milner v. Dep’t of the Navy, 562 U.S. 562, 565 (2011). “FOIA mandates a ‘strong presumption
in favor of disclosure,’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir.
2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991))—so much so that FOIA
“expressly places the burden ‘on the agency to sustain its action’ and directs the district courts
‘to determine the matter de novo,’” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 756 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). FOIA permits the Court to
review the records in camera “to determine whether such records or any part thereof shall be
withheld under any of the exemptions.” 5 U.S.C. § 552(a)(4)(B).
III. Analysis
A. The Search’s Adequacy
Although NPR does not raise the issue, the FBI preemptively argues that its search for
responsive records was adequate. See Defs.’ Mot. at 4–6. “An agency fulfills its obligations
under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated
to uncover all relevant documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325
3
(D.C. Cir. 1999) (internal quotation omitted). “The agency must show that it made a good faith
effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested.” Id. at 326 (internal quotation and alterations
omitted). “The agency cannot limit its search to only one or more places if there are additional
sources that are likely to turn up the information requested.” Id. (internal quotations omitted).
“At the summary judgment stage, where the agency has the burden to show that it acted in
accordance with the statute, the court may rely on a reasonably detailed affidavit, setting forth
the search terms and the type of search performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched.” Id. (internal quotations omitted).
“However, if a review of the record raises substantial doubt, particularly in view of well defined
requests and positive indications of overlooked materials, summary judgment is inappropriate.”
Id. (internal quotations omitted).
The FBI filed a declaration by David M. Hardy, the section chief who oversees FOIA
processing, explaining the search methodology. See 1st Hardy Decl. ¶ 14. That declaration
explains the FBI’s process for narrowing its search to the Firearms/Toolmarks Unit and the
Ballistics Research Facility. Id. Hardy’s declaration indicates that, because the
Firearms/Toolmarks Unit responded that it participated in some firearms testing but did not
maintain records, the FOIA staff focused solely on the Ballistics Research Facility’s archives.
Id. The declaration details how the Ballistics Research Facility “subsequently conducted an
electronic search of its video collection for responsive videos[,]” “further narrowed the results to
any videos related to ballistics testing in gelatin[,] and manually scoped those results down to
videos per caliber type,” resulting in 97 responsive records. Id. Finally, the declaration avers
that the FOIA staff “also confirmed with [the Firearms/Toolmarks Unit] and [Ballistics Research
4
Facility] [that] there were no other locations where responsive FBI videos of this nature would
likely be located.” Id.
NPR lodged seven objections to Hardy’s declaration. See Pls.’ Opp’n at 9. NPR argues
that the declaration does not identify (1) why other components were unlikely to have responsive
records; (2) any search for records within the Firearms/Toolmarks Unit; (3) the search terms
used; (4) whether uniform search terms were used across databases; (5) “the connectors or
Boolean logic operators” used in the search; (6) the systems or software used; or (7) who
conducted the search. Id.
Hardy clarified some of those issues in a second declaration, which the FBI attached to its
Reply brief. See generally 2d Hardy Decl. Hardy’s second declaration explains that the
Firearms/Toolmarks Unit and the Ballistics Research Facility are the only two FBI units that
conduct ballistics testing, so the FOIA staff reasonably determined that it was unnecessary to
search in other locations. Id. ¶ 7. The second declaration also states that the
Firearms/Toolmarks Unit does not maintain video records, so no search of its files was
necessary. Id. ¶ 8. This declaration states that the FBI located all video files stored on the
Ballistics Research Facility’s systems and then manually watched each to determine whether it
was responsive, so there was no need to employ specific search terms, connectors, or “Boolean
logic operators.” Id. ¶ 10. Finally, Hardy’s second declaration explains how a Supervisory
Special Agent assigned to the Ballistics Research Facility personally searched the Facility’s
shared network drives and a standalone desktop computer and manually watched each video to
locate responsive records. Id.
Having answered each of NPR’s specific objections, the FBI has sufficiently
demonstrated that its search was “a good faith effort . . . using methods which can be reasonably
5
expected to produce the information requested,” Valencia-Lucena, 180 F.3d at 325, and is
entitled to summary judgment on that question.
B. Exemptions 7(E) and 7(F)
That leaves the question of whether the FBI is required to produce the videos located by
its search. FOIA authorizes agencies to withhold “records or information compiled for law
enforcement purposes” if disclosure would risk any of several enumerated harms. 5 U.S.C.
§ 552(b)(7). To justify its withholdings here, the FBI invokes two separate prongs of that
exemption by arguing that the release of the videos might increase the risk of evasion of law
enforcement (Exemption 7(E)) or harm to any individual (Exemption 7(F)). See Defs.’ Mot. at
6–11 (citing 5 U.S.C. §§ 552(b)(7)(E)–(F)). In turn, NPR contests the applicability of each
provision, see Pls.’ Mem. of Law in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”) at 6–16, ECF
No. 24, 1 argues that the Vaughn Index was procedurally deficient, id. at 16–17, and contends that
the FBI is required to justify the withholding of each recording (or segregable portions thereof)
rather than argue a categorical justification for all 97 videos, id. NPR does not contest, however,
that the recordings were “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7); Pls.’
Opp’n at 3–7.
1. Exemption 7(E)
Exemption 7(E) applies when law enforcement records “would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions if such disclosure could reasonably be expected
to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). It “sets a relatively low bar for the
1
Plaintiffs combined their Motion (1–2), supporting Memorandum of Law (3–24), and
Statement of Material Facts (25–29) into a single PDF file, ECF No. 24. All citations to those
documents are to Plaintiffs’ own pagination.
6
agency to justify withholding.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). “[T]he
exemption looks not just for circumvention of the law, but for a risk of circumvention; not just
for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably
or universally expected risk, but for a reasonably expected risk; and not just for certitude of a
reasonably expected risk, but for the chance of a reasonably expected risk.” Mayer Brown LLP
v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009). “Rather than requiring a highly specific burden of
showing how the law will be circumvented, exemption 7(E) only requires that the [agency]
demonstrate logically how the release of the requested information might create a risk of
circumvention of the law.” Id. at 1194 (internal quotation and alterations omitted). Moreover,
[b]ecause the FBI specializes in law enforcement, its decision to
invoke exemption 7 is entitled to deference. [The] court's
deferential standard of review is not, however, vacuous. If the FBI
relies on declarations to identify a law enforcement purpose
underlying withheld documents, such declarations must establish a
rational nexus between the investigation and one of the agency's law
enforcement duties and a connection between an individual or
incident and a possible security risk or violation of federal law. If
the declarations fail to supply facts in sufficient detail to apply
the . . . rational nexus test, then a court may not grant summary
judgment for the agency.
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998) (internal quotations and
citations omitted).
In Blackwell, for example, the FBI withheld documents containing “details about
procedures used during the forensic examination of a computer by an FBI forensic examiner”
and “methods of data collection, organization and presentation contained in [certain FBI]
reports.” 646 F.3d at 42 (internal quotation omitted). As to the computer examination
techniques, the FBI asserted that “the release of specifics of these investigative techniques would
risk circumvention of the law by individuals who seek to utilize computers in violation of laws”
and would “expos[e] computer forensic vulnerabilities to criminals.” Id. As to the data methods,
7
the FBI argued that “the manner in which the data is searched, organized and reported to the FBI
is an internal technique, not known to the public,” that the methods were created specifically for
the FBI by a contractor, and that disclosure “could enable criminals to employ countermeasures
to avoid detection, thus jeopardizing the FBI’s investigatory missions.” Id. The Court of
Appeals accepted those assertions, found that they “logically explain[ed] how the [information]
could help criminals circumvent the law,” and upheld judgment for the FBI. Id.
Likewise in Mayer Brown, a law firm sought documents relating to the IRS’s practice of
settling certain types of tax-enforcement cases. 562 F.3d at 1191. The IRS turned over
everything except a small set of records containing “settlement strategies and objectives,
assessments of litigating hazards, [and] acceptable ranges of percentages for settlement.” Id. at
1192. The Court of Appeals determined that the IRS properly withheld the documents because
knowledge of the IRS’s settlement tactics would help aspiring tax evaders to conduct cost-
benefit analyses of potential violations. Id. at 1193.
Although the settlement guidelines requested are not “how to”
manuals for law-breakers, the exemption is broader than that.
Exemption 7(E) clearly protects information that
would train potential violators to evade the law or instruct them
how to break the law. But it goes further. It exempts from
disclosure information that could increase the risks that a law will
be violated or that past violators will escape legal consequences.
Though the information here does not necessarily provide a
blueprint for tax shelter schemes, it could encourage decisions to
violate the law or evade punishment.
Id. The Court emphasized the exemption’s “broad language” compared to the text of other
exemptions and rejected Mayer Brown’s calls to interpret FOIA narrowly, as courts do in most
other contexts. Id. at 1194. The Court affirmed summary judgment for the IRS. Id. at 1196.
Even though courts take a deferential position toward the government’s assertions of risk,
Blackwell, 646 F.3d at 42, the government “must nevertheless provide a ‘relatively detailed
8
justification’ . . . that permits the reviewing court to make a meaningful assessment of the
[withholding] and to understand how disclosure would create a reasonably expected risk of
circumvention of the law,” Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 950 F.
Supp. 2d 221, 246 (D.D.C. 2013) (quoting Strunk v. U.S. Dep't of State, 845 F. Supp. 2d 38, 47
(D.D.C. 2012)).
Generic portrayals of categories of documents and vaguely
formulated descriptions will not suffice; accordingly, the
government must provide sufficient facts and context to allow the
reviewing court to “deduce something of the nature of the
techniques in question.” Clemente v. FBI, 741 F. Supp. 2d 64, 88
(D.D.C. 2010); accord Davis v. FBI, 770 F. Supp. 2d 93, 100
(D.D.C. 2011) (finding defendant's “generic description of the
documents as ‘prosecution memoranda . . . detailing evidence
gathering efforts and prosecution strategies in [plaintiff's] criminal
case’” insufficient to describe techniques and procedures
involved); Strunk, 845 F. Supp. 2d at 46–47 (summary listing of
categories of techniques and procedures, including “computer
screen transaction codes[,] . . . examination and inspection
procedures, internal reporting requirements, names of specific law
enforcement databases, . . .” not enough to discharge evidentiary
burden).
Am. Immigration Council, 950 F. Supp. 2d at 246–47.
To meet its burden here, the FBI argues that
[t]he responsive videos are part of the important testing and research
conducted by the FBI for law enforcement training and ammunition
procurement. The disclosure of these videos would inform
criminals how the FBI investigates the use of different types of
ammunition in the commission of real-world criminal acts; and also
how the FBI determines which types of ammunition are most
effective for specific law enforcement applications. Revelation of
this information would provide criminals with an understanding of
which types of ammunition they should use to inhibit FBI efforts to
investigate their criminal acts involving the use of firearms. It
would also allow them to predict the use of specific types of
ammunition in particular law enforcement applications, and inform
them how best they should prepare for an armed confrontation with
law enforcement. Furthermore, the FBI determined release of these
videos would reveal the performance capabilities of specific types
of ammunition and their ability to wound individuals. Public release
9
of this information would enable criminals to discern which types of
ammunition they should use in commission of different crimes and
how they could more effectively cause harm to other individuals.
1st Hardy Decl. ¶ 19. NPR responds in two ways. First, it contends that FOIA’s legislative
history created an “explicit carve-out” ensuring that Exemption 7(E) would not apply to data
from ballistics tests. Pls.’ Mot. at 8–9. Second, NPR argues that the Hardy Declarations fail to
provide enough information to justify applying the exemption. Pls.’ Resp. to Defs.’ Opp’n to
Pls.’ Mot. for Summ. J. (“Pls.’ Reply”) at 3–9, ECF No. 32.
a. Legislative History
In NPR’s view, Exemption 7(E) cannot apply to ballistics tests results because Congress
created “an explicit carve-out” for that category of records. Pls.’ Mot. at 8–9. The Conference
Report on the FOIA Amendments of 1974 contains the following explanatory language
discussing changes to Exemption 7(E):
The conferees wish to make clear that the scope of this exception
against disclosure of “investigative techniques and procedures”
should not be interpreted to include routine techniques and
procedures already well known to the public, such as ballistics tests,
fingerprinting, and other scientific tests or commonly known
techniques.
S. Rep. No. 93-1200, at 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6285, 6291. Some courts
have relied on that language to compel the government to disclose ballistics tests results, though
that has usually been in the context of releasing records used as evidence in an individual
criminal case to the defendant (often in preparation for filing a habeas petition). See, e.g., Higgs
v. U.S. Park Police, No. 2:16-cv-96, 2018 WL 3109600, at *16 (S.D. Ind. Jun. 25, 2018)
(collecting cases), rev’d in part on other grounds, 933 F.3d 897 (7th Cir. 2019).
Beyond Higgs, NPR points to only a handful of cases from the past few decades
mentioning this legislative history, and most of those are district court opinions from the Third
10
Circuit that merely quote the Conference Report’s language as part of the generic legal standard
for considering withholding under Exemption 7(E). See Pls.’ Reply at 4–5 (citing, e.g., Cozen
O’Connor v. Dep’t of Treasury, 570 F. Supp. 2d 749, 785 (E.D. Pa. 2008) (quoting Davin v. U.S.
Dep’t of Justice, 60 F.3d 1043, 1064 (3d Cir. 1995) (“This exemption, however, may not be
asserted to withhold ‘routine techniques and procedures already well-known to the public, such
as ballistic tests, fingerprinting, and other scientific tests commonly known.’” (quoting Ferri v.
Bell, 645 F.2d 1213, 1224 (3d Cir. 1981))))). Those decisions have nothing to do with ballistics
tests and so are not on point, much less binding on this Court.
The Court suspects that the dearth of recent cases applying the Conference Report in this
context stems from courts’ newfound hesitance to give weight to legislative history. 2 Higgs’
reliance on Crooker v. Bureau of Alcohol, Tobacco & Firearms is instructive. See 2018 WL
3109600 at *16 (citing 670 F.2d 1051, 1064 n.36 (D.C. Cir. 1981) (en banc)). In Crooker, the en
banc Court of Appeals had to decide whether FOIA’s “Exemption 2 . . . permits a federal agency
to withhold documents whose ‘disclosure may risk circumvention of agency regulation.’” 670
F.2d at 1052–53 (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 369 (1976)). The ATF
withheld a copy of a training manual on surveillance techniques under Exemption 2, which
prevents disclosure of documents that are “related solely to the internal personnel rules and
practices of an agency.” Id. at 1056 (quoting 5 U.S.C. § 552(b)(2) (1976)). Four years earlier
the Court of Appeals had held, sitting en banc, that the term “internal personnel rules” refers
only to “pay, pensions, vacations, hours of work, lunch hours, parking etc.,” Jordan v. U.S. Dep’t
2
NPR argues in a footnote that, “[c]ontrary to the government’s bald assertion discounting all
legislative history, courts routinely look to the legislative history of various FOIA exemptions,
not just Exemption 7(E), for insights into how to properly apply the intent and purpose of the
statute.” Pls.’ Reply at 5 n.3 (internal citation omitted). It goes on to cite three decisions from
1982, 1978, and 1976 as examples, essentially making the FBI’s point. See id.
11
of Justice, 591 F.2d 753, 763 (D.C. Cir. 1978) (en banc), but in the intervening years, the Second
and Ninth Circuits had adopted a more expansive interpretation, Crooker, 670 F.2d at 1056
(citing Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544, 546 (2d Cir. 1978);
Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 655 (9th Cir. 1980)).
Revisiting the issue in Crooker, the D.C. Circuit concluded in a brief look at the text that
the phrase “internal personnel rules” is ambiguous. Id. at 1056–57. The Court then turned to an
expansive review of the legislative history, determining that Congress intended to include
training and investigatory techniques and procedures within the scope of Exemption 2. Id. at
1057–66. After reviewing treatment by other circuits, the Court concluded that Exemption 2
encompassed internal training documents and upheld the ATF’s withholding. Id. at 1075. See
also id. at 1089–90 (Mikva, J., concurring) (criticizing dissent for advocating a text-based
approach) (citing Church of the Holy Trinity v. United States, 143 U.S. 457, 472 (1892)).
Much has changed since then, including the Supreme Court’s express abrogation of
Crooker in 2011. See Milner, 562 U.S. at 573. Writing for an eight-member majority, Justice
Kagan criticized the Crooker Court’s interpretation as “suffer[ing] from a patent flaw: [i]t is
disconnected from Exemption 2’s text.” Id. at 573. Justice Kagan went on to compare the
House and Senate Reports, which say opposite things, and concluded that “[l]egislative history,
for those who take it into account, is meant to clear up ambiguity, not create it.” Id. at 574.
“When presented, on the one hand, with clear statutory language and, on the other, with dueling
committee reports, we must choose the language.” Id.; see also Elec. Privacy Info. Ctr. v. U.S.
Dep’t of Homeland Sec., 777 F.3d 518, 523 (D.C. Cir. 2015) (“Our consideration of Exemption
7(F)’s scope begins and ends with its text.” (citing Milner, 562 U.S. at 569)). “[C]ourts must
12
presume that a legislature says in a statute what it means and means in a statute what it says
there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).
Exemption 7(E)’s text creates no carve-out for ballistics tests, and the Court will not infer
one based on legislative history. In any case, there is nothing in the Conference Report or the
cases to suggest that even if ballistics tests were outside the exemption’s scope, a comprehensive
set of all FBI tests on a particular type of ammunition—conducted not just to submit as evidence
in individual criminal trials but as part of a systematic research and development program—
would be subject to such a carve-out. See Defs.’ Opp’n to Pls.’ Mot. for Summ. J. (“Defs.’
Opp’n”) at 3, ECF No. 27. In interpreting other FOIA exemptions, courts have recognized that
the amalgamation of many records may create a rationale for withholding that does not exist
when each record is considered individually. See, e.g., Ctr. for Investigative Reporting v. U.S.
Immigration & Customs Enf’t, No. 1:18-cv-01964, 2019 WL 6498817, at *5 (D.D.C. Dec. 3,
2019) (permitting withholding of comprehensive database of detained immigrants’ arrest
information under FOIA’s privacy exemption even though some data was available in a
searchable online database) (citing Tuffly v. U.S. Dep’t of Homeland Sec., 870 F.3d 1086, 1092
& n.5 (9th Cir. 2017)); see also Reporters Comm., 489 U.S. at 764 (“Plainly there is a vast
difference between the public records that might be found after a diligent search of courthouse
files, county archives, and local police stations throughout the country and a computerized
summary located in a single clearinghouse of information.”). The FBI argues that the release of
all 97 videos might permit savvy watchers to intuit certain lessons about the ways in which the
FBI tests ammunition, selects particular rounds for specific missions, or thinks about what sorts
of rounds to purchase for its agents—lessons that one or two videos would not convey on their
13
own. Defs.’ Opp’n at 2. The Conference Report is unhelpful in answering those questions, and
the Court declines to consider it.
b. The Hardy Declarations
The relevant inquiry, therefore, is whether the Court can discern from the two Hardy
Declarations a “relatively detailed justification” for withholding the videos, Strunk, 845 F. Supp.
2d at 47 (quoting Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C.
Cir. 1977)), that identifies a “rational nexus between the withheld material and a legitimate law
enforcement purpose,” Campbell, 164 F.3d at 32. To justify withholding to safeguard an
investigatory technique, the government must provide “1) a description of the technique or
procedure at issue . . . , 2) a reasonably detailed explanation of the context in which the technique
is used, 3) an exploration of why the technique or procedure is not generally known to the public,
and 4) an assessment of the way(s) in which individuals could possibly circumvent the law if the
information were disclosed.” Am. Immigration Council, 950 F. Supp. 2d at 247.
NPR attacks the Hardy Declarations in several ways, but the Court need only discuss one
to conclude that the videos do not qualify for withholding under Exemption 7(E). NPR contends
that even if ballistics tests are not expressly carved out of the exemption’s scope, they still
involve a widely known forensic technique and therefore cannot pose a risk of informing bad
actors of some new way of breaking the law. Pls.’ Mot. at 7–8, 10–11. To be sure, some
decisions state that Exemption 7(E) is meant to protect only “secret investigative techniques and
procedures,” Jaffe v. CIA, 573 F. Supp. 377, 387 (D.D.C. 1983), and “investigatory techniques
that are not widely known to the general public,” Smith v. Bureau of Alcohol, Tobacco &
Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997); see also Myrick v. Johnson, 199 F. Supp. 3d
120, 124 (D.D.C. 2016) (quoting Jaffe, 573 F. Supp. at 387); Shapiro v. U.S. Dep’t of Justice,
153 F. Supp. 3d 253, 273 (D.D.C. 2016).
14
But courts have also recognized that the exemption permits withholding of “‘confidential
details’ of even publicly known techniques” and “commonly known procedures if disclosure
could reduce or nullify their effectiveness.” Elec. Frontier Found. v. Dep’t of Justice, 384 F.
Supp. 3d 1, 13–14 (D.D.C. 2019) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1112
(D.C. Cir. 2007)) (other quotations and citations omitted). The FBI argues that the videos depict
not only examples of ballistics tests but also information about how the FBI conducts such tests,
what types of ammunition it tests, and, most importantly, the tests’ results. See Defs.’ Reply
Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Reply”) at 2–3, ECF No. 31. The first Hardy
Declaration claims that “[t]he disclosure of these videos would inform criminals how the FBI
investigates the use of different types of ammunition in the commission of real-world criminal
acts; and also how the FBI determines which types of ammunition are most effective for specific
law enforcement applications.” 1st Hardy Decl. ¶ 19. With more dramatic flair, the FBI argues
that “videos depicting fired ammunitions penetrating gelatin meant to simulate living tissue
provide valuable intelligence and information for shooters of all types—mass shooters, armed
bank robbers, cop killers, and drive-by shooters—in choosing the most lethal and effective
weapon(s) to carry out his (sic) criminal objectives.” Defs.’ Reply at 3.
The Hardy Declarations and the FBI’s briefs are certainly full of conclusory statements
about the risk of disclosure, but they provide the Court with little concrete information about
how a nefarious actor might translate the information in the videos into actionable intelligence
about FBI tactics, techniques, and procedures. It is certainly conceivable that a comprehensive
set of testing results might provide potential criminals with an advantage, but as NPR argues and
emphasized at oral argument, these types of run-of-the-mill ammunition—9 mm Luger and .223
Remington (5.56 mm NATO) rounds—have been in common use for decades and are widely
15
known and understood, see id. at 10–11. NPR therefore contends that, to justify withholding
under Exemption 7(E), the videos must contain something more than generally available
information about those types of ammunition. Id.
Pressed on this point at oral argument, the FBI conceded that the videos contain no
commentary by which FBI officials registered their reactions to the tests or discussed any
information the FBI learned from the tests. In an abundance of caution, the Court therefore
exercised its prerogative to view a sample of the videos in camera so as to understand the
connection between the videos and the risks the Hardy Declarations claim would materialize if
the FBI were forced to produce the videos to journalists. 5 U.S.C. § 552(a)(4)(B).
Having viewed the videos, the Court concludes that the FBI’s assertion of risks is
unfounded. Each video lasts no more than a few seconds and depicts a bullet striking a gelatin
block in slow motion. The videos contain no commentary or proprietary analysis that might
betray the FBI’s thoughts about a particular type of ammunition. They do not contain details
about how the FBI conducts the tests or sets up its laboratories in some special manner known
only to law enforcement. They do not show the rounds striking various types of body armor,
thereby disclosing information about what sort of armor the FBI may have procured to protect its
agents. It appears that the ammunition’s manufacturer—or just about anyone with an interest in
doing so—could replicate the tests and achieve the same results. 3 The videos do not contain any
3
This fact arguably works against NPR’s argument that FOIA’s “central purpose”—“‘to ensure
an informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed’”—mandates disclosure in this
instance. Pls.’ Mot. at 6 (quoting NLRB v. Robins Tire & Rubber Co., 437 U.S. 214, 242
(1978)). The videos here tell NPR little about “what the[] government is up to,” Reporters
Comm., 489 U.S. at 773, and NPR could likely pay to conduct the ballistics tests itself and
thereby obtain most of the information it might learn from the videos. Nevertheless, the FBI
does not argue that the videos’ lack of useful content somehow permits withholding, and FOIA
requesters need not assert a need to know the requested information. See id.
16
sensitive government information that might distinguish them from ballistics tests conducted in
any other laboratory, and the Court is unable to discern any appreciable risk that the videos’
“disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C.
§ 552(b)(7)(E). The FBI may not withhold the records under Exemption 7(E).
2. Exemption 7(F)
Exemption 7(F) protects against disclosure that “could reasonably be expected to
endanger the life or physical safety of any individual.” 5 U.S.C. § 552(b)(7)(F). “The
exemption does not require that a particular kind of individual be at risk of harm; ‘any
individual’ will do. Disclosure need not definitely endanger life or physical safety; a reasonable
expectation of danger suffices.” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l
Boundary & Water Comm’n, U.S.-Mex., 740 F.3d 195, 205 (D.C. Cir. 2014).
The FBI asserts that law enforcement officers and victims of violent crime might
reasonably be expected to be endangered by the disclosure of these videos because criminals will
learn more about firearms and use that information to their advantage. 1st Hardy Decl. ¶ 19. In
turn, NPR argues that any harm is speculative and that the claimed class of individuals is so
amorphous as to render the exemption’s text meaningless. Pls.’ Mot. at 12–15.
The Court need not discuss the Parties’ arguments about the class of individuals who
might be at elevated risk of harm, however, because, as with Exemption 7(E) above, the FBI has
not justified its assertions that the videos contain any information bad actors might use to harm
anyone. The FBI has therefore not demonstrated that the videos are subject to Exemption 7(F).
The Court also need not reach NPR’s arguments about whether the videos are already in the
public domain, see Pls.’ Mot. at 15, or about the Vaughn Index’s sufficiency, see id. at 5.
17
IV. Conclusion
Although the FBI adequately searched its archives for responsive records, its affidavits
contain only conclusory assertions of risk that are unsupported by the videos’ content. The Court
therefore grants summary judgment to NPR, grants it in part and denies it in part to the FBI, and
orders the FBI to produce the records. An Order will be entered contemporaneously with this
Memorandum Opinion.
DATE: August 28, 2020
CARL J. NICHOLS
United States District Judge
18 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1475486/ | 96 F.2d 693 (1938)
TAYLOR et al.
v.
STANDARD GAS & ELECTRIC CO. et al.
No. 1545.
Circuit Court of Appeals, Tenth Circuit.
April 27, 1938.
Rehearing Denied June 6, 1938.
*694 *695 Jason L. Honigman, of Detroit, Mich. (Sempliner, Dewey, Stanton & Honigman, of Detroit, Mich., Milsten & Milsten, of Tulsa, Okl., and A. W. Sempliner, Milton J. Miller, and Leonard Horton, all of Detroit, Mich., on the brief), for appellants.
N. A. Gibson, of Tulsa, Okl. (R. M. Campbell, of Chicago, Ill., and Wilbur J. Holleman, of Tulsa, Okl., on the brief), for Standard Gas & Electric Co.
James F. Oates, Jr., of Chicago, Ill. (Sidley, McPherson, Austin & Burgess, of Chicago, Ill., Campbell & Biddison, of Tulsa, Okl., and Paul V. Harper, John Dern, and Charles F. Martin, Jr., all of Chicago, Ill., on the brief), for Reorganization Committee.
George S. Ramsey, of Tulsa, Okl. (Edgar A. de Meules, Villard Martin, and Garrett Logan, all of Tulsa, Okl., on the brief), for H. N. Greis, trustee.
W. F. Semple, of Tulsa, Okl., for Deep Rock Oil Corporation.
*696 Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
PHILLIPS, Circuit Judge, delivered the opinion of the court.
This is an appeal from orders confirming a plan of reorganization under section 77B of the Bankruptcy Act, as amended, 11 U.S.C.A. § 207 and note, and the approval of a compromise of a claim against the debtor as an integral part of the plan.
The debtor was incorporated under the laws of Delaware on May 31, 1919, under the name of Shaffer Oil & Refining Company. In 1931 its name was changed to Deep Rock Oil Corporation. It will hereinafter be referred to as Deep Rock. The claimant, Standard Gas and Electric Company, hereinafter called Standard, was organized under the laws of Delaware in 1910.
H. M. Byllesby & Company, hereinafter called Byllesby, was organized under the laws of Delaware in 1904. It is an investment banking company engaged in underwriting, marketing and selling securities and in holding investment securities. Prior to 1919 it also engaged in engineering and management service.
Standard Power and Light Company owned a majority of the voting stock of Standard. Byllesby and United Electric Power Company owned the majority of the voting stock of Standard Power and Light Company; up to 1936, through this ownership, they jointly controlled Standard. Byllesby elected eight of the fifteen directors of Standard. However, in 1936 Byllesby was wholly divorced from Standard.
Byllesby Engineering and Management Corporation, hereinafter called Management Corporation, was organized under the laws of Delaware in 1919. It took over the engineering and management staffs of Byllesby. It furnishes the service of trained experts and technicians in the fields of management, engineering, insurance, advertising, rate making, financing, and valuation. It also maintains a purchasing department through which mass purchases at quantity discounts are made for the corporations it serves. All of its stock was issued to Standard.
Since its organization Standard has engaged in the investment business. Since 1919 it has also engaged, through its wholly owned subsidiary the Management Corporation, in furnishing engineering and other technical service. Up to 1919 Standard's investments were wholly in public utility securities. In that year, because of concern respecting the existing financial situation and diminishing returns from its public utility investments, it sought an investment opportunity in a field that would bring it greater returns, and its attention was directed to the oil business, a wholly unrelated industry. Messrs. C. B. Shaffer and E. E. Smathers owned a very large integrated oil business in the states of Oklahoma, Arkansas, and Kansas and the opportunity to acquire an interest in that business was brought to the attention of Standard. Negotiations were carried on which resulted in a contract on May 20, 1919, between Shaffer and Byllesby. It provided that Shaffer should organize a corporation under the laws of Delaware and in consideration of $15,580,000.00, convey to it certain oil properties consisting of lands, developed and undeveloped leases, and plants, stations and equipment for the production of crude oil and the refining, manufacture and sale of petroleum products; and that Byllesby should purchase from the corporation to be formed $11,000,000.00 par value of bonds, 50,000 shares of preferred stock of the par value of $100.00 each, and 120,000 shares of common stock and pay therefor $15,200,000.00 in cash.
Deep Rock was organized, Shaffer transferred the properties to it and received therefor $9,500,000.00 in cash, the note of Byllesby and Standard due in four months for $1,000,000.00, 80,000 shares of Deep Rock common and 50,000 shares of Deep Rock preferred. From March 31, 1920, to March 18, 1921, Shaffer was a director and president of Deep Rock. Standard was dissatisfied with the results obtained under Shaffer's management. In 1921 arrangements were made for him to retire from Deep Rock under which he surrendered bonds of Deep Rock of the par value of $200,000.00, preferred stock of Deep Rock of the par value of $5,000,000.00, and 80,000 shares of common stock of Deep Rock, for which Deep Rock paid him $10,000.00 in cash and gave him two notes, in the aggregate amount of $740,000.00, and certain oil properties in the state of Louisiana. Shaffer resigned as an officer and director and four other directors who had been elected at the request of Shaffer also resigned. In May, 1921, an appropriate reserve for the reduction in assets was set up on Deep Rock's books.
The capital structure of Deep Rock at the time of its organization was 500,000 *697 shares of common stock, par value $1.00 per share, 50,000 shares of preferred stock, par value $100.00 per share, and $15,000,000.00 of first mortgage bonds. After 1928 the capital structure consisted of $10,000,000.00 of publicly owned 6 per cent notes, 50,000 shares of publicly owned preferred stock, par value $100.00 per share, and 580,000 shares of common stock. From the formation of Deep Rock, Standard owned a majority of the shares of common stock. From the time of the retirement of Shaffer, Standard owned substantially all of the common stock. At the time of the inception of the receivership, hereinafter referred to, it owned 98 per cent of the common stock. From 1921 to 1932, inclusive, Standard elected the board of directors of Deep Rock. A majority of such directors were also directors of Standard. During that period certain of the officers of Deep Rock were also officers of Standard.
In 1924, John L. Gray, an experienced engineer and refinery operator, was employed to make a survey and report on Deep Rock and its subsidiaries; on October 1, 1924, he became its executive vice president and general manager and continued in that capacity until February 28, 1933. L. B. Riddle was vice president in charge of production of Deep Rock from May, 1922, until February 28, 1933. The business of Deep Rock from 1924 on was under the management and direction of Gray and Riddle. Each of them owned securities of Deep Rock and neither had any interest in Standard or Byllesby, except that during the year 1928 only Gray served as a director of Standard.
On the organization of Deep Rock, Bernard L. Majewski became division manager of sales of its Illinois-Indiana division. He was connected with the properties under the Shaffer ownership. He became a director and vice president in charge of sales in 1928 and continued in that capacity until February 28, 1933. W. E. Moody was in charge of refinery operations, first under Shaffer and later under Deep Rock. In 1928, he became a director and vice president in charge of the refinery operations. William R. Francisco became associated with Deep Rock in 1919 in charge of auditing, accounting and finance. He became a director and treasurer in 1923 and continued in that capacity until February 28, 1933. O. O. Kerr became associated with Deep Rock at the time of its organization. He became assistant treasurer in 1922 and continued in that capacity until February 28, 1933. Moody, Francisco and Kerr were not interested in or officially associated with Standard or Byllesby.
Deep Rock was not organized as a department of Standard. Each kept separate and distinct corporate records and books and the properties and assets of the former were not commingled with those of the latter. Deep Rock paid its own officers and employees. The offices of Deep Rock were first maintained at Chicago. Soon after Mr. Gray became executive vice president and general manager they were moved to Tulsa, Oklahoma. The officers at Tulsa held frequent consultations with the officers and directors of Deep Rock in Chicago upon questions of acquiring additional gasoline stations, oil and gas leases, and other oil properties, and with reference to financing and general business policies. These conferences were consultive in character. The officers at Tulsa were in actual charge of the operations and affairs of Deep Rock and were not dictated to by Standard or its officers. At these meetings the annual budget of Deep Rock was gone over, its financial requirements considered, and on requests of the Tulsa officials, Standard made frequent advances and loans of funds to Deep Rock. But for its ability to borrow from Standard, Deep Rock's liquid funds would not have been sufficient to take care of the cost of expansion and current requirements.
In 1922 and 1923, on the recommendation of Riddle, and by the use of funds advanced by Standard, which amounted in the aggregate to $2,544,591.00, Deep Rock acquired certain producing properties and built a cracking plant thereon which became an important part of Deep Rock's refinery operations. The legal title to such properties, hereinafter referred to as the Refining Company properties, was transferred to J. C. Kennedy, as trustee, and Deep Rock was charged with the funds advanced by Standard. On February 26, 1923, Deep Rock Oil & Refining Company, hereinafter called the Refining Company, was organized under the laws of Delaware with an authorized capital stock of 15,000 shares without par value. Later as the result of transactions reflected on the books of the three corporations, Standard became the owner of the entire capital stock of the Refining Company and its unsecured note in the sum of $1,894,592.11, and Deep Rock was credited with $2,544,591.00 expended in the acquisition of the Refining Company properties. Deep Rock retained $1,619,398.88 realized *698 from the previous operation of the Refining Company properties, and in October, 1925, leased them from the Refining Company at a rental of $75,000.00 per month for the first three months and $50,000.00 per month thereafter. The lease was renewed December 20, 1930. Thereafter, the Refining Company declared dividends on its stock payable to Standard equal to the rent due to the Refining Company from Deep Rock. Deep Rock did not pay the rentals as they accrued. Standard charged Deep Rock therewith on open account and credited the Refining Company with equivalent amounts as dividends received. In all the transactions between Deep Rock and Standard, the transfer of the Refining Company stock to Standard and the lease of the Refining Company properties to Deep Rock at a very large rental is the only instance where it can be said Standard exercised its control to the benefit of Standard and to the detriment of Deep Rock.
When the $10,000,000.00 of 6 per cent Deep Rock notes were issued and sold in 1928, Standard surrendered its claim against Deep Rock for $11,086,195.85 determined as of February 24, 1928, 90,000 shares of Deep Rock 7 per cent preferred stock and 40,000 shares of Class A common stock, and received in lieu thereof 442,448 shares of Deep Rock common stock. These transactions improved the position of the 6 per cent notes by the elimination of Deep Rock's indebtedness to Standard and improved the position of the other holders of preferred stock by the elimination of the preferred stock held by Standard, and resulted in substantially no benefit to Standard as a common stockholder since it already owned substantially all of the outstanding common stock of Deep Rock.
Thereafter, Standard continued to make advances to Deep Rock and the latter made payments on account from time to time.
On February 28, 1933, Gray and Riddle filed in the district court of Tulsa County, Oklahoma, a proceeding in equity against Deep Rock, Standard, the Refining Company, and the Oklahoma Gas & Electric Company, and prayed for the appointment of a receiver for Deep Rock.[1]
On the day the bill was filed the state court appointed a receiver for Deep Rock. Immediately thereafter the cause was duly removed to the District Court of the United States for the northern District of Oklahoma[1a] and on March 2, 1933, the court appointed H. N. Greis and E. H. Moore coreceivers of Deep Rock.
On August 15, 1933, Standard filed a petition in intervention in the receivership proceeding in which it set up its claim against Deep Rock for $9,342,642.37. All except a relatively small amount of the claim had accrued subsequently to April 12, 1928. On November 28, 1933, the receivers filed their answer and counterclaim to Standard's petition in intervention. They attacked the transfer of the Refining Company stock to Standard and the leases from the Refining Company to Deep Rock and averred that Deep Rock, the Refining Company, and the Management Corporation were and at all times had been mere agents, instrumentalities, and adjuncts of Standard organized and utilized by Standard for the purpose of transacting its business in Oklahoma and prayed that the separate corporate entities be disregarded and Standard adjudged indebted to Deep Rock in the sum of $8,756,719.50. The court appointed Honorable Preston C. West special master to hear the Standard claim and the counterclaim of the receivers.
On June 19, 1934, Deep Rock filed its petition under sections 77A, 77B of the Bankruptcy Act, 11 U.S.C.A. §§ 206, 207 and note. On the same day the court approved the petition and appointed Greis temporary trustee. On July 9, 1934, it appointed Greis as permanent trustee. On June 22, 1934, Standard filed its proof of claim in the bankruptcy proceeding. The trustee renewed the challenge he had asserted as receiver. The claim was again referred to West as special master with instructions to take the evidence and report it with his findings of fact and conclusions of law to the court.
Extensive hearings were conducted before the special master throughout 1934 and the early months of 1935. Witnesses were examined at Chicago and Tulsa. Elaborate interrogatories were prepared by Messrs. Ramsey, de Meules, Martin and Logan,[2] counsel for the receivers and later for the trustee, and were presented to and answered *699 by various officials and agents of both Standard and Deep Rock. An extensive stipulation, accompanied by 28 exhibits, was entered into between counsel for the trustee and Standard. The witnesses for Standard evidenced no disposition to suppress any material fact.
The $10,000,000.00 note issue and the preferred stock of Deep Rock had been sold by Byllesby, Janney & Company, and the Federal Securities Corporation. In 1932, Deep Rock engaged Byllesby for a reasonable consideration to endeavor to arrange for extending the maturity of the notes from March 1, 1933, to March 1, 1937. Byllesby was engaged in this undertaking when the receivership proceeding was instituted and had procured extension agreements from more than 78 per cent in amount of the holders of such notes. Upon the institution of the receivership Byllesby determined to form a reorganization committee. The committee consisted of John J. Shinners, vice president of Byllesby, Robert F. Holden, vice president of Janney & Company, Newton P. Frye, president of the Central Republic Company of Chicago, and formerly vice president of the Federal Securities Corporation, G. M. P. Murphy, a prominent banker of New York City, Albert J. Robertson, vice president of a Des Moines, Iowa, banking institution, and John H. Mason, formerly chairman of the Main Line Trust Company of Ardmore, Pennsylvania. No member of the reorganization committee owned any of the Deep Rock securities. Mason had no interest in or direct connection with Byllesby or Standard. Frye, Robertson, Murphy, and Holden had no interest in or connection with Byllesby or Standard except that they had on occasions acted with Byllesby in syndicates underwriting and selling securities. The committee employed independent counsel wholly disassociated with Byllesby and Standard.
The committee recognized that the validity and extent of the Standard claim was an important element in the formulating of any plan of reorganization. It made no effort to secure deposits of notes and preferred stock under the terms of the conventional deposit agreement. It proceeded at once with an independent and careful study of the relationship and transactions between Deep Rock, Standard, Byllesby, the Management Corporation, and the Refining Company. With the aid of its counsel and accountants the committee reviewed the history of the Standard claim, the effect of the 1928 settlement, the basis and legitimacy of the items constituting the claim, and the legal principles and issues involved. In 1934, counsel for the committee advised its members that Standard would have to be considered in any reorganization plan, since in their opinion the instrumentality rule was not applicable and Standard could establish a claim in the approximate amount of $7,300,000.00.
In August, 1934, more than 18 months after the inception of the receivership proceeding, the committee concluded that a reorganization plan should be submitted to the security holders in a form that might be susceptible of consummation promptly upon the determination of the Standard claim. In August, 1934, the committee intervened in the bankruptcy proceeding and filed a deposit agreement together with a proposed plan of reorganization. After due notice to all creditors and security holders, the deposit agreement was adjudged by the court to be fair and its terms and provisions were approved. The committee was authorized to solicit deposit of Deep Rock notes and preferred stock in acceptance of the proposed plan of reorganization. The plan was proposed by Deep Rock as debtor. It was predicated upon the allowance of the Standard claim for at least $5,000,000.00, of which a substantial amount was to rank on a parity with the Deep Rock notes. The plan specifically provided that whatever might be determined by the court as to the validity, extent and rank of the Standard claim all noteholders who had theretofore deposited with the committee would be accorded an opportunity to withdraw without expense after being informed of the result of the adjudication of the Standard claim.
On February 22, 1935, six months after the submission of the original plan, Messrs. John M. Taylor and William H. Taylor, who were then the owners of 550 shares of preferred stock, intervened in the proceeding. A large number of noteholders and preferred stockholders had then accepted the original plan and had deposited their securities with the reorganization committee.
There soon began insistent demands by the depositors that the legal proceedings be terminated and the reorganization completed. In February, 1935, Mr. Shinners called upon Judge Ramsey, counsel for the trustee, and inquired whether there was any basis on which a compromise of the Standard claim could be effected. Judge Ramsey refused to consider the question of *700 compromise until the proofs were completed. The evidence was closed on February 13, 1935. Mr. Shinners then proceeded with his efforts to induce Standard and its counsel and the trustee and his counsel to arrive at a compromise. As a result Standard addressed an offer of compromise to the trustee providing for the allowance of the Standard claim in the aggregate amount of approximately $5,000,000.00, approximately $3,500,000.00 thereof to rank on a parity with the noteholders. On March 8, 1935, the trustee filed a petition reporting the offer to the court and requesting authority to accept it. In his petition for approval the trustee stated that he had given careful consideration to the offer of compromise and had consulted his counsel, that many debatable questions of law and fact were presented, and that he believed the offer to be fair and its acceptance for the best interests of the estate.
The court referred the petition and the question of the approval of the compromise to West as special master. The special master gave due and ample notice to the creditors and stockholders of the hearing on the offer of compromise. Judge Ramsey prepared and filed with the special master a narrative statement of the evidence on the Standard claim and an exhaustive brief on the issues presented, both of fact and law. The Taylors filed objections to the offer of compromise predicated on the defenses asserted by the trustee against the allowance of the claim. A hearing was held before the master on March 25, 1935. After a lapse of six weeks the special master filed his report in which he carefully considered all the pertinent matters, found that the factual and legal issues were debatable, that the compromise was fair, that its acceptance was for the best interests of the estate, and strongly recommended its approval.
The master's report came on for hearing before the court on June 3 and September 23, 1935. The Taylors appeared and objected to approval of the report. After careful consideration the court refused to approve the compromise. The refusal was not predicated on the ground that the claim should not be compromised, but rather on the proposition that the compromise and the plan were definitely related; that the compromise should be made an integral part of the plan, and that considered together the offer was not fair. On September 23, 1935, the court entered an order denying the trustee's petition and directed the parties to continue their efforts to effect a compromise.
On September 27, 1935, the district court of the United States for the District of Delaware acquired jurisdiction over Standard in a proceeding under section 77B of the Bankruptcy Act.
About January 1, 1936, the reorganization committee informally reported to the court in the presence of counsel for the trustee, Standard, and the Taylors, a new offer of compromise of the Standard claim and an amended plan of reorganization. Early in January, 1936, the court informally referred the new proposal of compromise and amended plan to a committee consisting of Judge Ramsey, representing the trustee, N. A. Gibson, Esq., representing Standard, and Travis I. Milsten, Esq., representing the Taylors, with the request that they consider and report thereon. A divided report was filed, Messrs. Ramsey and Gibson favoring the new proposal of compromise and amended plan and Mr. Milsten opposing them. Upon receipt of the report of the informal committee and on February 17, 1936, the court entered an order directing the reorganization committee to submit an amended plan of reorganization and as an integral part thereof a new offer of compromise of the Standard claim authorized by the Delaware court. On November 2, 1936, the Delaware court entered an order authorizing Standard to submit the new offer of compromise and to accept the amended plan.
On November 9, 1936, Deep Rock, with the approval of the court, made amendments to the plan originally proposed in August, 1934, and Standard presented its new offer of compromise. The court set the hearing on the new offer of compromise and amended plan for December 12, 1936, directed the reorganization committee to submit the amended plan and new offer of compromise to the creditors and stockholders of Deep Rock, and to advise those who had accepted the original plan that they were entitled to withdraw their securities without expense on or before December 5, 1936, failing which they would be deemed to have accepted the amended plan and new offer of compromise.
The new offer of compromise provided for the allowance of the Standard claim as follows:
(a) The sum of $2,376,076.31, being the principal amount, after allowing Deep Rock credit for payments made by it, *701 paid by Standard to third parties not affiliated with Standard for the account of Deep Rock since February 24, 1928, for which Deep Rock was legally obligated to such third parties.
(b) The sum of $1,585,485.18, being the amount actually expended by Standard in the purchase and development of the Refining Company properties, less rentals which accrued prior to the 1928 settlement, for which Standard received common stock.
(c) Interest on $2,376,076.31 embraced in item (a) at the rate of 5 per cent per annum from February 28, 1933, to the date of approval of the compromise, and on item (b) at the rate of 5 per cent per annum from August 5, 1933, to the date of approval of the compromise.
(d) $1,500,000.00 of the aggregate amount in items (a) and (b) to rank on a parity with the Deep Rock notes.
It further provided that Standard should transfer to the trustee of Deep Rock the entire issued and outstanding capital stock of the Refining Company, and that R. J. Graf, trustee, who had succeeded Kennedy as trustee, should execute and deliver to the trustee of Deep Rock good and sufficient transfers and conveyances of the Refining Company properties. It was conditioned on the approval of a plan of reorganization on or before February 8, 1937.
The new offer eliminated all questionable items in the Standard claim which the trustee and his counsel felt were subject to disallowance on their merits.
The amended plan as later modified by the court provides that the new securities of Deep Rock shall consist solely of income debentures and common stock; that the noteholders shall receive $10,000,000.00 of new 6 per cent income debentures, cash in the amount of $1,200,000.00, plus an amount equal to 6 per cent per annum on the principal amount of their notes from January 1, 1937, to the date of the new income debentures, and approximately 7 per cent of the new common stock; that Standard shall receive in full satisfaction of its claim approximately 73 per cent of the common stock; and that the preferred stockholders shall receive approximately 20 per cent of the new common stock.
It will be observed that Standard is wholly eliminated as a creditor and the noteholders and other creditors are to receive cash and the highest ranking security.
Pursuant to the order of November 9, 1936, the reorganization committee furnished to the creditors and stockholders of Deep Rock a complete report on the amended plan of reorganization. It set forth the terms of the amended plan, the differences between it and the original plan, the terms of the new offer of compromise, the tentative appraisal of the trustee and a complete statement of the earnings and financial history of Deep Rock since the announcement of the original plan in August, 1934. It advised the depositors, both noteholders and preferred stockholders, of their right to withdraw their securities from deposit with the reorganization committee without expense if they did not wish to accept the amended plan or to approve the new offer of compromise.
In the meantime, an independent committee had been organized by the Taylors. On November 16, 1936, the independent committee circularized the owners of preferred stock, urging them to withdraw from their deposits with the reorganization committee and authorize the independent committee to represent them in opposing the approval of the amended plan and new offer of compromise, and stating that such representation would be without individual liability for any expense.
The amended plan was approved by Standard Statistics Company, Inc., and Moody's Investor Service, nationally recognized investment analysts.
The hearing on the amended plan and the new offer of compromise came on before the court on December 12, 1936. The independent committee was permitted to intervene. The court went into the matters thoroughly and exhaustively. Judge Ramsey had testified before the special master at the hearing on the original offer that the assets of Standard and Deep Rock had not been commingled; that each had kept separate corporate records and books; that the local officers at Tulsa had been in charge of the producing and refining operations of Deep Rock, that Standard had handled Deep Rock's finances, and that Standard had not undertaken to tell Deep Rock how to operate its properties; and that after deliberate consideration it was his view that the issues of fact and law were so debatable and the ultimate result of the contest so doubtful as to justify acceptance of the *702 original offer of compromise. At the hearing before the court on the amended plan and new offer of compromise Judge Ramsey explained the new offer of compromise and the items that went into it in detail; he stated in substance that under the compromise all fraudulent rental charges and all items contested by the trustee in the Standard claim had been eliminated; that the items that went to make up the Standard claim aggregated in excess of $12,000,000.00; that unless the instrumentality rule should be applied by the courts, the claim would probably be allowed at approximately $6,000,000.00; that Deep Rock was not originally organized as a department or agency of Standard; that each kept separate and distinct corporate records and books; that their assets were never commingled; that he entertained serious doubt that the instrumentality rule would be applied by the courts; that he did not think it good judgment "to bet six or seven million dollars that the courts will uphold the instrumentality rule"; and that it was his judgment after full and deliberate consideration the offer of compromise should be approved.
Counsel for the reorganization committee representing in excess of 80 per cent of the noteholders and 60 per cent of the preferred stockholders in amounts also urged the court to approve the new offer of compromise.
Judge Ramsey has had a long, honorable and distinguished career at the bar. For many years he has been recognized as one of the eminent lawyers of the Southwest. The special master is a lawyer of ability and long experience. For many years he was the head of a leading firm of lawyers at Tulsa, Oklahoma. Counsel for the reorganization committee are counsel of high standing and ability. They were in a position to exercise an unbiased and independent judgment. Plainly the advice and recommendation of such eminent counsel were not lightly to be disregarded. On the contrary, the court was justified in giving great weight thereto in reaching his ultimate determination.
On December 22, 1936, the court entered two conditional orders, one of which approved the compromise of the Standard claim conditioned on the final confirmation of the plan, and the other confirmed the amended plan as modified by the terms of the order, conditioned upon the acceptance of the amended plan as modified, by the holders of the requisite percentage of notes and preferred stock and by Standard.
Following the order of December 22, 1936, the reorganization committee advised the creditors and stockholders of Deep Rock of the modification of the amended plan made by that order and notified the depositors that they could withdraw without expense if they did not wish to accept the amended plan as modified.
On February 3, 1937, Standard, acting under authority of an order of the Delaware court made January 27, 1937, accepted the amended plan as modified.
On February 3, 1937, approximately 20 per cent in amount of the preferred stockholders, acting through the independent committee, had disapproved, and approximately 60 per cent in amount of such stockholders, acting through the reorganization committee, had expressly approved the amended plan as modified and the new offer of compromise, and the remaining 20 per cent by inaction had tacitly manifested their approval thereof; and 82 per cent of the noteholders had expressly approved such plan and compromise, and no noteholder had objected thereto.
On February 3, 1937, a further hearing was had at which additional objections and testimony were presented by counsel for the independent committee. After the hearing the court entered its final order confirming the amended plan as modified and as a part thereof approved the offer of compromise of the Standard's claim.
The trustee, with the assistance of the Deep Rock technical staff, made an appraisal of the physical properties of Deep Rock as of September 1, 1936, and fixed the value thereof at $9,508,848.37. The value as fixed included going concern value, each unit being valued as an integral part of a complete and going concern.
The consolidated balance sheet of October 31, 1936, the value of physical assets included therein being based on the above appraisal, showed the total value of assets, after cash and liquid assets were added and current liabilities deducted, to be $16,847,348.37.
O. J. Berend, a qualified expert, checked the methods employed, the factors considered, and the results obtained by the trustee's appraisal and approved the same.
C. J. Smith, a witness called by the independent committee, gave as his opinion *703 that the physical assets of Deep Rock as a going concern had a value of $13,600,000.00. He admitted, however, that he was not qualified to value the producing properties. His estimate was based wholly on the capitalization of current earnings.
The court found that the value of the properties of Deep Rock was not in excess of $17,000,000.00.
Counsel for the independent committee devoted 275 pages of their inordinate brief to the proposition that the Standard claim should be disallowed on the merits.
The independent committee in effect asks us to adjudicate the merits of the Standard claim and then in the light of that adjudication consider retrospectively the action of the court in approving the compromise. In seeking that approach the independent committee takes no risk. If we should decide adversely to the claim on the merits, then they ask us to disapprove the compromise. If we should decide in favor of the claim on the merits, they are insulated against injury by the compromise agreement. The unfairness of such an approach is manifest. Clearly whether Standard was entitled to the allowance of its claim on the merits is not the issue here presented. That issue was never passed on by the special master or the court. The real issue is whether the plan meets the requirements of section 77B (b) (e) (f) of the Bankruptcy Act, as amended, 11 U.S.C.A. § 207 (b) (e) (f), and is fair and equitable, and whether the court abused its discretion in approving the offer of compromise.
Whether a proposed compromise of a claim against a debtor shall be approved rests in the sound discretion of the trial court. Its action in approving a compromise is presumptively right and, absent a clear showing of an abuse of discretion, will not be set aside on appeal.[3]
We shall consider the merits of the claim only to the extent necessary to determine whether the issues of fact and law were reasonably debatable; whether the claim was so clearly invalid as to afford no substantial basis for a compromise.
The factors to be considered are: The amount of the compromise; the participation of Standard in the new securities under the amended plan as modified; the amount of the probable allowance in the event Standard should succeed in establishing its claim;[4] the participation Standard would be accorded if its claim should be established; the uncertainty of the outcome of the contest over the claim; the time already consumed in litigation of the claim; the time it would probably take to litigate it to final determination; the delay and inconvenience of prolonged litigation; the adverse effect on the interests of creditors and stockholders of long continued administration of a business by a trustee under the supervision of the court;[4a] the fact that the compromise set aside the only transaction where Standard control resulted in benefit to Standard and detriment to Deep Rock and eliminated all doubtful and debatable items from the claim; and the fact that more than 60 per cent in amount of the preferred stockholders and 82 per cent in amount of the noteholders, after being fully informed of the relevant facts, approved the compromise and only slightly in excess of 20 per cent in amount of the preferred stockholders opposed it.
Judicial precedents have not yet defined the instrumentality rule with a degree of certainty that it can be applied as a precise yardstick in the admeasurement of legal rights.[5]
*704 As stated by Mr. Justice Cardozo in Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 155 N.E. 58, 61, 50 A.L.R. 599:
"The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor."
There is respectable authority for the proposition that to justify the application of the instrumentality rule between parent and subsidiary corporation, there must be present in addition to the elements of control through stock ownership and common directorates and officers, elements of fraud or wrongdoing on the part of the parent corporation to the detriment of the subsidiary and third persons in their relations with the subsidiary.[5a]
Sections 5 and 6 of Powell on Parent and Subsidiary Corporations, in part, read:
"The Instrumentality Rule, in its shortest form, may now be stated:
"So far as the question of control alone is concerned, the parent corporation will be responsible for the obligations of its subsidiary when its control has been exercised to such a degree that the subsidiary has become its mere instrumentality.
"The Instrumentality Rule is recognized in all jurisdictions in this country and our problem therefore is to determine the circumstances which render the subsidiary an `instrumentality' within the meaning of the decisions. This is primarily a question of fact and of degree."
"The circumstances rendering the subsidiary an instrumentality. It is manifestly impossible to catalogue the infinite variations of fact that can arise but there are certain common circumstances which are important and which, if present in the proper combination, are controlling. These are as follows:
"(a) The parent corporation owns all or most of the capital stock of the subsidiary.
"(b) The parent and subsidiary corporations have common directors or officers.
*705 "(c) The parent corporation finances the subsidiary.
"(d) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation.
"(e) The subsidiary has grossly inadequate capital.
"(f) The parent corporation pays the salaries and other expenses or losses of the subsidiary.
"(g) The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation.
"(h) In the papers of the parent corporation or in the statements of its officers, the subsidiary is described as a department or division of the parent corporation, or its business or financial responsibility is referred to as the parent corporation's own.
"(i) The parent corporation uses the property of the subsidiary as its own.
"(j) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take their orders from the parent corporation in the latter's interest.
"(k) The formal legal requirements of the subsidiary are not observed."
Counsel for the independent committee assert that ten of the indicia of agency or instrumentality enumerated by Powell are present in the instant case. We cannot agree with counsel's conclusion; a, b, c, and d are present in the instant case; f, g, i, j, and k are absent; e and h may be said to be fairly debatable.
While Standard brought about the organization of Deep Rock it is plain that Deep Rock was not in its inception a department or instrumentality of Standard so that indicium d becomes of little significance.
The fact that one corporation owns a majority of the stock of another and through its stock control selects from its own directors and officers a majority or all of the directors and officers of the other corporation, without more, does not justify the application of the instrumentality rule.[6]
The parent corporation is the natural source of the subsidiary's credit. Hence, the fact that the parent corporation finances *706 the subsidiary will not render the subsidiary a mere instrumentality of the parent, although stock ownership and common personnel are also present.[7]
Criticism is leveled at three dividends declared on the common stock of Deep Rock in the years 1926, 1928, and 1930, and credited to Standard. A sufficient answer is that the evidence shows actual earnings available therefor at the times these dividends were declared and furthermore their payment by a Delaware corporation was justified under the wasting asset rule.[8]
Where corporate control by the parent over the subsidiary through stock ownership and the election of directors and officers is exercised in the manner normal and usual with majority stockholders, distinct corporate entity should be recognized.[9] Where, however, the relations between parent and subsidiary are so intimate, the control of the former over the latter so dominating, and the business and assets of the two so commingled, that the recognition of distinct entity will result in wrong or injustice to third persons, courts should look through the fiction of distinct entity and deal with the situation as justice requires.[10]
Having in mind the uncertainty with respect to the instrumentality rule and its application to particular facts, that Deep Rock was not organized as a department of Standard, that the two corporations were engaged in wholly unrelated businesses, that each kept separate and distinct corporate records and books, that their assets were not commingled, that setting aside the only transaction where Standard control resulted in benefit to Standard and detriment to Deep Rock would increase rather than decrease the claim, that the other transactions between the two corporations resulted in benefit to Deep Rock and hence in no injury to the preferred stockholders, that the local officers of Deep Rock had a large part in the management of its operations and affairs, and that eminent counsel for the trustee and the learned special master believed the issues of fact and law debatable and recommended approval of the compromise, we cannot say the result of the contest over the claim was not so doubtful or the claim itself so devoid of merit as to form no reasonable justification for the compromise. Each of the other pertinent factors afforded strong support for the court's action in approving the compromise.
The fairness of the plan is attacked on the ground of the alleged improper approval of the compromise of the Standard claim and a challenge of the correctness of the appraisal.
On an appeal from a confirmation of a plan the review is limited to issues of law.[11] A finding of value is a finding of fact.[12]
*707 The finding of value by the trial court is clearly supported by the evidence. The appraisal was made by the trustee, assisted by the technical staff of the Deep Rock organization, and was approved after a careful check by an independent expert, Mr. Berend. There was no showing that in making the appraisal any pertinent factor was disregarded. Due consideration was given to going concern value. The court was entitled to accept and act on such appraisal. In re Consolidation Coal Company, D.C.Md., 11 F.Supp. 594, 597.
The sole proof offered by the independent committee attacking the appraisal was that of Mr. Smith who frankly admitted he was not qualified to appraise the value of the producing properties. His appraisal was based solely on capitalization of earnings and on an arbitrary allowance for depletion demonstrably inadequate.
If, as we have held, the compromise of the Standard claim was properly approved, then it, together with the indebtedness due the noteholders, was in excess of the valuation of the assets of Deep Rock.
Since the aggregate of the allowable claims of creditors exceeded the fair value of the assets of Deep Rock a plan under which the preferred creditors received 20 per cent of the common stock, Standard, a creditor, 73 per cent of the common stock, and the noteholders, creditors, 7 per cent of the common stock, was manifestly not unfair to the preferred stockholders.
The orders appealed from are accordingly affirmed.
WILLIAMS, Circuit Judge (concurring).
I concur with the conclusion reached by Circuit Judge PHILLIPS to affirm the orders of the trial court, but in so doing, it is not to be understood that I express any opinion as to whether the Deep Rock Oil Corporation was an instrumentality of the Standard Gas and Electric Company.
The special master found that the factual and legal issues were debatable; that the compromise was fair; that its acceptance was for the best interest of the estate, and recommended its approval.
For a number of years he was solicitor for the Interior Department in Washington, D. C., the same position formerly held by the Honorable Willis Van Devanter, Justice of the Supreme Court of the United States. He is also a former president of the Oklahoma Bar Association, and one of the leading lawyers of the state.
The attorney for the trustee is a former member of the Supreme Court of Oklahoma, also a former president of the Oklahoma Bar Association, and one of the leading lawyers of the state.
In oral argument before the court on this hearing, he stated that in his opinion the factual and legal issues were debatable and that caused him to recommend that the proposed compromise be accepted. The trial court approved same.
Section 77B, 11 U.S.C.A. § 207 and notes, was enacted in legislation to rehabilitate business.
No fraud appears in the record.
I conclude that the orders of the lower court should here be affirmed.
BRATTON, Circuit Judge (dissenting).
The allowance of the claim of Standard in the sum of approximately $5,000,000, and the approval of the plan of reorganization with the claim included as a liability were challenged in the court below and the contentions are renewed here. Appellants argue in connection with the first contention that at all material times Deep Rock was a mere agent, department, or instrumentality of Standard, and hence the latter cannot assert a claim for any amount in this proceeding.
Standard and Deep Rock are separate corporate entities, but it is well settled that the fiction of corporate entity should be disregarded when it is necessary to circumvent fraud or uproot a harbor for wrong. Boatright v. Steinite Radio Corporation, 10 Cir., 46 F.2d 385; Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corporation, 10 Cir., 49 F.2d 146; Dunnett v. Arn, 10 Cir., 71 F.2d 912.
Standard owned approximately 98 per cent. of the common stock of Deep Rock. That fact alone and apart from other considerations is not enough to warrant the disregard of their separate juridical entities, or to render Deep Rock the agent, department, or instrumentality of Standard. But where the ownership of stock is not used and employed for the purpose of participating in the affairs of the corporation in the normal and usual manner, but for the purpose of dominating and controlling it in such way and to such *708 extent that it becomes the mere agency or instrumentality of the parent corporation, courts disregard the fact that they are separate corporate beings and treat the subsidiary as the agent or instrumentality of the parent. United States v. Lehigh Valley R. R. Co., 220 U.S. 257, 31 S.Ct. 387, 55 L.Ed. 458; United States v. Delaware, Lackawanna & Western R. R. Co., 238 U.S. 516, 35 S.Ct. 873, 59 L.Ed. 1438; Chicago, M. & St. P. Ry. Co. v. Minneapolis Civic Ass'n, 247 U.S. 490, 38 S. Ct. 553, 62 L.Ed. 1229; United States v. Reading Co., 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760; Centmont Corporation v. Marsch, 1 Cir., 68 F.2d 460.
A parent corporation may not assume the position of creditor and assert a claim in bankruptcy against its subsidiary which has been dominated and controlled as a mere adjunct, department, or instrumentality, since the assertion of a claim in such circumstances amounts to the presentation of a claim against itself in fraud of bona fide creditors. Forbush Co. v. Bartley, 10 Cir., 78 F.2d 805; Clere Clothing Co. v. Union Trust & Savings Bank, 9 Cir., 224 F. 363; E. E. Gray Corporation v. Meehan, 1 Cir., 54 F.2d 223; Centmont Corporation v. Marsch, supra; In re Kentucky Wagon Mfg. Co., 6 Cir., 71 F.2d 802.
There was a league of corporations in this instance. Byllesby was the parent, and the others were subsidiaries, affiliates, and associates. In 1921 Shaffer parted with his interest in Shaffer Oil and Refining Company subsequently changed in name to Deep Rock and thereafter Standard owned virtually all of its common stock. The extent of common directors in Byllesby, Standard, Engineering and Management, and Deep Rock in the years 1923 and 1928 appears in the list in the margin.[1] These years are fairly representative of other years from 1921 to 1933, inclusive. All of the officers of Deep Rock for the years 1923 to 1932, inclusive, were likewise officers of Standard for the same years, with the exception of Riddle, Moody, Francisco, Kennedy, Dale, and Kerr. Standard elected all of the directors of *709 Deep Rock from 1921 to 1932. Meetings of the board of directors were held at the rate of about one per month. Although the operations of Deep Rock were in Oklahoma, all meetings of the board of directors were held in the office of the president of Standard in Chicago; and the minute books of the meetings were kept in that city. The meetings were not merely consultative in character. Instead, all fiscal matters and matters of policy were fixed and determined at them. No important policies were determined and no substantial expenditures were agreed upon without the approval of the president and vice-president of Standard. Cummins was associated with Byllesby for a number of years; he was a director of Standard for fifteen or twenty years; and he became vice-president and general manager of Deep Rock. Standard employed Gray and sent him to Oklahoma to make a report on the property of Deep Rock. He later became president of Deep Rock. The president of Standard made the contract with Gray under which his salary as president was fixed at $36,000 per year plus a share in the profits. Standard approved the employment of Riddle and he later became vice-president in charge of production. Standard dictated and dominated the transaction in which the Bradstreet properties were conveyed to Kennedy, as trustee; and he was trustee for Standard. In like manner, Standard dictated and dominated the transaction relating to the cracking plant; and Graf was trustee for Standard. The board of directors of Deep Rock did not take any action authorizing or otherwise concerning either transaction, and its officers had scant knowledge of the facts. In addition to the manner in which titles were transferred and vested, Deep Rock was required to pay seventy-five thousand dollars per month for three months and fifty thousand dollars per month thereafter under the subterfuge of rentals, all of which reached Standard. Entries on the books of Deep Rock purporting to reflect the transfer to Standard of the corporate stock of Refining Company were subserviently made in conformity with directions of Standard.
Standard furnished large sums of money which Deep Rock needed from time to time in the operation of its business during the period in question. Some of it was used to liquidate obligations, some was deposited in bank to the credit of Deep Rock, and some was used for other purposes. The account on which claim is founded covers a period from 1919 to 1933. It embraces charges aggregating more than fifty-two million dollars, and credits exceeding forty-three million dollars. It discloses that the cash advanced by Standard to Deep Rock during that period was more than seventeen million dollars; that advanced for interest on funded debt exceeded three millions; that advanced for sinking fund requirements exceeded three millions; that advanced with which to pay a note of Deep Rock which Standard had discounted was more than two hundred thousand dollars; that advanced for interest on note of Deep Rock was approximately fifty thousand dollars; that advanced for payment of dividends on preferred stock of Deep Rock owned by the public was approximately two and a half million dollars, while that advanced for payment of dividends on common stock was more than a hundred thousand dollars; that advanced for redemption of the 8 per cent. notes of Deep Rock due in 1941 was about two hundred and fifty thousand dollars; that advanced for federal income taxes of Deep Rock Refining Company was about thirty thousand dollars; that advanced for payment of a note of Deep Rock due Continental National Bank and Trust Company was almost four hundred thousand dollars; that advanced for the purchase of preferred stock of Utility and Industrial Corporation purchased for Deep Rock was more than two hundred and seventy-five thousand dollars; and that advanced (by book entries) for payment of compensation for services rendered by Byllesby in procuring deposit of Shaffer notes under an extension agreement was more than one hundred and forty thousand dollars. In addition, the charge made for interest on notes receivable was more than one hundred and eighty thousand dollars; and the charge made for interest on five-year 6 per cent. notes of Deep Rock owned by Standard was more than three hundred and thirty thousand dollars. The debits representing dividends on preferred stock of Deep Rock owned by Standard was slightly more than a million and a half dollars; and the debits representing dividends on common stock exceeded a million and nine hundred thousand dollars. Finally, the charge for cash advanced as sundry expenditures was more than a million dollars. Credits were made from time to time. They exceeded forty-three million dollars, and reduced the balance due according *710 to the face of the account to $9,342,642.37 the amount of the original claim. Virtually all of the transactions between the two corporations were evidenced solely and exclusively by debits and credits on the books. Many other pertinent facts appear in the long record before us, but it would not serve any useful purpose to detail them.
The question whether a proposed compromise of a disputed claim against a debtor shall be approved rests very largely in the sound discretion of the trial court, and its action should not be disturbed on appeal in the absence of a clear showing of the improper exercise of such discretion. But here the facts and circumstances and the inferences reasonably and fairly to be drawn from them, considered together, are convincing that at all times after C. B. Shaffer made disposition of his interest in 1921 Standard owned virtually all of the common stock of Deep Rock; that Standard elected the directors of Deep Rock from year to year; that the directors of Deep Rock who were not directors of Standard and the officers and agents of Deep Rock were plainly biddable and subservient to Standard in every respect and were without any measure of independence or freedom; that while Deep Rock was not organized in the first instance as an agency, department, or instrumentality of Standard, that relationship was assumed in 1921 and it was continued until the intervention of receivership in 1933; that Standard took advantage of the relationship thus existing in effecting the transactions concerning the Bradstreet property and the cracking plant; that such transactions were not effected for the benefit of Deep Rock; that the interest of Standard was the dominant motive; that Standard was very substantially enriched through them and they constituted unjust infringement upon the rights of Deep Rock; and that the allowance of the claim in any sum amounts to Standard asserting a claim against itself in legal fraud of others having interest in Deep Rock. Advancements made in these circumstances do not constitute an indebtedness which can be asserted as a claim in a bankruptcy proceeding. Forbush Co. v. Bartley, supra; E. E. Gray Corporation v. Meehan, supra; Centmont Corporation v. Marsch, supra; In re Kentucky Wagon Mfg. Co., supra.
Whether a proposed plan of reorganization shall be approved rests in large measure in the sound judicial discretion of the trial court. But, assuming that the claim of Standard should not have been allowed in any sum, it follows as the night the day that the approval of this plan with the untenable claim included as a liability of the corporation constituted a grave prejudice to the rights of others in interest.
It is respectfully submitted that the claim should have been disallowed in toto; that the proposed plan of reorganization with the claim included should have been disapproved; and that for these reasons the orders should be reversed.
NOTES
[1] Shortly after the institution of the suit it was dismissed as to all the defendants except Deep Rock.
[1a] For brevity hereinafter referred to as "the court."
[2] Judge George S. Ramsey was leading counsel for the receivers and later for the trustee.
[3] Pullman Couch Co. v. Eshelman, 4 Cir., 1 F.2d 885, 887, 888; Drexel v. Loomis, 8 Cir., 35 F.2d 800, 807; In re Riggi Bros. Co., 2 Cir., 42 F.2d 174, 176; Remington on Bankruptcy, vol. 2, § 1152; Id., Supp., §§ 1147, 1152.50.
[4] A rescission of the November, 1928, transactions between Deep Rock, Standard and the Refining Company would increase the Standard claim $2,544,591.11 because the Standard would be entitled to a return of the funds advanced by it to acquire the Refining Company properties.
[4a] A disposition of the Standard claim was a prerequisite to the consummation of any plan of reorganization. The contest over the claim had already resulted in long delay in the consummation of reorganization and a continuation of the contest to final adjudication meant much more delay.
[5] Mr. Elvin R. Latty, Professor of Law at the University of Missouri, in his book entitled "Subsidiaries and Affiliated Corporations," after discussing the state of the decisions on the instrumentality rule, concludes:
"Until we get judicial expressions about the specific policy-factors which are the underlying considerations involved in a decision allowing or refusing to a claimant of a corporation recovery against the parent or other related corporations, the basis of predictability will continue unsatisfactory. So long as the technique resorted to, when recovery is denied, is to assert that a corporation is something separate and distinct from the stockholder, and where recovery is allowed, to assert that the corporation is not separate and distinct when it is so controlled and dominated as to be a mere instrumentality, we may continue to expect confusion. Armed with these two verbally conflicting major premises, any court can reach either result in the typical parent-subsidiary situation and still leave us no nearer enlightenment than before."
[5a] New York Trust Co. v. Carpenter, 6 Cir., 250 F. 668; Duffy v. Treide, 4 Cir., 75 F.2d 17; Finn v. George T. Mickle Lumber Co., 9 Cir., 41 F.2d 676, 678; Wheeler v. Smith, 9 Cir., 30 F.2d 59, 60; Majestic Company v. Orpheum Circuit, 8 Cir., 21 F.2d 720, 724; In re Watertown Paper Company, 2 Cir., 169 F. 252, 257; Peckett v. Wood, 3 Cir., 234 F. 833; Owl Fumigating Corporation v. California Cyanide Co., D.C.Del., 24 F. 2d 718, 719, 720; Forbush Co. v. Bartley, 10 Cir., 78 F.2d 805, 808; McCurdy v. Spokane Western Power & Traction Co., 174 Wash. 470, 24 P.2d 1075, 1083; Fickling Properties, Inc., v. Smith, 123 Fla. 556, 167 So. 42, 43; Jefferson County Burial Soc. v. Cotton, 222 Ala. 578, 133 So. 256, 259; In re Greenwald's Estate, 19 Cal.App.2d 291, 65 P.2d 70, 72; Garvin v. Matthews, Wash., 74 P.2d 990, 992; Finley v. Union Joint Stock Land Bank of Detroit, 281 Mich. 214, 274 N.W. 768, 769; Irish v. Bahner, Tex.Civ.App., 109 S.W.2d 1023, 1025; Dos Pueblos Ranch & Improvement Co. v. Ellis, 8 Cal. 2d 617, 67 P.2d 340, 342.
See cases cited in note 6.
In Don Pueblos Improvement Company v. Ellis, supra, 8 Cal.2d 617, 67 P.2d 340, at page 342, the court said:
"In order to cast aside the legal fiction of distinct corporate existence as distinguished from those who own its capital stock, it is not enough that it is so organized and controlled and its affairs so managed as to make it `merely an instrumentality, conduit or adjunct' of its stockholders, but it must further appear that they are the `business conduits and alter ego of one another,' and that to recognize their separate entities would aid the consummation of a wrong."
In Finley v. Land Bank of Detroit, supra, 281 Mich. 214, 274 N.W. 768, at page 769, the court quoted with approval from the article of Mr. Ballantine, in 60 American Law Review, pp. 19, 28, as follows:
"`But to justify treating the sole stockholder or holding company as responsible it is not enough that the subsidiary is so organized and controlled as to make it "merely an instrumentality, conduit or adjunct" of its stockholders. It must further appear that to recognize their separate entities would aid in the consummation of a wrong.'"
See, also, Parent and Subsidiary Corporations, Powell, § 12, pp. 40-54.
[6] Commerce Trust Co. v. Woodbury, 8 Cir., 77 F.2d 478, 487; Bee Bldg. Co. v. Daniel, 8 Cir., 57 F.2d 59, 61; Texas Company of Mexico, S. A., v. Roos, 5 Cir., 43 F.2d 1, 15; In re Fox West Coast Theatres, 9 Cir., 88 F.2d 212, 228, 229; Gillis v. Jenkins Petroleum Process Company, 9 Cir., 84 F.2d 74, 79, 80; Shepherd v. Banking & Trust Co. of Jonesboro, 6 Cir., 79 F.2d 767, 769; Menihan v. Commissioner, 2 Cir., 79 F.2d 304, 305, 306; City of Holland v. Holland City Gas Co., 6 Cir., 257 F. 679, 684, 685; Peterson v. Chicago, R. I. & P. Ry. Co., 205 U.S. 364, 390, 391, 392, 27 S.Ct. 513, 51 L.Ed. 841; Pullman's Palace Car Co. v. Missouri Pac. Ry. Co., 115 U.S. 587, 6 S.Ct. 194, 29 L.Ed. 499; Pacific Can Co. v. Hewes, 9 Cir., 95 F.2d 42, 46; Kentucky Electric Power Co. v. Norton Coal Mining Co., 6 Cir., 93 F.2d 923, 926.
In Kentucky Electric Power Co. v. Norton Coal Mining Company, supra, the court said:
"On the other hand, it is likewise well settled that a corporation is ordinarily an entity, separate and apart from its stockholders, and mere ownership of all the stock of one corporation by another, and the identity of officers of one with officers of another, are not alone sufficient to create identity of corporate interest between the two companies or to create the relation of principal and agent or to create a representative or fiduciary relationship between the two. If such stock ownership and potential control be resorted to only for the purpose of normally participating in the affairs of the subsidiary corporation in a manner usual to stockholders and not for the purpose of taking some unfair advantage of the subsidiary or using it as a mere adjunct to the main corporation or as a subterfuge to justify wrongdoing, their identity as separate corporations will not be disregarded but their respective rights when dealing with each other in respect to their separate property will be recognized and maintained. The extent of stock ownership and mere potential control of one company over another has never been regarded as the determining factor in the consideration of such cases. Something must be disclosed to indicate the exercise of undue domination or influence resulting in an infringement upon the rights of the subservient corporation for the benefit of the dominant one. Otherwise, the rights of the separate corporations in respect to their corporate property must be governed by the rules applicable in ordinary cases."
[7] Owl Fumigating Corporation v. California Cyanide Co., D.C.Del., 24 F.2d 718, 720; Peterson v. Chicago, R. I. & P. Ry. Co., 205 U.S. 364, 393, 27 S.Ct. 513, 51 L.Ed. 841; City of Holland v. Holland City Gas Co., 6 Cir., 257 F. 679, 684; Parent and Subsidiary Corporations, Powell, p. 11.
[8] Fletcher's Cyc. of Corporations, Perm. Ed., vol. 11, § 5347; General Corporation Act of Delaware, § 34, Rev.Code Del. 1935, § 2066; Wittenberg v. Federal Mining & Smelting Co., 15 Del.Ch. 351, 138 A. 352.
[9] United States v. Reading Company, 253 U.S. 26, 62, 63, 40 S.Ct. 425, 434, 64 L.Ed. 760; Chicago, M. & St. P. Ry. Co. v. Minneapolis C. & C. Ass'n, 247 U.S. 490, 501, 38 S.Ct. 553, 62 L.Ed. 1229.
[10] See cases cited in Note 5a; Fletcher's Cyc. of Corporations, Perm. Ed., vol. 1, § 43; Parent and Subsidiary Corporations, Powell §§ 7, 12.
See New York Trust Co. v. Carpenter, 6 Cir., 250 F. 668, 673, 674-676, where the court said:
"Whatever `adjunct' may mean in this connection, it must, to be applicable at all, be given a new definition, involving the idea of sinister purpose or wrongful results. If it means agency or instrumentality in the sense of means to effect wrong, or through which wrong is done, we would be content with it. But it is a word too uncertain in meaning to be incorporated into an inexorable rule of law as an exception to a just rule long established unless qualified in such a way as to cover the kind of cases to which it was intended to apply; cases in which adherence to the doctrine of the separate and distinct entity of a corporation would work injustice."
[11] Meyer v. Kenmore Granville Hotel Company, 297 U.S. 160, 166, 56 S.Ct. 405, 407, 80 L.Ed. 557; Campbell v. Alleghany Corporation, 4 Cir., 75 F.2d 947, 955; In re 620 Church Street Corporation, 299 U.S. 24, 27, 57 S.Ct. 88, 89, 81 L.Ed. 16.
[12] In re Pittsburgh Hotels Corporation, D.C.Pa., 17 F.Supp. 949, 952; In re 620 Church Street Corporation, supra.
[1] ----------------------------------------------------------------------
1923
Engineering
Byllesby and Standard and Management Deep Rock
Co. Directors Directors Corp.Directors Directors
----------------------------------------------------------------------
H.M.Byllesby H.M.Byllesby H.M.Byllesby H.M.Byllesby
...... ...... ....... G.N.Moore
R.J.Graf R.J.Graf R.J.Graf R.J.Graf
A.S.Huey A.S.Huey A.S.Huey A.S.Huey
J.J.O'Brien J.J.O'Brien J.J.O'Brien J.J.O'Brien
...... ...... ...... W.R.Francisco
...... F.W.Stehr ...... F.W.Stehr
...... J.H.Briggs ...... J.H.Briggs
H.C.Cummins H.C.Cummins H.C.Cummins H.C.Cummins
M.A.Morrison M.A.Morrison M.A.Morrison M.A.Morrison
...... B.W.Lynch B.W.Lynch B.W.Lynch
...... ...... ...... R.K.Huey
...... ...... ...... W.H.Cannady
A.S.Cummins A.S.Cummins A.S.Cummins A.S.Cummins
1928
J.J.O'Brien J.J.O'Brien J.J.O'Brien J.J.O'Brien
R.J.Graf R.J.Graf R.J.Graf R.J.Graf
...... J.L.Gray ...... J.L.Gray
M.A.Morrison M.A.Morrison M.A.Morrison M.A.Morrison
H.C.Cummins H.C.Cummins H.C.Cummins H.C.Cummins
A.S.Cummins A.S.Cummins A.S.Cummins A.S.Cummins
...... ...... ...... W.R.Francisco
J.H.Briggs J.H.Briggs J.H.Briggs J.H.Briggs
B.W.Lynch B.W.Lynch B.W.Lynch B.W.Lynch
...... ...... ...... R.K.Huey
...... F.W.Stehr ...... F.W.Stehr
...... ...... ...... L.B.Riddle
R.G.Hunt R.G.Hunt R.G.Hunt R.G.Hunt
...... O.G.Corns ...... O.G.Corns
J.H.Roemer J.H.Roemer ...... J.H.Roemer | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/895708/ | 555 N.W.2d 580 (1996)
Jarod C. ENDERSBE, Plaintiff and Appellant,
v.
Tanya D. ENDERSBE, n/k/a Tanya D. Dahl, Defendant and Appellee.
Civil No. 960122.
Supreme Court of North Dakota.
November 13, 1996.
*581 James J. Coles, Snyder Coles Lawyers, Bismarck, for plaintiff and appellant. Submitted on brief.
Monte L. Rogneby, Kapsner and Kapsner, Bismarck, for defendant and appellee. Submitted on brief.
VANDE WALLE, Chief Justice.
Jarod Endersbe, the Plaintiff, appealed from the trial court's Order of Contempt holding him in contempt and sentencing him to a ten day prison term, with all but twenty hours suspended. Jarod claims the trial court abused its discretion when creating the twenty hour sentence because this incarceration is contrary to North Dakota's contempt of court statute, N.D.C.C. Chapter 27-10 and violates his due process rights. We reverse, in part, and remand.
Jarod and Tanya Endersbe were divorced on January 19, 1995. In the divorce decree, Jarod was ordered to pay Tanya spousal support in the amount of $800.00 per month for forty-eight months, as well as $500.00 per semester for four years as educational support. At the time the divorce action was commenced, Jarod was working in Bismarck, North Dakota, for Prudential Insurance Company, earning between $70,000.00 and $90,000.00 a year.
Following the divorce, Jarod remarried and relocated to Sioux Falls, South Dakota. This move resulted in an unanticipated salary reduction which caused a financial strain. Jarod filed for bankruptcy in September of 1995. He listed his 1994 income as $65,000.00, with monthly expenses, including the $800.00 in spousal support, of $4,353.00. Jarod was in arrears with his spousal support payments in the amount of $2,900.00.
Jarod moved to modify the spousal support provisions in November of 1995. He sought a reduction of the monthly spousal support payments because "a substantial change [ ] occurred in the financial circumstances of the plaintiff...." Tanya responded with a motion to find Jarod in contempt for nonpayment of spousal support. The trial court denied both motions, stating proper grounds for modification had not been shown and Jarod would not be held in contempt, unless he "[did] not pay the full amount due and owing within thirty days of entrance of this Order, and Defendant moves for contempt...."
Jarod did not comply with this order. Tanya filed a Motion for Determination of Contempt and Imposition of Sanction on April 2, 1996. The trial court granted this motion on May 2, 1996 and held Jarod in contempt. Jarod was sentenced to 10 days incarceration at the McLean County Jail, with all but twenty hours suspended, provided Jarod sought "a loan from three financial institutions within the next 30 days and provide[d] proof to the clerk of court for McLean County if he [was] unable to obtain said loans for purposes of paying the arrearages and spousal support owed defendant." The twenty unsuspended hours of the incarceration was unconditional. Jarod was required to serve this time regardless of his ability or inability to obtain a loan. Jarod challenges the twenty hour sentence on appeal.
When reviewing a contempt sentence, the ultimate determination of whether a contempt charge exists is within the lower court's discretion. City of Grand Forks v. Dohman, 552 N.W.2d 69, 70 (N.D.1996); Mehl v. Mehl, 545 N.W.2d 777, 780 (N.D.1996) (citing Ronngren v. Beste, 483 N.W.2d 191, 195 (N.D.1992)). A finding of contempt will not be overturned unless there is a clear abuse of this discretion. Knoop v. Knoop, 542 N.W.2d 114, 116 (N.D.1996); Spilovoy v. Spilovoy, 488 N.W.2d 873, 875 (N.D.1992); Ronngren, 483 N.W.2d at 195 (quoting Bergstrom v. Bergstrom, 320 N.W.2d 119, 121 (N.D.1982)). A trial court abuses its discretion when "it misinterprets or misapplies the law[ ]" or acts in an arbitrary, unreasonable, or unconscionable manner. Bachmeier v. Wallwork Truck Centers, 544 N.W.2d 122, 125 (N.D.1996) (quoting City of Fargo v. Hector, 534 N.W.2d 821, 822 (N.D.1995)). Dohman, 552 N.W.2d at 70-71 (stating the abuse of discretion standard).
Courts have had the power to punish contempt from the very beginning of our structured legal system. Ronngren, 483 N.W.2d at 195 (quoting 4 William Blackstone, Commentaries, *286). The power of courts to *582 issue contempt charges is "not only potent but `deadly,' if `it is founded upon a decree too vague to be understood.'" Ronngren, 483 N.W.2d at 195 (quoting International Longshoremen's Ass'n v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 76, 88 S. Ct. 201, 206, 19 L. Ed. 2d 236 (1967)).
North Dakota, in 1993, redrafted and recodified the state courts' contempt powers in N.D.C.C. Ch. 27-10. S.L.1993, ch. 89, §§ 10-13. This chapter "was intended to incorporate the analysis used by the United States Supreme Court and this court for determining the constitutional safeguards that attach to contempt proceedings." Blaesing v. Syvertson, 532 N.W.2d 670, 671 (N.D.1995) (quoting State v. Mertz, 514 N.W.2d 662, 666 n. 3 (N.D.1994)).
One of the persistent difficulties involving contempt charges, which has sometimes resulted in vague orders, is whether the contempt charge was intended to be civil or criminal. See Note, North Dakota's New Contempt Law: Will it Mean Order in the Court?, 70 N.D.L.Rev. 1027, 1036-1037 (1994). It is important that the types of contempt be distinguished because criminal contempt proceedings are given greater constitutional due process safeguards than are civil contempt proceedings. Id. at 1033. Section 27-10-01.2, N.D.C.C., attempts to do away with this difficulty. It states any "court of record of this state may impose a remedial or punitive sanction for contempt of court under this chapter." Thus, a court, in imposing contempt, considers whether a remedial or punitive sanction is applicable. Different procedures apply for imposing the appropriate sanction. But under Chapter 27-10, remedial and punitive sanctions incorporate the traditional characteristics of civil and criminal contempt. See Note, 70 N.D.L.Rev. at 1045. These traditional views hold "in civil contempt, the sanction is conditional in nature so that contemnors ... stand committed unless and until they perform an affirmative act." Baier v. Hampton, 417 N.W.2d 801, 805 (N.D.1987) (citing Shillitani v. United States, 384 U.S. 364, 368, 86 S. Ct. 1531, 1534, 16 L. Ed. 2d 622 (1966)). A punitive sanction occurs when the sanction is intended to "punish the offender and vindicate the authority of the court...." Baier, 417 N.W.2d at 805 (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct. 492, 498, 55 L. Ed. 797 (1911)). See also State v. Stokes, 240 N.W.2d 867, 870 (N.D.1976) (providing the civil/criminal distinction).
A remedial sanction is one which "includes a sanction that is conditioned upon performance or nonperformance of an act required by court order." N.D.C.C. § 27-10-01.1(4). Remedial sanctions can be payment of money, forfeitures, or imprisonment. N.D.C.C. § 27-10-01.4(1). A prison sentence is remedial only if it is conditional and the "contemnors carry `"the keys of their prison in their own pockets...."`" Baier, 417 N.W.2d at 805 [citing Shillitani, 384 U.S. at 368, 86 S.Ct. at 1534 (quoting In re Nevitt, 117 F. 448, 461 (8th Cir.1902)) ]. Punitive sanctions, however, are unconditional. Baier, 417 N.W.2d at 805. Thus, a punitive sanction is "a sanction of imprisonment if the sentence is for a definite period of time ..." or a sentence which "is not conditioned upon performance or nonperformance of an act...." N.D.C.C. § 27-10-01.1(3). The most important factor which makes a sanction punitive is its unconditional nature; if the contemnor cannot purge the contempt by performance, the charge is punitive. See Mertz, 514 N.W.2d at 666 (citing Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 633, 108 S. Ct. 1423, 1430, 99 L. Ed. 2d 721 (1988)).
Under North Dakota law, a remedial sanction can be sought by the court or by a motion by one of the parties. N.D.C.C. § 27-10-01.3(1)(a). The court can impose a remedial sanction after notice and a hearing. Id. Conversely, a proceeding for a punitive contempt sanction is brought by a complaint by the state's attorney of a county, the attorney general, or a special prosecutor appointed by the court. N.D.C.C. § 27-10-01.3(1)(b). The proceeding for a punitive sanction can be requested by a party to the action. Id. When the complaint is filed, the alleged contemnor is entitled to a trial by jury in which the judge who originally presided over the case is disqualified. Id. However, when the contemptuous act occurs in the actual presence of the court, a punitive *583 contempt sanction can be imposed by the judge. N.D.C.C. § 27-10-01.3(2). The judge can immediately issue a punitive sanction to maintain order and "protect[] the authority and dignity of the court." Dohman, 552 N.W.2d at 70 (quoting N.D.C.C. § 27-10-01.3(2)). On appeal, we determine if the trial court's Order of Contempt was remedial or punitive, and whether in issuing the Order, the dictates of N.D.C.C. § 27-10-01.3 were followed.
Because the trial court's Order gave Jarod a ten day prison sentence for nonpayment of spousal support and suspended all but twenty hours of this sentence provided Jarod sought a loan and presented these records to the clerk of court, and because the twenty hours was unconditional, it appears the contempt sentence is both remedial and punitive. The suspended portion of the sentence is conditioned upon Jarod's compliance or noncompliance. As such, it is clearly remedial and the procedure followed by the trial court in imposing the sanction complies with the direction of N.D.C.C. § 27-10-01.3(1)(a). Jarod does not attack it on appeal.
However, the twenty hours of incarceration ordered by the trial court is just as clearly punitive in nature. It is for a set period of time and is not conditioned upon any action by Jarod. There is nothing Jarod can do to purge this sentence. This punitive contempt sanction was issued by the trial court despite the fact the court did not follow the specified procedure for a punitive sanction. Tanya did not request a complaint to be filed from the state's attorney for McLean County, nor did Jarod's contempt take place in the actual presence of the court. Compare Dohman, supra, where we affirmed a contempt ruling made immediately after a party uttered several caustic remarks to the judge and jury in the course of the proceeding.
However, this is a much different situation than Dohman, for Jarod's actions did not occur in the court's presence. Nevertheless, the trial court imposed a punitive sanction. This portion of the sentence violates N.D.C.C. § 27-10-01.3(1)(b)-(c) because the trial court sentenced Jarod for twenty hours of incarceration with no ability to purge the contempt. We therefore remand that portion of the order imposing twenty hours imprisonment. If the court determines a punitive sanction is appropriate, it should initiate the proper proceeding under N.D.C.C. § 27-10-01.3(1)(b).
MESCHKE, SANDSTROM, NEUMANN and MARING, JJ., concur. | 01-03-2023 | 06-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1986945/ | 392 Pa. 133 (1958)
Commonwealth ex rel. Sleighter, Appellant,
v.
Banmiller.
Supreme Court of Pennsylvania.
Submitted November 13, 1957.
March 17, 1958.
*134 Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
Glenn Sleighter, appellant, in propria persona.
George C. Eppinger, District Attorney, for appellee.
OPINION BY MR. JUSTICE COHEN, March 17, 1958:
This appeal from the order of the Court of Common Pleas of Franklin County dismissing the relator's petition for a writ of habeas corpus is the sixth proceeding[1] taken by the petitioner who seeks release from imprisonment *135 imposed following a conviction for first degree murder, from which no appeal was taken.
In 1937 the petitioner was convicted of first degree murder in the death of a six year old girl who had been a foster child in the relator's home. The Commonwealth's evidence, based mainly upon the relator's confession, disclosed that the child had died as the result of a beating with a leather strap administered to her by the relator and his wife because the child had told falsehoods about school incidents. The jury returned a verdict of guilty of murder in the first degree and a sentence of life imprisonment was imposed. Although motions for a new trial and in arrest of judgment were filed, the motions were subsequently withdrawn, and no appeal was taken from the judgment of conviction. The failure to appeal in this case was perhaps unfortunate because the question whether the evidence was sufficient to have warranted the conviction of first degree murder, and whether statements made during the course of the trial to the effect that the child was sexually abused were so prejudicial as to have required the grant of a new trial, should have been determined. However, issues of trial error are not now before us. Commonwealth ex rel. Lewis v. Ashe, 335 Pa. 575, 7 A.2d 296, cert. denied, 308 U.S. 596 (1939).
On June 15, 1957, the relator filed the present petition for a writ of habeas corpus and, after the court *136 appointed counsel to represent relator in the matter, a full argument was held. From the denial of the petition, the relator has taken this appeal.[2]
The writ of habeas corpus is available to obtain discharge from imprisonment resulting from a criminal proceeding in which fundamental errors were committed or constitutional rights invaded so as to have made the proceeding a nullity and rendered the trial court without jurisdiction to impose sentence. Commonwealth ex rel. Milewski v. Ashe, 362 Pa. 48, 66 A.2d 281 (1949).
To meet these requirements, Sleighter alleges that he was unconstitutionally denied due process of law at his trial because (1) his involuntary confession was received in evidence, (2) mob hysteria influenced the court and the jury, and (3) that he was denied the effective assistance of legal counsel. The relator also contends that he was denied the equal protection of the law by reason of the failure of the trial court to supply him with a transcript of the notes of testimony.
After careful consideration, we find that the petitioner's allegations are not meritorious, and the court below did not abuse its discretion in denying the writ.
The first contention of the petitioner is that his written confession of the killing of the child was extracted from him as the result of police pressure and promises, that the confession was subsequently altered without his knowledge, and that therefore its introduction in evidence at the trial violated the Fourteenth Amendment to the Constitution of the United States. This argument was incorporated in the petitioner's defense at the trial, and although extensively explored, was unsupported by any evidence whatever showing *137 that the confession was involuntary or unauthorizedly altered.
The trial judge, in his charge to the jury, discussed thoroughly the law with regard to the admissibility of confessions, and properly left with them the determination whether, in light of all the evidence, the statements were given voluntarily and without inducements. We conclude from our independent review of the undisputed facts in the record that the rejection by both the trial court and jury of this defense was justified, and its subsequent rejection by the court below, before whom the contention was presented in detail, was therefore manifestly proper.
Furthermore, petitioner himself confirmed the correctness of the contents of his confession when in his sworn application to the Board of Pardons for commutation, he admitted its text to be an accurate statement "of all the facts in connection with the death."
It is true that the relator's confession was obtained while he was in custody. While there is no question but that the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States "bars police procedure which violates the basic notions of our accusatorial mode of prosecuting crime," Watts v. Indiana, 338 U.S. 49, 55 (1949), and interdicts the admission in evidence of a confession made by a defendant while in police custody if it results from police pressure or inducement, Fikes v. Alabama, 352 U.S. 191 (1957); Watts v. Indiana, 338 U.S. 49 (1949); Harris v. South Carolina, 338 U.S. 68 (1949); Turner v. Pennsylvania, 338 U.S. 62 (1949), a confession is not rendered constitutionally objectionable, and therefore inadmissible, by reason of being made by an accused while detained, unless the detention induced the confession. Stein v. New York, 346 U.S. 156 (1953); Commonwealth v. Agoston, 364 Pa. 464, 479, 483, 72 *138 A. 2d 575, cert. denied, 340 U.S. 844 (1950). The recent decision of the United States Supreme Court in Mallory v. United States, 354 U.S. 449 (1957) is not to the contrary. That case held that a delay in arraignment in contravention of an express legal requirement, rendered a confession inadmissible as a matter of law and voided a conviction based thereon. The Mallory case, (as were its predecessors, Upshaw v. United States, 335 U.S. 410 (1948); McNabb v. United States, 318 U.S. 332 (1943)), was based upon rule 5(a) of the Federal Rules of Criminal Procedure which requires an arresting officer to bring the suspect before a United States Commissioner "without unnecessary delay." The Mallory decision, then, does not rest upon constitutional grounds but upon a federal rule of evidence applied in criminal proceedings to enforce rule 5(a) and does not control the determination of the question in state courts. See Gallegos v. Nebraska, 342 U.S. 55 (1951).
Pennsylvania has no provision parallel with section 5(a) of the federal rules, consequently, the Mallory doctrine has no application to the present case.
Petitioner's second contention is that he was denied a fair trial because of mob hysteria which influenced the court and the jury. In the words of the petitioner: "The local prejudice, passion, and hysteria was so prevailing and strong against the petitioner that it was necessary to remove him from the Franklin County Jail to the Dauphin County Jail for his personal safety.. . . After the petitioner's commitment to the Franklin County Jail, a mob demonstration took place in front of the jail, with the object of taking the petitioner therefrom and lynching him. This mob dispersed only after the trial judge, . . . was compelled to address the mob assuring them that the petitioner's case `would be tried fairly and that justice would be meted out in accordance *139 with the verdict,' and after one of the leaders of the mob was escorted through the jail to assure them that petitioner was not there. This atmosphere of mob hysteria and domination continued until after the petitioner was convicted and sentenced to life imprisonment. Large crowds of milling, angry people of the local vicinage surrounded the court house during the trial and during the deliberation of the jury."
In order to prove that a fair trial has been denied it is not enough to show merely that the public was beset by hysteria or passion, it must be shown that the jury was influenced thereby. Commonwealth v. Simmons, 361 Pa. 391, 65 A.2d 353, 396-397, cert. denied, 338 U.S. 862, rehearing denied, 338 U.S. 888 (1949); Moore v. Dempsey, 261 U.S. 86, 91 (1923). The petitioner has failed to satisfy this requirement. The record of the relator's trial indicates that a thorough examination of each juror was made on voir dire, and that both counsel for the Commonwealth and the defendant were satisfied that an unbiased, impartial and unprejudiced jury was chosen. There is no evidence to indicate that the trial was conducted under other than peaceable and orderly circumstances. In this respect, it is significant to note that the petitioner's counsel did not see fit to move for a change of venue provided by the Act of March 18, 1875, P.L. 30, § 1, 19 P.S. § 551, and Article III, section 23 of the Constitution of the Commonwealth of Pennsylvania.
Petitioner's third contention is that he was denied effective assistance of counsel in contravention of the Due Process Clause of the Fourteenth Amendment. He bases his allegation upon the following circumstances: that he was without counsel for three weeks after the date of his arrest during which time he was held without warrant and without preliminary hearing; that the court appointed counsel failed to move for a change *140 of venue; that counsel refused to call certain witnesses requested by the petitioner; that counsel refused to allow petitioner to testify in his own behalf; and finally that counsel unwisely withdrew the motion for a new trial without consent of the petitioner.
We quote with approval from the determination of this issue by the court below: "An examination of the trial record effectively refutes petitioner's position. The trial court . . . appointed one attorney for defendant on February 19, 1937, well over two months before the trial and appointed additional counsel on March 29, 1937, over one month before hand. These attorneys had ample time for careful preparation of the case. The energetic and thorough-going effort expended by them in behalf of petitioner stands out in bold relief to anyone who reads the trial record of 412 pages.
"Petitioner nowhere avers that he requested the appointment of counsel by the court at any time previous to the time of appointment or even that he had requested it at that time. The fact that the court did not appoint counsel between January 26, when defendant was first taken into custody, and February 19 equally supports the inference (a) that no application had been made by the defendant; (b) that defendant had made no showing that he, a farmer and coal trucker, was unable financially to employ his own counsel. . . .
"The diligence and vigor of defendant's counsel is further evident . . . [from] an examination of the record from . . . [the time] when counsel petitioned the Court for a bill of particulars, until the end of the trial when counsel requested that the jury be polled and filed written motions for a new trial and in arrest of judgment. . . ."
As the judge also pointed out: "The defense elected, on grounds which to them seemed convincing, not to *141 have the defendant testify nor to present any other evidence. A number of potentialities of the utmost gravity were obviously present in their deliberations. We cannot properly now retrace their reasoning nor review their calculations. One of the most crucial tasks that ever confronts a lawyer is that of assisting his client in a criminal case, especially where the charge is murder, on the question whether or not to take the witness stand; whether or not to present a defense otherwise. . . . On the record in the case we find no proper reason to restudy here all the considerations which must have been before defendant and his counsel when they selected their strategy and weighed presentation of evidence at the trial.
". . . We are entitled to assume that if such a determination was made by counsel, it was done after careful weighing of the factors pro and contra which would influence the decision of counsel whether to call any particular witness. In fine, counsel decided against presenting any evidence, and we cannot now consider de novo the merits of that decision." See also Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A.2d 587 (1954).
It is also inappropriate at this late date to reconsider the decision of petitioner's counsel to withdraw their motions for a new trial and in arrest of judgment as petitioner suggests that we do. Counsel had to consider in light of the circumstances appearing at the time of trial that if their motions were granted, and the petitioners retried and again convicted, they would expose him to the risk of receiving the death penalty.
Likewise, the decision of counsel not to move for a change of venue cannot now be questioned successfully since there is no evidence to show that an unbiased jury was not selected or that the trial was not conducted in a calm and impartial manner.
*142 The last ground upon which this appeal is taken is that the petitioner was deprived of his constitutional right to the equal protection of the law by reason of the failure of the trial court to supply him with a transcript of the notes of testimony. On January 21, 1939, 20 months after the trial, petitioner's attorneys petitioned the court for a copy of the trial testimony. Although an original transcript of the testimony was thereupon filed, no copies were made. Counsel again petitioned the court to obtain a duplicate transcript, which petition the court refused. Petitioner correctly points out that this ruling was erroneous in view of the provisions of the Act of May 1, 1907, P.L. 135, § 2, as amended, 17 P.S. § 1802, which requires that a defendant at his request be furnished with a copy of the notes of testimony. He suggests further that this ruling was fundamental error which denied him the equal protection of the law, citing Griffin v. Illinois, 351 U.S. 12 (1956). That case held that the denial of appellate review to a defendant in a criminal action because of his financial inability to purchase a transcript of the notes of testimony was a violation of the Fourteenth Amendment.
We cannot agree with the petitioner's position. The refusal of the trial court to comply with the Pennsylvania statute was not fundamental error and petitioner's constitutional rights were not infringed thereby, because the defendant's failure to obtain appellate review cannot be attributed to the lack of a trial transcript.
Under the Act of May 19, 1897, P.L. 67, as amended, 12 P.S. § 1136, appeals from the Court of Oyer and Terminer must be taken within 45 days from the entry of sentence. Defendant's application for a transcript was made long after the time when there was any avenue *143 open to him for obtaining a review of his conviction.[3]
We conclude from a review of the entire record before us that the order of the court below dismissing relator's petition for a writ of habeas corpus should be affirmed.
Order affirmed.
NOTES
[1] Previously petitioner had applied to this Court for writ of habeas corpus (May, 1950). Pursuant to the policy later announced in Commonwealth ex rel. Paylor v. Claudy, 366 Pa. 282, 77 A.2d 350 (1951), his rule was discharged. Review of our action was sought in the United States Supreme Court in April, 1951. That Court, however, denied certiorari. In May, 1957, petitioner made application to the United States District Court for the Eastern District of Pennsylvania for a writ of habeas corpus. This petition was denied without opinion. On appeal the Court of Appeals for the Third Circuit held that they were unable properly to review the action of the district court in the absence of an accompanying opinion, and so vacated the order of the lower court and remanded the cause. 250 F.2d 364 (Dec. 17, 1957). On June 15, 1957, relator filed his present petition for a writ of habeas corpus in the Court of Common Pleas of Franklin County and the appeal from the denial thereof was filed with this Court in September, 1957.
[2] The appeal was properly taken to this Court. Act of May 25, 1951, P.L. 415, § 7, 12 P.S. § 1907.
[3] In point of fact, of course, petitioner through his counsel had withdrawn motions in arrest of judgment and for a new trial shortly after the conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608558/ | 621 P.2d 1111 (1981)
Robert Martin TALANCON, Appellant,
v.
The STATE of Nevada, Respondent.
No. 11329.
Supreme Court of Nevada.
January 14, 1981.
William N. Dunseath, Public Defender, Washoe County, Reno, for appellant.
Richard H. Bryan, Atty. Gen., Carson City, and Calvin Dunlap, Dist. Atty., Washoe County, Reno, for respondent.
OPINION
MOWBRAY, Justice.
A jury found appellant Talancon guilty of possession, sale, and conspiracy to sell a controlled substance. He appeals, asserting that he lawfully may not be convicted of both sale and possession, that the state's failure to preserve fingerprints on a plastic bag containing the controlled substance denied him due process, and finally that statements of the prosecuting attorney denied him a fair trial. We affirm the judgments of conviction.
THE TWO CONVICTIONS
Appellant contends that on the facts of this case he cannot be convicted of both the sale and the possession of a controlled substance. We do not agree. Testimony in the record before us shows that appellant *1112 originally possessed an ounce of cocaine, and that he sold a quarter ounce to an agent of an undercover narcotics officer. There was also testimony that the appellant consumed, personally, some of the cocaine which he did not sell. Thus there was evidence upon which the jury could infer that there was an unlawful sale of the cocaine to the undercover narcotics agent which violated NRS 453.321(1), and that he was in unlawful possession of the remainder of the cocaine in violation of NRS 453.336(1). See Kellett v. Superior Court of Sacramento County, 63 Cal. 2d 822, 48 Cal. Rptr. 366, 409 P.2d 206 (Cal. 1966); cf. Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967). The crime of possession, therefore, did not merge with that of possession for sale, since a certain amount of the substance was the predicate for each separate offense.
THE FINGERPRINTS
Appellant suggests that he was prejudiced by the state's failure to remove fingerprints from the plastic bag which contained the cocaine. Appellant did not request that such a test be performed prior to trial, nor does he now claim that he did not know of the existence of the plastic bag or of the testimony of occupants of the house where it was found which linked him with it. Appellant's sole contention is that examination of the plastic bag may have failed to reveal his fingerprints thereon. Without a more substantial showing that the state should reasonably have believed that a test of the bag would have revealed such exculpatory evidence, or that the defense requested that the bag in fact be tested, the failure of the state to test did not violate appellant's right to due process. United States v. Henson, 486 F.2d 1292 (D.C. Cir.1973) (en banc); White v. State, 577 P.2d 1056 (Alaska 1978).
THE PROSECUTORIAL STATEMENTS
Appellant's final contention is that remarks made by the prosecutor referring to the defendant and his counsel during the trial prejudiced the jury against him. Although improper comments by the prosecution are presumed to be prejudicial, Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966), in this case the evidence of guilt is so overwhelming that we conclude that the improper comments by the prosecutor did not deprive the defendant of his right to a fair trial. Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962).
Nevertheless, in view of the nature of the conduct on the part of the prosecutor in this case, we see fit to note in the margin the most egregious instances which have been cited to us.[1] We express our strong condemnation of this conduct on the part of any member of the bar of this Court; and we reiterate our willingness to impose appropriate sanctions in cases where the prejudice resulting from such conduct requires reversal for a new trial. Moser v. State, 91 Nev. 809, 814, 544 P.2d 424, 428 (Gunderson, C.J., concurring).
The judgments of conviction are affirmed.
*1113 GUNDERSON, C.J., BATJER and MANOUKIAN, JJ., and YOUNG,[2] District Judge, concur.
NOTES
[1] [Defense Counsel]: The [Prosecutor] can't help you, please remember. It's out of your own memory.
Prosecutor: Your Honor, if Defense Counsel makes that statement again, he won't be standing up there.
Prosecutor: That's baloney, and even Defense Counsel knows that, or should.
[Defense Counsel]: Your Honor, I move to strike that comment about me. I'm not part of this lawsuit.
Prosecutor: I wish you weren't, but you are.
Prosecutor: Mr. Talancon, I submit to you, ladies and gentlemen, is a congenital liar.
Prosecutor: He doesn't work, he sells dope.
Prosecutor: [M]aybe even a half-assed criminal lawyer can make it seem like that individual doesn't know what he's talking about.
[Defense Counsel]: There is also no evidence that I made any witness do anything unethical or unprofessional... .
Prosecutor: No. No, Mr. ____ (Defense Counsel). I don't even give you credit for that.
Prosecutor: That was the most scandalous, scurrilous attack, I feel, on anybody on that young woman... . What type of lawyer would make that kind of scurrilous attack on somebody and not be able to prove it?
[2] The Governor commissioned The Honorable Llewellyn A. Young, District Judge, to sit in this case in place of Justice Gordon Thompson. Nev.Const. art. 6, § 19; SCR 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608564/ | 28 Wash. App. 76 (1980)
621 P.2d 798
RUSSELL B. TIMMS, ET AL, Respondents,
v.
THOMAS W. JAMES, ET AL, Appellants.
No. 3542-5-III.
The Court of Appeals of Washington, Division Three.
December 30, 1980.
Tom G. Cordell and Collins & Hansen, for appellants.
Robert A. Castrodale, for respondents.
MUNSON, J.
Dr. James[1] appeals a judgment awarding damages to Dr. Timms for breach of contract. We reverse in part and remand for further proceedings on the issue of commercially reasonable resale of the collateral.
*78 In 1973, Dr. Timms set up a dental practice in Grand Coulee, Washington, by purchasing dental equipment from Burkhart Dental Supply Company (Burkhart). This purchase, along with office expenses for 2 months, was financed by a $69,000 loan from Seattle-First National Bank (bank). Burkhart obtained a security agreement from Dr. Timms, cosigned his note at the bank, and assigned the security agreement to the bank.
In 1976, Dr. Timms decided to sell his now-active dental practice and move to Alaska. In April, he notified his patients his office was to close on June 30, the date on which he was ceasing his practice in Grand Coulee. In late August, Dr. James, a Tacoma dentist, contacted Dr. Timms having heard that the dental practice was for sale. Dr. Timms chartered an airplane and flew to Grand Coulee where the parties met to look over the office and equipment. They signed a preliminary sale agreement providing that Dr. James was to take over Dr. Timms' office, equipment and records and Dr. James would assume Dr. Timms' obligations for payment on dental equipment, rent and other expenses.
Thereafter, Drs. Timms and James flew to Yakima and talked to Burkhart and the bank. They signed an "Assignment of Interest in Conditional Sale Contract Security Agreement" wherein the bank retained a security interest in the dental equipment; Burkhart and the bank consented to this assignment. Dr. Timms' liability had been reduced to approximately $45,000 by this time; he remained liable on the obligation.
Dr. James did not generate enough cash income from his practice to remain in business. After defaulting on his rent, the landlord locked him out of the office. Unable to continue his practice in Grand Coulee, Dr. James has since been practicing dentistry in Modesto, California. In January 1977, Burkhart paid the bank the $45,000 which was due at the time Dr. James defaulted. Ten months later in October 1977, Burkhart sold the dental equipment, which had remained in the Grand Coulee office, for $29,000 and *79 made demand upon Dr. Timms for the $16,000 deficiency. Dr. Timms borrowed the money from the bank, paid Burkhart, and then sued Dr. James for that amount. The trial court awarded Dr. Timms judgment; Dr. James appeals. We note four issues:
[1] 1. Dr. James contends there is no evidence the resale of the dental equipment was carried out in a commercially reasonable manner. Dr. Timms argues this contention was not pleaded as an issue. It was alluded to in the interrogatories, however, and argued without objection. No evidence was offered on the issue, either as to the proper notice being given or the reasonableness of the sale. There is testimony from Dr. Timms that the value of the equipment was between $35,000 and $40,000. Although the court made no specific finding as to the reasonableness of the sale, whether the sale was conducted in such a manner is an issue of fact. Mount Vernon Dodge, Inc. v. Seattle-First Nat'l Bank, 18 Wash. App. 569, 570 P.2d 702 (1977).
Pursuant to RCW 62A.9-504(3), a secured creditor has the burden of proving that resale of collateral was accomplished in a commercially reasonable manner. Mount Vernon Dodge, Inc. v. Seattle-First Nat'l Bank, supra. Dr. Timms, as the original debtor, stands in the shoes of the creditor, Burkhart. Dr. Timms could have asserted the lack of a commercially reasonable resale as a defense against Burkhart. Apparently he did not. We analogize Dr. Timms' position in this relationship to that of a surety he is bound by the same instrument as Dr. James and answerable for the same debt in the event of Dr. James' failure to pay.
Thus, the question presented is, as between a surety (Timms) and principal debtor (James), upon whom does the burden fall to prove that the resale of collateral was done in a commercially reasonable manner? Although we find no authority directly on point, we hold the surety has this burden.
First, Dr. Timms, the surety, can stand in no better position toward Dr. James, the debtor, than Burkhart, the *80 creditor. This is in the nature of the surety's right to subrogation; the surety steps into the shoes of the creditor against whom the principal debtor has a valid defense. United States Fidelity & Guar. Co. v. Worthington & Co., 6 F.2d 502 (5th Cir.1925); A. Stearns Suretyship § 11.14, at 472 (5th ed. 1951).
Second, the surety's right to reimbursement extends only to the surety's payment of debts which the principal debtor actually owed. If the surety pays a debt which the principal debtor did not owe, i.e., where the surety fails to assert the principal debtor's defense, the surety is merely a volunteer and cannot claim reimbursement. See Restatement of Security §§ 108(1)(a), 110 (1941). See, e.g., American Sur. Co. v. Cunningham, 200 Minn. 566, 275 N.W. 1, 112 A.L.R. 892 (1937). Generally, the burden of proving commercial reasonableness of resale is placed upon the creditor since the creditor is in the best position to know of and control the nature of the resale, and because the creditor is the one asserting the deficiency judgment. See generally, J. White & R. Summers, Uniform Commercial Code § 26-11, at 1122 (2d ed. 1980), citing Mallicoat v. Volunteer Fin. & Loan Corp., 57 Tenn. App. 106, 415 S.W.2d 347 (1966). Here, since Dr. Timms was in the best position to assert commercially unreasonable resale against Burkhart, it is his burden to produce evidence the sale was made in a commercially reasonable fashion.
Since no evidence on this issue was produced at trial and the trial court evidenced a possible misunderstanding of the applicable burden of proof, we remand this matter to determine whether the resale of the dental equipment was carried out in a commercially reasonable manner.
2. Dr. James argued a failure of consideration, contending Dr. Timms had agreed to sell him an active ongoing practice, but instead sold him a closed, moribund business. Dr. James said Dr. Timms failed to inform him that all the patients had been notified in April to seek care elsewhere. Dr. James' pleadings also spoke in terms of misrepresentation.
*81 The trial court in its oral opinion held that Dr. James had failed to sustain the burden of proof required for fraud, i.e., clear, cogent and convincing evidence. Dr. James argues he should have been held only to the burden of proof necessary to establish the affirmative defense of failure of consideration, i.e., a preponderance of the evidence. See, e.g., Gillingham v. Phelps, 11 Wash. 2d 492, 119 P.2d 914 (1941).
[2] It is clear the trial court found Dr. James had failed to meet any burden of proof. The court's findings of fact indicated only that Dr. James did not meet his burden. The court's oral opinion indicates Dr. James knew the office had been closed before he entered into the contract. This evidence sustains the court's finding that James did not establish his affirmative defense; his entry into the contract despite this knowledge indicates the parties intended to contract for exactly what Dr. James received. The court's finding is supported by substantial evidence. Thorndike v. Hesperian Orchards, Inc., 54 Wash. 2d 570, 343 P.2d 183 (1959).
[3] 3. Acceleration of payments. Dr. James next argues the assignment of interest in the conditional sale contract he signed did not include an acceleration clause, and therefore Dr. Timms may sue only for those payments already accrued and not paid. Llewellyn Iron Works v. Littlefield, 74 Wash. 86, 132 P. 867 (1913). The assignment signed by Dr. James, however, expressly incorporated by reference the original agreement between Dr. Timms, the bank, and the dental supply company involved. The original agreement included an acceleration clause, pursuant to which it is proper for Dr. Timms to sue for all payments, past and future. Since we may affirm the trial court on any theory within the pleadings or proof, we do so. Frontier Lanes v. Canadian Indem. Co., 26 Wash. App. 342, 347, 613 P.2d 166 (1980).
[4] 4. The court failed to give judgment to Dr. James on his counterclaim for conversion by Dr. Timms. This operated as a negative finding against Dr. James. See McCutcheon v. Brownfield, 2 Wash. App. 348, 467 P.2d 868 (1970). *82 On this question of fact, the trial court incurred no misapprehension of the applicable burdens of proof; it found against Dr. James and on this point we affirm.
While this case has been on appeal, Tacoma Telco Fed. Credit Union v. Edwards, 94 Wash. 2d 666, 619 P.2d 363 (1980), has been decided. That decision has no effect on this case; it involves "consumer goods" as they are defined in RCW 62A.9-109(1), whereas this case involves "equipment" as defined in RCW 62A.9-109(2), a provision not included within the prohibition of a deficiency judgment described in RCW 62A.9-501(1).
Remanded for reconsideration in accordance with this opinion.
McINTURFF, A.C.J., and ROE, J., concur.
Reconsideration denied January 29, 1981.
NOTES
[1] Although the marital communities are parties to this action, we refer to the parties in the singular. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608566/ | 27 Wash. App. 703 (1980)
621 P.2d 165
THE STATE OF WASHINGTON, Appellant,
v.
KIM WAYNE RICHARDS, Respondent.
No. 3855-II.
The Court of Appeals of Washington, Division Two.
November 26, 1980.
James E. Carty, Prosecuting Attorney, and Curtis Wyrick, Deputy, for appellant.
Ben Shafton, for respondent.
PETRICH, J.
The State appeals an order dismissing an information charging possession of a stolen firearm in violation of RCW 9A.56.160(1)(e) and 9A.56.140(1). We reverse.
*704 The issue in this case is whether the State, which had ample evidence to support a charge of either theft or possession of stolen property, may elect to charge the defendant with possession of the stolen firearm which had a value of less than $250 rather than the theft. Possession of a stolen firearm, regardless of value, is a class C felony,[1] while theft of any object of personal property, unless it is taken from the person of another or is worth more than $250, is only a gross misdemeanor.[2]
The trial court reasoned that theft as defined in RCW 9A.56.020(1)(a) and RCW 9A.56.010(7)(a) and possession of stolen property as defined in RCW 9A.56.140(1) deal with the same subject matter. Since theft is more specific as to the type of possession, the theft statute must be applied; otherwise, the State would have the discretion to seek different punishment for the same act in violation of the equal protection clause. The trial court dismissed the information with leave to amend the information to charge an appropriate degree of theft.
In further support of the trial court's reasoning that the theft as the more specific should be charged in preference to possession, defendant relies on legislative intent and the rule of lenity.
[1] It is a fundamental rule that the terms of a specific criminal statute take precedence over a general statute when both are addressed to the same subject matter. E.g., State v. Workman, 90 Wash. 2d 443, 454, 584 P.2d 382 (1978); State v. Walls, 81 Wash. 2d 618, 503 P.2d 1068 (1972); State v. Becker, 39 Wash. 2d 94, 234 P.2d 897 (1951). In the present *705 case, however, it is more logical to conclude that the possession statute is the more specific since it refers to possession of a specific item, a firearm that has been stolen. The theft statute deals with all kinds of personal property, the degree of the charge largely depending on the value.
[2] Equal protection is violated when the prosecutor has discretion to charge a defendant with either a felony or misdemeanor when the elements contained in each statute are not distinguishable. E.g., State v. Zornes, 78 Wash. 2d 9, 475 P.2d 109 (1970); State v. Rentfrow, 15 Wash. App. 837, 552 P.2d 202 (1976). Equal protection is not violated when the elements of the two offenses differ, even if the punishments set by the legislature in the two statutes seem somewhat illogical. State v. Reid, 66 Wash. 2d 243, 401 P.2d 988 (1965) (holding it not to violate equal protection when the prosecutor may charge unlawful possession of marijuana (a felony) when the same facts could give rise to a charge of intent to use (a misdemeanor)). The crucial question in the present case, therefore, is whether the elements of third degree theft and possession of stolen property differ.
The larceny statute in effect prior to 1975 sets forth five different types of larceny: (1) taking the property of another; (2) taking property by fraudulent means; (3) wrongful retention of property by a fiduciary; (4) wrongful retention of property originally acquired by mistake; and (5) the knowing possession, receipt or concealment of property known to be wrongfully appropriated.[3] RCW 9.54.010 (repealed Laws of 1975, 1st Ex. Sess., ch. 260). The *706 first three subsections are now essentially incorporated in the statutes defining theft (RCW 9A.56.020), and the fifth subsection governing possession of stolen property is essentially incorporated in the statute defining possession of stolen property (RCW 9A.56.140). Under the old code it was held repeatedly that each subsection defined a separate and distinct crime. State v. Ladely, 82 Wash. 2d 172, 176, 509 P.2d 658 (1973); State v. Harrell, 68 Wash. 2d 44, 47-48, 411 P.2d 407 (1966); State v. Martin, 94 Wash. 313, 318, 162 P. 356 (1917); State v. Hite, 3 Wash. App. 9, 12, 472 P.2d 600 (1970), cert. denied, 403 U.S. 933, 29 L. Ed. 2d 712, 91 S. Ct. 2262 (1971). Subsections (1)-(4) were distinguished by the manner in which unlawful acquisition was acquired, e.g., State v. Smith, 2 Wash. 2d 118, 122, 98 P.2d 647 (1939), while the actual taking or asportation need not be proven to sustain a conviction for unlawful possession. State v. Ketterman, 89 Wash. 264, 154 P. 182 (1916). The crucial elements in (5) were proof of actual or constructive possession of property the defendant knew or constructively knew to have been stolen. State v. Ashby, 77 Wash. 2d 33, 459 P.2d 403 (1969); State v. Rye, 2 Wash. App. 920, 471 P.2d 96 (1970). In contrast, the unlawful acquisition by defendant must be proven to support a conviction for (1), the predecessor of *707 the theft statute. E.g., State v. Smith, supra at 122.
It has also been held that mere evidence that defendant actually stole the property standing alone is not sufficient to prove unlawful possession. State v. Hite, supra at 13. However, a conviction for possession of stolen property may be sustained where there is evidence that defendant admitted to the actual theft, since such evidence is also proof of defendant's knowledge that the goods were stolen. State v. Holman, 58 Wash. 2d 754, 758-59, 364 P.2d 921 (1961); State v. Carden, 50 Wash. 2d 15, 308 P.2d 675 (1957); State v. Hite, supra. This, of course, is subject to the limitation that when proof is presented that the one possessing stolen property also stole it, such defendant may only be convicted of the initial theft or the unlawful possession, not both. State v. Ladely, supra at 176. See also State v. Hite, supra.
[3] In the present case, it can be concluded that the elements of third degree theft and possession of a stolen firearm are crimes having distinct elements. The fact that they arise out of a fact pattern in which defendant admits that he actually stole the weapon, conduct which gives the prosecutor discretion to charge either theft or possession based upon the strength of his proof, should not violate equal protection since proof of the theft may be used as evidence of possession with knowledge under the rule of Holman and Carden. The prosecutor should then be allowed to present evidence on the additional element of continued possession necessary to obtain a conviction for possession of stolen property. The charging discretion can also be upheld based upon a legislative intent of punishing persons possessing stolen firearms more severely than persons who steal items of similar monetary value since firearms no doubt present a greater potential danger to society once converted to stolen property. See State v. Reid, supra.
*708 The trial court's judgment is reversed and the matter remanded for further proceedings under the information.
REED, C.J., and PETRIE, J., concur.
Reconsideration denied December 26, 1980.
Review denied by Supreme Court February 27, 1981.
NOTES
[1] RCW 9A.56.160 states in pertinent part:
"(1) A person is guilty of possessing stolen property in the second degree if:
"...
"(e) He possesses a stolen firearm.
"(2) Possessing stolen property in the second degree is a class C felony."
[2] RCW 9A.56.050 states:
"(1) A person is guilty of theft in the third degree if he commits theft of property or services which does not exceed two hundred and fifty dollars in value.
"(2) Theft in the third degree is a gross misdemeanor."
[3] Prior to its repeal, RCW 9.54.010 read as follows:
"Larceny. Every person who, with intent to deprive or defraud the owner thereof
"(1) Shall take, lead or drive away the property of another; or
"(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune-telling; or
"(3) Having any property in his possession, custody or control, as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian or officer of any person, estate, association or corporation, or as a public officer, or a person authorized by agreement or by competent authority to take or hold such possession, custody or control, or as a finder thereof, shall secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; or
"(4) Having received any property by reason of a mistake, shall with knowledge of such mistake secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; and
"(5) Every person who, knowing the same to have been so appropriated, shall bring into this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this chapter
"Steals such property and shall be guilty of larceny." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/90857/ | 108 U.S. 277 (1883)
LITTLE MIAMI & COLUMBUS & XENIA RAILROAD COMPANY
v.
UNITED STATES.
Supreme Court of United States.
Decided April 16th, 1883.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.
*278 Mr. William M. Ramsey for plaintiff in error.
Mr. Solicitor-General for the United States.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
This was a suit begun by the United States on the 29th of March, 1875, to recover of the Little Miami and Columbus and Xenia Railroad Company a tax of five per cent. on alleged profits of the company "carried to the account of any fund or used in construction," provided for by the act of June 30th, 1864, c. 173, sec. 122, 13 Stat. 284, amended by the act of July 13th, 1866, c. 184, 14 Stat. 139. A jury was waived and the trial had by the court. The case comes here on a finding of facts. From this finding it appears "that during the period covered by the petition, viz., from the 1st day of July, 1864, to the 30th day of November, 1869, inclusive, the defendant, in good faith, regularly made returns of earnings, profits, income, and gains, and of profits carried to the account of any fund, or used for construction, arising or accruing to it during said period, intended and believed by it to embrace all such profits, incomes and gains, and all such profits carried to the account of any fund, or used for construction, which by law it was bound to return; which returns were received and accepted, and for the amount of which assessments from time to time were made of the taxes payable thereon, which taxes were regularly paid by it to the officer lawfully authorized by law to collect the same." In addition to this it also appears "that over and above the amount so returned, on which taxes were paid as aforesaid, the defendant did in fact make additional earnings, which by it were carried to the account of some fund, or used for construction during said period, amounting in all to the sum of $168,707.22, on which no tax has been paid."
The finding also shows that during the year 1869 the defendant carried to the debit of profit and loss on its books, various items amounting in all to $184,395.06. In this way the books show no profits between July 1st, 1864, and November 30th, *279 1869, beyond the amount on which taxes were paid in the regular course of business. Of the sum so charged up, one item of $51,155.44 was for loss and depreciation on book accounts and other choses in action, acquired by the company prior to July 1st, 1864, and which had been standing on the books until 1869 at their par value; another item of $22,000 was for the depreciation in the value of bonds purchased after July 1st, 1864; another item of $106,014.62 was for the depreciation in the value of what was known as the "street connection track," and another item for $5,225 was for losses on a purchase in 1867 of shares of capital stock in a cotton-press company.
Upon these facts, so found, the company claimed that, in ascertaining the amount of profits liable to taxation, there should be deducted from the earnings during the period for which the tax was claimed these several items of loss and depreciation, but the court ruled, as a matter of law, "that for the purpose of taxation the defendant is not entitled by law to make the deduction as claimed," and gave judgment for five per cent. on the whole sum of $168,707.22.
In our opinion there was error in this ruling. The tax in question is not upon earnings "carried to the account of any fund or used for construction," but upon profits. Earnings used to pay interest or dividends are taxable, whether actual profits or not, but earnings used for construction, or carried to the account of a fund, are not to be taxed, unless they represent profits of the company in its business as a whole, that is to say, the excess of the aggregate of gains from all sources, over the aggregate of losses. The law evidently contemplated an annual statement of accounts, and in this way an annual striking of balances between gains and losses. When, in such statements, it appeared that a part of the excess of gains over losses had been used for construction or added to some fund, then a tax was to be paid on what had been so used or appropriated. This was part of the system adopted for the taxation of the "profits, income, or gains" of railroad corporations, which, as was said in Railroad Company v. Collector, 100 U.S. 595, it was the object of this statute to provide. A tax was *280 put on dividends, interest paid in the ordinary way, and profits used for construction or carried to some fund. This was a classification of the income of the corporation for the purposes of taxation.
In the present case there has been no assessment of a tax, but the United States have sued to recover such sum as, upon an investigation of the accounts of the company, it shall appear ought to have been paid. The burden of proof is upon the government. No more can be recovered than is shown to be due. In presenting the evidence no attempt seems to have been made by the United States to state annual accounts and ascertain the amount to be paid on that basis. The court has found that between July 1st, 1864, and November 30th, 1869, earnings to the amount of $168,707.22 had been used for construction or carried to the account of some fund, but it has also found that between the same dates the company lost $22,000 by depreciation in its investments in bonds, and $5,225 by depreciation in the stock of a cotton-press company. In the view we take of the law, these sums should have been deducted from the earnings as ascertained before fixing the amount of profits on which the tax was to be paid. It is not stated with certainty in the finding at what dates the losses actually occurred which are represented by the items of $51,155.44, depreciation in the value of book accounts and choses in action, and $106,014.62, depreciation in the value of the street connection track. For this reason we are unable to decide whether these losses, or any part of them, should be deducted. As the omission to make the finding sufficiently specific in this particular undoubtedly arose from the fact that the court ruled as a matter of law that no deductions could be made on account of losses of this character, we will remand the cause, so that further inquiry may be had on that point. This we have authority to do under section 701 of the Revised Statutes, which allows a cause to be remanded for "such further proceedings to be had in the inferior court as the justice of the case may require."
The judgment of the circuit court is reversed and the cause remanded, with instructions to deduct from the amount of earnings, as ascertained upon the former trial, the items of *281 $22,000, depreciation in the value of bonds, and $5,225, depreciation in the value of cotton-press stock, together with such other sums included in the items of $51,155.44, depreciation in book accounts and choses in action, and $106,014.62, depreciation in value of the street connection track, as, upon further hearing, shall be found to represent losses accruing to the company between July 1st, 1864, and November 30th, 1869, and to render judgment only for such an amount of tax as shall appear to be due upon that basis. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1875696/ | 260 S.W.3d 438 (2008)
Colin M. O'MARA, Appellant,
v.
DIRECTOR OF REVENUE, Respondent.
No. ED 90520.
Missouri Court of Appeals, Eastern District, Division One.
August 19, 2008.
Jane C. Hogan, St. Louis, MO, for appellant.
Toni L. Camp, Assistant Attorney General, St. Louis, MO, for respondent.
Before KURT S. ODENWALD, P.J., GLENN A. NORTON, J., and PATRICIA L. COHEN, J.
*439 ORDER
PER CURIAM.
Colin O'Mara ("O'Mara") appeals the judgment of the Circuit Court of St. Charles County granting Respondent Director of Revenue's motion to dismiss O'Mara's petition for hardship driving privileges. O'Mara claims that the trial court erred in finding that it lacked jurisdiction to grant his petition because O'Mara had been convicted of driving under the influence of drugs.
We have reviewed the briefs of the parties and the record on appeal and find the trial court did not err in dismissing O'Mara's petition for hardship driving privileges. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2337817/ | 99 N.H. 33 (1954)
ELBA CHASE NELSON
v.
LOUIS C. WYMAN, Attorney General.
No. 4285.
Supreme Court of New Hampshire.
Argued January 22, 1954.
Decided April 30, 1954.
*35 McLane, Davis, Carleton & Graf and Stanley M. Brown (Mr. Brown orally), for the plaintiff.
Louis C. Wyman, Attorney General, Warren E. Waters, Deputy Attorney General, George F. Nelson, Arthur E. Bean, Jr., Richard C. Duncan, Assistant Attorneys General, Elmer T. Bourque, Law Assistant, and Stuart Conner, Special Assistant to the Attorney General (Mr. Wyman orally), for the defendant.
GOODNOW, J.
Under the provisions of a joint resolution adopted by the Legislature of this state in 1953 (Laws 1953, c. 307), the Attorney General was authorized and directed "to make full and complete investigation with respect to violations of the subversive activities act of 1951 and to determine whether subversive persons as defined in said act are presently located within this state." In connection with this investigation, the Attorney General was authorized "to require by subpoena . . . the attendance of such witnesses and the production of such . . . documents . . . as he deems advisable" and "to make public such information received by him, testimony given before him, and matters handled by him *36 as he deems fit to effectuate the purposes of this resolution." He was directed "to proceed with criminal prosecutions under the subversive activities act whenever evidence presented to him in the course of the investigation indicates violations thereof" and to "report to the 1955 session . . . the results of this investigation, together with his recommendations, if any, for necessary legislation." As a preliminary to the investigation to be conducted by him under this resolution, the Attorney General adopted certain rules of procedure, a copy of which was given to the plaintiff when she was summoned to appear as a witness. These rules provide in part that the examination of witnesses shall be in executive session except in extraordinary circumstances, unless a public hearing is requested by the witness, and that "in lieu" of a public hearing, the transcript of the testimony of witnesses who invoke the self-incrimination privilege will be made public. During his questioning of the plaintiff, the defendant inquired concerning her membership in certain organizations and her activities in other respects on dates prior to the effective date of the 1951 act. By her exceptions, the plaintiff questions the authority of the defendant to make rules, to hold public hearings or publicize testimony and to inquire concerning matters which occurred prior to 1951 and challenges the validity of the resolution if it permits such publicity as is provided by the defendant's rules and orders or empowers him to inquire as to pre-1951 matters. A consideration of these issues requires first a determination of whether the investigation provided for by this resolution is a legislative inquiry or a criminal inquisition.
It is now clearly recognized that the Legislature has broad and extensive powers to investigate and inquire. Opinion of the Justices, 96 N. H. 530, 531; State v. Superior Court, 40 Wash. (2d) 502; see Tenney v. Brandhove, 341 U.S. 367, 377; United States v. Rumely, 345 U.S. 41. The investigation provided for by this resolution is concerned with potential threats to the existing machinery of government through subversive activities. Such a subject matter is one of which the Legislature has jurisdiction "not alone for the selfish reason of self-protection, but for the basic reason that having been established by the people as an instrumentality for the protection of the rights of people, it has an obligation to its creators to preserve itself." Barsky v. United States, 167 F. (2d) 241, 246; Dennis v. United States, 341 U.S. 494, 501. It is of little importance that the resolution in this case fails to *37 state in explicit terms the use to which the Legislature intends to put the information gained by it from the investigation since it plainly relates to a subject matter into which the Legislature has authority to inquire. McGrain v. Daugherty, 273 U.S. 135, 178; In re Chapman, 166 U.S. 661, 670. It specifically directs the Attorney General to report to the Legislature the results of this investigation and his recommendations as to any necessary legislation, thus indicating with sufficient clarity a legislative purpose that a subject matter properly within its jurisdiction be investigated with a view to providing it with information upon which further action by it may be predicated.
The fact that the resolution requires an investigation with respect to violations of law as well as a determination of "whether subversive persons as defined in said act are presently located within the state" does not remove the inquiry from the category of a legislative investigation. The inquiry is not confined to an investigation of violations of the act but includes a determination of whether there are presently in this state those persons whose acts are not criminal but who are classified as subversive persons because they either, not "knowingly and willfully", are committing, attempting to commit, or aiding in the commission of acts intended to overthrow or alter existing government by force or violence (Laws 1951, c. 193, s. 2), or are advocating or teaching the commission of such acts even though they do not do so "knowingly and willfully . . . under such circumstances as to constitute a clear and present danger" or are members of subversive organizations not knowing them to be such (ss. 1, 3).
So far as it requires an "investigation with respect to violations" of the act, the resolution in effect seeks to discover through inquiry whether violations of the 1951 act have occurred and if so the nature and extent of such violations, not merely the identity of those who have violated it. It is not alone when specific violations of the act are evidenced by that proof required for criminal indictment that a report thereof is to be made. If information is acquired which points to the existence of violations of the act, by persons known or unknown, with sufficient clarity to form a basis for decision as to future legislative action, the Legislature is to be informed. Bowers v. United States, 202 F. (2d) 447, 448. The resolution is not aimed at providing assistance in the criminal prosecution of a particular individual (See Ward Baking Co. v. Western Union Telegraph Co., 205 N. Y. App. Div. 723) or those *38 involved in a particular criminal occasion. Having made certain acts unlawful and having classified certain persons as subversives by its 1951 act, the Legislature seeks through this investigation to secure general information as to the results of that legislation. In the course of the investigation, information will be sought from witnesses upon which such facts can be determined. No sound basis can exist for denying to the Legislature the power to so investigate the effectiveness of its 1951 act even though, as an incident to that general investigation, it may be necessary to inquire as to whether a particular person has violated the act. Eggers v. Kenny, 104 A. (2d) 10 (N. J. 1954); State v. Superior Court, 40 Wash. (2d) 502; Attorney General v. Brissenden, 271 Mass. 172. When the investigation provided for is a general one, the discovery of a specific, individual violation of law is collateral and subordinate to the main object of the inquiry. Matter of Di Brizzi, 303 N.Y. 206, 216. The existence of such a possibility does not change the investigation from a legislative to a criminal one.
Having determined that an investigation should be conducted concerning a proper subject of action by it, the Legislature's choice of the Attorney General as its investigating committee, instead of a committee of its own members or a special board or commission, was not in and of itself determinative of the nature of the investigation. His position as the chief law enforcement officer of the State did not transform the inquiry which was otherwise legislative into executive action. When the Legislature chooses to delegate its power of inquiry for the purpose of ascertaining facts upon which it may decide to take action, we see no distinction in principle between the delegation of that authority to the Attorney General and its delegation to a committee or board. Attorney General v. Brissenden, 271 Mass. 172.
Some stress is laid upon the directive contained in the resolution that the Attorney General shall "proceed with criminal prosecutions under the subversive activities act whenever evidence presented to him in the course of the investigation indicates violations thereof" as expressive of a legislative purpose that the investigation be a criminal inquiry. Without such a directive, this duty plainly devolved upon the Attorney General, whether the evidence was secured by him personally through the investigation, relayed to him from an investigation conducted by others, or received by him from any other source. The Legislature's purpose that the *39 Attorney General should "report to the 1955 session . . . the results of this investigation, together with his recommendations, if any, for necessary legislation" is clearly expressed. The additional directive concerning prosecution of discovered violations neither adds to nor subtracts from the plainly worded purpose for which the Legislature caused the investigation to be made. McGrain v. Daugherty, 273 U.S. 135.
Among the matters as to which the Attorney General was directed to inquire were the commission of, or attempts to commit, acts intended to overthrow the government by force or violence after August 1, 1951, whether or not done "knowingly and willfully," the advocacy or teaching of the commission of such acts after August 1, 1951, whether or not done "knowingly and willfully" or "under such circumstances as to constitute a clear and present danger to the security of" the State or Nation, and membership in any defined subversive organization after November 1, 1951. The authorization to seek information concerning conduct during the period since 1951 did not limit to the same period the time concerning which witnesses could be interrogated but carried with it by clear implication the authority to inquire concerning any matters relevant and pertinent to the main object of the investigation, whether occurring before or after 1951. Evidence concerning a witness' membership, and the identity of others who held membership, in a subversive organization before its classification as such in 1951 is clearly relevant to an inquiry directed to the determination of whether there are persons now in this state who are members of such an organization. Similarly, the committing of acts "intended to overthrow, destroy or alter. . . the government . . . by force or violence" or the advocacy or teaching of such acts prior to 1951 may have some probative value, combined with other evidence, in determining whether such conduct has continued since that year. Marcoux v. Collins, 94 N. H. 345, 347. The inquiries of the defendant concerning the commission of such acts and membership in such organizations prior to 1951 were not a part of an unauthorized general inquiry into subversive activities but were pertinent to the main object of the investigation and fell within the authority granted by the resolution.
We cannot agree with the plaintiff that "the real purpose of inquiring into the pre-1951 era" was "an effort . . . to engage in entrapment for perjury." While the period encompassed by the *40 interrogation of the plaintiff extended for many years prior to 1951, the questions were concerned with her membership in the Communist party and her activities in aid of that party and were therefore material to the determination of whether she was at the time of questioning a member of a subversive organization and whether she had participated in the management or contributed to the support of a subversive organization since 1951.
The subversive activities act (Laws 1951, c. 193) provides that as to the records of information required to be maintained by the Attorney General, such of them "as may reflect on the loyalty of any resident of this state shall not be made public . . . except with the permissions of the attorney general to effectuate the purposes hereof." S. 7. The 1953 resolution (Laws 1953, c. 307) makes this provision "inapplicable to the investigation provided for herein" and authorizes the Attorney General "to make public such information received by him, testimony given before him, and matters handled by him as he deems fit to effectuate the purposes of this resolution."
In stipulating what testimony might be made public, the resolution referred to that which had been given rather than to the giving of testimony and limited the testimony which might be made public to that which was deemed fit by the Attorney General to effectuate the purposes of the resolution. No authority was granted to hold public hearings. The prohibition against publicity of information reflecting upon the loyalty of any resident was relaxed but not to the point of authorizing the indiscriminate publication of testimony without thought of the consequences or benefits of such public disclosure. Because of the hardship likely to be imposed by irresponsible publicity reflecting upon the loyalty of the residents of this state which the Legislature had recognized in the 1951 act, it limited the testimony which might be made public by the Attorney General to that which he deemed fit to effectuate the purposes of the resolution. It is not feasible for him to exercise this discretion during the giving of testimony at a public hearing but only after testimony has been taken in private and its fitness to effectuate the purposes of the resolution has been weighed. Once he has properly exercised that discretion, no restriction is imposed upon him to prevent the publication of any part of the entire testimony. The discretion granted to him extends to the whole of the testimony, but by permitting only the publication of that part which will effectuate the purposes of the resolution, *41 the resolution requires the withholding of such parts as will not.
The investigative power of the Legislature, however penetrating and persuasive its scope, is not an absolute right but, like any right, is "limited by the neighborhood of principles of policy which are other than those on which [that] right is founded, and which become strong enough to hold their own when a certain point is reached." United States v. Rumely, 345 U.S. 41, 44; Hudson Water Co. v. McCarter, 209 U.S. 349, 355. The contending principles involved here are those underlying the power of the Legislature to investigate on the one hand and those upon which are based certain individual rights guaranteed to our citizens by the State and National Constitutions.
The plaintiff asserts that the inquiry permitted by the resolution concerning her conduct and membership in certain organizations, both before and after August 1, 1951, was a deliberate invasion of her right of privacy for no valid purpose and thus raises the issue of whether the object of the legislative investigation with which we are concerned is such as to justify an intrusion upon her right to be let alone. Policy making is not the function of the courts. Chronicle &c. Pub. Co. v. Attorney General, 94 N. H. 148, 151. The reconciliation of competing interests is the business of the Legislature and the balance it strikes "is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment." Dennis v. United States, 341 U.S. 494, 540. By its 1951 act (Laws 1951, c. 193), the Legislature recognized the existence of a "World Communist movement . . . having as its objective the establishment of totalitarian dictatorship" which "is the complete antithesis of the American constitutional form of government" and which seeks to establish itself throughout the world through subversive groups and by violent and unlawful means. For "the preservation of the state," is established definitions of subversive persons and organizations and made criminal certain acts concerned with the overthrow of government by force and violence. It cannot be doubted that the Legislature has the power to act in order to protect the government against its overthrow in this manner. Dennis v. United States, 341 U.S. 494, 501.
Through the investigation authorized by the 1953 resolution (Laws 1953, c. 307), the Legislature sought to determine whether the 1951 act had been effective in curbing subversive activities and membership in subversive organizations. Inherent in its power to legislate on the subject lay the power to investigate the results *42 of its legislation, which it deemed wise to exercise. It seems unnecessary to recount the events which have occurred, both within and without this country, in recent years indicative of the nature and purposes of the Communist party and the means employed by it, its supporters and its dupes, in seeking its ends. Suffice it to say that in the light of those events, it is unthinkable that this court should now reject as "outside the pale of fair judgment," the Legislature's decision to inquire of residents concerning activities aimed at the overthrow of government by force and violence, whenever they occurred, and membership in organizations now classified as subversive, both before and after 1951. In the judgment of the Legislature, the interest of the State in acquiring this information overrides and justifies the intrusion upon any right of privacy which the plaintiff may have as a judicially determined incident to other rights guaranteed to her by our Constitutions. In re Chapman, 166 U.S. 661, 669; see State v. Superior Court, 40 Wash. (2d) 502, 514.
A sharper conflict of principles occurs in connection with the plaintiff's claim that the resolution is invalid in that it places no limit upon the persons who may be summoned and questioned concerning activities after August 1, 1951, and permits the publication of certain testimony, particularly since those powers are granted to the individual who is also charged with the prosecution of all felonies including violations of the 1951 act.
The broad authority given by the resolution under which even persons who are suspected of violating the criminal provisions of the 1951 act may be required to appear as witnesses is not improper. As we have previously pointed out in this opinion, the investigation is general and seeks, among other things, information as to whether violations of the 1951 act have occurred. No provision is made for any accusation of crime as a part of the investigation. Article 15 of the Bill of Rights which provides that "No subject shall . . . be compelled to accuse or furnish evidence against himself" extends the privilege against self-incrimination to those who are called as witnesses before a legislative investigation and choose to exercise it but it does not excuse them from subpoena and examination. Had the defendant sought to compel the plaintiff to testify without regard to her privilege against incrimination, which he did not, his action would have been violative of her rights in the absence of a grant of immunity from prosecution such as is sometimes authorized by the Legislature when the acquisition of *43 information is deemed of sufficient importance. See R. L., c. 287, as amended by Laws 1951, c. 203, s. 16. The fact that such a grant of immunity was not included in the present resolution does not make it illegal to summon and inquire of those who may exercise the privilege against self-incrimination nor does it indicate any intention on the part of the Legislature that such persons should not be so questioned.
We see no impropriety in permitting the Attorney General, under powers delegated by the Legislature, to question the plaintiff concerning activities violative of the 1951 act which are the subject matter of this legislative investigation simply because she is liable to prosecution by him in his executive capacity if she has violated the law. Her several assertions of the privilege against self-incrimination in response to his questions were at all times recognized and respected and furnished no information of any possible use to him in the event of any later criminal prosecution of her. Her claims of the privilege accomplished exactly what they were intended to accomplish and protected her rights exactly as they were intended to do. The fact that a witness appearing before a grand jury is able to claim such a privilege without public notoriety does not establish that he should be so protected in claiming it in connection with this investigation. The privacy afforded to such a witness is not the primary reason for the secrecy with which grand jury proceedings are surrounded. State v. Canatella, 96 N. H. 202, 204; State v. Wood, 53 N. H. 484, 493; VIII Wig. Ev. (3d ed.) 722. There is no constitutional guarantee that one who sees fit to exercise the privilege against self-incrimination shall be entitled to do so in private and without notoriety.
The plaintiff urges that in granting to the Attorney General the power to publish testimony of witnesses concerned with matters violative of the act after 1951, the Legislature has completely disregarded such a witness' right to due process of law (Const. Pt. I, Art. 15th) and has permitted the infliction of cruel and unusual punishment (Id., Art. 33d). This argument centers around the Legislature's grant, and the Attorney General's exercise, of authority to publish the testimony of any witness, limited only by a determination of whether such publication will "effectuate the purposes of this resolution."
Because of the part which public opinion plays in the legislative process, and the possibility that publication of the testimony of one witness may lead to discovery of others in a position to affirm, *44 supplement or contradict such testimony, the Legislature must be deemed to have the delegable power to make such testimony public, as an incident of its power to investigate matters within the scope of its legislative duties. That power, however, may not be used to restrict the free exercise of the rights of witnesses who are compelled to testify.
The inquiry to be made by the Attorney General relates to matters both criminal and non-criminal. Publication of the answers of a witness questioned as to material but non-criminal matters, such as participation in certain organizations before 1951, may tend to bring upon the witness some public censure and by interference with such right as he may have to be let alone and by injury to his reputation may inflict damage which the plaintiff has characterized as "cruel and unusual punishment." Publication is not for these reasons however to be forbidden. See McCollum v. Board of Education, 333 U.S. 203, 233.
The granted power to publish testimony in any case is not absolute or to be exercised indiscriminately; but where accomplishment of the public purpose outweighs the harm to the individual, exercise of the power is lawful. Citizens have no right to protection from inconvenience, from monetary loss or even from public embarrassment, to the unreasonable detriment of the legislative right to obtain information which may be pertinent to "the promise of protection to each member of the community by the twelfth article of the bill of rights." Boston & Maine R. R. v. State, 75 N. H. 513, 516. See also, Marceau v. Company, 97 N. H. 497, 499, 500. The only exemptions from the rule that "persons summoned as witnesses by competent authority have certain minimum . . . obligations which are necessary concessions to the public interest in the orderly operation of legislative and judicial machinery" are those which have "been found, through centuries of experience, to outweigh the public interest in the search for truth." United States v. Bryan, 339 U.S. 323, 331.
A witness who is examined concerning conduct of his own since 1951 which may have violated the law, or tends to show such violation, must either deny the conduct, incriminate himself, or invoke his privilege against self-incrimination. Cf. Marcello v. United States, 196 F. (2d) 437, 443. While such a witness is not "accused" as a criminal, his rights, if he has violated the criminal law, may not be disregarded upon the ground that he is merely a witness. It is the plaintiff's position that the authority vested in *45 the Attorney General with respect to publicity enables him to extract confessions, or to inflict cruel and unusual punishment through the medium of damaging publicity, thus depriving witnesses of due process of the law, and preventing them from obtaining a fair trial if subsequent criminal proceedings should be instituted.
As previously noted, the Legislature did not authorize publication of all information obtained by the Attorney General, but only of such information or testimony as he should deem fit to effectuate the purposes of the resolution. Only to the extent that such publication would be reasonably likely to produce further information on the subject matter of the investigation is the Attorney General authorized to publish. If public information that a witness has claimed the privilege against self-incrimination may reasonably be thought likely to produce this result, the power may be exercised; but discretion must be exercised with reference to the circumstances of the individual case, and not by predetermined rule.
For this reason we think invalid the rule by which the Attorney General advises witnesses that "whenever the witness claims the privilege against self-incrimination and refuses to answer questions relating to subversive activities . . . the transcript of testimony taken in executive session will be made public." Such a rule gives no effect to the limitations placed upon the power granted by the Legislature. Furthermore the freedom of a witness to exercise the constitutional privilege may not be hampered by the prior restraint or deterrent of notice that publicity will be given to its exercise, but not to its waiver. Nor can it be determined categorically that the publication of all claims of the privilege is reasonably likely to "effectuate the purposes" of the resolution.
The examination of witnesses is properly to be conducted in executive session, unless the witness requests otherwise. See Delaney v. United States, 199 F. (2d) 107, 114; Dunham v. Ottinger, 243 N.Y. 423. The right to conduct the proceedings in public against the wishes of the witness if "extraordinary circumstances" are thought to exist, does not fall within the scope of the authority granted, since by its nature a public hearing would prevent the proper exercise of the discretion which the Attorney General is required to use. The resolution contains no directive, express or implied, which allows the Attorney General to smoke out and expose to public scorn or ridicule those who decline to assert their loyalty to existing forms of government, although such *46 a purpose is implied in his assertion before us that "the general public . . . have the right to know who among them decline to answer questions directly related to their loyalty."
The plaintiff's suggestion that publication of information within the limitations imposed by the resolution will prevent a fair trial in the event of subsequent criminal proceedings is not thought to affect the validity of the resolution or to establish a violation of any constitutional right. The risk, if there is one, may be adequately dealt with by continuance of the trial or other means, when the occasion arises. See Delaney v. United States, 199 F. (2d) 107, supra.
We conclude that the grant of authority to publicize information or testimony within the limits hereinbefore indicated violates no provision of the Constitution, and that the plaintiff's rights have been protected through her own invocation of her constitutional privilege.
The subversive activities act of 1951 (Laws 1951, c. 193) deals in one part with definitions of and penalties for sedition and subversive activities and in the other with certain loyalty requirements applicable to those who are employed by the State or who seek to become candidates for election to public office. Since the plaintiff claims no violations of her rights under the loyalty provisions (ss. 9-15), the occasion for an adjudication with regard to them does not arise in this case. Petition of Turner, 97 N. H. 449, 451. The remaining sections of the act, however, are the basis for the investigation authorized by the Legislature and were the subject matter of inquiries made of the plaintiff. She contends that section 3, which is concerned with membership in a subversive organization or a foreign subversive organization, fails to define a criminal act with sufficient definiteness to meet the essential requirements of due process and is invalid.
The act (s. 1) defines a subversive organization as one "which engages in or advocates, abets, advises, or teaches" or a purpose of which is to thus support or to assist in "activities intended to overthrow, destroy or alter . . . the constitutional form of the government . . . by force, or violence." An organization which is "directed, dominated or controlled . . . by a foreign government" and which thus supports or a purpose of which is to thus support or to assist in "activities intended to overthrow, destroy or alter" the government, and "to establish in place thereof any form of government the direction and control of which is to be vested in, *47 or exercised by or under, the domination or control of any foreign government, organization or individual" is a foreign subversive organization. Organizations having as their bona fide purpose the promotion of world peace by alliances or unions with other governments through constitutional means are specifically excluded from the definition. Section 3 provides that "It shall be a felony for any person after August 1, 1951 to become, or after November 1, 1951 to remain a member of a subversive organization or a foreign subversive organization knowing said organization to be a subversive organization or foreign subversive organization."
The plaintiff argues that one "constitutional difficulty with the Act is that it makes membership in a certain type of organization a crime, but there is no way of telling whether the organization is proscribed . . . until the jury trying the accused first decides whether the organization is subversive and then decides whether the person is or was a member." Her position in this respect is unsound. The statute does not penalize members unless it appears beyond a reasonable doubt that they became or remained such "knowing said organization to be a subversive organization." If they have that knowledge, which must be knowledge of its unlawful activity or purpose (see Bridges v. Wixon, 326 U.S. 135; De Jonge v. Oregon, 229 U.S. 353), they are adding their weight to the accomplishment of the forbidden purpose or activity whether actually approved by them or not. Dunne v. United States, 138 F. (2d) 137, 143, cert. den., 320 U.S. 790. An organization may be found to be subversive only if the evidence indicates beyond a reasonable doubt that its activities or purposes are those which are plainly defined in the statute. Persons who may be subject to the statute are clearly informed that if they join or continue membership in an organization which engages in those definitely described activities or which has those purposes that classify it as subversive, knowing that such are its activities or purposes, they are liable to its penalties. Whitney v. California, 274 U.S. 357, 368. The fact that the knowledge on the part of the accused which is an essential element of the crime is concerned with the thought processes of the accused and is not capable of direct proof by objective evidence does not invalidate the statute. "The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500.
*48 However meritorious may be the plaintiff's suggestion that provision should be made by statute for an administrative determination that an organization is subversive and for explicit procedures by which persons may disassociate themselves from such an organization, it should properly be addressed to the Legislature. The absence of such a provision in the present act does not affect its validity. The acts which the statute prohibits are the joining of an organization with knowledge of its proscribed activities or purposes and the continuance in membership with knowledge of such activities or purposes. The issues to be met before the jury are clear. State v. Langelier, 95 N. H. 97, 99. Due process does not require that the character of an organization be determined and publicized before the imposition of penalties upon those belonging to or joining it. Those who have knowledge of its character need no official determination or notice of it; those who lack that knowledge do not violate the statute by their membership. Nor does the failure of the statute to provide a specific method for disassociation indicate a presumption of continuance of membership and thereby violate the right of due process. Whether membership in an organization has been terminated in good faith is not determined on the basis of a single fact such as some official act of the organization but upon all of the evidence. A decision as to whether a person has joined or remained a member of an organization with knowledge of its character is one which is well within the capabilities of a jury.
It is also urged by the plaintiff that the constitutionality of federal legislation of a character comparable to that adopted in this state (Dennis v. United States, 341 U.S. 494) is not determinative of the validity of the State legislation. In this connection she points out that the danger posed by sedition and subversive activities is one which involves the nation rather than this state and that the exclusively federal duty to make provision for military security and to handle international affairs as well as the obligation to "provide for domestic tranquility" and to "guarantee to every state . . . a republican form of government" may well justify and sustain such federal legislation. Whatever importance has been ascribed to these duties and powers in decisions dealing with federal legislation, their existence has not been applied, in connection with State legislation, to exclude consideration of the well recognized power of each state to regulate the conduct of its citizens and to restrain activities which are detrimental not only *49 to the welfare of the State but of the Nation. "The State is not inhibited from making the `national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.'" Gilbert v. Minnesota, 254 U.S. 325, 331. "There is nothing in the Federal constitution in any way granting to the Federal government the exclusive right to punish disloyalty." People v. Lloyd, 304 Ill. 23, 33.
The enactment by Congress of the Smith Act (18 U.S. C. A. s. 2385), which defines and penalizes sedition and subversive activities against the government of the United States, the States or any of their subdivisions, does not preclude State legislation on the same subject matter. Insofar as Commonwealth v. Nelson, 104 A. (2d) 133, 141 (Pa. 1954), gives support to the proposition that it does, we do not adopt it. Police powers of the State are not superseded by federal legislation except where State action is either specifically prohibited or "that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230. The interest of the State, in the protection of which it now seeks to exercise its police power, is that "primary and essential right of self preservation; which, so long as human governments endure . . . cannot be denied" to it. Gitlow v. New York, 268 U.S. 652, 668. The Smith Act does not specifically exclude State action in support of this right and we do not believe that its provisions are such as to evidence a "clear and manifest purpose of Congress" to pre-empt the entire field of legislation and deny the State's right to act in defense of it.
Nor can we agree with the plaintiff's contention that there is no sufficient danger to the State to warrant its adoption of this type of legislation. Restriction of speech is invalid if the interest which the State is attempting to protect is itself too insubstantial. (Dennis v. United States, 341 U.S. 494, 508, and cases cited) but "overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech." Supra, 509. In determining whether the State's interest is such that an infringement of freedom of speech would not be an unreasonable exercise of its police power, great weight must be given to the Legislature's determination that the advocacy of the overthrow of organized government by force and violence is so inimical to the general welfare and involves such danger of substantive evil that it should be penalized. Gitlow v. New York, *50 268 U.S. 652, 668. "Every presumption is to be indulged in favor of the validity of the statute." Id., 668; Chronicle &c. Pub. Co. v. Attorney General, 94 N. H. 148, 151. If "the menace of communist subversion" is "in the main a danger national in scope" as contended by the plaintiff, and may be a matter of proper federal concern, the State has an interest of its own in the preservation of its government and is not required to rely solely upon the performance by the federal government of its duty to preserve the State's republican form of government. The Legislature cannot reasonably be required to defer the adoption of measures for its own peace and safety until there is a present and imminent danger that the advocated plan will be successful (People v. Lloyd, 304 Ill. 23) or until actual disturbances of the public peace occur (Gitlaw v. New York, supra, 669). We do not believe that the present statute is an unwarranted infringement of freedom of speech.
It is also strongly urged by the plaintiff that the Legislature of this state cannot proscribe activities looking to the overthrow of government by force or violence because of Article 10 of the Bill of Rights which provides, in part, that "whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind." With this interpretation we cannot agree. The right reserved to the people by this Article is not such a broad and unlimited right of insurrection and rebellion as to permit any group which is dissatisfied with existing government to lawfully attempt at any time to overthrow the government by force or violence. It is not claimed by the plaintiff that "the ends of government" are now "perverted . . . public liberty manifestly endangered, and all other means of redress . . . ineffectual" but it is only when those conditions prevail that the right to resist and to "reform the old, or establish a new government" exists. The right possessed by the people of this state as a protection against arbitrary power and oppression cannot be utilized to justify the violent overthrow of government when the adoption of peaceful and orderly changes, properly reflecting the will of the people, may be accomplished through the existing structure of government. Dennis v. United States, 341 U.S. 494, *51 501, 549. To require a government representative of the people, in the face of preparations for revolution by force, to refrain from acting to curb the outbreak of violence and to confine itself solely to holding answerable those persons who have committed crimes of violence and terrorized the community in the name of revolution must result in anarchy. Dennis v. United States, supra, 501. Article 10 was not intended to accomplish this result.
So far as the circumstances of this case have required an examination of the 1951 act, we conclude that it is constitutional upon its face, so as to furnish a basis for the resolution of 1953.
Case discharged.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608554/ | 621 P.2d 646 (1980)
49 Or.App. 1015
In the matter of the Compensation of Irene Penifold, Claimant.
Irene Penifold, Petitioner,
v.
STATE ACCIDENT INSURANCE FUND CORPORATION, Respondent.
No. 78-9826; CA 18124.
Court of Appeals of Oregon.
Argued and Submitted November 24, 1980.
Decided December 29, 1980.
*647 Kenneth D. Peterson, Jr., Eugene, argued the cause for petitioner. On the brief was Evohl F. Malagon, Eugene.
Richard D. Barber, Jr., Certified Law Student, Salem, argued the cause for respondent. On the brief were K.R. Maloney, General Counsel, James A. Blevins, Chief Trial Counsel, and Darrell E. Bewley, Appellate Counsel, State Accident Insurance Fund Corporation, Salem.
Before RICHARDSON, P.J., and THORNTON and BUTTLER, JJ.
RICHARDSON, Presiding Judge.
In this workers' compensation case claimant sought benefits under ORS 656.245(1)[1]*648 for the "aggravation" of her accepted compensable occupational disease claim, penalties and attorney's fees[2] for the failure of the State Accident Insurance Fund (SAIF) to accept or deny her claim within the period allowed by statute,[3] and an extent of disability determination. The referee found that she had established a compensable claim, was entitled to additional medical benefits under ORS 656.245(1), penalties and attorney's fees, and a permanent partial disability award. The Workers' Compensation Board (Board), after de novo review, reversed the referee's order in its entirety.
Claimant twice petitioned the Board for reconsideration. Both times she requested that the Board either allow introduction of previously unobtained medical evidence directly bearing on the cause of her disability or remand the matter to the referee for his further consideration in light of the additional medical evidence. The Board denied claimant's requests in all respects,[4] and affirmed its order.
The sole question on appeal is whether we should reverse the Board's order and remand the matter to the referee pursuant to ORS 656.298(6) for further consideration in light of claimant's additional medical evidence.
Claimant commenced working for employer in 1969. In October, 1976, she was employed as a nurse's aide, which required her to bathe patients on a regular basis. As a part of this job, she wore rubber gloves and came in contact with detergent solutions and, in particular, a substance known as Septisoft. In late October, 1976, she developed a rash on both her hands and forearms. Her physician, Dr. Koch, diagnosed the condition as contact dermatitis. He opined that the condition arose from her duties at work. Claimant testified that Dr. Koch told her that contact with Septisoft was the specific cause. Dr. Koch, however, did not perform any tests, included in the record, that document the cause of her condition. Dr. Koch prescribed medication, and claimant remained away from work for one day. Claimant immediately filed a claim for compensation which was accepted by SAIF. In February, 1977, Dr. Koch concluded that she was medically stationary and would not suffer permanent disability. He did state, however, that the problem could reoccur. Thereafter, SAIF closed her claim with payment of one day's time loss.
Claimant continued to have problems and sought additional treatment. In April 1977, *649 she saw a dermatologist, Dr. Moyer, who diagnosed her symptoms as a form of dyshydrosis and chemical irritation. Dr. Moyer noted that the condition improved when claimant was away from work and worsened while she was at work. In September, 1978, the condition reoccurred and claimant again saw Dr. Moyer, who prescribed further medication but did not conduct any specific tests to determine the cause of the condition.[5] In November, 1978, claimant's employment was terminated due to the skin irritation. She subsequently gave SAIF notice of her "aggravation" claim and her claim for additional medical services. SAIF denied the claims by conduct, i.e., a de facto denial by failure to accept or deny the claims within the statutory time period.
In late February, 1979, claimant saw still another dermatologist, Dr. Rollins. He performed a series of patch tests which showed claimant's sensitivity to substances often found in cosmetics and hand creams as well as substances commonly found in rubber gloves. He did not perform a test with regard to claimant's sensitivity to Septisoft. Dr. Rollins diagnosed claimant's condition as chronic contact dermatitis with a secondary neurodermatitis. He felt the problem was aggravated by claimant's work activities as well as by contacts in her home. He later suggested claimant could return to work if she wore plastic gloves with cotton liners and avoided the allergens to which she was sensitive. Claimant did not return to her former employment and remained unemployed up to the time of the hearing.
The referee's decision was appealed to the Board by SAIF. After both parties had submitted briefs to the Board, SAIF referred claimant to Dr. Storrs, a dermatologist associated with the University of Oregon Health Sciences Center. Claimant saw Dr. Storrs on several occasions in late February and early March, 1980. In a letter dated April 4, 1980, Dr. Storrs opined that claimant had allergic contact dermatitis. She was patch tested on the substances previously tested by Dr. Rollins and, for the first time, on Septisoft. She had the same positive reactions as before and, in addition, a positive reaction to Septisoft. Dr. Storr's impression was that claimant was probably allergic to rubber gloves and the Septisoft antiseptic. She concluded there was a high likelihood that claimant's condition was work related but intended to test claimant further for reaction to specific Septisoft ingredients before reaching a final diagnosis. A copy of this letter was sent to SAIF. This report was not made available to either claimant's counsel or to the Board prior to the Board's order on review which was issued May 16, 1980.[6] The record indicates claimant first received a copy of the report on June 10, 1980, and brought the report to the Board's attention in her request for reconsideration dated June 18, 1980.
Dr. Storrs retested claimant on April 29, 1980, for sensitivity to the specific Septisoft ingredients. On May 9, 1980, she made the following remarks in a letter:
"There is now no doubt in our minds that Mrs. Penifold's acute dermatitis, which occurred during the time that she was working at the Eugene Hospitals and Clinic as a nurse's aide, was directly associated with her use of rubber gloves and Septisoft liquid soap. We do, however, appreciate that she is basically an atopic person and expect that her hand dermatitis is long-lasting, largely because of this."
This letter report was sent to claimant's counsel but was not received until after the Board's order. Claimant included the report in her motion for reconsideration but, as noted previously, the Board denied her request.
*650 ORS 656.298(6) sets forth this court's de novo review powers in workers' compensation cases. That subsection provides:
"The review by the Court of Appeals shall be on the entire record forwarded by the board. The court may remand the case to the referee for further evidence taking, correction or other necessary action. However, the court may hear additional evidence concerning disability that was not obtainable at the time of the hearing. The court may affirm, reverse, modify or supplement the order appealed from, and make such disposition of the case as the court determines to be appropriate." (Emphasis added.)
The issue before us is whether, under the particular circumstances of this case, we should remand this case to the referee for further consideration of claimant's claim in light of Dr. Storrs' reports.[7] We conclude that remand is proper. Buster v. Chase Bag Co., 14 Or. App. 323, 513 P.2d 504 (1973); Hamilton v. SAIF, 11 Or. App. 344, 501 P.2d 1007 (1972), rev. den. (1973); Sahnow v. Fireman's Fund Ins. Co., 3 Or. App. 164, 470 P.2d 378 (1970), aff'd 260 Or. 564, 491 P.2d 997 (1971).
The record reveals that the evidence of whether claimant's employment was a material contributing factor to her continuing condition was in conflict. Dr. Koch was unequivocal that her initial problem was caused by her work. Dr. Moyer, who first saw claimant after her condition persisted, did not conduct any patch tests and gave no opinion as to the cause of claimant's condition. Dr. Rollins was the only dermatologist prior to the hearing to perform patch testing. He concluded that her condition was "aggravated and continued by the use of rubber gloves as well as other contactants," and was also "aggravated by contacts in her home."
The record indicates that claimant was exposed to rubber gloves at work and at home. The record also indicates that certain of her sensitivities were to substances not found at work. None of the medical reports provided to the referee, however, includes any testing for claimant's sensitivity to Septisoft. The lack of those tests resulted in an incompletely developed record before the referee.
The additional reports by Dr. Storrs, which claimant seeks to have considered, contain the only Septisoft tests. The reports conclude that claimant's condition was caused by her use of rubber gloves and exposure to Septisoft solution. They bear directly on the issue of compensability of claimant's condition. They contain the only tests on a substance claimant came into contact with only at work. Given the fact that both sides had briefed the issues for the Board before Dr. Storrs' reports became available, and that the findings became known prior to the Board's decision, but were not made available to the Board, or even received by claimant until after the Board's decision, we conclude that they should be considered as part of the record. Under these circumstances, claimant has shown good cause and a compelling reason why we should remand the matter to the referee for further consideration. Therefore, the Board's order is reversed, and the matter is remanded to the referee pursuant to ORS 656.298(6) for further consideration in light of claimant's additional medical evidence.
Reversed and remanded with instructions.
NOTES
[1] ORS 656.245(1) provides:
"For every compensable injury, the direct responsibility employer or the State Accident Insurance Fund Corporation shall cause to be provided medical services for conditions resulting from the injury for such period as the nature of the injury or the process of the recovery requires, including such medical services as may be required after a determination of permanent disability. Such medical services shall include medical, surgical, hospital, nursing, ambulances and other related services, and drugs, medicine, crutches and prosthetic appliances, braces and supports and where necessary, physical restorative services."
[2] ORS 656.262(8), provides:
"If the corporation or direct responsibility employer or its insurer unreasonably delays or unreasonably refuses to pay compensation, or unreasonably delays acceptance or denial of a claim, the corporation or direct responsibility employer shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees which may be assessed under ORS 656.382."
[3] ORS 656.262(5), in pertinent part, provides:
"Written notice of acceptance or denial of the claim shall be furnished to the claimant by the corporation or direct responsibility employer within 60 days after the employer has notice or knowledge of the claim * * *."
[4] The Board's review powers are contained in ORS 656.295(5), which provides:
"The review by the board shall be based upon the record submitted to it under subsection (3) of this section and such oral or written argument as it may receive. However, if the board determines that a case has been improperly, incompletely or otherwise insufficiently developed or heard by the referee, it may remand the case to the referee for further evidence taking, correction or other necessary action."
The Board had no power to consider any evidence not already included in the record. Its only statutory power was to remand the case to the referee for further evidence taking. Remand is a matter of discretion. See Holmes v. SAIF, 38 Or. App. 145, 589 P.2d 1151 (1979); Mansfield v. Caplener Bros., 3 Or. App. 448, 474 P.2d 785 (1970). Since we review this case under our own statutory review powers, ORS 656.298(6), we need not decide whether the Board abused its discretion in this case.
[5] Prior to claimant's visit with Dr. Moyer, she conducted her own "patch test" to determine her sensitivity to Septisoft. The method used by claimant was challenged by Dr. Moyer and we have drawn no conclusions from the claimed results.
[6] There is no indication in the record as to why this report was not made available to either claimant or the Board. Claimant alleges in her brief that the report was withheld due to the "tardy administration of correspondence by the carriers." We find no support in the record for this conclusion and decline to draw our own on the basis of the record before us.
[7] Under ORS 656.298(6), our power to hear additional evidence concerning disability is limited to evidence "not obtainable at the time of the hearing." Here, the reports were not available to claimant at that time but were "obtainable" in the sense that she could have contacted Dr. Storrs at that time and sought results of the Septisoft patch tests. Therefore, we cannot consider the evidence ourselves. See Brenner v. Industrial Indemnity Co., 30 Or. App. 69, 566 P.2d 530 (1977); Petersen v. Travelers Insurance, 21 Or. App. 637, 536 P.2d 448 (1975); Sahnow v. Fireman's Fund Ins. Co., 3 Or. App. 164, 470 P.2d 378 (1970), aff'd 260 Or. 564, 491 P.2d 997 (1971); Mansfield v. Caplener, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608576/ | 621 P.2d 971 (1980)
HAWAIIAN ELECTRIC COMPANY, INC., a Hawaii Corporation, Plaintiff-Appellee,
v.
Clarence DeSANTOS; James L. McClish and Mrs. James McClish; Diana Jones and Richard Jones; Caroline Bright; Leialoha Kaluhiwa and Jerry Kaluhiwa; Alfred Ferreira and Justine Ferreira; Sandra Menza and Antone Menza, Jr.; Moses Robello, Jr., and Marie Robello; James R. Sanders and Alberta Sanders; Herbert Santos; Hannah Viritua; Tu Viritua; Melvin Fisher; and Nelson Goo, Defendants-Appellants, and
Joseph R. Sanchez; Antone Caldeira; Anthony DeSantos; James DeSantos; Pat Cain; William Espindola; Burert T. Rankin; Martha Rankin; Frank Andrade; Daniel K. Bright; Henry C. Cruz; Antone Menzsa; Delphine Menzsa; Jane Robello, Defendants.
No. 6490.
Supreme Court of Hawaii.
December 31, 1980.
*972 Kathleen A. Dashiell, Legal Aid Soc. of Hawaii, Honolulu, for defendants-appellants.
Wesley W. Ichida, Honolulu (William W.L. Yuen and Patricia Blyth, Honolulu, with him on brief, Case, Kay, Clause & Lynch, Honolulu, of counsel), for plaintiff-appellee.
Before RICHARDSON, C.J., and OGATA, MENOR, LUM and NAKAMURA, JJ.
LUM, Justice.
This is an appeal from orders of the circuit court granting summary judgment and writs of possession to plaintiff-appellee Hawaiian Electric Company (HECO), evicting defendants-appellants, twenty-one residents (residents) from HECO's property in Heeia Kea Valley, Kaneohe, Oahu. We reverse *973 both orders because improper notice was given to terminate the tenancies between HECO and the residents. In so doing, we do not reach any of the other issues raised in this appeal, and similarly raised in the appeal of Jones v. Hawaiian Electric Company (No. 6433), which was argued before this court and was taken under advisement.
I.
In 1975 HECO filed for summary possession against each resident. These cases were consolidated by the district court. Because jury trial was demanded by the residents, the cases were committed to the circuit court. HECO then filed a motion for summary judgment and for the issuance of writs of possession.
Before the circuit court ruled on the motion, a complaint[1] was filed with the Public Utilities Commission of the State of Hawaii (PUC). The complaint alleged, inter alia, that HECO's acquisition of the Heeia Kea Valley property was a violation of its franchise to do business as a public utility, and that HECO's acquisition of the Heeia Kea Valley property under a lease-purchase agreement in 1965 with Bishop Estate required approval of the PUC and was in violation of statutes over which the PUC had jurisdiction.
The PUC thereafter ruled (Order No. 4412) in favor of HECO, finding no statutory violation by HECO and no violation by HECO of its franchise to do business as a public utility in its purchase of the property.
On the basis of the PUC decision, the circuit court determined that HECO was entitled to claim possession of the property. The circuit court resolved all other issues against the residents, and the court ruled that HECO was entitled to possession as a matter of law.
II.
We concern ourselves with the singular issue of whether proper notice of termination was given by HECO to the residents under the Residential Landlord-Tenant Code (Code), chapter 521, Hawaii Revised Statutes. Because we rule that HECO failed to comply with the notice requirement of the Code, we do not deem it necessary to determine any of the other issues raised on appeal; we await Jones v. Hawaiian Electric Company to determine those issues.[2]
The lease-purchase agreement between HECO and Bishop Estate in 1965 assigned to HECO all of the existing tenancies encumbering the property upon the following condition:
The Tenancy shall begin as of October 1, 1957, and shall run for six (6) months and shall continue thereafter subject to termination by either party on not less than six (6) months' written notice;
So far as we can determine from the record, only two of the residents Caroline Bright and James R. Sanders hold under the original tenancies assigned to HECO.[3]
Of the remaining residents, who are successor tenants without the benefit of any lease agreement with HECO, we hold that § 521-22 of the Code is applicable:
[§ 521-22] Term of rental agreement. The landlord and tenant may agree in writing to any period as the term of the rental agreement. In the absence of such agreement, the tenancy shall be month to month or, in the case of boarders, week to week. (L. 1972, c. 132, pt. of § 1] (Emphasis added.)
*974 HRS § 521-71(a) is specific about notice requirements for evicting month-to-month tenants when the landlord contemplates demolition of the dwelling units. This section provides:
§ 521-71 Termination of tenancy; landlord's remedies for holdover tenants. (a) When the tenancy is month to month, the landlord or the tenant may terminate the rental agreement upon his notifying the other at least twenty-eight days in advance of the anticipated termination or in cases of voluntary demolition of the dwelling units, ninety days in advance of the anticipated demolition. If notice is revoked or amended and re-issued, the ninety day period shall begin from the date it was re-issued or amended.
§ 521-71(a) requires 90 days notice to terminate these tenancies on account of voluntary demolition. We can conclude from the record that HECO gave the required notice?
In Lau v. Bautista, 61 Haw. 144, 148, 598 P.2d 161, 164 (1979), we dealt with the notice requirements of HRS § 521-71(a), and we stated that "[t]he sufficiency of a notice must be judged within its four corners."
HECO contends that their notice of April 15, 1975, stating their intent to demolish the houses, satisfied the 90 days notice requirement of HRS § 521-71(a). The residents contend that HECO's letter of April 15, 1975, when read in combination with HECO's letters of May 19, 1975[4] and July 2, 1975, did not constitute sufficient notice.
It is undisputed that HECO sent the residents a letter, dated April 15, 1975, indicating its intent to demolish the premises and giving the tenants 90 days to vacate the premises. The letter stated in pertinent part:
This is to inform you that your tenancy of the above referenced land at Heeia Kea will be terminated effective 90 days from date of your receipt of this letter.
.....
Recent re-surveys indicate that conditions have deteriorated even further and that a clear violation of paragraphs 5 and 6 of the original Bishop Estate tenancy agreement exists. Under the Landlord-Tenant Code which became effective January 1, 1973, we became directly liable to comply with all City codes (and therefore could no longer pass that duty by lease agreement to you, as tenants). It is therefore necessary to remove the violations by tearing down all structures because bringing them up to standard is not feasible.
.....
Shortly after the letter of April 15, 1975 was sent to the residents, the President of HECO agreed to postpone the termination date from July 15 to August 1, 1975. The President sent the following letter to the appellants:
TO THE RESIDENTS OF HEEIA KEA
It is agreed that I will postpone the eviction notice of July 15 to August 1 on the basis that all of the residents of Heeia Kea will submit and sign a proposal to Hawaiian Electric Company by June 9 agreeing to maintain their homes in a condition to meet all building codes and to hold Hawaiian Electric Company harmless.
The Company and residents will meet and negotiate over the terms of the residents' plan and reduce the plan to a legal agreement that will be signed by all residents and the Company.
Then, on July 2, 1975 HECO wrote a letter to the residents which contained the following statements:
After meeting with representatives of Heeia Kea tenants and thoroughly exploring legal possibilities of continued occupancy of the dwellings at Heeia Kea, we have found that we have no alternative but to terminate your tenancy as outlined in our letter to you dated April 15, 1975.
*975 The Law [§ 521-42(a)(1), Hawaii Revised Statutes] requires the landlord to comply with all applicable provisions of any State or County law, code, ordinance or regulation. Under this law, HECO is unable to transfer to you its responsibility as a landlord by entering into any agreement for you to bring the dwelling up to standard.
.....
In this letter of July 2 HECO attempted to reinstate the date for termination of the tenancies which had been announced in the April 15 letter. However, the second notice sent to the residents and signed by the President of HECO modified the 90-day notice of the April 15 letter by its agreement to "postpone the eviction notice of July 15 to August 1... ." This second letter therefore had the effect of "re-issuing" or "amending" the 90-day notice of April 15. In line with the provisions of HRS § 521-71(a) HECO was obligated to give 90-day notice beginning from the date the notice was re-issued or amended; HECO was obligated to give 90-day notice beginning on May 19, 1975.
As early as 1869 this court, in Brewer v. Chase, 3 Haw. 127, 138 (1869), acknowledged a basic precept of Anglo-American jurisprudence, and stated:
Undoubtedly, in tenancies determinable by the landlord's act or will, we should require a notice, reasonably definite and seasonable, before the tenant would be compelled to deliver up the premises.
To effect the termination of a lease, technical accuracy in the wording of a notice is not required but the notice must be so certain that it cannot be reasonably misunderstood. Torrey v. Adams, 254 Mass. 22, 149 N.E. 618 (1925). Such certainty is required with respect to the fixation of the day for the termination of the lease and the quitting of the premises.
HECO, however, argues that all of the residents except the two who hold as original tenants of Bishop Estate, are trespassers without right and under HRS § 666-1[5] the landlord is entitled to summary possession on ten days notice.
We disagree. HECO is estopped from arguing that these residents hold possession of their properties without right. HECO had been accepting rent and tax payments from these tenants for more than ten years when it filed for summary possession against each resident. See Food Pantry, Ltd. v. Waikiki Business Plaza, Inc., 58 Haw. 606, 575 P.2d 869 (1978); Gonsalves v. Gilbert, 44 Haw. 543, 356 P.2d 379 (1960); Kanakanui v. DeFries, 21 Haw. 123 (1912).
HECO's other argument for applying HRS § 666-1 is that the premises are in a state of disrepair in violation of the original leases which gives the landlord the right to evict under § 661-1. We again disagree. The landlord's remedies against his tenant for failure of the tenant to maintain the dwelling unit are governed by chapter 521 of the Code. Any conflict between chapter 666 and chapter 521 is controlled by the latter. See § 521-3(b). We have determined that HRS § 521-71(a) controls this fact situation in view of HECO's anticipated demolition of the dwelling units; chapter 521 therefore controls these termination proceedings.
Accordingly, we hold that HECO failed to give the required 90-day notice to the residents under the Code.
Reversed.
NOTES
[1] This complaint was brought by seven complainants, six of whom are residents involved in this appeal.
[2] Among the issues raised in this appeal and in Jones v. Hawaiian Electric Company are: (1) whether HECO violated its franchise agreement when it entered into a lease-purchase agreement with Bishop Estate without PUC approval; (2) whether HECO violated its franchise by purchasing property which was not utilized for utility purposes; (3) whether HECO violated its franchise agreement by continuing to hold on to the property for eleven years; and (4) whether the lease-purchase agreement violated HRS § 269-17 and § 269-19.
[3] Although not made an issue in this appeal, obviously termination of their tenancies is covered by their respective lease agreements.
[4] The second letter is not dated. However, the record shows that the approximate date was May 19, 1975, and for purposes of discussion a date of May 19, 1975 will be used.
[5] § 666-1 Summary possession on termination or forfeiture of lease. Whenever any lessee or tenant of any lands or tenements, or any person holding under the lessee or tenant, holds possession of lands or tenements without right, after the termination of the tenancy, either by passage of time or by reason of any forfeiture, under the conditions or covenants in a lease, or, if a tenant by parol, by a notice to quit of at least ten days, the person entitled to the premises may be restored to the possession thereof in manner hereinafter provided. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608599/ | 621 P.2d 694 (1980)
Barbara M. HOVE, Plaintiff and Appellant,
v.
John S. McMASTER, D.D.S., and Highland Dental Clinic, Inc., a professional corporation, Defendants and Respondents.
No. 16850.
Supreme Court of Utah.
November 21, 1980.
*695 John T. Anderson of Roe & Fowler, Don J. Hanson, Salt Lake City, for plaintiff and appellant.
STEWART, Justice:
In this action plaintiff sought damages for alleged dental malpractice. The trial was bifurcated, and the issue of whether plaintiff's claim was timely filed pursuant to the Utah Health Care Malpractice Act, Utah Code Ann. (1953), as amended, § 78-14-4, was tried to the court. The court held that the claim was barred by the applicable statute of limitations because plaintiff had failed to commence the action within two years from the date she knew or reasonably should have known that she sustained an injury that was caused by an act of defendant Dr. McMaster.
In arguing the statute of limitations issue, the parties proceeded on the assumption that plaintiff was injured as a result of dental treatment by defendant. The evidence presented to the court, therefore, was directed exclusively to the issue of when plaintiff knew or should have known that she had suffered a legal injury.
Plaintiff is a registered nurse. In February 1974 she went to defendant, a dentist, to have an upper right molar filled. She was given two injections of an anesthetic. Plaintiff testified that when the second injection was given, the needle "hit something hard ... and then it seemed to give way and hit something soft, and when it did I got this shock in my face...." She also testified the shock was "unusual" or "different," but she attributed the sensation to the fact it was her first experience with dual injections. She also felt a slight burning before the area became numb.
After the numbness dissipated, plaintiff had a "plugged-up" feeling on the right side of her face and nose. During the ensuing months she experienced a tingling sensation in the same area, and her right eye occasionally became bloodshot. She also felt pressure behind her eye. She consulted with defendant regarding these problems, and in February 1975, a year after the injections, defendant agreed that she should see a neurologist. That month she saw Dr. Hebertson, who conducted a neurological examination. He testified that he discussed his diagnostic impression with plaintiff and told her that she could have a local infection of the facial nerves such as one might get with shingles or that her complaints might represent some complication of her prior dental injections or her dental surgery. He also suggested the possibility of an arthritic condition in the jaw joints or some other dental source of pain in her mouth and jaw. Over a period of the next two years, plaintiff visited several other doctors and dentists because of recurring flareups of pain and tingling on the right side of her face. She discussed the dental injections with the doctors, but none specifically attributed her ailments to the injections until October 1977, when she was examined by Dr. Sweeney, a neurologist in Cleveland, Ohio, where plaintiff then resided. Dr. Sweeney's diagnosis was that plaintiff was suffering from "atypical facial pain due to causalgia" which was probably caused by the injection three-and-a-half years earlier. Another neurologist, Dr. *696 Gardner, confirmed that diagnosis and stated:
This patient has suffered causalgia resulting from mechanical more than chemical injury to the maxillary nerve, the second division of the trigeminal or fifth cranial nerve. Onset precisely at the time of dental manipulation does provide a very clearcut etiological relationship to this procedure.
On December 29, 1977, plaintiff served a notice of intent to commence action upon defendant, and her complaint was filed on February 22, 1978, just within the maximum four-year limitation on bringing malpractice suits. In the trial court defendant successfully asserted that the action was barred by another part of the statute of limitations provision of the malpractice statute, § 78-14-4(1), which states:
No malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs... .
Plaintiff asserts that she first became aware of her legal injury when a physician first diagnosed her pain as resulting from the injection given her by defendant.
Foil v. Ballinger, Utah, 601 P.2d 144, 148 (1979),[1] held that "the term discovery of `injury' in § 78-14-4 means discovery of injury and the negligence which resulted in the injury." Thus, the statute of limitations does not necessarily run from the time of the first appearance of symptoms, since "there may be, to the untutored understanding of the average layman, no apparent connection between the treatment ... and the injury suffered." Id. at 147.
In the present case the trial court determined that in fact plaintiff did know or should reasonably have known of the occurrence of a legal injury "at least two years before she served a notice of intent to sue on the defendants and at least two years before she commenced this action against the defendants." The trial court therefore held the action barred and dismissed it with prejudice.
The usual rules of appellate procedure require us to view the facts in the light most favorable to the ruling below and to affirm that ruling if it is based on substantial evidence. Fisher v. Taylor, Utah, 572 P.2d 393 (1977). The issue for this Court is not whether plaintiff knew or should have known that she had a legal injury more than two years before she commenced her action, but whether the trial court could have so found on the basis of the evidence.
Plaintiff was a registered nurse who had some expertise in the area of medicine involved in this case. She had been trained in the proper method of giving an injection and knew what might occur if an injection were made in a manner which injured a nerve. She testified that the complaints she had following the injection on February 24, 1974, were similar to what she as a nurse would have expected if she had given an injection that caused a nerve injury. Immediately after the injection, and continuing over a period of time, plaintiff experienced a burning and tingling sensation and other discomforts. Plaintiff could be expected to have recognized the possibility that the recurring discomforts were the result of the injection and that a proper injection would not have caused the alleged injury. In addition, she reported the injection incident to several doctors whom she consulted and was told by Dr. Hebertson a year after receiving the injection that her complaints "might represent some complication of her prior dental injections and/or her dental surgery."
*697 We hold there is sufficient evidence in the record to support the finding of the trial court that plaintiff knew or should have known within two years from the date of the injection that the injury she suffered may have been caused by negligence on the part of defendant.
Affirmed. Costs to Respondents.
CROCKETT, C.J., WILKINS and HALL, JJ., and MAURICE HARDING, Retired District Judge, concur.
MAUGHAN, J., does not participate herein; Retired District Judge HARDING sat.
NOTES
[1] Foil involved an injury that was attributed to a particular medical procedure by a medical panel that issued its report three-and-a-half years after the alleged negligent treatment. The trial court, on a motion for summary judgment, dismissed the complaint for failure to comply with the notice and time limitations of the malpractice act. The case was reversed and remanded for a factual determination as to when the plaintiff knew or should have known of the alleged negligence giving rise to her injuries. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/249895/ | 274 F.2d 68
Carl A. CARNLEY, Appellant,v.UNITED STATES of America, Appellee.
No. 17846.
United States Court of Appeals Fifth Circuit.
Jan. 7, 1960, Rehearing Denied Feb. 12, 1960.
Joe J. Harrell, Pensacola, Fla., for appellant.
C. W. Eggart, Jr., Asst. U.S. Atty., Pensacola, Fla., Wilfred C. Varn, U.S. Atty., Tallahassee, Fla., for appellee.
Before RIVES, Chief Judge, and HUTCHESON and CAMERON, Circuit Judges.
CAMERON, Circuit Judge.
1
Appellant Carnley was convicted and sentenced under a two-count indictment for violation of 18 U.S.C.A. 2313 for receiving, concealing, bartering, selling and disposing of two automobiles moving in interstate commerce knowing that they had been stolen. He offered to prove his general reputation for honesty in the community in which he lived, and the court below declined to permit the proof. We think this was error.
2
The general principles covering the admissibility of such evidence are well stated in 20 Am.Jur., Evidence, 324, pp. 302-303:
3
'It is a well-settled general rule that the accused in a criminal prosecution may introduce evidence of his good character and reputation. * * * Such evidence should have reference to the trait involved in the offense with which the defendant is charged. With this qualification a defendant's general good character or reputation is almost always admissible in his favor to evidence the improbability of his having done the act charged. * * *
4
'A few authorities expound the view that evidence of good character is admissible only in cases where the guilt of the accused is doubtful, but the proper doctrine is that proof of the good character of the accused is admissible in all criminal cases not only where doubt exists on the othe proof, but also to generate a doubt. The rule generally prevailing in this respect is that wherever a criminal intent is necessary to constitute the offense, evidence of the general character of the defendant is admissible in his behalf.'
5
This whole question has recently been before us, Holland v. United States, 5 Cir., 1957, 245 F.2d 341, and we quoted extensively from the landmark case of Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467, and referred also to the late case of Michelson v. United States, 1948, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, along with other authorities.1
6
We do not think that the error in refusing to permit proof as to appellant's reputation for honesty was cured by letting in proof of his reputation for truth and veracity. Such proof is traditionally admitted where there is question whether a witness has testifed truthfully. It was important that the appellant here have the benefit of testimony concerning the trait involved in the offense with which he was charged, the essence of which was larceny or knowledge thereof.
7
The briefs discuss whether the court correctly dealt with this question in its charge to the jury. Upon a retrial the confusion, if such there was, is not likely to recur in view of our holding and the authorities upon which it is based; and we do not deal specifically with this point.
8
For the failure of the court below to admit the proffered evidence the judgment of the court below is reversed and the cause remanded.
9
Reversed and remanded.
10
On Petition for Rehearing.
11
In appellee's petition for rehearing, our attention is directed for the first time to our case of Moore v. United States, 5 Cir., 1958, 254 F.2d 213, which the appellee contends expressly overrules Holland v. United States, 5 Cir., 1957, 245 F.2d 341, referred to in our opinion in this case filed January 7, 1960. Examination reveals that Moore disapproved the holding in Holland only insofar as that decision sanctions the rule deducible from the language of the Supreme Court in Edgington v. United States, 1896, 164 U.S. 361, 17 S.Ct. 72, 74, 41 L.Ed. 467, that where reputation of a defendant in a criminal case is in issue, the trial court may not refuse to charge the jury that 'The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although, without it, the other evidence would be convincing.'
12
In the opinion to which this petition for rehearing is directed, we did not deal with this feature at all, stating specifically that discussion of the trial court's charge on the subject was omitted. Neither approving nor disapproving Moore over Holland with respect to this point, it is sufficient to say that nothing in Moore is inconsistent with our conclusion that the court below committed error in refusing to admit the proffered evidence as to appellant's good character, and we adhere to the views set forth in the opinion.
13
The petition for rehearing is Denied.
1
In Michelson at page 476, of 335 U.S., at page 218 of 69 S.Ct., the Supreme Court referred to 1 Wigmore, Evidence, 3 Ed., 1940, 56, where the subject is fully treated from a historical standpoint | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2777578/ | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 09-3071 September Term, 2014
1:05-cr-00367-RMC-1
Filed On: February 6, 2015
United States of America,
Appellee
v.
Jaron Brice, also known as Jay Bird, also
known as Daddy, also known as Bird, also
known as Jay,
Appellant
BEFORE: Garland, Chief Judge; Henderson, Rogers, Tatel, Brown,
Griffith, Kavanaugh, Srinivasan, Millett, Pillard, and Wilkins,
Circuit Judges; Williams and Sentelle, Senior Circuit Judges
ORDER
Appellant’s petition for rehearing en banc and the response thereto were
circulated to the full court, and a vote was requested. Thereafter, the call for a vote was
withdrawn. In light of the foregoing, and in the absence of a request by any member of
the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Jennifer M. Clark
Deputy Clerk | 01-03-2023 | 02-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3096639/ | The State of
Fourth Court of Appeals
San Antonio, Texas
July 24, 2014
No. 04-13-00911-CR
Terry Larance JACKSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR10320
Honorable Maria Teresa Herr, Judge Presiding
ORDER
The Appellant’s motion for extension of time to file the brief is GRANTED. Time is
extended to August 27, 2014. NO FURTHER EXTENSIONS WILL BE GRANTED
ABSENT EXTENUATING CIRCUMSTANCES.
_________________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 24th day of July, 2014.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2428833/ | 143 F. Supp. 2d 918 (2001)
John Peter MacDONALD, et al., Plaintiffs,
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP., et al., Defendants.
No. C-3-99-280.
United States District Court, S.D. Ohio, Western Division.
March 9, 2001.
*919 *920 *921 Thomas D. Robenalt, Cleveland, OH, for plaintiffs.
Kelly Carbetta Scandy, Douglas W. Rennie, Montgomery Rennie & Jonson, Cincinnati, OH, Laurie J. Nicholson, Cincinnati, OH, Bruce M. Allman, Cincinnati, OH, for defendants.
RICE, Chief Judge.
The instant litigation stems from an automobile accident in Alberta, Canada.[1] On June 17, 1997, Plaintiff John Peter MacDonald ("MacDonald") was delivering furniture for his employer, Bennett's Furniture Galleries, Ltd. ("Bennett's"), using a 1995 International 4000 series truck, VIN # 1HTSCAAM5SH681335. While MacDonald was standing behind the truck, which was parked and stationary, the truck's brake suddenly failed, and the truck began to roll down the road at a high rate of speed. Plaintiff suffered permanent injuries, including broken vertebrae and paralysis.
On June 16, 1999, Plaintiffs MacDonald and the Workers' Compensation Board of Alberta ("WCB")[2] initiated this litigation against Navistar International Transportation Corporation and other various John Doe Defendants (Doc. # 1). They set forth three causes of action, to wit: 1) state law negligent and strict liability products liability claims, based on defective creation, manufacture, design, promotion, marketing, distribution and supply of the vehicle, and failure to provide reasonable warnings or instructions; 2) a state law claim of breach of the implied warranties of fitness and merchantability; and 3) a state law claim of misrepresentation. Plaintiffs further alleged that Defendants acted with malice, thus entitling them to punitive damages. On February 10, 2000, Plaintiffs amended their Complaint, naming Ryder Truck Rental Canada ("Ryder Canada" or "Defendant"); Ryder System, Inc.; Ryder Truck Rental, Inc., dba Ryder Transportation Services; Ryder TRS, Inc.; Ryder Truck Rental, L.T.; Ryder Truck Rental I, L.P.; Ryder Truck Rental II, L.P; Ryder Truck Rental *922 I, L.L.C.; Ryder Truck Rental II, L.L.C.; and Ryder Truck Rental III, L.L.C., as Defendants (Doc. # 13). On July 5, 2000, Plaintiffs voluntarily dismissed, without prejudice, all of the Ryder Defendants, with the exception of Ryder Canada (Doc. # 21).[3]
Pending before the Court is the Motion of Ryder Canada to Dismiss, for lack of personal jurisdiction, pursuant to Fed. R.Civ.P. 12(b)(2) (Doc. # 24). For the reasons assigned, that Motion is SUSTAINED.
In its Motion, Ryder Canada contends that this Court lacks personal jurisdiction over it, because it is a foreign defendant and the exercise of such jurisdiction would violate due process. In support of its argument, the company asserts that it lacks any significant contacts with Ohio. According to Fintan Mealia, the Customer Development Manager for Ryder Canada, Ryder Canada and Bennett's Furniture Gallery entered into a Truck Lease and Service Agreement, dated June 10, 1994 (Def.'s Ex. ¶ 1-2). To supply Bennett's with a truck, on July 11, 1994, Ryder Canada ordered a 1995 International 4000 series truck, VIN # 1HTSCAAM5SH681335, from Navistar International Transportation Company, located in Ontario, Canada (id. ¶ 4). Ryder Canada received the truck from Navistar in December of 1994, and delivered the truck to Bennett's on January 19, 1995 (id. ¶ 5). All service on the vehicle occurred in Alberta, Canada (id. ¶ 7). Mr. Mealia further indicates that Ryder Canada is not licensed to do business in the State of Ohio, does not transact business in Ohio, and has no business contacts with Ohio (id. ¶¶ 8-9). Based upon this evidence, Ryder Canada contends that the Court may not exercise personal jurisdiction over it.
When considering a motion to dismiss for lack of in personam jurisdiction prior to trial, the court can determine the motion on the basis of affidavits alone or by conducting an evidentiary hearing. Serras v. First Tennessee Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989). Furthermore, the court may permit discovery to aid it in deciding the motion, whether based on affidavits, International Techs. Consult., Inc. v. Euroglas, 107 F.3d 386 (6th Cir.1997) (plaintiff was ordered to respond to motion challenging personal jurisdiction after completion of discovery on jurisdictional issues; no evidentiary hearing held), or by conducting an evidentiary hearing, Serras, 875 F.2d at 1214 (court may "order discovery of a scope broad enough to prepare the parties for [the evidentiary] hearing"). The court has discretion to select which method to follow, and will only be reversed for abuse of that discretion. Michigan Nat'l Bank v. Quality Dinette, Inc., 888 F.2d 462, 466 (6th Cir.1989); Serras, 875 F.2d at 1214.
If the court determines that the motion can be decided without a hearing, it "must consider the pleadings and affidavits in the light most favorable to the plaintiff." Welsh v. Gibbs, 631 F.2d 436, 439 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S. Ct. 1517, 67 L. Ed. 2d 816 (1981). The plaintiff, however, bears the "relatively slight" burden of establishing a prima facie case of personal jurisdiction. American Greetings Corp. v. Cohn, 839 F.2d 1164, 1168-69 (6th Cir.1988). If the plaintiff demonstrates the existence of a prima facie case of personal jurisdiction over the defendant, after reading the pleadings and *923 the affidavit(s) so construed, the defendant's motion will be denied, notwithstanding contrary allegations made by the defendant. Serras, 875 F.2d at 1214.[4]
In the present case, Plaintiffs have provided the Court with affidavits and other materials to support their argument that the exercise of personal jurisdiction over Ryder Canada is proper. In the exercise of its discretion, the Court has chosen to resolve the jurisdictional issue on the basis of the pleadings, affidavits, and other evidence before it. Consequently, the Court will construe the parties' evidence in a light most favorable to Plaintiffs (the party against whom the motion is directed) and against Ryder Canada. With the foregoing guidelines in mind, the Court turns now to its analysis of the in personam jurisdiction issue.
In deciding whether this Court may exercise personal jurisdiction over the Ryder Canada, the Court must look to the law of the forum state. E.g., Southern Machine Co. v. Mohasco Indus., Inc., 401 F.2d 374, 376 n. 2 (6th Cir.1968). If the forum state's long-arm statute reaches the defendant, the court must then decide whether the defendant's due process rights would be infringed by the exercise of jurisdiction over him. E.g., Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., 91 F.3d 790, 793 (6th Cir.1996). Although Ryder Canada cites to Ohio's long-arm statute, its argument focuses on whether the exercise of personal jurisdiction over it would comport with due process, under either specific jurisdiction or general jurisdiction. Accordingly, the Court will follow Defendant's analytical framework and will likewise turn to the due process requirement.
A. General Jurisdiction
The Sixth Circuit has recognized that the due process limits on personal jurisdiction make a distinction between general jurisdiction and specific jurisdiction. E.g., Third National Bank of Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir.1989); Donatelli v. National Hockey League, 893 F.2d 459 (1st Cir.1990). With general jurisdiction, a defendant's "contacts with the forum state are of such a `continuous and systematic' nature that the state may exercise personal jurisdiction over the defendant[,] even if the action is unrelated to the defendant's contacts with the state." WEDGE Group, 882 F.2d at 1089. However, even though the due process clause allows for general jurisdiction, Ohio's long-arm statute precludes general personal jurisdiction in this forum. Smith v. Turfway Park, Case No. 3:97-145, Doc. # 13 (Mar. 13, 1998)(Rice, J.). Thus, in order for this Court to exercise personal jurisdiction over Ryder Canada, the Court may not rely on general jurisdiction but, rather, must conclude that specific jurisdiction over Defendant is proper.
Assuming, arguendo, that Ohio's long-arm statute permits general jurisdiction, Plaintiffs argue that this Court may exercise general jurisdiction over Ryder Canada, based on the fact that it is a wholly-owned subsidiary of Ryder Transportation Corporation, which has continuous and systematic contact with the State of Ohio. It is well-established that a parent company may be subject to personal jurisdiction in a state where its subsidiary is doing business, provided that the corporate separation is fictitious, the parent has held the subsidiary out as its *924 agent, or the parent has exercised undue control over the subsidiary. Velandra v. Regie Nationale des Usines Renault, 336 F.2d 292, 296 (6th Cir.1964). However, the mere fact that a parent company has a wholly-owned subsidiary in the forum state does not render the parent company subject to the personal jurisdiction of the courts therein. Id. "So long as the parent corporation and its subsidiary maintain separate and distinct corporate entities, the presence of one in a local forum may not be attributed to the other." WEDGE Group, Inc., 882 F.2d at 1093 (concurring opinion). In WEDGE Group, Inc., the Sixth Circuit held that a parent corporation, Wedge, was subject to personal jurisdiction in Tennessee, based on the actions of The Rogers Companies, Inc. ("TRC"), a Tennessee company and its wholly-owned subsidiary. Although Wedge had never directly conducted business, held title to property, or retained employees in Tennessee, the Court recounted five grounds that established that Wedge had purposefully availed itself of the privilege of conducting activities in Tennessee, to wit: 1) TRC was a wholly-owned subsidiary of Wedge; 2) Wedge was not a mere passive owner of TRC; rather, it was actively involved in TRC's management; 3) Wedge had entered into an agreement with TRC, under which it shared income tax liability with the TRC; 4) Wedge officers had participated in negotiations with TRC and the plaintiff; and 5) Wedge had entered into an agreement with TRC and the plaintiff, and the contract was executed in Tennessee. Thus, the parent company's own actions and the actions of its subsidiary, over which it exhibited management control, were sufficient to subject it to the personal jurisdiction of courts within Tennessee.
Although a parent company may, under certain circumstances, be subject to personal jurisdiction based on the contacts of its subsidiary, this Court has found few cases that have addressed whether the converse is true, namely whether a subsidiary may be subject to personal jurisdiction based on the contacts of its parent corporation. The few federal courts that have done so have required a fictitious or agency relationship between the parent and the subsidiary. Blount v. Peerless Chemicals (P.R.), Inc., 316 F.2d 695 (2d Cir.1963). Some courts have applied a stricter standard, concluding that "where a foreign subsidiary and a local parent have failed to maintain separate corporate identities, there is no personal jurisdiction over the foreign subsidiary without a showing that the subsidiary was `present' in the forum through its direction and manipulation of local parental activities." Henry v. Offshore Drilling (W.A.) Pty., Ltd., 331 F. Supp. 340, 343 (E.D.La.1971); Turan v. Universal Plan Inv. Ltd., 70 F. Supp. 2d 671, 675 (E.D.La.1999) ("Holding a subsidiary responsible for the corporate activities of its parent corporation would offend `traditional notions of fair play and substantial justice'[,] because a subsidiary would be liable for activities for which they were not responsible in locations in which they lack meaningful contacts.")
Assuming that this Court should apply herein the same standard that the Sixth Circuit has employed when determining whether a court may exercise personal jurisdiction over a parent company based on the contacts of its subsidiary (as opposed to the stricter standard adopted in the Eastern District of Louisiana), Plaintiffs have not provided evidence to support a prima facie case that personal jurisdiction over Ryder Canada is proper, based on the contacts of its parent company. In support of its argument, Plaintiffs have attached excerpts from the deposition testimony of Mr. Samuel Tanner, a representative of Navistar. In addressing Ryder Canada's corporate structure, Mr. Tanner *925 stated that he believed that Ryder Canada has an American parent corporation, located in Miami, Florida (Pls' Ex. 5 at 36). Mr. Tanner further indicated that he has been told by the Canadian General Manager that he reports to people in the United States (Pls' Ex. 5 at 37). According to affidavit of Mr. Robenalt, counsel for Plaintiffs, counsel for Ryder Canada confirmed that the company is, in fact, a wholly-owned subsidiary of Ryder Transportation Services, located in Florida (Pls' Ex. 4 ¶ 9).
In addition to the above-mentioned evidence, Plaintiffs have also provided an affidavit from attorney Kimberly A. Coleman (Pls' Ex. 6). In that document, she states that on September 27, 2000, she contacted Ryder Truck Rental at the telephone number 1-800-463-9337, which appears in the Ameritech Yellow Pages for Cleveland, Ohio. She questioned the Ryder Truck Rental representative as to whether she could rent a truck in the Province of Alberta, Canada. Ms. Coleman was provided two toll-free telephone numbers, one to rent a truck for consumer purposes and the other to rent a truck for commercial purposes. She was further informed that the two numbers applied to any rentals in the United States or Canada.
As a threshold matter, for Ryder Canada to be subject to general jurisdiction based on its parent company's contacts, Plaintiffs must present evidence that Ryder Transportation Services is subject to general jurisdiction in Ohio (again, assuming, arguendo, general jurisdiction to be permissible in this forum). Plaintiffs' only evidence in this regard is the affidavit of Ms. Coleman regarding her ability to obtain truck rental information for Canada, upon calling a toll-free telephone number, which was listed in Ohio. Numerous courts to address the issue have held that toll-free telephone listings, without more, are insufficient contacts upon which to subject a company to suit. See, e.g., Rothschild Berry Farm v. Serendipity Group LLC, 84 F. Supp. 2d 904 (S.D.Ohio 1999)(Rice, J.), citing Estate of Poole v. Grosser, 134 Ohio App. 3d 386, 731 N.E.2d 226, 1999 WL 420059 (1999)(advertising in an Ohio telephone directory does not constitute a persistent course of conduct within this state); Bradley v. Mayo Foundation, 1999 WL 1032806 (E.D.Ky. Aug.10, 1999)(maintenance of 51 toll-free telephone lines and two internet web sites should not subject the defendant to personal jurisdiction). Accordingly, Plaintiffs have not submitted any evidence from which the Court may conclude that it may exercise general jurisdiction over Ryder Transportation Services and, through that company, Ryder Canada.[5]
Even if the Court could conclude that Ryder Transportation Services was subject to this Court's general personal jurisdiction, the fact that Ryder Canada is a wholly-owned subsidiary of Ryder Transportation Services does not, by itself, subject Ryder Canada to the jurisdiction of this Court based its parent company's contacts in Ohio. Although Mr. Tanner has stated that the Canadian General Manager of Ryder Canada reports to people in the United States (Pls' Ex. 5 at 37), this evidence is insufficient to suggest that Ryder Transportation Services directed and managed Ryder Canada's operations, such that the Court could conclude that Ryder Transportation Services exercised undue control over Ryder Canada, or that the corporate separation between the companies is fictitious. Moreover, Ms. Coleman's statement that she was provided two tollfree *926 telephone numbers, which she could call to rent a truck anywhere in the United States or Canada, is insufficient for this Court to conclude that Ryder Canada was an agent of its parent company (or vice versa), and was held out to the public as such. Accordingly, even if Ohio permitted the exercise of general jurisdiction, Plaintiffs have not presented evidence that Ryder Transportation Services has "continuous and systematic" contacts with Ohio, thus allowing personal jurisdiction over it on the basis of general jurisdiction. In addition, Plaintiffs have failed to present evidence that the relationship between that company and Ryder Canada is such that this Court could exercise personal jurisdiction over Ryder Canada, based on the contacts of its parent company. Because the Court may not exercise general jurisdiction over Ryder Canada, the Court now turns to whether that Defendant is subject to suit in this forum, based on specific jurisdiction.
B. Specific Jurisdiction
The Sixth Circuit has established a three-part test for determining whether a court can exercise specific personal jurisdiction over a nonresident defendant. Southern Machine Co., 401 F.2d at 381; Nationwide, 91 F.3d at 794. First, "the defendant must purposefully avail himself of the privilege of conducting activities within the forum state." This requirement ensures that defendants are not subjected to jurisdiction based solely upon random or attenuated contacts, or the unilateral activity of another party. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). "Jurisdiction is proper under the purposeful availment requirement where `the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum state.'" Reynolds v. International Amateur Athletic Fed'n, 23 F.3d 1110, 1116 (6th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 423, 130 L. Ed. 2d 338 (1994)(quoting Burger King, 471 U.S. at 475, 105 S. Ct. 2174). The mere fact that a defendant entered into a contract with the plaintiff in the forum state does not constitute purposeful availment. Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147 (6th Cir.1997). "[T]he defendant's conduct and connection with the forum must be of a character that he or she `should reasonably anticipate being haled into court there.'" Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)).
Second, "the cause of action must arise from the defendant's activities there." Third, the acts by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant fundamentally fair. Southern Machine Co., 401 F.2d at 381. When a court finds that a defendant has purposefully availed itself of the privilege of conducting activities within Ohio and the cause of action arose from that contact, it is presumed that the assertion of personal jurisdiction is proper. Cole, 133 F.3d 433; see American Greetings Corp., 839 F.2d at 1170 (when first two elements met, an inference arises that the third is also met). A court must consider several factors in this context, including "the burden on the defendant, the interest of the forum state, the plaintiff's interest in obtaining relief, and the interest of other states in securing the most efficient resolution of controversies." American Greetings Corp., 839 F.2d at 1169-70.
In their Complaint, Plaintiffs have not alleged any facts which would support a prima facie case of specific personal jurisdiction over Ryder Canada. In *927 addition, they have neither argued in their memorandum nor provided evidence to support a prima facie showing that the exercise of specific jurisdiction over Ryder Canada is proper. There is no evidence that Ryder Canada reached out to Ohio to conduct business. The fact that reservations for vehicles in Canada could be made via a telephone call from Ohio is insufficient to support a finding that Ryder Canada purposefully availed itself of the privilege of conducting business in Ohio. See Rothschild, supra. Moreover, this litigation arises from the failure of a vehicle which, although manufactured in Ohio, was purchased by Ryder Canada from Navistar International Corporation Canada.[6] The fact that Navistar might have sent the truck directly from its Springfield, Ohio, facility to Ryder Canada's agents in Canada does not cause this litigation to arise from any actions of Ryder Canada in Ohio.[7] In addition, given the accident's location in Alberta, that all of Ryder Canada's service to the vehicle occurred in Alberta, and the lack of evidence to support showings that Ryder Canada purposefully availed itself of the privilege of conducting business in Ohio and that this action arises out of Defendant's conduct in Ohio, the Court concludes that the exercise of specific personal jurisdiction would violated fundamental fairness. In summary, Plaintiffs have failed in their burden of making a prima facie showing that the Court may exercise specific personal jurisdiction over Ryder Canada. Accordingly, Defendant's Motion to Dismiss, for lack of personal jurisdiction (Doc. # 24), must be SUSTAINED.
For the foregoing reasons, Ryder Canada's Motion to Dismiss, for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2) (Doc. # 24), is SUSTAINED.
NOTES
[1] The following facts are taken from Plaintiffs' Amended Complaint (Doc. # 13).
[2] The Complaint states that the WCB has provided workers' compensation benefits to MacDonald, including, but not limited to, medical expenses in excess of $500,000, and that it is subrogated to MacDonald's rights, pursuant to section 17 of the Workers' Compensation Act of Canada.
[3] Plaintiffs indicate that they dismissed these Defendants, based on representations by counsel for Ryder Canada that it was the only entity involved with the subject vehicle and, therefore, Ryder Canada was the only proper Defendant in this action.
[4] It is axiomatic that the use of materials outside the pleadings, in ruling on a motion to dismiss for alleged lack of in personam jurisdiction, is permissible and does not convert the motion into one directed to the merits of the litigation, i.e., one for summary judgment.
[5] Plaintiffs have not submitted any additional evidence which indicate the nature and extent of Ryder Transportation Services' contacts with the State of Ohio.
[6] Although Plaintiffs state in their memorandum that Ryder Canada purchased the subject vehicle from Navistar in Ohio (Doc. # 29 at 12), the evidence from both parties contradict that assertion. Both Mr. Mealia and Mr. Tanner state that the vehicle was sold to Ryder Canada from Navistar in Canada. See Pls' Ex. 5 at 17(stating that the vehicle at issue in this litigation was manufactured by Navistar International Transportation Corporation, and it was then sold to Navistar International Corporation Canada, a wholly-owned subsidiary of Navistar International Transportation Corporation); Def's Ex. 1 ¶ 4 (Ryder Canada ordered the truck from Navistar International Transportation Company in Ontario, Canada). Thus, it is undisputed that the vehicle, although manufactured in Ohio, was purchased by Ryder Canada from Navistar's Canadian subsidiary.
[7] Mr. Tanner indicated that the truck was likely sent directly from Springfield, Ohio, to Coaldale, Alberta, Canada, to a company named Intercontinental Truck Body Ltd (id. at 26), which Plaintiffs asserts was an agent of Ryder Canada. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1232748/ | 577 F.3d 415 (2009)
Michele OKIN, Plaintiff-Appellant,
v.
VILLAGE OF CORNWALL-ON-HUDSON POLICE DEPARTMENT, Town of Cornwall Police Department, Rusty O'Dell, Thomas Douglas IV, Michael *416 Lug, Paul Weber, Charles Williams and Edward Manion, all sued in their individual capacities, and Roy Sears, Defendants-Appellees.
Docket No. 06-5142-cv.
United States Court of Appeals, Second Circuit.
Argued: April 28, 2008.
Decided: August 18, 2009.
*419 Michael H. Sussman, Goshen, NY, for Plaintiff-Appellant.
Matthew P. Ross, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Jamie R. Wozman, on the brief) for Defendants-Appellees Village of Cornwall-on-Hudson Police Department, Thomas Douglas IV, Michael Lug, Paul Weber and Charles Williams.
Edward Lammers, Stecich Murphy & Lammers, LLP, Tarrytown, N.Y. (Marianne Stecich, on the brief) for Defendants-Appellees Town of Cornwall Police Department, Rusty O'Dell and Edward Manion.
Before: STRAUB and POOLER, Circuit Judges.[*]
POOLER, Circuit Judge:
Michele Okin appeals from a decision and order of the United States District Court for the Southern District of New York (Colleen McMahon, Judge), entered October 26, 2006, granting defendants' motion for summary judgment. The district court dismissed, as to all moving defendants, Okin's claims that her Fourteenth Amendment rights to due process and equal protection had been violated.
We affirm the grant of summary judgment as to defendants Town of Cornwall,[1] Rusty O'Dell, and Edward Manion. As to Thomas Douglas IV, Michael Lug, Paul Weber, and Charles Williams, we affirm the grant of summary judgment on Okin's equal protection claims. But, with regard to her due process claims, we hold that the conduct of Douglas, Lug, Weber, and Williams raises a genuine issue of material fact as to whether they implicitly but affirmatively sanctioned abuse of Okin by Roy Sears, and that those defendants, if found liable, would not be entitled to qualified immunity. We therefore reverse the grant of summary judgment on the due process claims. Moreover, we reverse the district court's dismissal of Okin's municipal liability claims against the Village of Cornwall-on-Hudson, as Okin raises a genuine issue of material fact as to whether the Village's failure to train its police officers adequately, or the policies and customs that it has sanctioned, caused the individual defendants to violate Okin's due process rights.
BACKGROUND
Plaintiff-appellant Michele Okin began a relationship with Roy Charles Sears in 1999.[2] Okin and Sears moved in together, *420 living in a house owned by Sears at 11 Taft Place, in the Village of Cornwall-on-Hudson, New York. They are the parents of twin children, born in May 2001. In the same year, according to Okin, Sears began to abuse her physically. Okin alleges that Sears was well known to local police officers with whom he socialized at a tavern of which he was part owner, the Leprechaun Inn, and she claims that Sears often bragged that he could get away with what he wanted in Cornwall.
According to Okin, Sears injured both her hands in October 2001, fracturing bones in her left hand and right index finger. She did not report this incident to the police and, according to her Affidavit in Opposition to Defendants' Motion for Summary Judgment, she begged her primary care physician "not [to] tell anyone or record this on her records" because she "was in fear of [her] life and felt Sears was beyond the law."
Thereafter, however, Okin repeatedly called for police assistance. Nevertheless, neither the Village of Cornwall-on-Hudson Police Department nor the Town of Cornwall Police Department[3] arrested Sears or interviewed him at any length regarding Okin's allegations of abuse. Only one domestic incident report was filed.
The first reported violence occurred on December 23, 2001. Okin called 911 following an incident in which, according to Okin, Sears grabbed her neck and started to choke her. Okin testified at a deposition that she placed three calls to the dispatcher before Village of Cornwall-on-Hudson Police arrived at 11 Taft Place. Okin said to defendant Thomas Douglas IV, a Village of Cornwall-on-Hudson Police officer, "Can you please tell Roy to stop beating me. That is all I want." In her bedroom, Okin showed Douglas bruises on her legs, which, according to Douglas's incident report, "looked very old and in the process of healing." At her deposition, Okin could not recall exactly when she sustained the leg injuries, but testified that Sears was at that time "hitting [her] every single day."
According to Douglas's incident report, Okin said that Sears had told her that he had had a conversation with defendant Charles Williams, the Village of Cornwall-on-Hudson Police Chief, in which Sears told Williams that he could not "help it sometimes when he smacks Michele Okin around" and that Okin was "a terrible mother and should have an order of protection against her own kids." According to Douglas, Okin said that she then tried to call the police, but that Sears stopped her by grabbing her neck. Douglas added that he did not "observe any redness nor markings around her neck." He also added that Okin "couldn't keep still and her mental status was very awkward," and that she told him she was "a manic depressant [sic] and also has panic attacks, and sees a psychiatrist." According to Douglas, Okin repeatedly said she did not want to press charges and left the bedroom despite his request that she stay in the bedroom while he spoke separately with Sears.
Defendant Edward Manion, a Town of Cornwall police officer, arrived in a backup capacity. Okin also showed him the bruises on her legs. According to Manion, Sears denied inflicting the bruises. At his deposition, Manion testified that he too believed they were "old" bruises, and that this was the reason he did not arrest Sears, suggesting that he believed that *421 immediate arrest was mandatory only if the injury was very recent. He and Douglas did not discuss the bruises or the possibility of arresting Sears.
Holding one of the infants, Okin said "I better stop the kid from crying or I am going to get beat." According to Douglas, he and Manion told Okin that "if she is being assaulted she needs to call the police then, not days or weeks later." Okin, however, recalls that she retorted that Sears had that very day thrown a baby's bottle at her and one of their children and had tried to choke her.
Douglas further reported that, when Okin heard Sears getting ready to leave the house with the children, she said, "Roy is going to take the kids and never come home" and that she wanted to press charges. According to Douglas, Manion told Okin "what she needed to do in order to press charges," but "in the middle of describing the procedure to Michele, she just walked away" and joined Sears outside, before coming back inside and saying she did not want to press charges. Okin was "given a domestic incident report, and advised about [a telephone] help number to call for counseling." Meanwhile, Sears announced that Okin was on medication that made her sleep and that she therefore could not take care of the children. Douglas concluded that no offense had been committed.
Douglas prepared a domestic incident report, which Okin signed. The domestic incident report indicates by check-mark that the "[c]ircumstances of [t]his [c]ase" included "[f]orcible [r]estraint," "[g]rabbing" and "[t]hrowing [i]tems." The report states, among other things, that Okin alleged that she had been beaten by Sears and was afraid that her children would be too, that Okin was "on medication," and that she "refused to sign charges." Okin claims that, at the time she signed the report, it did not indicate that she did not want to press charges. Douglas wrote "[b]ruises" next to the box for "[i]njuries" on the domestic incident report, but he did not interview Sears about the bruises. Indeed, Okin, disturbingly, alleges that, to the extent that the officers talked with Sears, it was about football. Moreover, according to Okin, the officers were "very derogatory" toward her when she said she wanted to press charges, and this was why she walked away from them.[4] Sears was not arrested.
According to Okin, on January 1, 2002, she called the police to report that Sears was beating her. Defendant Paul Weber, a Village of Cornwall-on-Hudson Police Department sergeant, responded to 11 Taft Place, but made no written report and according to Okin, laughed at her for making the complaint. Around this time, Sears moved out of 11 Taft Place and took up residence at a Days Inn motel, in nearby New Windsor.
On February 8, 2002, Okin again called the police for assistance. Nonparty police officer John Pena responded, and found an angry Sears at 11 Taft Place. Sears told Pena that Okin had "removed $105,000.00 from his personal checking account" without his consent. Sears said he had come to the house to retrieve his check books. Police Chief Williams and nonparty police officer Jill Nye arrived, and Williams asked Sears to follow him to headquarters in order to provide further information. Sears spent about an hour in Police Chief Williams's office, as the police chief tried to assess "[t]he validity and substance" of Sears's complaint.
Meanwhile, at 11 Taft Place, according to police officer Nye's report, Okin "appeared to be distraught and confused *422 [about] the reason [the police officers] were there. Several attempts were made to convey the facts. Ms. Okin repeatedly brought up prior incidents related to domestic violence." During their conversation, Okin admitted taking the $105,000, but insisted Sears had given her permission to remove the money for their children. Nye reported that "Ms. Okin made several attempts to show signs of abuse," but that she, Nye, "did not observe any markings on her person." Nye also noted that Police Chief Williams advised Sears to stay away from 11 Taft Place.
On March 8, 2002, Sergeant Weber responded to 11 Taft Place after a 911 call from Okin reporting a stabbing. Okin told the dispatcher that Sears had "pushed her around" and that she was afraid that he would hurt her when he returned to the house. According to Weber's incident report, Okin did not answer the door until he got the dispatcher to call Okin back, and did not seem upset when she appeared at the door. Okin denies this.
Weber's incident report appears internally inconsistent on its face. The report states both that Weber learned that "no assault had occurred and no stabbing had occurred" and that Okin told him that Sears had assaulted her the previous night at the Days Inn in New Windsor. At his deposition, Weber explained the inconsistency by saying that Okin was complaining that she had been stabbed in her feet but, when he asked to see the wounds, she took her shoes off and there were no visible injuries. Okin's March 25, 2006 Affidavit in Opposition to Defendants' Motions for Summary Judgment states that she showed Weber stab wounds on her feet, but her Reply to Village Defendants' Local Rule 56.1 Statement, also dated March 25, 2006, "denies that she showed Weber her feet or that she claimed to be stabbed that evening in conversation with him."
Weber, after noting that he had told Okin that the New Windsor matter was outside his jurisdiction, added the following comments about Okin to his incident report:
As she was ranting about the police "refusing" to help her (even though she is an attorney and should understand jurisdiction more than anybody), she began complaining about "Officer Weber" and that he blatantly refused to entertain her complaint on one of the previous occassions [sic] that she called and the police responded to her house. This is the first that I have been to her residence to handle any such complaint. She is obviously confused.
He then added, "It should also be noted that the interior of the house appears to be in disorder. It is unknown if she is able to maintain the residence."[5]
At her deposition, Okin testified that she had asked Weber to arrest Sears on this occasion, and that he had refused. Although Weber filed a general incident report, he did not file a domestic incident report. Nor did he notify Okin that she could initiate a civilian arrest.
On March 25, 2002, Okin called 911 and requested to speak with an officer. Nonparty police officer Arthur Terwilliger called Okin back, and Okin told Terwilliger that Sears had threatened to damage 11 Taft Place and to kill her, and that he was at the Days Inn in New Windsor. Terwilliger asked Okin if she wanted to sign a complaint, but she refused, saying "No, that is going to make the situation worse." Terwilliger asked Okin for descriptions of Sears's cars and promised to patrol the *423 Taft Place area frequently that evening. No domestic incident report was filed. At his deposition, Terwilliger testified that he had had no specific training on handling a situation in which a threat victim says that filing a complaint will just make things worse.
On the same day, Pam Cobey, an employee of Okin's, reported to the Village of Cornwall-on-Hudson Police Department that someone had left a post-it note in Okin's office mailbox that read "M.O. [Michelle Okin] Sleep with one [eye] open at night." Cobey brought the post-it note to the police.
Late that night, March 25, 2002, Okin called 911, reporting a prowler outside 11 Taft Place. She told the Cornwall-on-Hudson dispatcher about the death threat from Sears and about the post-it note, which she identified as being in Sears's handwriting. Again, Sergeant Weber was dispatched to the house but, on learning which officer had been sent, Okin told the dispatcher she did not want Weber to respond.
Weber writes that he "responded anyway and checked the exterior of the residence. No problems." Weber adds,
After returning back to police HQ, the phone rang. It was Ms. Okin. The first thing she was advised of was that whatever problem she had with me, she was obviously confusing me with another officer. She apologized. She then went on complaining that the police never do anything when she calls. After a lengthy conversation, she was advised that if she wanted to pursue charges on any complaint that she has that she would have to respond to police HQ just like anyone else. She continued to complain about Roy Sears and I advised her again that if he is so violent towards her, it would obviously be in her best interest to stay away from him. She was also advised that if she felt threatened just knowing that Roy is around, ... she could pursue the matter in family court and try to seek an order of protection. She refused to try and pursue it.
No domestic incident report was completed.
Okin called the police again, on April 12, 2002, very distraught, and complained that Sears was stalking her, outside 11 Taft Place. Nonparty police officer Charles Hofmann responded and checked the area around the house, finding no suspicious activity. Again, the police did not interview Sears.
On May 12, 2002, Okin went to see Sears at the Days Inn, where he was residing, and the two quarreled. They then returned together (albeit in separate cars) to 11 Taft Place. There, they quarreled again, and, according to Okin, Sears kicked Okin in the leg. At some point, Sears turned off the power in the house. A neighbor, Barbara Corwin, heard the commotion and saw Sears and Okin "burst out of the door from the house into the garage ... yelling at each other." The shouting match in the garage lasted for several minutes. However, Corwin did not see Sears strike Okin. Feeling that the situation was nonetheless "threatening-looking," Corwin called 911 and defendant Michael Lug, a Village of Cornwall-on-Hudson police officer, was dispatched to 11 Taft Place. By the time he arrived, Sears had left.
Lug found Okin outside the house. Okin told him she had fallen and was in pain. She also said that Sears had "cut the power and the phone lines." Lug discovered that the house's master circuit breaker had been switched off, but restored the electricity and found the phones in working order. Okin told Lug that Sears had kicked her leg, punched her, and slapped her, and that she would go to her doctor the next day to find out if her *424 leg was broken. She said that Sears had asked her, "Are you going to [the] police, bitch?" Lug told Okin he was going to "complete a report," and he notes that she said, "I'm not going to sign it." But Okin insists that she did not say this. Lug filed no domestic incident report, did not arrest or interview Sears, and did not advise Okin that she could initiate a civilian's arrest. The incident report gives "0" as the number of victims and as the number of suspects. Lug also did not interview Corwin, the neighbor.
Okin claims that, on May 13, 2002, Sears pinched her on the back while the two were at his attorney's office, in Cornwall, and raised his hand to her in the lawyer's presence. She called the police, and nonparty police officer Jill Nye went to 11 Taft Place. Nye informed Okin that she would have to contact the Town of Cornwall police, since the incident at the lawyer's office had occurred in the Town of Cornwall, not the Village. Nevertheless, officer Nye did look at Okin's back. She reports that she did not see "any marks resembling bruising or injury." Nye asked Okin if she would like medical attention, and notes that Okin declined.
On May 19, 2002, Okin called the police regarding an incident that had occurred the previous day. Sergeant Weber responded to 11 Taft Place, and Okin told him that Sears had come to the house, threatened to shoot her, and threatened to report her to child protective services. According to Weber, he "asked Okin if she wanted to pursue the `shooting threat' and she said no, she was more concerned with the cps [child protective services] threat." Okin strongly denies saying she did not want to pursue the shooting threat or have Sears arrested.
Weber's report states that Okin "then started going off on tangents about subjects like Sears leaving the garage door open and her broken hands. I advised her that those aren't issues that the police can handle." Weber's report notes that "[i]t is unknown why [Okin] didn't call the police when the incident occurred but instead elected to wait until the next day to report it." The incident report gives "0" as the number of victims and as the number of suspects. Weber again did not file a domestic incident report. Sears was not interviewed about the threat.
On June 3, 2002, Okin called the police, saying that she wanted a report taken. When nonparty John Pena, a Village of Cornwall-on-Hudson Police Department police officer, arrived at 11 Taft Place, Okin reported that appliances in her house microwave, water heater, garage door were breaking and light bulbs needed replacing, and that Sears was responsible. Okin also told Pena that Sears had told her that he had thrown rocks at 11 Taft Place. Finally, she reported that she had found two boxes of her jewelry in Sears's car. Pena filed an incident report.[6]
On November 2, 2002, Okin again contacted the police. Nonparty police officer Arthur Terwilliger and another officer responded. Okin complained to Terwilliger that, two days previously, she had returned home to find "the door slightly open" and its lock malfunctioning. Terwilliger asked her if anything was missing, and she responded that she had not had time to check yet. Terwilliger advised Okin to call the Village Police Department if she noticed anything missing "and also next time to call [the Police] department as soon as an incident happens."
*425 On November 15, 2002, Okin called the police and spoke with nonparty Christopher Park, a Village of Cornwall-on-Hudson Police Department police officer. Okin was afraid that Sears was going to evict her from 11 Taft Place. Park informed Okin that she should pursue the matter in civil court. She said she was going to get an order of protection. A few minutes later, officer Park received a call from Sears himself, and Park told Sears as well that eviction was a matter for the civil authorities. On November 18, 2002, a similar conversation played out between Park and Sears in person.
On November 15, 2002, Okin, on her way to get an order of protection against Sears, spoke with defendant Rusty O'Dell, the Town of Cornwall Police Chief, telling him that the Village of Cornwall-on-Hudson police had failed to protect her or follow up on her domestic violence complaints. O'Dell promised that this would not happen on his watch, and discussed with Okin the possibility of her getting an order of protection. Okin then successfully brought a petition in Orange County Family Court seeking an order of protection.
On January 16, 2003, Okin called the police with a report that a rental car had been stolen from her driveway. Sergeant Weber responded, finding Okin at 11 Taft Place along with a friend, Patrick Coviello. Weber reports that he tried to get information concerning the missing vehicle, but that Okin "continued to go off on tangents." Weber says he told Okin that he was not there "in reference to all of the other non-relevant information" and that she should focus on the missing car matter, to which Coviello retorted, "She is trying to explain it to you!" Weber recalls that Coviello then said to Okin that they should call the State Police "as if this officer wasn't capable of handling the complaint." Weber adds that "in trying to avoid a confrontation, [he] put [his] pen away and stated, `Then call the state police.'" Weber then left the residence and noted that the state police handled the matter.
On January 20, 2003, Okin's employee Rhonda Fall thought she saw Sears parked in a sports-utility vehicle across the road from Okin's office, and then saw him drive off fast. After talking with Fall, Okin called the police again. Police officer Terwilliger responded. Terwilliger took a statement from Fall, and advised Okin that the Village Police Department would "bring this information before the judge to see if we have enough to pursue the matter."
Okin also called the State Police, who then spoke with Sergeant Weber. Weber wrote:
It appears that Ms. Okin is engaging in a sort of forum shopping wherein she calls agency after agency until she finds one that will pursue her complaints (usually against Mr[.] Sears). ... It is unknown at this time what motive she has for claiming Mr[.] Sears as the `suspect' in every negative event (both reported and unreported) that occurs in her life. As for this latest complaint, the witness in this case [i.e. Fall] does not know Roy Sears and, after being interviewed by Officer Terwilliger, she stated only that it "appeared" to be him ... from a photo later shown to her by Ms. Okin. The witnesses [sic] only other evidence is that there was a "fat man" sitting in a white SUV. That is not enough probable cause to arrest Mr. Sears.
On March 13, 2003, Sears and Okin appeared in Town of Cornwall Justice Court in regard to an eviction action brought by Sears against Okin with respect to 11 Taft Place. According to Okin, Sears threatened both her and her attorney on this occasion, saying that he was going to "get *426 her outside." At his deposition, Okin's attorney testified that Sears threatened him, telling him that he was going to "get" him.
That evening, Okin and her friend Patrick Coviello called the police to report Sears's threats. The Village of Cornwall-on-Hudson Police Department told them the matter was not within its jurisdiction. Okin and Coviello then went to the Town of Cornwall Police Department and showed defendant police officer Manion the order of protection and told him about Sears's threats. The Town Police Department refused to arrest Sears or, as Manion recalled, refused to arrest him that night. Manion wrote up an incident report.
The following day, Okin called Town of Cornwall Police Chief O'Dell to discuss the courtroom incident. O'Dell followed up by calling the Clerk of the Town of Cornwall Justice Court, Lynn Tucci, who told him that she had not seen any harassment of Okin by Sears, although Sears was "disorderly" with the Town Justice in court. O'Dell reported that he left three messages for Coviello,[7] but that Coviello did not return his calls. A month later, O'Dell asked the Town Justice about the incident, and the latter could recall nothing.
Okin filed a 42 U.S.C. § 1983 action, on May 14, 2004, in the Southern District of New York, alleging violations of her federal Due Process and Equal Protection rights by individual officers of the Town of Cornwall and Village of Cornwall-on-Hudson police departments, and by the police departments themselves. By failing to arrest or even interview Sears, Okin alleges that defendants endangered her by emboldening Sears. Okin also alleges that defendants "acted in concert with Sears," that they failed to respond effectively to her repeated complaints about Sears because he "had significant personal relationships with ranking members of [the Village and Town] police departments and made financial contributions to or at the behest of the Town Police Department,"[8] and that defendants' dismissive and inappropriate behavior which was witnessed by Sears affirmatively increased the danger she faced. The defendants filed a summary judgment motion, the individual officers moving for summary judgment on the grounds of qualified immunity.
The district court first considered Okin's claim based on the state-created danger theory that defendants violated her rights under the Due Process Clause. The district court summarized the state-created danger theory as requiring that "a plaintiff... show some contact between the defendant police officers and the private wrongdoer through which explicit or implicit sanction [of violence] was communicated." *427 Okin, 2006 U.S. Dist. LEXIS 75881, at *44, 2006 WL 2997296, at * 16. The district court remarked
[T]he court cannot help but observe that, even if I were to view the officers' version of events as true (which I cannot, for purposes of this motion), their conduct in the face of Okin's complaints ranges from insensitive to incomprehensible, and evidences either a lack of training or a lack of comprehension about the realities of domestic violence.
. . .
Viewed in the light most favorable to the plaintiff, the evidence shows that she complained repeatedly about domestic violence over a fifteen-month period, and that moving defendants repeatedly treated her with indifference or disdain, failed to advise her of her rights as a domestic violence victim or even to characterize the incidents as domestic violence.
Okin, 2006 U.S. Dist. LEXIS 75881, at *35, 45, 2006 WL 2997296, at *13, 16.
The district court nonetheless granted summary judgment to defendants on Okin's due process claims. The district court ruled that a reasonable jury could not find an "explicit facilitation violation on the most plaintiff-favorable view of the facts of this case." Okin, 2006 U.S. Dist. LEXIS 75881, at *44-45, 2006 WL 2997296, at *16. As to implicitly sanctioned violence, the district court found that "the individual defendants here ... would be entitled to qualified immunity, even if they implicitly facilitated Sears' abuse by not arresting him or closing out Okin's numerous complaints almost as soon as they were opened." Okin, 2006 U.S. Dist. LEXIS 75881, at *49, 2006 WL 2997296, at *17. The district court also granted summary judgment to defendants as to Okin's claims for violations of the Equal Protection Clause and for municipal liability. Okin, 2006 U.S. Dist. LEXIS 75881, at *66-70, 2006 WL 2997296, at *23-24. Okin timely appealed.
STANDARD OF REVIEW
"A district court's grant of a summary judgment motion is subject to de novo review. All evidence submitted on the motion is to be construed in the manner most favorable to the nonmoving party." Horvath, 362 F.3d at 151 (citation omitted). Summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
DISCUSSION
I. Okin's Due Process Claims
Okin alleges that defendants "acted in concert with defendant Sears and permitted him to impose his reign of terror and abuse upon [her], in violation of her right to due process," by failing to acknowledge and to investigate her complaints against Sears even where he had admitted to Police Chief Williams that "he smacked Okin around and could not stop himself from behaving in this manner," failing to report her complaints accurately, failing to provide her reasonable police protections, and otherwise failing to discharge their duties as law enforcement agents. More specifically, Okin asserts that, by expressing contempt toward her and by condoning Sears's conduct, in particular by such actions as discussing sports with him following Okin's December 23, 2001 emergency call, defendants gave official sanction to Sears's abuse and affirmatively contributed to her vulnerability.
A. The State-Created Danger Doctrine
Although "[a]s a general matter... a State's failure to protect an individual *428 against private violence simply does not constitute a violation of the Due Process Clause," DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), state actors may be liable under section 1983 if they affirmatively created or enhanced the danger of private violence. Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir.1993), overruled on other grounds by Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). "[T]hough an allegation simply that police officers had failed to act upon reports of past violence would not implicate the victim's rights under the Due Process clause, an allegation that the officers in some way had assisted in creating or increasing the danger to the victim would indeed implicate those rights." Dwares, 985 F.2d at 99.
In Dwares, we vacated a district court's Federal Rule of Civil Procedure 12(b)(6) dismissal of the Section 1983 claims of a demonstrator who alleged he had been beaten by skinheads. The plaintiff alleged that defendant police officers had assured the skinheads that "unless they got completely out of control the police would neither interfere with their assaults nor arrest them," thus indicating that they could assault the demonstrators. Id. at 97. As Judge Kearse put it, "[i]t requires no stretch to infer that such prior assurances would have increased the likelihood that the `skinheads' would assault demonstrators." Id. at 99. The plaintiff also "alleged that the officers had in effect aided and abetted the deprivation of [his] civil rights by allowing him to be subjected to the prolonged assault in their presence without interfering with the attack." Id. Based on the allegations that police officers communicated to private actors that they had the freedom to harm others without risk of a law enforcement response, we found that "[s]uch a prearranged official sanction of privately inflicted injury would surely have violated the victim's rights under the Due Process Clause." Id.
In later cases, we read Dwares to establish that the Due Process Clause may be violated when police officers' affirmative conduct as opposed to passive failures to act creates or increases the risk of private violence, and thereby enhances the danger to the victim. In Hemphill v. Schott, 141 F.3d 412 (2d Cir.1998), for example, we found a material issue of fact as to whether police officers encouraged a private actor's violence against the plaintiff, where the officers, who were called to the scene of a drugstore robbery, allowed the store's manager to join them in pursuit of the plaintiff after returning the manager's gun, which the manager then used to shoot the plaintiff. Id. at 418-19. As we summarized our holding in Dwares, "where the state actors actually contributed to the vulnerability of the plaintiff, or where the state actors aided and abetted a private party in the deprivation of a plaintiff's civil rights, a violation of the Due Process Clause does occur." Id. at 419.
Since Dwares, we found that repeated, sustained inaction by government officials, in the face of potential acts of violence, might constitute "prior assurances," Dwares, 985 F.2d at 99, rising to the level of an affirmative condoning of private violence, even if there is no explicit approval or encouragement. Pena v. DePrisco, 432 F.3d 98, 111 (2d Cir.2005). In Pena also a 12(b)(6) analysis we held that
when, as the plaintiffs allege, state officials communicate to a private person that he or she will not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others, those officials can be held liable under section 1983 for injury caused by the misconduct under Dwares. *429 This is so even though none of the defendants [is] alleged to have communicated the approval explicitly.
Pena, 432 F.3d at 111. We held that the Due Process Clause could be violated by police officers' implicit message that they condoned an off-duty officer's act of driving-while-intoxicated, where his drunken driving resulted in multiple deaths. Id. at 111 ("[T]o the extent that fellow police officers and some supervisors participated in or condoned [the off-duty police officer's] behavior, and even ... invited [the officer] to drive after drinking heavily, it could be inferred by a reasonable juror that those defendants, by their actions, implicitly but affirmatively condoned [the officer's] behavior and indicated to [the officer] that he would not be disciplined for his conduct.")
Here, we agree with the district court that Okin has failed to show a genuine issue of material fact as to whether defendants affirmatively enhanced the risk of violence by making explicit assurances to Sears that he could act with impunity. As the district court noted, even the most irresponsible and insulting behavior alleged by Okin, such as the officers' discussing sports with Sears on December 23, 2001, does not amount to explicit assurances to an aggressor that he will not be impeded or arrested. Yet, as is clear from Dwares, Hemphill, and Pena, explicit approval of violence is but a subset of the affirmative conduct by state actors that can enhance the danger to a victim. The affirmative conduct of a government official may give rise to an actionable due process violation if it communicates, explicitly or implicitly, official sanction of private violence. Pena, 432 F.3d at 111; Hemphill, 141 F.3d at 419; Dwares, 985 F.2d at 99.
The district court did not consider whether a reasonable trier of fact could find that defendants' behavior enhanced the danger to Okin by implicitly but affirmatively encouraging or condoning Sears's domestic violence. As will be discussed further below, the Pena court held that a state actor's implicit encouragement of drunk driving, while actionable misconduct under the state-created danger theory, was not a clearly established violation of the Due Process Clause at the time of the defendants' actions, so that under principles of qualified immunity, they could not be held individually liable. Pena, 432 F.3d at 102, 114-15. The district court, following Pena, found that "the individual defendants here just like the individual defendants in Pena would be entitled to qualified immunity, even if they implicitly facilitated Sears' abuse by not arresting him or closing out Okin's numerous complaints almost as soon as they were opened." Okin, 2006 U.S. Dist. LEXIS 75881, at *49, 2006 WL 2997296, at *17.
Although the district court did not address the question of whether defendants violated the Due Process Clause by implicit encouragement of Sears's domestic violence, the record is sufficient for us to rule on the issue.[9] Viewing the evidence in the light most favorable to Okin, we find *430 a genuine issue of material fact as to whether defendants implicitly but affirmatively encouraged Sears's domestic violence. A reasonable factfinder, as Okin argues, could infer that defendants' actions, such as discussing football with Sears during their response to Okin's complaint that he had beaten and tried to choke her, "plainly transmitted the message that what he did was permissible and would not cause him problems with authorities." Moreover, the evidence suggests that the defendants repeatedly communicated to Sears that his violence would go unpunished, as when Sears told Williams that he could not "help it sometimes when he smacks Michele Okin around" and Williams made no arrest, and also, on the numerous occasions that defendants responded to Okin's complaints without filing a domestic incident report, interviewing Sears, or making an arrest. A reasonable view of the evidence supports the inference that defendants' actions rise to the level of affirmative conduct that created or increased the risk of violence to the victim. Pena, 432 F.3d at 111; Dwares, 985 F.2d at 99.
The record demonstrates an escalating series of incidents that followed the officers' response to Okin's first complaint of domestic violence, where the officers and Sears had discussed sports, and the officers openly expressed camaraderie with Sears and contempt for Okin. The officers' conduct, both in response to that first complaint and thereafter, could be viewed as ratcheting up the threat of danger to Okin. See Hemphill, 141 F.3d at 419 (finding that a due process violation may occur if the defendants "actually contributed to the vulnerability of the plaintiff"); see also Koulta v. Merciez, 477 F.3d 442, 446 (6th Cir.2007) (explaining that the increased risk of violence turns on "whether [the victim] was safer before the state action than he was after it") (quotation marks omitted); Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1086 (9th Cir. 2000) (stating that officers' affirmative conduct endangers a victim if it "left the person in a situation that was more dangerous than the one in which they found him"). Okin would be more vulnerable once Sears was aware of the officers' dismissive and indifferent attitude toward Okin's complaints, as such awareness nullifies the deterrent capacity of police response. The implied message of the officers' conduct may have galvanized Sears to persist in violent encounters with Okin. A reasonable factfinder undoubtedly could conclude that defendants, by their affirmative conduct, enhanced the danger to Okin because they conveyed to Sears that he could continue to engage in domestic violence *431 with impunity, and that defendants thus violated Okin's due process rights.
B. State Action That "Shock[s] the Contemporary Conscience"
To establish a violation of substantive due process rights, a plaintiff must demonstrate that the state action was "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); see also Matican v. City of New York, 524 F.3d 151, 155, 158-59 (2d Cir.2008). Lewis declared that intentionally inflicted injuries are the "most likely to rise to the conscience-shocking level," 523 U.S. at 849, 118 S.Ct. 1708, that "negligently inflicted harm is categorically beneath the threshold of constitutional due process," id. at 849, 118 S.Ct. 1708, and that recklessly inflicted harms are context-dependent "closer calls." Id. In discussing the latter, the Court in Lewis noted that "[d]eliberate indifference that shocks in one environment may not be so patently egregious in another." Id. at 850, 118 S.Ct. 1708. The Court specifically distinguished the circumstances of a high-speed chase that tends to show the absence of conscience-shocking conduct from situations, as in the care of prison inmates, when the opportunity for deliberation is typically available. Id. at 851, 118 S.Ct. 1708; see also Matican, 524 F.3d at 158-59; Pena, 432 F.3d at 113.
In Pena, we found
that the alleged behavior of the ... defendants... over an extended period of time and in the face of action that presented obvious risk of severe consequences and extreme danger, falls within the realm of behavior that can properly be characterized as ... conscience shocking, in a constitutional sense. ... [I]f the plaintiffs' allegations are accurate, it was not only feasible, it was obligatory, for the defendants to avoid tacitly encouraging [drunk driving].
432 F.3d at 114 (quotation marks and citations omitted) (third ellipses in original). In Matican, on the other hand, we determined that the officers' use of force against a drug dealer during a sting operation, which may have revealed the identity of an informant who was later assaulted by the drug dealer, did not shock the conscience because the officers were faced with the "competing obligations" of protecting their safety and that of the informant. 524 F.3d at 159. Matican thus found that the officers' judgment was entitled to deference. Id.; see also Lewis, 523 U.S. at 853, 118 S.Ct. 1708.
We find the record in this case to support the conclusion that Okin raises a genuine issue of material fact as to whether the defendants' affirmative creation or enhancement of the risk of violence to Okin shocks the conscience. The serious and unique risks and concerns of a domestic violence situation are well known and well documented.[10] The officers' awareness *432 of the serious consequences of domestic violence is further supported by their training and their knowledge of New York law on domestic violence. To the extent that the police officers were not aware of the seriousness of domestic violence, this reflects a deficiency in the officers' training, an issue we discuss infra. Given that domestic violence is a known danger that the officers were prepared to address upon the expected occurrence of incidents, the officers who responded to Okin's complaints had ample time for reflection and for deciding what course of action to take in response to domestic violence. Cf. Lombardi v. Whitman, 485 F.3d 73, 83 (2d Cir.2007). This is a case where deliberate indifference is the requisite state of mind for showing that defendants' conduct shocks the conscience. See Lewis, 523 U.S. at 851, 118 S.Ct. 1708.
It requires no inferential leap, in light of what the officers must have known, for a reasonable factfinder to conclude that the officers' actions demonstrate a willful disregard of the obvious risks of a domestic violence situation, the serious implications of Okin's complaints over a fifteen-month period, and the likelihood that their misconduct would enhance the danger to Okin. See Pena, 432 F.3d at 114 (indicating that proof of "deliberate indifference" requires showing that the defendant "deliberately assumed or acquiesced in [the] risk" of unconstitutional conduct) (quotation marks omitted); see also Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (explaining, in the Eighth Amendment context, that a government official acts with "deliberate indifference" when he or she "knows of and disregards an excessive risk"). For the reasons already discussed, the officers' conduct is not necessarily attributable to a failure to appreciate the gravity of the situation, and thus cannot definitively be characterized as mere negligence. Neither can the officers' conduct in this case be explained away by "the pull[] of competing obligations," Lewis, 523 U.S. at 853, 118 S.Ct. 1708, as there is no indication that "equally important governmental responsibilities," id. at 852, 118 S.Ct. 1708 (quotation marks omitted), could justify an investigation that instead of mitigating the violence, actually may have contributed to increasing the risk. A reasonable factfinder, therefore, could find that the officers' affirmative creation or enhancement of the danger to Okin was the product of deliberate indifference.
C. Qualified Immunity
Having determined that Okin raises a genuine issue of material fact as to whether defendants violated her rights under the Due Process Clause, we now turn to whether defendants are entitled to qualified immunity. Government actors are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 *433 (1982). The principle of qualified immunity ensures "that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier, 533 U.S. at 206, 121 S.Ct. 2151. "If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. at 202, 121 S.Ct. 2151.
A police officer who has an objectively reasonable belief that his actions are lawful is entitled to qualified immunity. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id.
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (citation omitted); see also Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ("[T]he salient question ... is whether the state of the law [at the time of the incidents in question] gave respondents fair warning that their alleged treatment of [the victim] was unconstitutional."). The objective reasonableness test is met, and police officers will enjoy qualified immunity, if the question whether the officers would be violating rights is one on which "officers of reasonable competence could disagree." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). If, on the other hand, no officer of reasonable competence would conclude that the conduct in question is lawful, there is no immunity.[11]See Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir.1995).
We look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right. Moore v. Vega, 371 F.3d 110, 114 (2d Cir.2004). And, while it is clear that "[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision," see Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), we may examine statutory or administrative provisions in conjunction with *434 prevailing circuit or Supreme Court law to determine whether an individual had fair warning that his or her behavior would violate the victim's constitutional rights, see Hope, 536 U.S. at 741-45, 122 S.Ct. 2508 (finding that in light of binding circuit precedent, applicable state regulations, a Department of Justice report informing the state's department of corrections of the "constitutional infirmity" of handcuffing an inmate to a hitching post, and the "obvious cruelty inherent" in the practice, respondents had "fair and clear warning" that use of the hitching post in that case violated the victim's constitutional rights).
The issue in this case is whether defendants were on notice that their affirmative interactions with an individual accused of domestic violence, their failure to arrest the accused individual, and their disregard of established procedures for responding to domestic violence incidents, which were reasonably likely to encourage the accused individual to believe that he would not be arrested, punished, or otherwise interfered with while engaging in domestic violence, would contribute to the vulnerability of the complainant by emboldening her abuser, thereby giving rise to a substantive due process violation. Dwares gave notice of the rule that a police officer can violate a person's due process rights by affirmatively creating or increasing the risk of private violence against that person. 985 F.2d at 99. Viewing the evidence in favor of Okin, defendants engaged in a pattern of behavior that unmistakably communicated to Sears that should he intend to commit acts of violence against Okin, they would do nothing to stop him. This behavior is similar to that which gave rise to actionable due process claims in Dwares, the only difference being that the officers in Dwares explicitly told the skinheads that their violence would not be stopped, whereas the officers here implicitly communicated to Sears that domestic violence against Okin would go unpunished. We do not see this difference to undermine the critical fact, again viewing the evidence favorably to Okin, that the officers were fully aware that private actors intended to commit intentional violence. Sears told Williams that he could not "help it sometimes when he smacks Michele Okin around," and the officers gave official sanction to that violence.
In Hemphill, the officers handed a gun to a store manager who had just been robbed and invited the manager to accompany them in pursuit of the suspect, who was then shot by the store manager during the pursuit. 141 F.3d at 418. The officers never told the store manager to shoot the suspect, but in handing over the gun, they implicitly communicated that the manager's subsequent use of the gun would be officially sanctioned. Id. at 419. This was the actionable substantive due process violation in Hemphill. Okin similarly alleges that the officers implicitly but affirmatively communicated to Sears that he could persist in intentional violence against her without threat of punishment. The officers did not give Sears a weapon, but that is of no moment. Their behavior, as in Hemphill, created the conditions for Sears to visit intentional violence upon Okin, unimpeded.
We therefore find that the state-created danger theory, at the time of defendants' actions here, clearly established that police officers are prohibited from affirmatively contributing to the vulnerability of a known victim by engaging in conduct, whether explicit or implicit, that encourages intentional violence against the victim, and as that is the substantive due process violation alleged here, qualified immunity does not apply. Together, Dwares and Hemphill stand for the proposition that police officers may not engage in conduct that encourages or condones a private actor's infliction of intentional violence. Dwares, Hemphill, and Okin's case *435 may show that affirmative police conduct runs along of spectrum of explicit and implicit actions, but the critical fact remains these cases all involve affirmative police conduct that encourages, condones, or facilitates the infliction of intentional violence. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 ("[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances."). The prohibition on official sanction of intentional violence applies equally in each case, and provided the officers here with notice that their conduct would be unlawful.
At first glance, this case also appears similar to Pena, where as noted above, we found that the application of Dwares in the context of that case was not clearly established at the time of defendants' actions, so that under principles of qualified immunity the defendants could not be held individually liable. Pena, 432 F.3d at 102, 114-15. Pena read Dwares to provide that officials may be liable under Section 1983 for approving the "misconduct" of private actors "even though none of the defendants [is] alleged to have communicated the approval explicitly." Pena, 432 F.3d at 111. The issue in Pena, was whether it would have been clear to reasonable officers, after Dwares, but before Pena itself was decided, that they would violate a victim's constitutional rights by participating in, or generally condoning, an officer's reckless drunk driving, with the result that the officer's drunk driving caused fatalities. In finding that the principle of qualified immunity precluded liability, the court wrote:
Although it is a close question, we think that the substantive due process violation that the plaintiffs allege here was not clearly established for purposes of qualified immunity. Dwares did not address, let alone decide, whether repeated inaction on the part of government officials over a long period of time without an explicit statement of approval, might effectively constitute such an implicit "prior assurance" that it rises to the level of an affirmative act. Dwares also did not indicate whether government officials may implicitly send a message of official sanction by engaging in related misconduct themselves or by participating in or tolerating such a practice.
Pena, 432 F.3d at 115.
The district court, while persuaded that Pena was controlling in Okin's case on the question of qualified immunity, read Pena too broadly.[12] In Pena, the officers sent the message to their off-duty colleague that he could be reckless in driving while intoxicated, and "engag[e] in misconduct that is likely to endanger the life, liberty or property of others." Pena, 432 F.3d at 111. Here, by contrast, Okin seeks to show that the officers in the course of their official duties while responding to her domestic violence complaints sent the message that Sears was free to engage in *436 intentional violence. The official sanction of intentional violence was the precise message conveyed by the officers acting pursuant to their official duties in Dwares, 985 F.2d at 99, and in Hemphill, 141 F.3d at 419.
While Pena contains several broad statements regarding what Dwares did or did not decide, we are obligated to read those statements "in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Pena correctly observed that Dwares did not provide an implicit sanction theory where police officers encouraged reckless violence. 432 F.3d at 114. But the statements in Pena regarding Dwares do not extend to Okin's case where police officers encouraged intentional violence. We draw support for this conclusion from our discussion above of cases that involved official sanction of intentional violence, and from the Pena court's explicit acknowledgment that the question of qualified immunity, where that case involved official sanction of reckless violence, was a "close" one, 432 F.3d at 115. As the officers in Pena encouraged reckless drunk driving, Pena is distinguishable from Dwares, Hemphill, and this case. The officers here, as in Dwares and Hemphill, affirmatively conveyed to Sears that he had carte blanche to perpetrate intentional violence against Okin. The officers had notice not only of the general prohibition on dangers created by state actors' affirmative conduct, but also, that their conduct, to the extent it implicitly encouraged intentional violence, specifically, could fall within the realm of that prohibition. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 (explaining that "`general statements of the law'," while they may not indicate the universe of unlawful conduct, "`are not inherently incapable of giving fair and clear warning'" because "`a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question'") (quoting United States v. Lanier, 520 U.S. 259, 270-71, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)).
We cannot accept that an "officer of reasonable competence," Lennon, 66 F.3d at 420, would fail to understand, following Dwares and Hemphill, that discussing football scores with Sears after Okin's complaints that he had beaten and tried to choke her, repeatedly failing to interview or arrest Sears, or to file domestic incident reports, despite Okin's numerous complaints of abuse and statements of fear for her life, and Sears informing Chief Williams that he could not "help it sometimes when he smacks Michele Okin around," would affirmatively communicate to Sears that he could continue to beat and threaten Okin without fear of police intervention, and would contribute to the vulnerability of the complainant by emboldening her abuser. Unlike the officers in Pena that encouraged reckless off-duty behavior, the officers in Okin's case, as in Dwares and Hemphill, were, in the course of their official duties, encouraging intentional violence by a private actor. The investigation of domestic violence complaints are, and were at the time of the events alleged by Okin, well-known to defendant police officers through extensive professional training in that area, including state law governing those investigations.[13]*437 See Hope, 536 U.S. at 738, 122 S.Ct. 2508 ("We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious.").
The officers' failure to comply with their training and the relevant state law, provides strong support for the conclusion that the officers should have been aware of the wrongful character of their conduct.[14]See id. at 744, 122 S.Ct. 2508 (explaining that the defendants' course of conduct, which tended to prove that the defendants ignored a regulation that restricted the use of hitching posts, provided "strong support for the conclusion that [defendants] were fully aware of the wrongful character of their conduct").
In sum, the rule drawn from Dwares, although its application was not clearly established under the circumstances in Pena, applied with "obvious clarity" to Okin's case. Id. at 741, 122 S.Ct. 2508 (quotation marks omitted). Hence, we find that the actions taken by the officers in response to Okin's complaints clearly implicated the exception to DeShaney that we have repeatedly upheld where "the officer in some way had assisted in creating or increasing the danger to the victim," the officer's actions implicated the victim's rights under the Due Process Clause. Dwares, 985 F.2d at 99; see also Hemphill, 141 F.3d at 419.[15] We conclude that the state of the law in 2001 to 2003 gave defendants fair warning that police conduct that encourages a private citizen to engage in domestic violence, by fostering the belief that his intentionally violent behavior will not be confronted by arrest, punishment, or police interference, gives rise to a substantive due process violation, and that defendants, if found liable, would not be entitled to qualified immunity. We therefore reverse the district court's dismissal of Okin's due process claims as to Douglas, Lug, Weber and Williams. On extensive review of the record, we find that Okin does not raise a genuine issue of material fact as to repeated failures, of a kind that would have emboldened Sears, on the part of defendants Rusty O'Dell and Edward Manion, and we affirm the grant of summary judgment to them.
*438 II. Okin's Equal Protection Claims
Okin alleges that, by their failure to apply the law equally on the basis of gender and their failure to discharge their duties in a non-discriminatory manner, defendants violated her equal protection rights. Her claim is that, although the defendant police departments' stated policy was that domestic violence incidents were to receive the same police attention as other criminal incidents, their unspoken policy and practice was to treat complaints of domestic violence towards women differently.
Proof that discriminatory intent was a motivating factor is required to show a violation of the Equal Protection Clause. See Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). In Eagleston v. Guido, 41 F.3d 865 (2d Cir.1994), a directed verdict case, we announced a standard for equal protection claims in the domestic violence context, writing that a directed verdict is appropriate "unless the plaintiff adduces evidence sufficient to sustain the inference that there is a policy or a practice of affording less protection to victims of domestic violence than to other victims of violence in comparable circumstances, that discrimination against one sex was a motivating factor, and that the policy or practice was the proximate cause of plaintiff's injury." Id. at 878.
In Eagleston, a woman contacted the police ten times to report harassment and threats by her sporadically estranged husband; the two had orders of protection against each other. Id. at 868. On only one occasion was he arrested. Eventually, the woman was stabbed by the husband 30 or more times with a carving knife, following an argument. Id. Her complaint charged that "defendant, County of Suffolk, acting through its police department, condoned a pattern [or] practice of affording inadequate protection, or no protection at all, to women who have complained of having been abused by their husbands or others with whom they have a close relationship." Id. at 868 (alteration in original). As Judge Jacobs wrote
Accepting Mrs. Eagleston's account as true, her testimony showed at most ... that a few police officers failed to perform their jobs well. Her testimony does not evidence a department-wide practice of disparate treatment for domestic disputes. Even on the level of anecdote, Mrs. Eagleston's account is fully consistent with a responsive police department dealing on an incident-by-incident basis with an ambiguous series of events.
Eagleston, 41 F.3d at 876.
As the district court noted here, under Eagleston, domestic violence plaintiffs must "adduce some evidence that officers responded differently to [non-domestic] types of complaints in order to prevail on an equal protection claim." Okin, 2006 U.S. Dist. LEXIS 75881, at *58, 2006 WL 2997296, at *20. To prevail, Okin would have to demonstrate that her complaints of domestic violence were treated differently than other, similar complaints of violence, because of her gender. Although, pursuant to Eagleston, 41 F.3d at 878, Okin must sustain the inference that victims of comparable non-domestic violence were afforded more protection, she does not attempt to show that police officers responded with more competence, say, or a higher rate of arrest, to complaints of violence that were not domestic in nature. As the district court put it, "[s]he relies exclusively on her own story which, while heartrending, does not get her where Eagleston says she must go." Okin, 2006 U.S. Dist. LEXIS 75881, at *58, 2006 WL 2997296, at *21.
Okin asks us to repudiate Eagleston, arguing that repeated deviations from the mandatory arrest statute and from corresponding *439 police department policy, even with respect to only one female domestic violence victim, could be grounds for an inference of gender bias, that is, that a woman who is a victim of domestic violence should not need to prove that a police department afforded her less protection than it did victims of non-domestic violence in comparable circumstances. We decline, however, to revisit Eagleston.
Any equal protection claim is grounded on a comparison between the treatment the state gives similarly situated individuals. Okin could have attempted to show that she and other women were discriminated against by defendant police departments but, although defendants produced in discovery police reports concerning domestic violence response in Cornwall, Okin has not attempted to demonstrate discrimination by a comparison based upon these. Failing that, at the very least she has to show that it was her gender, and not some other characteristic, that motivated the treatment she received. She might be able to do this if she had compared evidence of the manner in which defendant police departments responded to comparable non-domestic violence incidents, with the manner in which they responded to domestic violence at her house, but again she does not attempt such a comparison.
We therefore hold that the district court correctly concluded that Okin failed to raise a genuine and material dispute of fact concerning whether defendants denied her equal protection of the law, and we affirm that part of the district court's order which granted, as to all moving defendants, summary judgment on Okin's claim for violation of her right to equal protection under the Fourteenth Amendment.
III. Municipal Liability
In her complaint, Okin alleges that not only the individual defendants, but also the police departments by which they were employed, violated her due process and equal protection rights. Section 1983 "imposes liability on a government that, under color of some official policy, `causes' an employee to violate another's constitutional rights." Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (quoting 42 U.S.C. § 1983). "Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation." Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006). Having found that Okin raises a genuine issue of material fact as to whether the individual defendants of the Village of Cornwall-on-Hudson violated her due process rights, we now consider the question whether she raises a genuine issue of fact as to the municipal liability of the Village.
A municipality may be found to have a custom that causes a constitutional violation when "faced with a pattern of misconduct[, it] does nothing, compelling the conclusion that [it] has acquiesced in or tacitly authorized its subordinates' unlawful actions." Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.2007); see also Sorlucco v. New York City Police Dep't, 971 F.2d 864, 871 (2d Cir.1992) (municipal liability can be established "by demonstrating that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policymakers"); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991) (finding that "a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it").
Okin's claim of municipal liability, although focused on the Village's alleged *440 failure-to-train, is fairly construed to articulate a claim that the Village had a custom whereby it acquiesced in unconstitutional conduct by its officers. The record shows more than a dozen contacts between Okin and the Village, that involved a number of officers, including high-ranking officials like Sergeant Weber and Captain Williams, and that recurrently concerned complaints of domestic violence. These incidents suggest a consistent pattern of failing to adequately respond to Okin's complaints, to implement the New York mandatory arrest statute, to interview the alleged abuser, or to file domestic incident reports, a pattern which may have encouraged further violence. We therefore find sufficient evidence in the record to create a genuine issue of fact as to whether the officers' conduct indicates a practice, tacitly endorsed by the Village, that "was so `persistent or widespread' as to constitute `a custom or usage with the force of law.'" Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir.2004) (quoting Sorlucco, 971 F.2d at 870-71).
Municipal liability may also be premised on a failure to train employees when inadequate training "reflects deliberate indifference to ... constitutional rights." City of Canton v. Harris, 489 U.S. 378, 392, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To prove deliberate indifference, we have required the plaintiff to show: (1) "that a policymaker knows `to a moral certainty' that her employees will confront a given situation"; (2) "that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation"; and (3) "that the wrong choice by the ... employee will frequently cause the deprivation of a citizen's constitutional rights." Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992).
We have no trouble in finding that policymakers would know that officers will confront domestic violence situations, that training assists officers to employ criminal justice strategies attuned to the complexities of domestic violence, and that in Okin's case, the record indicates a history of mishandling her complaints. There is also a strong likelihood that the officers' repeated failures to meaningfully respond to Okin, potentially enhancing the risk of violence, qualifies as a pattern of misconduct that would frequently cause violations of a citizen's constitutional rights and that suggests training so inadequate as to give rise to an inference of deliberate indifference. See Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995) ("[D]eliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.") Okin thus meets the Walker requirements at this stage.
A closer question is whether Okin, in order to proceed beyond summary judgment on the failure-to-train theory, has "identif[ied] a specific deficiency in the city's training program and establish[ed] that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation." Green v. City of New York, 465 F.3d 65, 81 (2d Cir.2006) (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir.2004)). A pattern of misconduct, while perhaps suggestive of inadequate training, is not enough to create a triable issue of fact on a failure-to-train theory. See Amnesty Am., 361 F.3d at 130. The plaintiff must offer evidence to support the conclusion that the training program was inadequate, not "[t]hat a particular officer may be unsatisfactorily trained" or that "an otherwise sound program has occasionally been negligently administered," *441 and that a "hypothetically well-trained officer" would have avoided the constitutional violation. City of Canton, 489 U.S. at 390-91, 109 S.Ct. 1197; see also Amnesty Am., 361 F.3d at 129-30.
The district court noted that, but for finding no triable issue of fact on Okin's constitutional claims, it would have found the "individual officers' sketchy recollection and understanding of domestic violence laws and policies, together with their pattern of not taking Okin's repeated complaints seriously, at the very least [to] raise[] an issue of fact concerning the adequacy of the training provided by the two Departments to their officers." Okin, 2006 U.S. Dist. LEXIS 75881, at *69, 2006 WL 2997296, at *24. We agree with the district court's observation that the record shows more than a pattern of misconduct. Because some of the officers were unable during their depositions to remember basic details regarding their training on domestic violence, a reasonable factfinder could plausibly infer that the training program failed to impart with the necessary frequency or specificity how to appropriately respond to domestic violence complaints, including the circumstances that call for interviewing suspects and witnesses, filing domestic incident reports, and making an arrest. It is questionable whether evidence of the officers' inability to recall the substance of their training could alone create a triable issue of fact on the adequacy of a training program. See City of Canton, 489 U.S. at 391, 109 S.Ct. 1197. The record in this case is not so limited, however.
Here, Captain Williams testified that, along with Sergeant Weber, he was involved, at least in part, in administering the Village's training program on domestic violence, having led a refresher course on domestic violence in 2002. We have seen that the evidence, viewed favorably to Okin, shows that Sears told Williams he abused Okin and that Weber was continually dismissive in response to Okin's complaints. The repeated failure of high-ranking officers to properly respond to domestic violence complaints, when those same officers were responsible for teaching subordinates how to respond domestic violence, suggests a fundamental flaw in the training programplacing training responsibility in the hands of those who may themselves not understand the problem or the appropriate response. The pattern of misconduct and the lower-ranking officer's "sketchy recollection and understanding of domestic violence laws and policies," Okin, 2006 U.S. Dist. LEXIS 75881, at *69, 2006 WL 2997296, at *24, could reasonably be viewed as the product of inadequate teaching by higher-ranking officers who were not trained to train, rather than the isolated shortcomings of individual officers. We therefore conclude, although the question is close, that Okin offers evidence of a specific training deficiency and that, but for this deficiency, the alleged violations could have been avoided.
Okin raises a genuine issue of material fact as to whether the Village of Cornwall-on-Hudson is subject to municipal liability on both theories of an unconstitutional custom and a failure to train. We therefore reverse the district court's ruling on municipal liability with respect to Village of Cornwall-on-Hudson.[16] We affirm the *442 district court's dismissal of Okin's municipal liability claims as to the Town of Cornwall.
CONCLUSION
For the foregoing reasons, we REVERSE in part the district court's dismissal of Okin's Section 1983 claims for violation of the right to due process under the Fourteenth Amendment, affirming only the grant of summary judgment as to defendants Town of Cornwall, Rusty O'Dell and Edward Manion; we AFFIRM the district court's dismissal of Okin's Section 1983 claims for violation of the right to equal protection under the Fourteenth Amendment; we REVERSE the district court's dismissal of Okin's municipal liability claims; and we REMAND for proceedings consistent with this opinion.
NOTES
[*] The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. 46(d); Local Rule 0.14(2); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
[1] The district court substituted the Town of Cornwall and the Village of Cornwallon-Hudson as proper parties, in place of their respective police departments, which Okin had initially named in her complaint. Okin v. Cornwall-On-Hudson Police Dep't., No. 04 Civ. 3679, 2006 U.S. Dist. LEXIS 75881, at *34-35, 2006 WL 2997296, at *12 (S.D.N.Y. Oct. 13, 2006). As Okin did not object to this decision, we follow suit. The Clerk's Office is directed to change the caption by substituting the Town of Cornwall and the Village of Cornwall-on-Hudson as proper parties, in place of their respective police departments.
[2] We take the facts from the district court opinion and from the record below, viewing the evidence in the light most favorable to Okin, against whom summary judgment has been granted, as required when we review a grant of summary judgment. See, e.g., Horvath v. Westport Library Ass'n., 362 F.3d 147, 151 (2d Cir.2004).
[3] Cornwall-on-Hudson lies entirely within Cornwall, but has its own police department. The two departments share a dispatcher. If a 911 call to that dispatcher concerns an incident in Cornwall-on-Hudson, the Village police are dispatched, if available; otherwise, the Town police are sent, provided that the incident occurred in Cornwall.
[4] According to Okin, she went to the police station to press charges the next day.
[5] We cannot let these remarks go by without noting that the tone of Sergeant Weber's reports, at least on paper, appears frequently sarcastic and disdainful, and falls far beneath the level of professionalism expected of a police officer.
[6] Two Town of Cornwall officers were dispatched in a backup capacity, but Pena handled the complaint.
[7] Okin did not produce evidence to contradict this and Coviello has since died.
[8] Town of Cornwall Police Chief O'Dell has testified that he would not recognize Sears if he saw him, has never spoken with him on the phone, does not know what he does for a living, and is unaware of whether he had made contributions to the Town of Cornwall Police Department. Manion met Sears at the Leprechaun Inn, knew Sears co-owned it, and was introduced to Okin by Sears at the inn. Manion has testified that he received no free food or drinks there, and was unaware of Sears's donations to the Police Benevolent Association, or that Sears sponsored events in the community with which the police departments were associated.
Village of Cornwall-on-Hudson Police Chief Williams testified that he has met Sears, encountering him for the first time when Sears sought permission from the Mayor to "drop the ball at the Village Square on New Year's Eve." He testified that only after the initiation of Okin's lawsuit did he learn that a company with which Sears was associated had donated aluminum to help the Village make a cage for the Police Department's first canine vehicle and that Sears allowed a police canine school to use a building he owned for practice. Lug and Weber insisted they knew of Sears, but did not know him personally.
[9] The question of whether the officers' conduct violated a constitutional right is the first step of the qualified immunity analysis set forth in Saucier v. Katz, the second step being whether the right is clearly established. 533 U.S. 194, 201, 207-08, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In Pearson v. Callahan, the Supreme Court reconsidered Saucier's two-step procedure for resolving the issue of qualified immunity. ___ U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The Court held that "the sequence set forth [in Saucier] is often appropriate, [but] it should no longer be regarded as mandatory," id. at 818, 129 S.Ct. 808, and that "courts should have the discretion to decide whether [the Saucier] procedure is worthwhile in particular cases." Id. at 821, 129 S.Ct. 808. Accordingly, a district court does not necessarily err in addressing a qualified immunity issue by concluding that a right is not clearly established at the time of a government officials' actions, without first deciding whether those officials could reasonably be viewed as violating that right. See Pearson, 129 S.Ct. at 818, 129 S.Ct. 808. Saucier has been overruled to the extent it had required that "a qualified immunity defense... be considered in proper sequence," 533 U.S. at 200, 121 S.Ct. 2151, but it remains good law where it is appropriate for the two-step procedure to be applied.
The relevant question after Pearson is "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." 129 S.Ct. at 818. Pearson recognized the continuing importance of the two-step procedure for cases where "it ... may be difficult to decide whether a right is clearly established without deciding precisely what the constitutional right happens to be." Id. (quotation marks and alteration omitted); see also Saucier, 533 U.S. at 207, 121 S.Ct. 2151 (noting that "the procedure permits courts in appropriate cases to elaborate the constitutional right with greater degrees of specificity"). In this case, the application of Saucier's two-step procedure is appropriate. Because we are called upon to determine whether the right to be free from a state actor's implicit but affirmatively created danger was clearly established at the time of defendants' actions, it is necessary to articulate the nature of the claimed violation in this case.
[10] The statistics demonstrate that domestic violence remains dangerous, serious and prevalent. Between 1976 and 2005, 30% of homicides of women were known to have been committed by intimate partners. U.S. Bureau of Justice Statistics, U.S. Dep't of Justice, Intimate Partner Violence in the U.S., Victim Characteristics, available at http:// www.ojp.usdoj.gov/ bjs/intimate/victims.htm (last visited Mar. 6, 2009); S.Rep. No. 102-197, at 38, 1991 WL 231548 (1991) ("For a host of reasons including fear of retaliation and the lingering stigma of sex crimes and violence in the home vast numbers of these crimes are left unreported to police or other authorities. Both literally and figuratively, these crimes remain hidden from public view."). In addition, domestic violence cases demand a careful and sensitive approach. See Don Dutton & Susan Lee Pointer, Traumatic Bonding: The Development of Emotional Attachments in Battered Women on Other Relationships of Intermittent Abuse, 6 VICTIMOLOGY 139, 146-47 (1981) (noting the traumatic bond that can form between an abuser and the person being abused and that can lead to psychological dependence on the abuser); Lawrence A. Greenfield, et al., U.S. Bureau of Justice Statistics, U.S. Dep't of Justice, NCJ 167237, Violence by Intimates: Analysis of Data on Crimes by Current or Former Spouse, Boyfriends, and Girlfriends at v. (1998), available at www.ojp.usdoj.gov/bjs/ pub/pdf/vi.pdf (noting that one of the "most common reasons given by victims for not contacting the police" was that they "feared retaliation"). In fact, mandatory arrest statutes, like the one passed in New York, were passed in many states in the 1980s and 1990s to address severe problems of recidivism and slow police response time to domestic violence calls. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 779-81, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (Stevens, J., dissenting).
[11] Some cases frame the test as disjunctive: an officer "is entitled to qualified immunity if his conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for him to believe that his conduct did not violate such a right." Gilles v. Repicky, 511 F.3d 239, 246 (2d Cir.2007) (emphasis added). This would imply that an officer whose actions violated clearly established law might escape liability if he had an objectively reasonable belief that his conduct did not violate the clearly established law. However, Saucier makes it clear that the "objectively reasonable" inquiry is part of the "clearly established" inquiry. 533 U.S. at 202, 121 S.Ct. 2151; see also Pearson, 129 S.Ct. at 822, 129 S.Ct. 808 (noting that the inquiry turns on "the objective reasonableness of the action taken, assessed in light of the rules that were clearly established at the time it was taken"). Thus, once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for a police officer who violated this clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful. This is so because a police officer who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful. We clarify here that the two are part of the same inquiry, not independent elements as some cases suggested.
[12] The court reasoned as follows:
As for the implicit facilitation theory adopted by the Court of Appeals in Pena: the facts of this case are in many ways closer to those of Pena, where defendant police officers had implicitly assured one of their own that he could drink and drive with impunity, through a culture in which police officers were "encouraged to inappropriately drink alcohol while on and off-duty," and supervising officers routinely promoted such behavior and participated in it. Pena, 432 F.3d at 111. But plaintiff cannot rely on Pena because the events in suit preceded the Pena decision by over two years. For that reason, the individual defendants here just like the individual defendants in Pena would be entitled to qualified immunity, even if they implicitly facilitated Sears' abuse by not arresting him or closing out Okin's numerous complaints almost as soon as they were opened.
Okin, 2006 U.S. Dist. LEXIS 75881, at *48-49, 2006 WL 2997296, at *17.
[13] The officers' depositions indicate that all the individual defendants received training in domestic violence issues. Further, the officers employed by the Village would have been aware from its Police Department Manual that they must "consider domestic violence as [criminal] conduct that shall be investigated, as would be any other offense" and that "[d]ispute mediation will not be used as a substitute for appropriate criminal proceedings in domestic violence cases." They may also be charged with knowledge of the New York law, first adopted in 1994, that arrest is mandatory in a domestic violence situation unless the violence is a family offense misdemeanor and the victim requests that the perpetrator not be arrested. See N.Y.Crim. Proc. L. § 140.10(4).
[14] Pena also observed that "Dwares did not expressly address the question of the scienter required for section 1983 liability." Pena, 432 F.3d at 115. That Dwares does not discuss the "shocks the conscience" standard, however, does not establish qualified immunity. It is well-settled that police conduct arising from deliberate indifference can shock the conscience when officers "hav[e] time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations." Lewis, 523 U.S. at 853, 118 S.Ct. 1708. Because police response to domestic violence complaints, where officers are trained and legally obligated to investigate those complaints, is a course of conduct where "actual deliberation is practical," id. at 851, 118 S.Ct. 1708, the officers here were on notice, that implicitly but affirmatively creating a risk of intentional violence against Okin while performing their official duties, with reckless disregard for her safety, would be unlawful.
[15] We also note that in Dwares, we cited an Eighth Circuit case, Freeman v. Ferguson, 911 F.2d 52 (8th Cir.1990), which had facts similar to those in this case, to support our finding that "an allegation that the officers in some way had assisted in creating or increasing the danger to the victim would" implicate the victim's rights under the Due Process Clause. Dwares, 985 F.2d at 99. In Freeman, a police chief instructed subordinates to ignore the victim's pleas for protection from her husband, who was the chief's friend, and the Eighth Circuit remanded the case for repleading on the theory that the officers affirmatively increased the danger decedent faced. See 911 F.2d at 54-55.
[16] Because we have held that the due process rights that Okin alleges were violated were "clearly established" at the time of the events in question, we have no occasion to decide whether Okin's municipal liability claims are governed by Young v. County of Fulton, 160 F.3d 899, 904 (2d Cir.1998) (stating that "a claim for failure to train cannot be sustained unless the employees violated a clearly established federal constitutional right"), or by Tenenbaum v. Williams, 193 F.3d 581, 597, 605 (2d Cir. 1999) (vacating grant of summary judgment and remanding for ruling on claims against municipality even though individual defendants were entitled to qualified immunity because constitutional right allegedly violated was not clearly established at time in question). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3365674/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
I FACTS
Presently before the court is the defendant's motion to dismiss. On September 3, 1999, Carolyn Levine, voluntary conservator of the person of the plaintiff, Ralph Hurtle, filed this dissolution of marriage action on the plaintiff's behalf. The plaintiff seeks, inter alia, a judgment of divorce against the defendant, Dorothy Hurtle, on the ground of irretrievable breakdown of the marriage.
Levine was appointed voluntary conservator of the person pursuant to General Statutes § 45a-646.1 See Inthe Matter of the Petition of Ralph Hurtle, Court of Probate, district of West Hartford, District No. 155 (August 19, 1999, Berman, J.). Subsequent to the filing of this action, Levine resigned as the plaintiff's conservator. The court of probate, Berman, J., appointed Denny Fuller as the plaintiff's successor voluntary CT Page 4986 conservator of the person on November 24, 1999. See Inthe matter of Ralph Hurtle, Court of Probate, district of West Hartford, District No. 155 (November 24, 1999,Berman, J.). Mark Steier presently serves as the plaintiff's voluntary conservator of the estate and has done so since at least May 4, 1999.2 See id.
On November 1, 1999, the defendant moved to dismiss the dissolution action on jurisdictional grounds. Specifically, the defendant argues that a legally incompetent person as to his estate or person may not bring a dissolution action on his own or through his conservator. The plaintiff argues in response that a conservator has the authority to bring the action on behalf of a voluntarily conserved person and, therefore, the court has jurisdiction to hear the present matter.
II DISCUSSION
"A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiffcannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Capers v. Lee, 239 Conn, 265, 282,684 A.2d 696 (1996) . "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." Practice Book § 10-33.
"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Pamela B. v. Ment, 244 Conn. 296, 308,709 A.2d 1089 (1998) . "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999).
A CT Page 4987
The sole issue on the present motion to dismiss is whether Connecticut law authorizes a conservator to file a dissolution of marriage action on behalf of a voluntarily conserved person. The defendant argues that such an action may not be filed by either the conservator or the conserved person. This court concludes that under the facts of this case, the conservator may bring the present dissolution action on behalf of his voluntarily conserved person and, therefore, the court does not lack subject matter jurisdiction to hear the present action.
In Reale v. Reale, Superior Court, judicial district of Tolland at Rockville, Docket No. 070340 (January 12, 2000, Klaczak, J.) (6 Conn. Ops. 203), the court rejected the defendant's argument that the plaintiff lacked the legal capacity to bring a dissolution action in her own name because of her status as a voluntarily conserved person. The court noted the statutory distinction between a voluntary and involuntary conservatorship; see. General Statutes §§ 45a-644 (e) (involuntary representation is representation after a finding of incapacity) and 45a-644
(g) (voluntary representation is representation without a finding of incapacity); and reasoned that because the plaintiff was under a voluntary conservatorship and not adjudged incompetent, the plaintiff retained the legal capacity to maintain the action. See Reale v. Reale,
supra, 6 Conn. Ops. 203.
The Reale court concluded, however, that the plaintiff's voluntary conservators of the person and the estate were necessary parties to the action since the voluntary conservatorships subjected the plaintiff's property and the plaintiff to the authority of the conservatory. See Reale v. Reale, supra, 6 Conn. Ops. 203; see also General Statutes §§ 45a-646, 45a-455 and 46a-656. The plaintiff was required, therefore, to add or substitutethe conservators as plaintiffs in order to survive the defendant's motion to strike. See Reale v. Reale, supra, 203.
In the present case, the defendant's entire motion to dismiss turns on the assumption that the plaintiff has been adjudicated incompetent by the court of probate. (See Defendant's Memorandum in support of Motion to Dismiss, pp. 4-5.) All of the evidence indicates, however, that the plaintiff is under separate voluntary conservatorships of CT Page 4988 the estate and person without a finding of incapacity, pursuant to General Statutes § 45a-646.
In 1999, the plaintiff sought appointment for voluntary representation for his estate and, then for his person in the Court of Probate, district of West Hartford. Without making a finding of incapacity, the court, Berman, J., appointed Steier as the plaintiff's voluntary conservator of the estate on May 4, 1999, and Levine as the plaintiff's voluntary conservator of the person on August 19, 1999.3 See In the Matter of the Petition of RalphHurtle, supra, Court of Probate (August 19, 1999); In theMatter of Ralph Hurtle, supra, Court of Probate (November 24, 1999). Moreover, at a November 15, 1999 hearing, appointed counsel for the plaintiff, John Peters, reported to the court of probate that the plaintiff "wants a divorce and clearly [possesses] sufficient mental competency to bring the action." See In the Matter of Ralph Hurlte,
supra, Court of Probate (November 24, 1999). On November 24, 1999, the court of probate made the following, relevant findings: "The divorce action filed in superior court is appropriate and in the best interests of Mr. Hurtle. Accordingly, the action should continue and Attorney Eliot Nerenberg should represent the plaintiff, Ralph Hurtle, in said proceedings." Id. The court then denied an application for the appointment of involuntary conservators, which was brought by Mary Smolin of Protective Services. See id. In short, the plaintiff possesses the legal capacity to bring a dissolution action on his own behalf.
It is important to note that the plaintiff, Ralph Hurtle, is the only named plaintiff in this action. Neither of his voluntary conservators are named plaintiffs. (See summons, filed September 3, 1999.) According to the complaint, "[t]he plaintiff is Ralph L. Hurtle, acting herein by Carolyn Levine . . . Voluntary Conservator of Ralph L. Hurtle . . . ." (Complaint, ¶ 1.) Under the circumstances of this case, in which the named plaintiff has not been adjudged incompetent, the evidence indicates that he wants a divorce and the court of probate has found the action to be in the plaintiff's best interest, this court does not lack subject matter jurisdiction merely because the plaintiff's voluntary conservator has filed the action on his behalf. See Reale v. Reale, supra, 6 Conn. Ops. 203 (requiring the plaintiff, a voluntarily conserved person, to add or substitute her voluntary conservators of CT Page 4989 the person and estate as plaintiffs in the dissolution action).
B
The legal authority cited by the defendant in support of her argument is inapposite to the facts of this case. All of the cited cases address the issue of whether a conservator may institute or maintain a dissolution action on behalf of a mentally incompetent person. See Wood v.Wood, 107 So. 2d 198 (1958); Shenk v. Shenk, 100 Ohio App. 32,135 N.E.2d 436 (1954); Scott v. Scott, 45 So. 2d 878
(1950); Cohen v. Cohen, 73 Cal. App. 2d 330, 166 P.2d 622
(1946); Johnson v. Johnson, 294 Ky. 77, 170 So. 2d 889 (1943); and Campbell v. Campbell, 242 Ala. 141, 5 So. 2d 401
(1942). The issue in the present case is, however, whether a voluntary conservator may bring an action on behalf of the conserved person who has not been adjudged mentally incompetent.
Legal research has not uncovered any Connecticut appellate decisions in which the issue presently before this court has been decided. Moreover, there is a split of authority among other states' courts that have decided whether, in the absence of expressed statutory authority, a conservator may bring an action on behalf of a conserved person.4 See Annot., 32 A.L.R. 5th 688-703, Power of Incompetent Spouse's Guardian or Representative to Sue for Granting or Vacation of Divorce § 3 (1995). The majority rule has long held that, absent express statutory authority, a conservator may not bring a dissolution action on behalf of a conserved person. See Murray v. Murray,310 S.C. 336, 426 S.E.2d 781 (1993); In re Marriage of Drew,115 Ill. 2d 201, 503 N.E.2d 339 (1986), cert. denied,483 U.S. 1001, 1075 S.Ct. 3222, 97 L. Ed. 2d 729 (1987); but see Stubbs v. Ortega, 977 S.W.2d 718, 724 ("Texas public policy does not prohibit authorizing a guardian to petition for divorce on behalf of her mentally incapacitated ward") (1998); Nelson v. Nelson, 118 N.M. 17, 878 P.2d 335, 341
("a guardian of an adult incompetent ward may initiate divorce proceedings on behalf of the ward") (1994); andRuvalcaba v. Ruvalcaba, 174 Ariz. 436, 850 P.2d 674, 683-84
(a guardian may bring a dissolution action on behalf of the incapacitated ward pursuant to his general powers to act on the ward's behalf) (1993) . The policy reasons most often CT Page 4990 given in support of the majority rule are "the personal nature of the decision to terminate a marriage . . . and the inability to determine with certainty that the (conserved person] would have wanted to end the marriage." (Citations omitted.) In Re Marriage of Burgess, Supreme Court of New Jersey, Docket No. 86974 (February 17, 2000,McMorrow, J.). These policy reasons are not affected, however, when, as in the present case, the plaintiff has not been adjudged legally incompetent. See id.
Therefore, it was proper for the plaintiff's voluntary conservator to file this action in the plaintiff's name and on his behalf. The superior court has jurisdiction to hear the present case. See Amodio v. Amodio, supra, 247 Conn. 728. The defendant's motion to dismiss is hereby denied.
In the interest of judicial economy, the court suggests that the plaintiff's voluntary conservators of the person and estate be added as plaintiffs. See Real v.Reale, supra, 6 Conn. Ops. 203. Under General Statutes §§45a-655 and 45a-656, the conservators of the estate and person are responsible for the management of all of the conserved person's estate and his general custody and care.
See also General Statutes § 45a-646. They, therefore, have an interest in the present matter and are necessary parties to the present action. See Real v. Reale, supra, 203.
Devine, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2235348/ | 929 N.E.2d 166 (2005)
367 Ill. App.3d 1086
LITT
v.
MUSEUM OF CONTEMPORARY ART.
No. 1-04-2923.
Appellate Court of Illinois, First District
December 1, 2005.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3348684/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION MOTION FOR MODIFICATION (MOTION 124)
The matter before this Court is the defendant husband's Motion forModification dated January 19, 1999.
Examination of the court file and evidence introduced at the court hearing reveals the following. In December 1988 the trial court dissolved the subject marriage. That judgment was reduced to writing by a January 18, 1989, agreement between the parties that contained the following provision:
Theodore P. Knecht will irrevocably assign insurance policies with Great American to Clarice M. Knecht for her life, which policies will produce for her monthly by way of alimony the sum of $4,333.33 or $52,000 per year.1
On January 24, 1996, the original judgement was "modified."2 That order included the following language:
Pursuant to the stipulation of the parties and by Order of this Court, the judgement entered on this matter on December 21, 1988 [sic] . . . IS HEREBY MODIFIED . . .
1. With respect to the defendant's life insurance and/or annuity policies with the Great American Life Insurance Company . . . the defendant, acting individually on his own or through a third party under a Power of Attorney, shall have the right to surrender said policies (or otherwise withdraw funds therefrom in any manner acceptable to the great American Life Insurance Company) and the proceeds resulting from such surrender or withdrawal shall be sent to the defendant's current wife, Leila Knecht, at such time CT Page 509 and such address as she shall specify from time to time, to be held in trust by her and to be used by her to pay the plaintiffs alimony . . .
The parties' entering into this stipulation shall not in any way be construed as a substantive modification of the defendant's alimony obligation under said Judgment.
Thereafter, the defendant filed the instant motion.3
It was the plaintiffs understanding that after the January 1996 modification, Leila Knecht, the defendant's current wife and the individual in control of his assets, would be the person responsible for the delivery of future alimony payments. The plaintiff received the required alimony payments from Leila Knecht until June 1998. Thereafter, payments ceased entirely.
There is little evidence concerning the defendant's current situation. It has been years since the plaintiff communicated with either her ex-husband or his current wife. There were never any discussions concerning his health or financial status. More likely than not, he resides in a nursing home. Although the defendant probably has a conservator, there is no evidence concerning the basis for this appointment or his present capacity.4
The plaintiffs evidence can best be described as minimal. In support of this motion, counsel offered a financial affidavit signed by a Deborah Barfield, allegedly defendant's guardian. Unfortunately, she is not a party to these proceedings.
Connecticut General Statutes 46b-86 (a) provides in relevant part:
[A]ny final order for the periodic payment of permanent alimony . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . .
The statutory prerequisites for modification of alimony and child support are clear. There must be a substantial change in circumstances. The defendant, the moving party, has the burden of "clearly and definitely" demonstrating that substantial change of circumstances.Richard v. Richard, 23 Conn. App. 58, 61, 579 A.2d 110 (1990). "That party must demonstrate that continued operation of the original order CT Page 510 would be unfair or improper." Harlan v. Harlan, 5 Conn. App. 355, 357,496 A.2d 129 (1985).
The defendant has failed to establish that there is a substantial change in circumstances.5 There is absolutely no reliable evidence of a changed financial status. Absent that essential independent evidence, the court finds that the defendant continues to have the capacity to support the financial orders previously entered. The Great American Insurance Company policies are still "irrevocably" assigned to the plaintiff for purposes of producing "for her monthly by way of alimony the sum of $4,333.33 or $52,000 per year."
The motion for modification is denied. Orders shall enter on this motion as herein noted.
___________________ JULIA DICOCCO DEWEY, JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1903296/ | 773 N.W.2d 227 (2009)
2009 WI App 128
STATE
v.
FANT.
No. 2008AP3056-CR.
Court of Appeals of Wisconsin.
July 28, 2009.
Unpublished Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608563/ | 621 P.2d 604 (1980)
49 Or.App. 811
STATE of Oregon, Respondent,
v.
Thomas Theodore CORPUZ, Appellant.
Nos. CR 79-113, CR 79-117 to CR 79-120; CA 16456.
Court of Appeals of Oregon.
Argued and Submitted June 23, 1980.
Decided December 15, 1980.
*605 Marilyn C. McManus, Deputy Public Defender, Salem, argued the cause for appellant. On the brief were Gary D. Babcock, Public Defender, and James E. Mountain, Jr., Deputy Public Defender, Salem.
Rudy S. Westerband, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before JOSEPH, Presiding Judge, and WARDEN and WARREN, Judges.
WARDEN, Judge.
Defendant appeals his conviction for manslaughter in the second degree, ORS 163.125(1)(a),[1] assault in the second degree, ORS 163.175(1)(c),[2] failure to perform the duties of a driver involved in an injury accident, ORS 483.602,[3] (hit and run), and driving under the influence of intoxicants, ORS 487.540,[4] (DUII). The defendant was sentenced to a five-year term of imprisonment on the manslaughter conviction to be served concurrently with a two-year sentence on the assault conviction and a one-year sentence on the hit and run conviction.[5]
On the evening of July 6, 1979, defendant and his cousin were drinking and became intoxicated. Later that night, the car which defendant and his cousin had been seen using that evening collided with a motorcycle, severely injuring the driver of the motorcycle and killing the passenger. Two persons were observed fleeing from the collision scene without rendering assistance to the injured persons or identifying themselves.
Defendant raises a multitude of issues on appeal. We group them into six major *606 contentions. First, he contends that there was insufficient evidence as a matter of law to prove that he was the driver of the car that crashed into the motorcycle, and, therefore, his conviction for all charges should be reversed. Second, defendant contends that even if there was sufficient evidence that he was the driver, a vehicular homicide committed while under the influence of intoxicants is punishable only as criminally negligent homicide and not as manslaughter caused by reckless conduct. Third, as a corollary to this point, defendant contends that the trial court's jury instruction based on ORS 161.125 concerning voluntary intoxication and recklessness was improper and a prejudicial comment on the evidence.[6] Fourth, defendant challenges the second degree assault statute, ORS 163.175(1)(c), as void for vagueness; alternatively, he contends that even if the statute is not void, there was insufficient evidence as a matter of law that a dangerous weapon was used. Fifth, defendant attacks his conviction for hit and run, arguing that the trial court's instruction was incorrect concerning the element of knowledge. Lastly, defendant contends that in the event all of his convictions survive appellate scrutiny, the DUII, assault, and manslaughter charges should have been merged for conviction and sentencing by the trial court. We affirm.
Defendant relies for his first contention on Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), State v. Harris, 288 Or. 703, 609 P.2d 798 (1980), and State v. Krummacher, 269 Or. 125, 523 P.2d 1009 (1974), claiming that even after viewing all of the evidence in the light most favorable to the state, no rational trier of fact could have found beyond a reasonable doubt that defendant was the driver of the vehicle. While the defendant is correct that the test is not whether any evidence exists, but whether there is enough to justify a rational trier of fact in finding guilt beyond a reasonable doubt, we conclude that there is sufficient evidence in this case.
The facts supporting this conclusion are as follows: The car that collided with the victims was owned by defendant; defendant was seen driving the car shortly before the accident by a police officer; defendant's cousin, who was in defendant's car at the time of the accident, testified that defendant was driving the car at the time of the accident.
The facts on which defendant relies in contesting this conclusion are: At the time of his arrest defendant denied being near the car all night; the charges against defendant's cousin were dismissed after he agreed to testify against defendant; and defendant's cousin admitted lying about certain other matters. These facts put the credibility of his cousin in issue.
The jury decided the credibility issue against defendant. As we stated in State v. Harris, 288 Or. at 723, 609 P.2d 798, citing State v. Krummacher, 269 Or. at 137-38, 523 P.2d 1009:
"* * * After the conflicts have been so decided, we take such decided facts together with those facts about which there is no conflict and determine whether the inferences that may be drawn from them are sufficient to allow the jury to find defendant's guilt beyond a reasonable doubt."
Here, there was sufficient evidence to establish beyond a reasonable doubt that defendant was the driver of the car.
Secondly, defendant contends that vehicular homicide is punishable only as criminally negligent homicide under ORS 163.145[7] and not as recklessly caused manslaughter under ORS 163.125(1)(a). ORS 163.125(1)(a), *607 the second degree manslaughter statute, and ORS 163.145(1), the negligent homicide statute, focus on the amount of caution and circumspection exercised in light of the risk of death involved, differentiating between kinds of culpability involving different degrees of caution, circumspection and risk. The states of mental culpability are described as "recklessly," and "with criminal negligence." The mental state of "recklessness" is defined in ORS 161.085(9) as meaning:
"* * * that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." (Emphasis added.)
ORS 161.085(10) defines criminal negligence to mean
"* * * that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." (Emphasis added.)
The difference between recklessness and criminal negligence, then, is the element of advertence or inadvertence. Advertence renders conduct reckless; inadvertence renders it criminally negligent. Criminal Law Revision Commission, Proposed Oregon Criminal Code, 91, Commentary, § 91 (1970).
In discussing voluntary intoxication's impact on one's mental state, ORS 161.125(2), the Proposed Oregon Criminal Code, 9, Commentary, § 11 (1970), cites a drunk driving homicide as illustrative of "reckless" behavior. The Commentary arrives at this conclusion by exploring the perpetrator's awareness of a substantial risk. It quotes the Practice Commentaries by Hechtman following NY Penal Law § 15.05 (McKinney 1965) as follows:
"[T]he driver of a car * * * at a bar, drinks heavily, continues on his way and then runs over a pedestrian whom he fails to see in his intoxicated condition and whom he undoubtedly would have seen had he been sober. Here, his culpability goes well beyond his failure of perception at the time of the accident. By getting drunk in the course of his automobile trip, he consciously disregarded a substantial and unjustifiable risk of accident and, hence, in the overall setting, he acted `recklessly.'"
We conclude that a vehicular homicide involving intoxication is punishable as manslaughter.[8]
Having determined that criminal negligence is not the sole mental state applicable to a vehicular homicide, we find defendant's third contention, i.e., that a jury instruction concerning recklessness of an intoxicated person is improper, to be without merit. Also, since there was an abundance of evidence of defendant's voluntary intoxication, an instruction based on ORS 161.125 as to the legal effect of this intoxication on defendant's mental state was a proper instruction and did not constitute a comment on the evidence. In the absence of such an instruction the jurors might well have inferred from the evidence of defendant's voluntary intoxication that defendant was incapable of having a reckless state of mind. That would have been an unwarranted conclusion. An instruction indicating the immateriality of voluntary intoxication is not an inappropriate comment on the evidence if, as here, the evidence would likely lead the jury to an erroneous conclusion. See State v. McCormick, 28 Or. App. 821, 827, 561 P.2d 665, reversed on other grounds, 280 Or. 417, 420, 571 P.2d 499 (1977).
Defendant's fourth contention is that the language of ORS 163.175(1)(c), "under circumstances *608 manifesting extreme indifference to the value of human life," is unconstitutionally vague, violating due process and ex post facto principles.[9] In State v. Williams, 37 Or. App. 419, 422, 587 P.2d 1049 (1978), this court stated qualifications to due process restraints on statutory language:
"* * * The standard need not be so exact that persons affected by it will never be required to hazard their freedom upon a correct assessment of the manner in which a jury will resolve a question of degree."
The Supreme Court stated in regard to Art. I, § 21 of the Oregon Constitution, the ex post facto provision, that "* * * A vague statute lends itself to an unconstitutional delegation of legislative power to the judge and jury, and, by permitting the jury to decide what the law will be, it offends the principle, if not the rule, against ex post facto laws." State v. Blair, 287 Or. 519, 523, 601 P.2d 766 (1979). The test, therefore, is whether the statute provides sufficient standards so that a determination of guilt is neither ad hoc nor unguided by the legislature.
The language employed in ORS 163.175(1)(c) is not of the dragnet or catchall variety which is prohibited. See State v. Sanderson, 33 Or. App. 173, 178, 575 P.2d 1025 (1978). Rather, it introduces a differentiating factor, allowing enhanced punishment for only a particular kind of recklessness. Furthermore, the language employs words of common use within ordinary powers of comprehension. "Extreme indifference to the value of human life" simply means a state of mind where an individual cares little about the risk of death of a human being. The fact that the jury determines the issue of culpability as a finding of fact does not make the statute void for vagueness. Several statutes allocating a similar role to the jury have withstood the vagueness test. See State v. Popiel, 216 Or. 140, 147, 337 P.2d 303 (1959) (assault "by means of force likely to produce great bodily injury"); City of Portland v. Kreutz, 7 Or. App. 618, 492 P.2d 824 (1972) (operation of a vehicle "in a careless manner"); State of Oregon v. Wojahn, 204 Or. 84, 137, 282 P.2d 675 (1955) (driving a motor vehicle "in a negligent manner"); State v. Samter, 4 Or. App. 349, 352, 479 P.2d 237 (1971) ("cruelly mistreat and maltreat" a child). We conclude that the language employed in ORS 163.175(1)(c) is not void for vagueness as the language provides a sufficient standard for the determination of guilt by the jury.
Alternatively to his "vagueness" contention defendant claims that the trial court erred in submitting the second degree assault charge to the jury as there was no evidence that a dangerous weapon was used during the assault. He did not raise this issue in the trial court. We decline, therefore, to address it. State v. Applegate, 39 Or. App. 17, 20, 591 P.2d 371 (1979).
Defendant's fifth contention challenges the following instruction given by the trial court regarding the hit-and-run charge:
"* * * The state must prove * * * that the defendant was knowingly the driver of a vehicle involved in an accident which resulted in injury or death to any person * * * `knowingly' means that the driver of the vehicle involved knew that an accident resulted in injury to or death of a person or knew that it was of such a nature that it was probable that it resulted in injury or death to a person."
Defendant contends that the knowledge required must be actual knowledge that the accident had caused physical injury, and that knowledge that it was only probable that injury resulted is insufficient.
*609 Knowledge of an injury is not an expressed statutory element of the charge, and the issue of its being implicitly required has not been determined previously. See State v. Hulsey, 3 Or. App. 64, 66, 471 P.2d 812 (1970); State v. Reynolds, 229 Or. 167, 366 P.2d 524 (1961). Nevertheless, the majority of courts have held that hit and run statutes implicitly require knowledge. Annot., 23 A.L.R. 3d 500 (1979). There is a split of authority as to whether knowledge of the injury or damage must be shown or just knowledge of the collision. In those jurisdictions where knowledge of the injury or damage must be shown, knowledge can be inferred from the circumstances. Hence, as the cited annotation states, "As a practical matter then, the rule requiring a finding of such knowledge (of injury or death) from knowledge of the accident, may operate much the same * * * as the rule requiring only knowledge of the accident or collision." 23 A.L.R. 3d at 504. Defendant's contention that knowledge of injury or death cannot be inferred circumstantially is not supported by either of the prevailing rules.
The purpose of ORS 483.602 as stated in State v. Burris, 10 Or. App. 297, 500 P.2d 265 (1972), quoting State v. Hulsey, 3 Or. App. at 71, 471 P.2d 812, is as follows:
"The essence of the statute is to maximize protection of one injured in an accident, and thus to require the operator involved to remain at the scene * * *." 10 Or. App. at 300, 500 P.2d 265.
The burden is on the driver involved in an accident to stay at the scene and verify that no one was hurt or in need of assistance or to risk severe penalty. We decline to put the burden on the state to prove that a driver knew another person was injured. The state need only prove that defendant knew, or prove circumstances from which it can be inferred that he knew, he was involved in an accident which was likely to have resulted in injury or death to another person. The instruction given was proper.
In defendant's sixth contention, he argues that the DUII, assault and manslaughter charges should have been merged[10] to permit but one penalty for a single offense. Defendant did not raise this issue below. Therefore, we will only consider it on appeal if the error is egregious according to the criteria set out in State v. Applegate, 39 Or. App. at 23, 591 P.2d 371. In Applegate, this court stated at page 25, 591 P.2d 371:
"* * * [I]n considering the egregiousness of an alleged merger error, some of the factors to be considered are concurrent versus consecutive sentences and the closeness of the question * * *."
The trial court sentenced defendant to concurrent sentences, rather than consecutive sentences, on his convictions. This factor weighs against finding that the error was egregious. State v. Applegate, 39 Or. App. at 23, 591 P.2d 371. Also, the failure to merge the DUII, manslaughter and assault convictions is not an obvious error. Defendant cites no cases and we have found none where the issue of merger has been determined involving these crimes. It not being egregious error, we decline to review the merger issue.
Affirmed.
NOTES
[1] ORS 163.125(1)(a), provides:
"(1) Criminal homicide constitutes manslaughter in the second degree when:
"(a) It is committed recklessly; * * *"
[2] ORS 163.175(1)(c) provides:
"(1) A person commits the crime of assault in the second degree if he:
"* * * * *
"(c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life."
[3] ORS 483.602 provides:
"(1) The driver of any vehicle involved in an accident which results in injury or death to any person or causes damage to a vehicle which is driven or attended by any person, immediately shall stop such vehicle at the scene of the accident, or as close thereto as possible, and shall remain at the scene of the accident until he has fulfilled the requirements of subsection (2) of this section. Every such stop shall be made without obstructing traffic more than is necessary.
"(2) The drivers of any vehicles involved in any accident resulting in injury or death to any person or damage to any such vehicles shall:
"(a) Give to the other driver or surviving passenger, or any person not a passenger injured as a result of such accident, his name, address and the registration number of the vehicle which he is driving, and the name and address of any other occupants of such vehicle.
"(b) Upon request and if available, exhibit and give the number of his operator's or chauffeur's license to the persons injured, or to the occupant of or person attending any vehicle damaged.
"(c) Render to any person injured in such accident reasonable assistance, including the conveying of such person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such conveying is requested by any injured person.
"* * * * *"
[4] Former ORS 487.540, under which defendant was convicted, provided:
"(1) A person commits the offense of driving while under the influence of intoxicants if he drives a vehicle while:
"(a) He has .10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood, urine or saliva made under ORS 487.805 to 487.815 and 487.825 to 487.835; or
"(b) He is under the influence of intoxicating liquor, a dangerous drug or narcotic drug; or
"(c) He is under the influence of intoxicating liquor and a dangerous drug or narcotic drug.
"* * * * *"
[5] Defendant was also fined $500 on the hit and run conviction and $500 on the DUII conviction.
[6] Former ORS 161.125(2), in effect at the time of defendant's trial, provided:
"(2) When recklessness establishes an element of the offense, if the defendant, due to drug use, dependence on drugs or voluntary intoxication, is unaware of a risk of which he would have been aware had he been not intoxicated, not using drugs, or not drug dependent, such unawareness is immaterial."
[7] ORS 163.145(1) provides:
"(1) A person commits the crime of criminally negligent homicide when, with criminal negligence, he causes the death of another person."
[8] Other statutes that appear to recognize that a vehicular homicide could be manslaughter are: ORS 486.211 (license suspension), ORS 482.230 (mandatory revocation), ORS 484.705(1)(a) (habitual offender status), ORS 487.560(6)(a) (enhanced penalty for driving while suspended).
[9] Defendant demurred to the indictment on the ground that the statute was unconstitutionally vague and renewed this contention in his motion for acquittal. On appeal defendant directs us to the Oregon Constitution, Article I, Section 11, and the due process clause of the Fourteenth Amendment of the United States Constitution as authority for his contention that the statute violates the due process and ex post facto principles. Defendant also raises statutory bases for his contention of vagueness. We decline to review the latter issues based on defendant's statutory authority as the trial court was not presented with these. State v. Applegate, 39 Or. App. 17, 20, 591 P.2d 371 (1979).
[10] The two felony hit and run charges were merged for purposes of conviction and sentencing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608572/ | 5 Kan. App. 2d 602 (1980)
621 P.2d 448
PHILLIP M. CARTER, Appellee,
v.
KANSAS GAS AND ELECTRIC COMPANY, Appellant, and KANSAS WORKERS' COMPENSATION FUND, Appellee.
No. 51,377
Court of Appeals of Kansas.
Opinion filed December 31, 1980.
Robert A. Vohs of Vohs and Stratton, and Ralph B. Foster, of Wichita, for the appellant.
Russell Cranmer, of Wichita, for the appellee Phillip M. Carter.
Andrew E. Busch of O'Hara, Busch, Johnson & Falk, of Wichita, for the appellee Kansas Workers' Compensation Fund.
Before FOTH, C.J., ABBOTT and SPENCER, JJ.
SPENCER, J.:
Kansas Gas and Electric Company, a self-insured employer, appeals from a judgment holding it solely liable for payment of the award in this workmen's compensation case.
In 1969 claimant was hit on the head by an aerial bucket and treated by the company physician as an out-patient for pain in his neck and shoulders. In 1974 he experienced some neck pain, along with numbness in his right hand, blurry eyes, and dizziness. On July 9, 1975, claimant sustained a ruptured disc in his *603 neck in the course of his employment. Upon examination, it was discovered for the first time that he was suffering from a long-standing degenerative condition in his neck, cervical disc disease. The court awarded compensation based upon a thirty percent permanent partial disability and found "but for" the preexisting degenerative condition, the resulting disability from the July 9, 1975, injury would not have occurred.
On appeal, KG&E argues only that the court erred in finding it failed to show knowledge that claimant was handicapped prior to July 9, 1975, thus holding KG&E solely liable for the award.
The only evidence presented to show notice was medical reports received by KG&E from the company physician in 1969 and 1974. The 1969 report indicated that x-rays were negative. Claimant's condition was diagnosed as muscle spasms due to trauma. The doctor concluded that claimant had no disability and placed no restrictions on his work duties. After examination in 1974 the physician recommended full duty and, after noting some puzzlement regarding claimant's condition, referred him to another physician. In both instances, claimant neither missed a day of work nor filed a claim for compensation.
K.S.A. 1974 Supp. 44-567 provided in relevant part:
"(a) An employer ... who knowingly employs or knowingly retains in his employment a handicapped employee, shall be relieved of liability for compensation awarded....
"(b) In order to be relieved of liability under this section, the employer must prove either that he had knowledge of the preexisting impairment at the time he employed the handicapped employee or that he retained such handicapped employee in his employment after acquiring such knowledge. The employer's knowledge of the preexisting impairment may be established by any evidence sufficient to maintain the employer's burden of proof with regard thereto."
K.S.A. 1974 Supp. 44-566(b) provided in part:
"A `handicapped employee' means one afflicted with or subject to any physical or mental impairment, or both, whether congenital or due to an injury or disease of such character the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining reemployment if the employee should become unemployed and his handicap is due to any of the following diseases or conditions....
"16. Any physical deformity or abnormality;
"17. Any other physical impairment, disorder or disease, physical or mental, which is established as constituting a handicap in obtaining or in retaining employment."
In Hinton v. S.S. Kresge Co., 3 Kan. App. 2d 29, 592 P.2d 471 *604 (1978), rev. denied 225 Kan. 844 (1979), this court held that under K.S.A. 1974 Supp. 44-567 the burden of proving that a "handicapped employee" was "knowingly" retained is on the employer. It was also held that whether a particular impairment is of such a nature as to constitute the employee "handicapped" within the meaning of K.S.A. 1974 Supp. 44-566(b) is a question of fact. In that case, the claimant suffered a work-related back injury on May 23, 1975. She received medical care and was off work for four weeks. The employer clearly had knowledge of the injury and the fact that she was off work. Although the doctor had discovered spondylolysis in treating claimant, his report to the employer noted only that she had suffered a contusion to her back and that she was released to work as asymptomatic. On June 23, 1975, claimant returned to work and received a back injury while lifting a box. Under these facts, the trial court found the employer had failed in its burden of proof. The court held that knowledge of the injury resulting in a contusion to the back, in itself, was not sufficient to show knowledge that claimant was a "handicapped employee." This court affirmed, applying the standard of review for a negative finding:
"The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence, the finding of the trial judge cannot be disturbed. Jennings v. Speaker, Executrix, 1 Kan. App. 2d 610, 571 P.2d 358 (1977)." 3 Kan. App. 2d at 33.
In Oates v. Post & Danley Truck Lines, 3 Kan. App. 2d 337, 594 P.2d 684 (1979), the claimant had suffered a cerebral vascular accident in September, 1975. In October, 1975, when he applied with the employer this was disclosed and he was questioned about his condition. In December, 1975, he suffered a workrelated injury which impliedly would not have occurred "but for" the preexisting condition. This court affirmed the trial court's finding that claimant's prior cerebral vascular accident constituted a handicap and that the employer had knowledge of the handicap. In doing so, the court held that the determination of whether knowledge of a particular accident or injury is sufficient as knowledge of an impairment constituting a handicap must be made on a case-by-case basis. The court noted that a cerebral vascular accident was one of the specific impairments set out in K.S.A. 1974 Supp. 44-566(b). The court also approved the director's *605 position that an impairment need not be demonstrably disabling in order to make a person a "handicapped employee" as long as a reservation remains in the mind of the employer when deciding whether to hire an individual.
In Grounds v. Triple J Constr. Co., 4 Kan. App. 2d 325, 606 P.2d 484, rev. denied 227 Kan. 927 (1980), the claimant had a history of back trouble of which the employer was personally aware prior to hiring him. The employer was also aware that claimant had suffered a back injury in 1971 for which a workmen's compensation claim had been filed, and that claimant had to wear a back brace. This court allowed the trial court's finding that claimant was a "handicapped employee" and rejected a contention by the Fund that to be "handicapped" an employee must have previously been denied employment due to his impairment.
In Spencer v. Daniel Constr. Co., 4 Kan. App. 2d 613, 609 P.2d 687 (1980), rev. denied June 20, 1980, the claimant suffered a back injury at work on July 30, 1975, which was reported to the employer. He missed some work and upon return his supervisor told him to "take it easy," and not to bend, stoop or lift. This court affirmed an apportionment to the Fund of an award based on a second work-related back injury suffered on August 22, 1975. It was stated:
"It is unrealistic to say that a worker who does heavy construction work and complains of these symptoms does not have a physical impairment that constitutes a handicap in obtaining or in retaining employment. If he were to tell a prospective employer in the heavy construction business about his symptoms, he would not be hired; and his own supervisor warned claimant that he might be terminated if he reported his injury through proper channels." 4 Kan. App. 2d at 617.
Finally, in Hampton v. Professional Security Co., 5 Kan. App. 2d 39, 611 P.2d 173 (1980), the claimant had a back injury in 1968 for which he received workmen's compensation benefits. He did not work for eight years until hired in 1976 by the employer. Before hiring the claimant, the company president questioned him concerning his work record and expressed concern that his back condition might hamper his ability to work. This court found substantial evidence to support the trial court's finding that claimant was knowingly hired as a "handicapped employee," rejecting an argument that because "bad back" is not one of the impairments specifically listed in K.S.A. 1974 Supp. 44-566(b), *606 general knowledge of a bad back cannot be sufficient as knowledge of "handicap."
From the foregoing, the following principles can be summarized:
1. The burden of showing that a "handicapped" employee was "knowingly employed or retained" is on the employer.
2. The question of whether a particular impairment is of such a nature as to constitute the employee "handicapped" within the meaning of the statute is one of fact. In this regard, "handicapped" means afflicted with an impairment of such a character as to constitute a handicap in obtaining or retaining employment.
3. The determination must be made on a case-by-case basis.
4. The impairment need not be demonstrably disabling as long as it gives rise to a reservation in the mind of the employer when deciding whether to hire or retain the employee.
5. The employee need not have been previously rejected for employment due to the impairment.
6. The impairment need not be one of the specific "diseases or conditions" listed in K.S.A. 1974 Supp. 44-566(b). Subsection 17 of that section includes "[a]ny other physical impairment, disorder or disease, physical or mental, which is established as constituting a handicap in obtaining or in retaining employment."
It is also clear that, where the trial court finds the employer has failed to show it had knowledge of an impairment or that the impairment was of such a nature as to constitute a handicap, such is a negative finding which this court will not disturb absent an arbitrary disregard of undisputed evidence. On the other hand, where the trial court finds such knowledge, this court will affirm such a finding if supported by substantial evidence.
Applying these principles to this case, the trial court found that KG&E's knowledge of the 1969 and 1974 injuries was not sufficient as knowledge that claimant was "handicapped." As in Hinton, this is a negative finding. KG&E points to no "undisputed evidence" which it claims the court arbitrarily disregarded. The court found that KG&E was aware of claimant's 1969 and 1974 injuries but that such knowledge was not sufficient to import knowledge that claimant was "handicapped." KG&E argues only that such knowledge should be sufficient. However, the medical records introduced as evidence of KG&E's knowledge show only *607 that claimant had suffered muscle spasms due to trauma as to the 1969 injury, and an unknown diagnosis but a recommendation of full duty as to the 1974 injury. There is no evidence that KG&E or any other employer considered or would consider these prior injuries as constituting claimant "handicapped" in obtaining or retaining employment. One portion of the trial court's finding is troubling. After finding that KG&E had failed in its burden of proof and that knowledge of the prior injuries was not in itself sufficient as knowledge that claimant was handicapped, the court stated:
"There is no evidence supported by the record, showing that, prior to the date of the accident on July 9, 1975, any person had advised Kansas Gas and Electric that claimant had suffered from Cervical Disc Disease. Additionally, the record clearly shows that the Claimant himself was not apprised of the fact that he was suffering from a Cervical Disc Disease prior to July 9, 1975."
Insofar as the court intimates that KG&E had to have knowledge of claimant's specific disease in order to knowingly retain a "handicapped" employee, it goes too far. Our cases show that knowledge of general back problems can be knowledge of a handicap. Such was the case in Grounds, Spencer, and Hampton. Without establishing a rule, it appears that in those cases the employer had knowledge of long-standing back problems or knowledge that the particular back injury affected or was likely to affect the employee's ability to work. In Grounds, the employer had knowledge of long-standing back problems and that the employee had to wear a back brace. In Spencer, the employer knew that the employee had missed work due to the first back injury and the supervisor told him not to do heavy work. In Hampton, the employer knew that the employee had been unemployed for eight years due to the injury and evidenced concern over his ability to work. In such cases, it is reasonable to conclude the back problem constituted a handicap in obtaining or retaining employment. On the other hand, a particular back injury need not affect the employee's work ability or employment possibilities. It cannot be simply assumed that a single trauma back injury is likely to have recurring effects, particularly when the employee is released to full work duty by his or her doctor. Such was the case in Hinton, and such is the case here.
On the record in this case, it cannot be said that the court erred in finding that KG&E had failed in its burden of proof.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1236771/ | 502 F.3d 1056 (2007)
Roy Alan O'GUINN, Plaintiff-Appellant,
v.
LOVELOCK CORRECTIONAL CENTER; Nevada Department of Corrections; Nevada Department of Corrections Medical Director; State of Nevada; Jackie Crawford; E.K. McDaniel, Defendants-Appellees.
No. 06-15972.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 16, 2007.
Filed September 5, 2007.
*1058 Brett W. Johnson, Rhonda Needham, Anne Bishop, Snell & Wilmer L.L.P., Phoenix, AZ, for the appellant.
Catherine Cortez Masto, Nevada Attorney General; Melanie A. Potter, Deputy Attorney General, Carson City, NV, for the appellees.
Before: CYNTHIA HOLCOMB HALL, DIARMUID F. O'SCANNLAIN, and SANDRA S. IKUTA, Circuit Judges.
IKUTA, Circuit Judge:
Roy Allen O'Guinn is a Nevada state prisoner who has sued prison officials claiming they denied him accommodation and treatment for his mental illness. The district court dismissed the suit pursuant to the Prison Litigation Reform Act ("PLRA"), as amended, 42 U.S.C. § 1997e et seq., for O'Guinn's failure to exhaust administrative remedies prior to filing suit. O'Guinn appealed. We have jurisdiction under 28 U.S.C. § 1291.
To resolve this appeal, we must decide whether the PLRA requires prisoners to exhaust available administrative remedies before bringing claims under the Americans With Disabilities Act ("ADA") and the Rehabilitation Act. We hold that it does and therefore affirm the district court.
I
O'Guinn is a prisoner at Lovelock Correctional Center, a Nevada Department of Corrections ("NDOC") prison. He has a history of mental illness, brain damage, and organic personality disorder, which in the past have required medical treatment.
On November 9, 2004, O'Guinn filed a complaint with the Department of Justice ("DOJ") alleging ADA and Rehabilitation Act violations based on the prison's alleged failure to provide adequate treatment for his mental disability. The complaint was filed on a form entitled "Title II of the Americans with Disabilities Act/Section 504 of the Rehabilitation Act of 1973 Complaint Form." The DOJ sought and received authorization from O'Guinn to investigate these complaints. It is unclear from the record whether the DOJ took any further action.
After filing his complaint with the DOJ, O'Guinn filed a pro se complaint in federal district court against the Nevada Department of Corrections and several other defendants (collectively "Defendants") on January 4, 2005. He used a pre-printed form, captioned "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983." He identified his single cause of action under count one as "Americans with Disabilities Act, 42 USC § 12101 et seq., and Rehabilitation Act 29 USC § 794 et seq." The complaint does not include a cause of action under § 1983. Under the jurisdiction paragraph he again identified these statutes and added "Not a civil rights action except as may be covered in the above statutes."
O'Guinn filed an amended complaint on January 13, 2005, again on NDOC's pre-printed § 1983 complaint form. Instead of leaving the default jurisdictional statement under § 1983, O'Guinn wrote "Different: Rehab Act Title 29 U.S.C. § 794 et seq., and Americans with Disabilities Act, Title 42 U.S.C. § 12101, et. seq." As with the original complaint, O'Guinn listed only causes of action under the ADA and Rehabilitation Act. The district court sua sponte dismissed the amended complaint with leave to amend pursuant to 28 U.S.C. § 1915A, holding that O'Guinn had failed to plead his causes of action sufficiently.
On January 31, 2005, O'Guinn filed a second amended complaint, which is the operative complaint in this appeal. The second amended complaint, like the two *1059 prior complaints, used the form § 1983 complaint. As with the first two complaints, O'Guinn invoked federal jurisdiction based on the ADA and Rehabilitation Act, instead of on § 1983. He did not mention § 1983. The second amended complaint alleged that O'Guinn was denied participation in services, benefits, and programs solely on the basis of his disability and that he had been denied accommodations for his disability in violation of these statutes. O'Guinn attached his DOJ ADA/Rehabilitation Act complaint form to the second amended complaint. He also indicated that he had not exhausted the NDOC's grievance procedures, stating: "Grievance not applicable to ADA/ Rehab Act and is not required under these acts."
Defendants moved to dismiss the second amended complaint on several grounds, including O'Guinn's failure to exhaust his administrative remedies. In response, O'Guinn argued that exhaustion was not required because prisoners bringing suit under the ADA do not have to exhaust prison remedies, and the NDOC's own administrative grievance process, Administrative Regulation 740, prohibits grievances pertaining to federal law. He also argued that if there were a federal exhaustion requirement, he met it by filing his complaint with the DOJ.
In her recommendation to the district court on November 14, 2005, the magistrate judge determined that O'Guinn had filed his suit under § 1983 and had failed to exhaust administrative remedies before filing suit, as required by the PLRA. On March 27, 2006, the magistrate judge also determined, after an evidentiary hearing on the issue, that O'Guinn had failed to file NDOC grievances related to mental health treatment.
The district court adopted the magistrate's recommendation on March 28, 2006. The district court noted O'Guinn's argument that he exhausted his mental health treatment claims after he filed his lawsuit, but held that O'Guinn was required to file a new action to reflect this exhaustion. Accordingly, the district court dismissed O'Guinn's suit without prejudice. O'Guinn filed a timely notice of appeal.
II
Dismissals based on a prisoner's failure to exhaust remedies are reviewed de novo; factual findings are reviewed for clear error. See Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). In ruling on a dismissal motion, a "court may look beyond the pleadings and decide disputed issues of fact. If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120 (internal citation omitted). We may affirm on any ground present in the record. See Sherman v. Harbin (In re Harbin), 486 F.3d 510, 520 (9th Cir.2007).
III
O'Guinn's key argument is that the PLRA does not require exhaustion of claims arising under the ADA or Rehabilitation Act.[1] O'Guinn claims that the district court erred in characterizing his second amended complaint as bringing § 1983 claims, rather than ADA and Rehabilitation Act claims, and then compounded this error by dismissing his claims for failure to exhaust administrative remedies. As explained below, we agree that O'Guinn pleaded claims under the ADA and Rehabilitation Act rather than under § 1983, *1060 but conclude that the PLRA requires administrative exhaustion of ADA and Rehabilitation Act claims.
A
The district court mischaracterized O'Guinn's complaint as arising under § 1983. O'Guinn's complaint clearly pleaded ADA and Rehabilitation Act statutory violations. As discussed above, each of O'Guinn's complaints stated that his claims were brought under the ADA and Rehabilitation Act and that he was not filing a civil rights complaint.
Further, the factual assertions in the second amended complaint are directly related to establishing elements in his ADA and Rehabilitation Act causes of action. In order to state a claim under Title II of the ADA, a plaintiff must allege:
(1) he `is an individual with a disability;' (2) he `is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities;' (3) he `was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity;' and (4) `such exclusion, denial of benefits, or discrimination was by reason of [his] disability.'
McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.2004) (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)). Similarly, to state a claim under the Rehabilitation Act, a plaintiff must allege "(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance." Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir.2001).
In his second amended complaint, O'Guinn alleged that he was an individual with a mental health disability, he was qualified to receive the mental health services provided by NDOC, he was denied the benefits of the program solely on the basis of his mental illness, and NDOC received federal financial assistance. Conversely, the only indication that O'Guinn intended to file a § 1983 claim is the caption on the pre-printed form which O'Guinn claims the NDOC required him to use. Notably, O'Guinn's complaint does not allege that Defendants deprived him of a constitutional right while acting "under color" of state law, a necessary element of a § 1983 claim. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991). As we held in Bogovich v. Sandoval, when a prisoner's complaint "asserts only, and details facts related to, potential ADA violations," the district court errs in characterizing the suit as a § 1983 claim. 189 F.3d 999, 1001 (9th Cir.1999).
Defendants argue that we should construe the complaint as arising under § 1983 because O'Guinn can more readily obtain his desired remedies under § 1983 than under the ADA and Rehabilitation Act. But "courts should not undertake to infer in one cause of action when a complaint clearly states a claim under a different cause of action. `[T]he party who brings a suit is master to decide what law he will rely upon.'" Id. (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 n. 7, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987)).
B
Having determined that O'Guinn pleaded causes of action under the ADA and Rehabilitation Act rather than § 1983, we turn to the question whether the PLRA required O'Guinn to exhaust available administrative remedies before bringing these claims. The plain language of the PLRA, as well as Supreme Court and Ninth Circuit precedent, lead us to conclude *1061 that exhaustion is required for ADA and Rehabilitation Act claims.
The PLRA exhaustion provision, § 1997e(a), states:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a) (emphasis added). Because the ADA and Rehabilitation Act are federal laws, the plain language of the PLRA requires that prisoners bringing an action under these federal statutes challenging prison conditions must first exhaust available administrative remedies. The parties do not dispute that O'Guinn's second amended complaint challenged prison conditions.
The Supreme Court has emphasized that the exhaustion requirement in the PLRA means what it says. Specifically, "exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under § 1983." Woodford v. Ngo, ___ U.S. ___, 126 S. Ct. 2378, 2383, 165 L. Ed. 2d 368 (2006). A prisoner must exhaust administrative remedies even when the prisoner's suit seeks monetary damages that are unavailable through the prison's grievance process, see Booth v. Churner, 532 U.S. 731, 734-35, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001), and even with respect to suits alleging excessive force by prison officials, see Porter v. Nussle, 534 U.S. 516, 520, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002).
O'Guinn argues that Bogovich v. Sandoval creates an exception to the PLRA's exhaustion requirement for ADA claims. In Bogovich, we held that two prisoners could challenge certain parole board policies under the ADA, and were not limited to filing a habeas corpus petition. 189 F.3d at 1004. By way of background, we noted that prisoners may not evade habeas exhaustion requirements by seeking nonhabeas forms of relief and observed "[t]here is no exhaustion requirement for claims brought under Title II of the ADA." 189 F.3d at 1002. This is a correct statement of law regarding exhaustion of Title II claims outside of the PLRA context. See Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1178 (9th Cir.1999). However, Bogovich did not discuss the PLRA's exhaustion requirement, and in fact did not reference the PLRA at all. Therefore, Bogovich did not create an exception to the PLRA's exhaustion requirement for ADA claims.
We recognize that neither Title II of the ADA nor section 504 of the Rehabilitation Act generally requires administrative exhaustion before filing suit. See Zimmerman, 170 F.3d at 1178. Yet nothing in the ADA or the Rehabilitation Act carves out an exception to the PLRA exhaustion requirement. On the other hand, the PLRA specifically prohibits suits "under section 1983 of this title, or any other Federal law," 42 U.S.C. § 1997e(a), absent exhaustion. See Salgado v. Garcia, 384 F.3d 769, 773-74 (9th Cir.2004) ("[W]here there is no clear indication otherwise, a specific statute will not be controlled or nullified by a general one." (quotation marks omitted)). The Supreme Court has noted that in enacting the PLRA, Congress intended it to apply to all federal laws with respect to prisoner suits, with the intent that prison officials would have the first opportunity to address prison conditions. See Porter, 534 U.S. at 524-25, 122 S. Ct. 983. This congressional intent would be defeated if prisoners were able to bring federal suits directly in district court wherever a federal statute lacked an exhaustion provision. Given the clear indication of congressional intent in the PLRA, we interpret § 1997e(a) as requiring prisoners to exhaust prison administrative remedies for *1062 claims under Title II of the ADA and the Rehabilitation Act, notwithstanding the absence of a federal administrative exhaustion requirement in these statutes.
Accordingly, we hold that the plain language of § 1997e(a) and relevant Supreme Court authority require prisoners bringing ADA and Rehabilitation Act claims to exhaust those claims through available administrative remedies before filing suit. Cf. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.2005) (finding that a prisoner had "availed himself of the administrative process the state gave him" and holding § 1997e(a) did not require dismissal of his ADA claim). In so holding, we join the Sixth Circuit, which has similarly dismissed ADA claims for failure to satisfy the PLRA's exhaustion requirement. See Jones v. Smith, 266 F.3d 399, 400 (6th Cir.2001) (per curiam).
IV
Having determined that O'Guinn was required to exhaust available administrative remedies before filing his ADA and Rehabilitation Act claims, we turn to the question whether he did so. O'Guinn alleges he satisfied the PLRA's exhaustion requirement through his repeated requests to move to the bottom bunk, or in the alternative, by filing the ADA/ Rehabilitation Act complaint form with the DOJ.
First, even liberally construing the grievances O'Guinn filed requesting a lower bunk due to poor balance resulting from a previous brain injury, we conclude that these lower bunk claims are not equivalent to claims of denial of mental health treatment in violation of the ADA and Rehabilitation Act. After "scour[ing] the record for any indicia that plaintiff exhausted available remedies," the magistrate judge ruled that O'Guinn's complaints contained "no requests for treatment or any other documents that might be construed as complaints seeking mental health treatment in accordance with the [ADA] that were submitted to prison officials." The magistrate judge reiterated this conclusion after the evidentiary hearing, stating: "no requests for mental health treatment . . . were submitted to prison officials." The district court adopted the magistrate's conclusion, stating that O'Guinn "did not exhaust his grievances with respect to the claims made in this case." Reviewing this conclusion for clear error, see Wyatt, 315 F.3d at 1120, we agree that O'Guinn did not exhaust his ADA and Rehabilitation Act claims here.
Second, O'Guinn asserts that the complaint he filed with the DOJ alleging denial of mental health treatment should satisfy § 1997e(a).[2] However, the Supreme Court has made clear that the PLRA requires a prisoner to exhaust the prison's internal grievance process. See Jones v. Bock, ___ U.S. ___, 127 S. Ct. 910, 922, 166 L. Ed. 2d 798 (2007) ("[T]o properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rulesrules that are defined . . . by the prison grievance process itself." (internal citations and quotation marks omitted)).
Relying on the statement in Brown v. Valoff that "awaiting the results of investigations triggered by the grievance process but outside of it can serve the purposes of the exhaustion requirement," 422 F.3d 926, 936 (9th Cir.2005), O'Guinn argues that the *1063 DOJ's investigation of his claims satisfies the PLRA's exhaustion requirement. In that case, a California state prisoner took his excessive force complaint through the second level of the prison's four-level grievance process. Id. at 929-31. After the second level, the prison afforded Brown partial relief and turned Brown's grievance into a "Staff Complaint" to be investigated by the Office of Internal Affairs. Id. at 931. This sort of personnel investigation could not afford Brown any relief. Id. at 937-38. Thus, we determined that Brown had properly exhausted his remedies for purposes of the PLRA because he had no further "available" remedy. Id. at 940. In this context, Brown's statement that an outside investigation "can serve the purposes of the exhaustion requirement," id. at 936, means that a prisoner has exhausted all available remedies when the prison administration's referral of a complaint for investigation ends a prisoner's appeal rights. As the DOJ investigation did not terminate O'Guinn's rights to pursue his ADA and Rehabilitation Act claims internally, the investigation did not serve to exhaust his administrative remedies.
V
Because O'Guinn failed to exhaust his administrative remedies before filing his ADA and Rehabilitation Act claims, the district court correctly dismissed his lawsuit without prejudice.[3] We note, however, that because O'Guinn appears to have exhausted these claims after he filed his original complaint, he need only file a new suit to have his case heard in a federal forum.
AFFIRMED.
NOTES
[1] O'Guinn also argues that the district court should have allowed him to amend his complaint to reflect that he exhausted his administrative remedies after filing his second amended complaint. We squarely rejected this argument in McKinney v. Carey, 311 F.3d 1198 (9th Cir.2002) (per curiam).
[2] As mentioned above, neither Title II of the ADA nor the Rehabilitation Act requires federal administrative exhaustion before bringing claims in court. See Zimmerman, 170 F.3d at 1178. O'Guinn bases his argument on the fact that federal regulations permit individuals who believe they have suffered discrimination based on a disability to file a complaint with the Department of Justice. See, e.g., 28 C.F.R. 35.170(c).
[3] On appeal, O'Guinn raises two additional arguments, namely that: 1) his misinterpretation of Administrative Regulation 740 amounts to a "special circumstance" excusing exhaustion; and 2) an inherent Eighth Amendment "emergency exception" applies because he is in urgent need of medical treatment. Because these arguments were not raised before the district court, they are waived. See Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir.1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1523726/ | 134 A.2d 425 (1957)
STATE
v.
Edward J. ANDREWS.
Ex. No. 9697.
Supreme Court of Rhode Island.
August 16, 1957.
*427 William E. Powers, Atty. Gen., Raymond J. Pettine, Asst. Atty. Gen., Providence, for State.
John Quattrocchi, Jr., Providence, for defendant.
ANDREWS, Justice.
This is an indictment for murder in three counts. The first count charges that the defendant murdered Susan B. Franklin while perpetrating rape upon her. The second count charges that the defendant murdered her while attempting to perpetrate rape upon her, and the third count charges that the defendant murdered her by choking and strangling her.
To avoid possible local prejudice the case was transferred from Newport to Providence for trial. The jury found defendant guilty of murder in the second degree, and the trial justice denied his motion for a new trial. The defendant excepted to this denial and this exception together with forty-four others constitute his bill of exceptions. He has, however, waived all but exceptions 8, 9, 10, 11, 12, 17, 24, 25, 37, 38, 40, 41 and 44. The defendant has briefed these exceptions under certain points and as the state has adopted the same treatment we shall do likewise.
Susan B. Franklin, a retired school teacher who was unmarried, was eighty-six years old at the time of her death, weighed eighty-five to ninety pounds and lived alone at 36 Walnut street in the city of Newport. About 1:30 p.m. on Sunday, April 24, 1955 a neighbor, Mary H. Peckham, who cooked Miss Franklin's dinners, took her dinner over to her. She found the door open and when Miss Franklin did not respond to her call she went into her bedroom and found her lying on the bed, dead. The police were called and took charge of the investigation.
Doctor Frank J. Logler, a local physician, came to the house about 1:30 to 2 p.m. that day. He examined the victim and estimated that she had been dead eight to twelve hours, but on cross-examination said she could have been dead anywhere from four to twenty-four hours. About 8:30 p.m. Dr. Arthur E. O'Dea, chief medical examiner for the state, performed an autopsy. He found bruises and abrasions on the body, a tearing of the vaginal wall and the presence of male spermatozoa in her vagina. He concluded that she had died as a result of asphyxia (shutting off *428 of oxygen because of the presence of blood in the windpipe or the bronchi) following blunt injury to the face and forceful penetration of the vagina.
A Newport police officer, George A. Von Villas, who had locked defendant up the previous Friday night, at the request of his family, for being somewhat drunk and disorderly at the home of his mother where he lived, picked him up again at 8:17 p.m. Sunday on suspicion that he might have had something to do with the murder. He questioned defendant concerning Miss Franklin but he denied knowing anything about the matter. Other officers questioned defendant from time to time during the night but he denied having anything to do with the crime. However, about 10 a.m. Monday, April 25, after one of his associates had said that he, defendant, had stated that he knew where he could get $500 or $600, he confessed that he entered Miss Franklin's house, assaulted her, had sexual intercourse with her, tied her up, and put a pillow over her head to keep her quiet. Before the confession was reduced to writing, certain police officers took defendant to Miss Franklin's house where, in the presence of Dr. Harold C. Harrison, assistant director of the University of Rhode Island laboratories of scientific criminal investigations, he re-enacted the crime as he had orally confessed it. The confession was also taken by tape recording, and it was signed and sworn to by defendant.
The defendant, at the request of the police, gave them some of his pubic hairs and Dr. Harrison testified that he compared them with other hairs which he obtained from a pair of shorts and a red shirt which were taken from defendant's bedroom, and which defendant admitted had been worn by him, and also from the bed in which Miss Franklin was assaulted, and that they originated from the same source. The doctor also testified that a white hair which was taken from the red shirt of defendant had come from the head of Miss Franklin. Fingerprints of defendant were found on an electric light bulb in Miss Franklin's house.
At the trial defendant denied that he killed Miss Franklin or that he entered her house, although he admitted that he was near it in his walks around the neighborhood between nine and ten o'clock Saturday evening, April 23. His mother, two sisters and a brother-in-law testified in support of his alibi, but one of them stated she left the house at eight o'clock and the other three testified that defendant was out of the house from a little after nine to shortly after ten o'clock that night. The defendant lived two or three blocks from Miss Franklin's house. He admitted that he had consumed a bottle of wine that morning and had had more to drink during the day, and felt "high." He also admitted to some resentment on Saturday at having been locked up Friday night.
The defendant also offered medical evidence as to his mental condition. His expert testified that he was suffering from inadequate personality, was emotionally immature, and was easily influenced by suggestions. He also testified that he would say that defendant did not know the difference between right and wrong. In rebuttal the state's expert on mental diseases testified in substantial contradiction of defendant's medical expert.
Under his point I defendant argues the part of his motion for a new trial which reads: "That the verdict is against the law." To support his claim he relies upon State v. Saccoccio, 50 R.I. 356, 146 A. 878, where this court overruled the defendant's exception to the trial court's refusal to submit second degree murder to the jury under an indictment charging the defendant, as here, with first degree murder committed while he was perpetrating one of the felonies mentioned in general laws 1938, chapter 606, § 1.
In the case at bar the trial justice charged that the jury could find defendant guilty of first degree murder or of second *429 degree murder on all counts. While defendant claims he excepted to the submission of second degree murder, he did not. His trial counsel only said: "Those portions of Your Honor's charge where defining second degree murder you stated several times `where he has no chance to stop or things move so fast that it would be murder in the second degree.'" That was an exception as to how the court charged and not to its charging at all on second degree murder. Nowhere in his brief has defendant argued his exception as taken. However that may be the correctness of the charge was not before the trial justice for review on the motion for a new trial. The defendant is here complaining that the jury followed the law as given to it and found him guilty of murder in the second degree. This point is without merit.
Under his point II defendant contends that the trial justice should not have charged on the law of second degree murder "by defining second degree murder." We have already pointed out that defendant did not object to the submission of second degree murder but only to a part of its definition and that he has not argued here that such part was wrong. Exceptions not briefed or argued are deemed to be waived. Exception 40 is overruled.
The defendant contends, under his point III, that the trial justice committed reversible error in not granting his motion for a new trial on the ground of newly discovered evidence. Under this point he first discusses certain evidence introduced at the trial in an apparent attempt to lay the foundation for showing the effect of the newly discovered evidence upon it. There is so little connection between the evidence at the trial and the new evidence that we think it unnecessary to go into that phase here.
Several affidavits were presented. The defendant admits that those of his relatives should be disregarded. That leaves three to be considered. The first affidavit is that of Charles F. McHugh, a probation counsellor for the state. It is all hearsay and avails defendant nothing. Langley v. F.W. Woolworth Co., 46 R.I. 394, 397, 129 A. 1. No explanation is given as to why the affidavits of the persons who could testify were not taken. This affidavit relates chiefly to a navy man who, a barkeeper told him, was acting strangely in the barroom on Saturday night, April 23, but the exact movements of that man on that night are not given. Taking the affidavit at its face value, it is very shadowy and inconclusive.
The second affidavit is that of a bus driver who said that there was a street light shining on the door of Miss Franklin's house and there were no sounds or screams coming from the house at approximately 8:35 p.m. on April 23. Clearly this evidence is without weight. The defendant testified he took his walk in that vicinity between nine and ten o'clock that night.
The other affidavit is that of a person who stated that on Sunday, April 24, between 10 and 10:30 a.m. he was passing Miss Franklin's house and there was a car parked near her front steps and a man standing on the steps knocking at the door. He said the man waited a short time and then drove off. He described the person somewhat but there is nothing to show whom he describes, and the significance of this evidence is far from clear.
In State v. De Cesare, 64 R.I. 123, at page 126, 10 A.2d 724, at page 725, this court stated: "* * * the affidavits of the four persons, upon whose testimony the petition is based, do not disclose evidence of such character as to be so controlling upon a material issue that it would probably change the result, if another trial were had."
The new evidence does not meet the test, and the trial justice did not abuse his discretion in denying the motion for a new trial on this point.
*430 Under his point IV defendant argues his exception 37 which was to that part of the charge dealing with reasonable doubt. After discussing the presumption of innocence and the difference between civil and criminal cases the trial justice stated: "This is a criminal case and in a criminal case the defendant should be found guilty only if the state has proved to you beyond a reasonable doubt that he is guilty. You mustn't have left any doubt that is reasonable. It doesn't mean that it should be proved beyond any doubt. It does mean that you should have no reasonable doubt left."
The defendant's trial counsel in stating his objection said: "To that portion of Your Honor's charge wherein defining reasonable doubt you laid down the test of ordinary affairs of everyday life, particularly where you said, `It's important for you to decide if something happened and you're told it happened; it was important to you as to whether it happened, or not, you say yes, you are convinced that it happened. Then you have been convinced beyond a reasonable doubt.'" The defendant's counsel on appeal, however, emphasizes the trial justice's use of the word "some" before importance later on in this part of his charge.
In the above quotation the trial justice gave an accurate and adequate charge on this subject and had he stopped there we would have no problem. He did, however, as some trial judges do, try to assist the jury by attempting to define what the phrase, "beyond a reasonable doubt," means by equating it with decisions in their own experience. We agree with those courts which hold that the phrase needs no definition and that attempts to define it sometimes confuse the jury. We do not think, however, that in the case at bar the jury was confused or that the rule in the quotation was watered down as defendant attempts to show.
The defendant relies strongly upon Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398. However, we are of the opinion that the challenged charge satisfied the rule of the Kluska case. While it is true that the trial justice used the word "some" before the word "importance" in the middle of this part of his charge, he used the word "important" without qualification both before and afterwards. Therefore, reading this part of the charge as a whole, we are satisfied that the jury could not have failed to understand that they were to equate their verdict with their decisions on important affairs in their own lives. This court has never made a ritual out of jury instructions and has thus avoided a line of decisions such as confronted the supreme court of Pennsylvania in the Kluska case. We think that simple charges within the comprehension of the ordinary juror are more appropriate, and when it appears that the jury is given the substance of the proper rule in such form we do not reverse for inartistic language unless we are convinced that the jury may have been misled thereby.
A similar situation was presented in State v. Mandella, 79 R.I. 476, 90 A.2d 423. Furthermore, as is shown by the language of the trial attorney in taking this exception, the attention of the trial justice was not directed to the use of the word "some" and we cannot emphasize too strongly the duty of counsel to direct the attention of the trial justice to the part of his charge to which the counsel excepts so that the trial justice may have an opportunity to correct it. Exception 37 is overruled.
Under his point V defendant discusses his exceptions 8, 9, 10, 11 and 12 which have to do with the testimony of Dr. Harrison as to the identity of the hairs of defendant and the victim which the doctor had examined. Without discussing the specific exceptions defendant argues that the court should not have allowed Dr. Harrison to give his opinion on this matter. The defendant relies upon Knoll v. State, 55 Wis. 249, 12 N.W. 369, 379, where the court sustained an exception *431 to a ruling allowing a witness to give an opinion on the ownership of hairs. It is clear from the defendant's own quotation from that case that the court sustained the exception, because the witness based his opinion "* * * not from any scientific tests, or peculiarities in the structure of the hair which an examination by a microscope would disclose, but from the length, magnitude and color, or those obvious marks and resemblances which one person of good vision would observe as readily as another." Doctor Harrison who had studied this subject for many years gave his opinion, as defendant says, "by microscopic comparison" of the hairs in question. This was something he was better able to do than a jury.
A hundred years ago in Buffum v. Harris, 5 R.I. 243, 251, Chief Justice Ames laid down the law which we believe has been uniformly followed here as to the use and the qualification of experts to assist the jury. The trial justice has rather wide discretion as to whether the subject matter admits of expert testimony. See 20 Am.Jur., Evidence, § 798, p. 671.
In Commonwealth v. Dorsey, 103 Mass. 412, a nonexpert testified there were hairs adhered to a club which appeared to the naked eye to be human hair and another nonexpert testified they resembled the hair of the deceased. The defendant's exceptions were overruled. The defendant admits that this case is an authority against him.
Exceptions 8, 9, 10, 11 and 12 are overruled.
Under his point VI defendant argues that the trial justice did not give the proper definition of insanity. This is exception 38. In taking the exception to the definition his trial attorney said: "Merely for the record, and I feel Your Honor had no alternative, by defining insanity under the M'Naghten Rule. I want to preserve that right." It is clear from this statement that the trial attorney was satisfied that the trial justice stated the M'Naghten Rule correctly but he wanted to preserve defendant's right to argue that it was not the proper rule. The defendant's attorney on appeal attacks the correctness of the instruction under that rule. He argues that the trial justice did not follow the exact language of Lord Chief Justice Tindal's restatement of the rule. We have examined the charge and are satisfied that it contains a substantial statement of the M'Naghten Rule. Had defendant felt it was in any way unclear or ambiguous, he should have pointed out that ambiguity or unclearness to the trial justice in order that he might have an opportunity to correct it.
In Cassidy v. McDonald, 47 R.I. 147,at 149, 131 A. 543, at page 544, this court, speaking through Chief Justice Sweetland, stated: "The rule is well established, and it is a valuable rule of practical application in the circumstances surrounding jury trials, that the omission by a judge presiding at a jury trial to charge upon some issue in a case, or his failure to define an essential legal term is not ground for exception. An exception can only be based upon the action which the justice takes upon a request for instructions covering an alleged omission." Had the defendant's attorney wished to challenge the M'Naghten Rule he should have submitted a request for instruction stating a different rule. This he did not do.
While this jurisdiction has never expressly adopted the M'Naghten Rule, it has assumed that it was the law here when in State v. McGregor, 82 R.I. 437, at page 449, 111 A.2d 231, at page 237, the court stated: "The charge of the court had adopted the rule or test as to a defendant's alleged insanity which is applied generally and which is referred to in State v. Quigley, 26 R.I. 263, 58 A. 905, 67 L.R.A. 322." In the Quigley case the court referred to the M'Naghten Rule but as it was not required to rule on it, it did not expressly do so. The defendant's trial *432 attorney in the case at bar assumed the M'Naghten Rule was law here and we have likewise assumed it is the proper rule. The rule of responsibility when a defendant has the capacity to know the difference between right and wrong seems to us a sound rule and one particularly adapted to the administration of criminal justice.
The defendant also excepted to the statement of the trial justice in his charge that the evidence of insanity was slight. He qualified this by saying "slight in point of number of words involved." This evidence was in fact very slight and we are of the opinion that the qualification cured any possible prejudice from the first remark. Exception 41 is overruled.
Under his point VII, exceptions 17, 24 and 25, defendant attacks the admissibility of his written confession and the confession taken by tape recording. He relies upon McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819, United States v. Mitchell, 322 U.S. 65, 64 A.Ct. 896, 88 L. Ed. 1140, and G.L.1938, chap. 625, § 68, as amended by P.L.1941, chap. 982, section 1, which reads in part as follows: "Clause 11. Length of Detention. Every person arrested shall be released either on bail or as provided in clause 10 or shall be brought before a judge of the district court within twenty-four hours from the time of his arrest, unless a judge of the district court of the district where he is detained or of the district court of the district where the crime was committed for good cause shown orders that he be held for a further period of not exceeding (a) twenty-four hours, if he be a resident of this state or (b) forty-eight hours, if he be a non-resident."
The United States Supreme Court said in both cases that it was exercising its supervisory power over the administration of criminal justice in the federal courts. Such being the case those decisions do not bind us. In the McNabb case the court was of the opinion that the officers had flagrantly disregarded the federal statutes requiring prompt arraignment and this fact together with other facts satisfied the court that the confession was not voluntary. In the Mitchell case the defendant confessed soon after he was arrested although he was not arraigned for eight days, yet the court held that his confession was admissible.
In the instant case defendant in his brief admits that the basic question is "* * * admissibility or non-admissibility of a confession must rest ultimately on its voluntariness * * *." We think that is the correct rule. The defendant also admits that the majority state rule is to the effect that mere delay in arraignment does not vitiate a confession. In the case at bar the confessions were obtained within the statutory twenty-four hour limit and there was no substantial evidence before the trial justice that there was any force or compulsion or improper influence brought to bear upon defendant that would make his confession involuntary. Such being the case the trial justice did not commit error in admitting the confessions. We are not concerned here with the weight to be attached to these confessions or to the effect of the defense testimony regarding them but only with their original admissibility.
Exceptions 17, 24 and 25 are overruled.
The defendant's point VIII, which is his last point, exception 44, is stated by him as follows: "The defendant's motion for a new trial should be granted on the ground that the verdict was against the evidence and against the weight of the evidence." In support of the above proposition he refers us to his trial attorney's oral argument before the trial justice on his motion for a new trial. He admits that we cannot overturn the decision of the trial justice on that motion unless he was clearly wrong. He should, therefore, have pointed out to us where the trial justice, not the jury, was wrong and his failure so to do would ordinarily result in his exception not being considered. However, *433 in the circumstances here we shall consider it.
The defendant's trial attorney pointed out to the trial justice, as he did to the jury, what he claimed were the weaknesses in the state's case and the strength in his own case but, as the record shows, he failed to convince the jury or the trial justice that these points overcame the strong points in the state's case. It is clear that the confessions were the main part of the state's case but the trial justice was satisfied with them. He particularly remarked upon the recorded one from which he and the jury heard the voices of the various participants. He was particularly impressed by the re-enactment of the crime in the presence of Dr. Harrison as to whose credibility there was not the slightest impeachment. He also stated that there was no impeachment of the police witnesses. He characterized the confessions as ringing true and, having heard the witnesses, he was in a position to make such a statement, and we are of the opinion that there is nothing suspicious or unnatural about the confessions.
The defendant's defense of insanity was woefully weak. It is doubtless true that his background and some of his weaknesses of character may have played a part in the crime. Those facts, however, did not warrant an acquittal.
The defense of alibi was also very weak because, as we have noted, he admits to being in the neighborhood between nine and ten o'clock Saturday evening. The fact that Miss Franklin was dressed and the light was on, coupled with the medical testimony, indicate that the murder was committed Saturday evening. We have already noted the real evidence, the hairs and the fingerprints.
The attack is against "the verdict." As the motion was general if there was sufficient evidence to support any count, the motion could be properly overruled. On this motion the defendant was limited to an attempt to show that the verdict was against the weight of the evidence as applied to the charge as given on second degree murder. The following is an excerpt from the charge on this point: "Now he's committed the murder because he had malice aforethought, that evil intent was in his mind before he acted. Then he acted on it; he [would be] guilty of murder but he'd be guilty of murder in the second degree because there hadn't been, as the Supreme Court said, there hadn't been an appreciable length of time in which he had a chance to turn back. So that in each one of these counts you'll ask, was the defendant guilty of murder within the definition I have given to you." This was the law of the case and upon all the evidence the jury might well have concluded that the defendant became so infuriated at Miss Franklin's resistance that his actions came within the above definition.
Miss Franklin died of asphyxia caused by blood in the windpipe which came from flesh wounds in her mouth received by some blunt force. In describing the blunt injury the medical examiner said: "This would be a blunt thing such as striking the pavement or floor, a blow of the face, a blow of some object which does not cut or particularly penetrate the skin." From this the jury could well have concluded that asphyxia was the result of the blow to the mouth and not from the rape or attempted rape. There was, therefore, ample evidence at least to support the verdict of second degree murder on the third count. Since that verdict must stand, it would be of no benefit to defendant to grant him a new trial on the other two counts. In fact he might conceivably be convicted of first degree murder on these counts.
The defendant's attorney argued to the trial justice on his motion for a new trial that the verdict was a compromise. As the verdict which we have just considered was at least in accordance with the law of the case and warranted by the evidence, the trial justice could hardly have treated it as *434 a compromise. He said among other things in disposing of this argument: "* * * I told the Jury that they must decide whether this was first or second degree murder and having told them that and that issue having been put to them, one can't impeach their judgment too much if they take the Court at its word as to what they can find. The third count was an ordinary common-law murder count and certainly would be susceptible of being broken down into a second degree murder count. It is my impression that the same is true of the first and third."
Finally, in the absence of objection to the submission of second degree murder, defendant was not prejudiced by a verdict on this degree when the evidence amply warranted a verdict of first degree murder. Had he excepted to the submission of second degree murder, he would be in a legal position to argue prejudice but it appears that even then most courts would rule against him. That point, however, we do not decide here. Here again the trial justice said he himself considered the defendant guilty of first degree murder. We are satisfied that he fully performed his duty in regard to the motion for a new trial and that he was not clearly wrong in denying it. Exception 44 is overruled.
All of the defendant's exceptions are overruled, and the case is remitted to the superior court.
FLYNN, C.J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608617/ | 621 P.2d 399 (1980)
101 Idaho 783
POCATELLO INDUSTRIAL PARK CO., an Idaho Partnership; and Insurance Company of North America, a Pennsylvania Corporation licensed to do business in the State of Idaho, Plaintiff-Appellants, Cross-Respondents,
v.
STEEL WEST, INC., an Idaho corporation; and Industrial Indemnity Company, a California corporation licensed to do business in the State of Idaho, Defendant-Respondents, Cross-Appellants.
No. 12636.
Supreme Court of Idaho.
December 9, 1980.
*401 Phillip M. Barber, of Elam, Burke, Evans, Boyd & Koontz, Boise, for plaintiffs-appellants, cross-respondents.
Craig L. Meadows, of Hawley, Troxell, Ennis & Hawley, Boise, for defendants-respondents, cross-appellants.
BAKES, Justice.
This is an appeal from a summary judgment entered in favor of defendant Steel West, Inc., and its compensation and liability insurance carrier, Industrial Indemnity Company (IIC).
Steel West had leased the northern two-thirds of a building from plaintiff appellant Pocatello Industrial Park Company. Croft, an employee of Steel West, was injured when a malfunctioning cement door at the southern end of the building fell upon him. Croft was paid $14,128.01 in workmen's compensation benefits and medical expenses by IIC, Steel West's workmen's compensation carrier. Croft then sued Pocatello Industrial for injuries and damages suffered in the accident. The case was tried before a district court judge commencing February 4, 1975. Pocatello Industrial was the only defendant. IIC was not a party to the Croft action. Although counsel for IIC was present in court during the Croft trial, he did not participate.
On March 18, 1975, the trial court issued its memorandum opinion in the Croft action. The court allocated the comparative negligence as follows: Pocatello Industrial, 80%, and Croft, 20%. The court first reduced Croft's total damages of $80,870.45 by 20%, or $16,174.09, the percentage of negligence attributable to Croft. See I.C. § 6-801. Next, the court reduced the award by "the subrogated amount of $14,128.01 due [the] Workmen's Compensation carrier," resulting in a "net to plaintiff of $50,568.35, together with costs." See I.C. § 72-223(3). The court's subsequent findings of fact and conclusions of law, signed June 11, 1975, reflected this same ruling. "[P]laintiff was awarded 80% of the sum of the general and special damages minus the subrogated amount due the workmen's compensation carrier... ."
Thereafter, the defendant in the Croft action, Pocatello Industrial Park, entered objections to the court's findings and conclusions. It argued, among other things, that the negligence of the plaintiff Croft was equal to or greater than that of the defendant. After a hearing, the court issued an order dated July 30, 1975, amending its prior findings and conclusions. While the court rejected Pocatello Industrial's contention that Croft's negligence was equal to or greater than its own, the court did feel that the allocation of 80% of comparative fault to Pocatello Industrial was too high, and thus modified the original decision to hold that defendant's negligence was 72% and the plaintiff's 28%. The court modified Croft's recovery accordingly, reducing it by 28% instead of 20%. However, in its order the court stated that Croft's award was "subject to any lien or subrogation rights of the compensation carrier which may be according to law," rather than reducing the recovery by the amount Croft previously received in compensation benefits as it had earlier done. The court ordered that new documents be prepared to reflect these changes.
On October 16, 1975, the court signed "Amended Findings of Fact and Conclusions of Law." This time it was stated that Croft's award was "subject however, to any lien or subrogation rights of the compensation carrier."
Pocatello Industrial's insurance carrier, Insurance Company of North America (INA), satisfied the Croft judgment. INA and Pocatello Industrial then commenced the instant action against Steel West and IIC. Their complaint was premised on three alternative theories: contractual indemnity; implied or common law indemnity; and contribution.
Defendants Steel West and IIC moved for summary judgment, primarily on the grounds that the doctrines of res judicata or *402 collateral estoppel precluded plaintiffs from relitigating issues common to both this action and the prior Croft action. The trial judge, the same judge who had sat on the Croft case, entered summary judgment for defendants, and this appeal followed.
I
The first issue we address concerns the applicability of the doctrines of res judicata or collateral estoppel. Res judicata is generally invoked to bar a subsequent suit between the same parties or their privies upon the same cause of action. Idaho State University v. Mitchell, 97 Idaho 724, 552 P.2d 776 (1976); 1B Moore's Federal Practice ¶ 0.441[1] (2d ed. 1965). See In re Russell, 12 Cal. 3d 229, 115 Cal. Rptr. 511, 524 P.2d 1295 (1974); Seattle First Nat. Bank v. Kawachi, 91 Wash.2d 223, 588 P.2d 725 (1978). Since the Croft case involved different parties and different causes of action,[1] all the parties to this case agree that we are dealing only with collateral estoppel.
In order for the doctrine of collateral estoppel to apply, the issue in question must have actually been litigated and resolved in the prior suit. See Duff v. Draper, 96 Idaho 299, 527 P.2d 1257 (1974); 1B Moore's Federal Practice ¶ 0.443[5] (2d ed. 1965). Cf. Green v. Gough, 96 Idaho 927, 539 P.2d 280 (1975); Gaige v. City of Boise, 91 Idaho 481, 425 P.2d 52 (1967); Intermountain Food Equipment Co. v. Waller, 86 Idaho 94, 383 P.2d 612 (1963); (cited opinions apply a similar rule to cases involving doctrine of res judicata).
For the reasons set forth below, we cannot, based on the record before us, hold that the issue of the employer Steel West's negligence was actually litigated in the Croft action.[2] First, nowhere in the court's memorandum opinion, findings of fact and conclusions of law, or judgment is there any mention made of Steel West's negligence. If that issue was in fact litigated, we would expect the trial court to have concluded that Steel West's negligence was "0%", or that Steel West had no legal duty to maintain the malfunctioning door, or something to the effect that Steel West was not negligent.
Secondly, the trial court did find that "all parties," including the management of Steel West and many of its employees, were aware that the door was malfunctioning. The court also found that Steel West employees "circumvented the electrical, mechanical system by activating the same with a stick and further, by manually opening and closing the lower door subsequent to the removal of the chain drive." While we cannot conclude from those findings alone that the trial court considered Steel West to be negligent, nonetheless, considering the involvement of Steel West employees in operating and altering the door mechanism, we do conclude that the court on summary judgment below erred in holding as a matter of law that the trial court in the Croft action had found that Steel West was not guilty of any negligence in connection with Croft's accident.
Thirdly, in its memorandum opinion, the trial court listed Pocatello Industrial's three defenses to Croft's claim. None of these defenses involved the matter of Steel West's negligence. If indeed Steel West's negligence was asserted as a defense to a portion of Croft's claim, we would expect the trial court to have so stated.
Finally, IIC and Steel West were not parties to the Croft action. The trial court might have felt that it was precluded from apportioning any negligence to Steel West due to its status as a non-party.[3] If that be *403 the case, we think the trial court erred. The inclusion of non-parties in the special verdict is apparently a question of first impression in Idaho, although we have reviewed other cases in which negligence was apportioned to a non-party. Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979); Jensen v. Shank, 99 Idaho 565, 585 P.2d 1276 (1978). In neither case did we comment on the practice. We now adopt the rule which was suggested by Tucker and Jensen and which is clearly the prevalent practice among state courts.[4]
"It is established without doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tortfeasors either by operation of law or because of a prior release." Connar v. West Shore Equipment of Milwaukee, Inc., 68 Wis. 2d 42, 227 N.W.2d 660, 662 (1975).
"The reason for such [a rule] is that true apportionment cannot be achieved unless that apportionment includes all tortfeasors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they are parties to the case." Heft & Heft, Comparative Negligence Manual § 8.131, at 12 (1978). Apparently, only Florida has adopted a contrary rule. Id.; Davis v. Lewis, 331 So. 2d 320 (Fla.App. 1976), cert. denied 348 So. 2d 946 (Fla. 1977); Model v. Rabinowitz, 313 So. 2d 59 (Fla.App. 1975), cert. denied 327 So. 2d 34 (Fla. 1976); Echeverria v. Barczak, 308 So. 2d 633 (Fla.App. 1975), cert. denied 321 So. 2d 558 (Fla. 1975).
It must also be remembered that this is an appeal from a summary judgment, and therefore we are to liberally construe the record in favor of the party opposing the summary judgment. E.g., Farm Bureau Finance Co., Inc. v. Carney, 100 Idaho 745, 605 P.2d 509 (1980); State Tax Comm'n v. Western Electronics, Inc., 99 Idaho 226, 580 P.2d 72 (1978). Moreover, the party seeking to bind another by a prior judgment has the burden of proving that the requirements of collateral estoppel have been met. Peters v. Missouri-Pacific Railroad Co., 483 F.2d 490 (5th Cir.1973), cert. denied 414 U.S. 1002, 94 S. Ct. 356, 38 L. Ed. 2d 238 (1973); United States v. Friedland, 391 F.2d 378 (2d Cir.1968) cert. denied 404 U.S. 867, 914, 92 S. Ct. 143, 239, 30 L. Ed. 2d 111, 188 (1971); State ex rel. Turk v. District Court, 581 P.2d 433 (Mont. 1978); State Farm Fire & Casualty Co. v. Century Home Components, Inc., 275 Or. 97, 550 P.2d 1185 (1976). In order to satisfy that burden, a party may resort to extrinsic evidence if the pleadings, judgment or court opinion in the prior action do not demonstrate that the precise issue had been actually litigated and resolved in the prior suit. State ex rel. Turk v. District Court, supra; State Farm Fire & Casualty Co. v. Century Home Components, Inc., supra. Cf. Marshall v. Underwood, 38 Idaho 464, 221 P. 1105 (1923) (applying similar rule in res judicata case). To this end, Steel West has failed to produce any brief, transcript, pleading or other document pertaining to the Croft action which demonstrates that Steel West's negligence was a litigated issue.
*404 Steel West does, however, point out one troublesome matter. In the Croft action, the trial court appeared to recognize that IIC was subrogated to Croft's recovery to the extent of its compensation liability. See I.C. § 72-223(3).[5] Steel West directs our attention to the case of Liberty Mutual Insurance Co. v. Adams, 91 Idaho 151, 417 P.2d 417 (1966), in which we held that a negligent employer is not entitled to subrogation rights against the employee's recovery from concurrently negligent third parties. Steel West argues that the trial court's recognition of Steel West's subrogation rights necessarily implies that the court must have concluded that Steel West was not at all negligent.[6] We disagree. The record simply does not indicate why, as a legal or factual matter, the Croft trial court dealt with IIC's subrogation interest in the manner that it did.
First, it is not so clear that the trial court in the Croft action actually determined that IIC had subrogation rights.[7] In its initial memorandum opinion and conclusions of law, the court reduced Croft's recovery by "the subrogated amount due" IIC. See Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979). In its amending order, the court noted only that Croft's recovery was "subject to any ... subrogation rights ... which may be according to law." (Emphasis added.) This language is hardly conclusive and would appear to indicate only that Croft's recovery was subject to any of IIC's rights which might exist. In the amended conclusion of law, the phrase "which may be according to law" was omitted, but we have no indication why this was done or whether it was done intentionally, just as we have no indication why the court switched from reducing Croft's recovery to merely making it "subject to" any rights of the compensation carrier.
Secondly, we have no indication that the trial court considered the ramifications of the Liberty Mutual rule vis-a-vis Steel West's negligence. Furthermore, Liberty Mutual was decided prior to the Idaho legislature's adoption of a comparative negligence statute, I.C. § 6-801. For that reason, the status of the Liberty Mutual rule barring subrogation is currently unknown. In fact, in Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979), that question was expressly reserved for another day.
It should be evident at this point that we are operating in the dark with respect to the true import of the trial court's recognition of IIC's subrogation rights. Considering the state of the record and the stage of this controversy, Steel West has fallen well short of satisfying its burden. Regarding the related doctrine of res judicata, this Court has stated that "in order that this rule should apply, it must clearly and positively appear, either from the record itself or by the aid of competent extrinsic evidence, that the precise point or question in the second suit was involved and decided in the first." Marshall v. Underwood, 38 Idaho 464, 466, 221 P. 1105, 1105 (1923) (emphasis added). On this record it does not so clearly appear. For that reason, we conclude that the doctrine of collateral estoppel does not prevent Pocatello Industrial from *405 trying the issue of Steel West's negligence in this case.
II
Having disposed of the threshold legal issue in this case, we turn now to the question of whether there exists any genuine issues of material fact which would preclude entry of summary judgment on behalf of defendant respondents Steel West and IIC. Pocatello Industrial's claim was premised on three theories: contribution, contractual indemnity and common law or implied indemnity. Pocatello Industrial has since abandoned its claim for contribution, and therefore we need examine only its indemnity claims.
Pocatello Industrial claims that it is entitled to indemnity from Steel West on the basis of the following clause found in the parties' lease:
"Lessee [Steel West] agrees to indemnify and hold Lessor [Pocatello Industrial] harmless against any and all liability for injury to or death of persons, or loss of or damage to property of Lessee or others, arising from the Lessee's possession or use of the leased premises, howsoever occurring, except as a result of Lessor's sole negligence."
In response, Steel West points out that Croft's injury occurred at the southern end of the building in an area not leased by Steel West. Therefore, Steel West asserts, the injury did not arise from its possession or use of the leased premises, but rather from its use of the un leased premises. The above clause is, however, subject to another interpretation. The indemnity provision does not require that the accident actually occur on the leased premises; only that it arise from Steel West's possession or use of the same. The trial court's memorandum opinion in the Croft action indicates that Steel West found it necessary to use the cement door at the southern end of the building. Although there was an access door on the portion of the premises leased by Steel West, it was apparently not large enough to accommodate some of the larger items which Steel West needed to move out of the building. Therefore, to the extent that Steel West's use of the leased premises necessitated its use of the malfunctioning south door, the injury arguably arose from its use of the leased premises.
We think the disputed indemnity provision can be read either as requiring that the injury occur on the premises or as requiring only that there exists some logical nexus between the injury and Steel West's use of the premises. Where the terms of a contract are ambiguous, its interpretation presents a question of fact. Werry v. Phillips Petroleum Co., 97 Idaho 130, 540 P.2d 792 (1975); National Produce Distributors, Inc. v. Miles & Meyer, Inc., 75 Idaho 460, 274 P.2d 831 (1954). The interpretation of this indemnity provision therefore raises an issue of material fact.
Steel West also raises an alternative argument. It points out that Pocatello Industrial paid only 72% of Croft's injuries, in accordance with the percentage of fault allocated Pocatello Industrial in the Croft action. Therefore, Steel West argues, Pocatello Industrial's "liability" occurred "as a result of [its] sole negligence," thus evoking the exception clause of the indemnity provision. We think Steel West's interpretation of the exception clause is a strained one. It seems more likely that the clause was intended to apply only where the injury occurred solely as a result of Pocatello Industrial's negligence. Nonetheless, we leave the resolution of that possible ambiguity for the trial court as well.
III
Pocatello Industrial's alternative indemnity claim is based on a theory of common law or implied indemnity. This cause of action is premised on the allegation that Steel West was actively and primarily negligent in causing Croft's injury, whereas Pocatello Industrial was only passively and secondarily negligent. Such a theory, or one substantially like it, was recognized and approved by this Court in May Trucking Co. v. Int'l Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975). See Industrial Indemnity Co. v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970); American *406 District Telegraph Co. v. Kittleson, 179 F.2d 946 (8th Cir.1950); Lunderberg v. Bierman, 241 Minn. 349, 63 N.W.2d 355 (1954); McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Printing Co., 323 S.W.2d 788 (Mo. 1959); Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972); United States Fidelity & Guaranty Co. v. Kaiser Gypsum Co., Inc., 273 Or. 162, 539 P.2d 1065 (1975). See generally, 2A Larson, Workmen's Compensation Law § 76 (1974) [hereinafter cited as "Larson"].
In view of our disposition of the collateral estoppel question, it seems clear that there remain numerous factual issues which prevent the entry of summary judgment on Pocatello Industrial's common law indemnity claim. Had we decided that collateral estoppel was applicable, Pocatello Industrial would of course be estopped from asserting that Steel West was negligent in any form. We did not so decide, however, and therefore for purposes of this controversy both the extent and nature of Steel West's comparative fault are unresolved and unlitigated issues. These issues of fact preclude entry of summary judgment on behalf of Steel West.
IV
Steel West asks us to interpret the meaning of I.C. § 72-209(2), which reads as follows:
"72-209. EXCLUSIVENESS OF LIABILITY OF EMPLOYER.
.....
(2) The liability of an employer to another person who may be liable for or who has paid damages on account of an injury or occupational disease or death arising out of and in the course of employment of an employee of the employer and caused by the breach of any duty or obligation owed by the employer to such other person, shall be limited to the amount of compensation for which the employer is liable under this law on account of such injury, disease, or death, unless such other person and the employer agree to share liability in a different manner.
... ."
Steel West asserts that this provision operates to limit its exposure to Pocatello Industrial's common law indemnity claim to the amount for which it was liable under the workmen's compensation law. We agree.
At first glance, it might seem odd that a claim for implied indemnity such as the one at bar arises out of "the breach of any duty or obligation owed by the employer to such other person," in this case, Pocatello Industrial. Certainly, the legislature could have clarified matters by specifically limiting the common law right of a third party to indemnity where workmen's compensation is involved. In particular, use of the term "indemnity" would have been advisable.
Fortunately, a review of the history surrounding the model act from which it was taken illuminates the seemingly darkened legislative intent behind I.C. § 72-209(2). Most jurisdictions "allow a third party to recover indemnity from an employer when the injury to the employee for which the third party was held liable resulted from the breach of an independent duty owed to the third party by the employer. This duty will be implied by law from the relationship between the employer and the party seeking indemnity." United States Fidelity & Guaranty Co. v. Kaiser Gypsum Co., Inc., 273 Or. 162, 539 P.2d 1065, 1072 (1975). See 2A Larson §§ 76.10 & 76.40. Since the right to indemnification in workmen's compensation cases generally arises out of the employer's "breach of [a] duty or obligation owed" to the third party, it seems clear that I.C. § 72-209(2) was intended to put a ceiling on third party indemnity claims against the employer, except in those cases where the claim is based on an express contractual indemnity provision.
This conclusion is strongly buttressed by consideration of the source of the statutory provision in question. The Idaho legislature borrowed I.C. § 72-209(2) from a model state workmen's compensation act. The Council of State Governments, Workmen's Compensation & Rehabilitation Law § 10 (Jan. 1973). The provision in question has *407 not been well received by state legislators. In fact, besides Idaho, only Kentucky seems to have adopted it. Ky.Rev.Stat. § 342.690(1). Kentucky courts have yet to interpret this troublesome language.
Fortunately, the commentary to the model act, authored by Professor Larson, is of much greater assistance. Professor Larson writes:
"The [provision in question adopts] a definite disposition of one of the most evenly balanced questions that has arisen related to workmen's compensation. This is a question which has nothing to do with the rights of the employee, but which affects the relative rights of an employer and a negligent third party, when the negligence of both the employer and the third party have in some degree contributed to the employee's injury. The basic problem is well illustrated by the case of American District Telegraph Co. v. Kittleson (C.C.A. 8) 179 F.2d 946 (1950)." Workmen's Compensation & Rehabilitation Law, supra at 105-06.
Professor Larson goes on to discuss the Kittleson case, in which the 8th Circuit upheld the third party's right against the employer for total indemnity "on the theory of an implied promise of a primary tortfeasor to reimburse a secondary tortfeasor." Id. at 106. Professor Larson concludes:
"The suggested draft deliberately adopts a conclusion somewhat different from that of the Kittleson case, but more in line with some of the other decisions on the subject. The solution adopted by the draft is to some degree a compromise, in that the employer is relieved of the kind of complete liability imposed in the Kittleson case, but is obliged to pay the third party damages up to the amount of the compensation and other benefits for which the employer is liable under the act always assuming that there are adequate grounds, quite apart from the compensation act, for holding the employer liable to the third party." Id. at 106.
We of course express no opinion with respect to Pocatello Industrial's ultimate entitlement to recover on a theory of common law indemnity. Hence we do not intend to imply that Pocatello Industrial's negligence was passive and Steel West's negligence, if any, was active. We hold only that, in the event that Pocatello Industrial prevails on its common law or implied indemnity claim, Steel West is obligated only up to the amount of the compensation and other benefits for which it is liable under the act.[8]
IV
Finally, IIC contends that it should be dismissed from the suit on the grounds that Pocatello Industrial has no direct cause of action against IIC as Steel West's liability insurer. We agree. It is well established that absent a contractual or statutory provision authorizing the action, an insurance carrier cannot be sued directly and cannot be joined as a party defendant. Olokele Sugar Co. v. McCabe, Hamilton & Renny Co., 53 Haw. 69, 487 P.2d 769 (1971); Sears, Roebuck & Co. v. Employers Mutual Liability Ins. Co. of Wisconsin, 6 Ill. App. 3d 10, 284 N.E.2d 386 (1972); Royal Indemnity Co. v. Aetna Casualty & Surety Co., 193 Neb. 752, 229 N.W.2d 183 (1975); Chapman v. Farmers Ins. Group, 90 N.M. 18, 558 P.2d 1157 (N.M.App. 1976), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). See generally R. 2 Long, Law of Liability Insurance §§ 20.01-20.06 (1966). In fact, Steel West's liability insurance policy with IIC specifically prohibits direct action against the insurance company. We are aware of no direct action statute in Idaho. Thus, Pocatello Industrial cannot maintain an action against IIC at this stage of the controversy.
Accordingly, the judgment of the trial court is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.
DONALDSON, C.J., and SHEPARD, McFADDEN and BISTLINE, JJ., concur.
NOTES
[1] The Croft action was a negligence suit. Here, Pocatello Industrial's claim was based alternatively on either a written contract of indemnity, implied indemnity, or contribution.
[2] Because we deem collateral estoppel inapplicable on this ground, we need not address the problem created by the fact that neither Steel West nor IIC was a party in the prior action. See Idaho State University v. Mitchell, 97 Idaho 724, 552 P.2d 776 (1976); Annot., 31 A.L.R. 3d 1044 (1970); Annot., 24 A.L.R. 2d 329 (1952).
[3] In his memorandum opinion issued in the Croft action, the trial judge wrote: "Under the Idaho Comparative Negligence Statute, it is the duty of the trier of fact to allocate the degree or percentage of negligence to the respective parties, considering that the total negligence equals 100%."
[4] Pocatello Industrial contends that the reference to the term "party" in our comparative negligence statute, I.C. § 6-802, implies that only parties may be included in the special verdict:
"6-802. VERDICT GIVING PERCENTAGE OF NEGLIGENCE ATTRIBUTABLE TO EACH PARTY. The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence attributable to the person recovering."
While the statute requires that parties be included in the special verdict, it does not state that only parties shall be included. Minnesota's comparative negligence statute, Minn. Stat. § 604.01, is identical to ours and the Minnesota Supreme Court has also concluded that non-parties may be included in the special verdict. Lines v. Ryan, 272 N.W.2d 896 (Minn. 1978).
[5] "72-223. THIRD PARTY LIABILITY. ...
"(3) If compensation has been claimed and awarded, the employer having paid such compensation or having become liable therefor, shall be subrogated to the rights of the employee, to recover against such third party to the extent of the employer's compensation liability.
... ."
[6] Collateral estoppel will operate to bind a party even on issues not expressly resolved in the prior suit, if the resolution of such issues can be necessarily or inevitably inferred. 1B Moore's Federal Practice ¶ 0.443[4] (2 ed. 1965).
[7] IIC asserts that in the Croft action it was allowed a subrogation lien. However, we fail to see how the trial court's judgment in the Croft action could conclusively adjudicate the rights and obligations of non-parties. If Steel West or IIC desired to have their subrogation rights determined, they should have joined with Croft in instituting the action against Pocatello Industrial. See McDrummond v. Montgomery Elevator Co., 97 Idaho 679, 551 P.2d 966 (1976); Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940); I.R.C.P. 20(a).
[8] The limitation on the employer's liability to third parties does not apply, according to I.C. § 72-209(2), when the third party "and the employer agree to share liability in a different manner." The employer and third party may, for example, remove the statutory ceiling with an indemnity agreement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/249919/ | 274 F.2d 141
John W. BURNS, Appellantv.J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.
No. 6208.
United States Court of Appeals Tenth Circuit.
December 29, 1959.
Roy Cook, Kansas City, Kan., for appellant.
Peter S. Wondolowski, Washington, D. C. (Wilbur G. Leonard, Topeka, Kan., Milton P. Beach, Kansas City, Kan., and Thomas A. Ryan, Washington, D. C., were with him on the brief), for appellee.
Before MURRAH, Chief Judge, BREITENSTEIN, Circuit Judge, and CHRISTENSON, District Judge.
MURRAH, Chief Judge.
1
This is an appeal from an order of the District Court of Kansas denying application for writ of habeas corpus, in which the appellant challenges the lawfulness of his confinement as a military prisoner.
2
The facts are that while serving as a soldier in the United States army in Alaska in the grade of corporal, petitioner was tried by a court-martial convened in Alaska, and found guilty of the offenses of rape of his eleven-year-old daughter in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920; and of committing an indecent assault upon another female with intent to satisfy his sex desires, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The court-martial imposed a sentence of forty years.
3
The Board of Review in the Judge Advocate General's office reduced the sentence to thirty years, and as modified affirmed the findings of the convening authority. After the Military Court of Appeals denied review of the Board's decision, United States v. Burns, 6 U.S.C. M.A. 834, the sentence as modified was ordered into execution. After temporary confinement in the United States disciplinary barracks in California, the petitioner was transferred for confinement in the United States penitentiary at Leavenworth, Kansas, whence he sued out this writ.
4
Petitioner's contentions are: (1) that the court-martial lacked jurisdiction of the person or the offenses; and (2) that the court committed prejudicial error by allowing his wife to testify against him.
5
It seems unnecessary to restate that the scope of our inquiry in habeas corpus cases of this kind is limited to whether the court-martial had jurisdiction of the person and the offense; and whether in the exercise of that jurisdiction the accused was accorded due process of law as contemplated and vouchsafed by the Uniform Code of Military Justice. And, in the determination of the latter question, we will inquire only whether the competent military tribunal gave full and fair consideration to all the procedural safeguards deemed essential to a fair trial under military law. Bennett v. Davis, 10 Cir., 267 F.2d 15. See also McKinney v. Warden, 10 Cir., 273 F.2d 643.
6
The petitioner does not contend that the court was improperly constituted. He does seem to contend, however, that the court lacked jurisdiction of the offenses charged, and particularly the charge of rape, relying upon Lee v. Madigan, 358 U.S. 228, 79 S.Ct. 276, 3 L.Ed.2d 260. But that case involved charges brought under Article of War 92, which, prior to the adoption of the Uniform Code of Military Justice (64 Stat. 108, 10 U.S.C. § 801 et seq., enacted May 5, 1950) governed trials for murder or rape before courts-martial. Article 92 contained a proviso that "no person shall be tried by courts-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace." But the comparable Section 120 of the Uniform Code contains no such proviso. And, Article 2 of the Uniform Code, 10 U.S.C. § 802, provides that all persons who are "members of a regular component of the armed forces * * *" are subject to the Uniform Code of Military Justice; and, Article 5, 10 U.S.C. § 805, provides that the Code "applies in all places."
7
Admittedly, the petitioner was a member of the armed forces at the time of the commission of the alleged offenses, and the Uniform Code, not Article 92, was in force and effect. The power of Congress to dispense with civil trials in cases of this kind cannot be denied. Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141.
8
Relying on Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed. 2d 125, the trial court was of the opinion that it was error to permit the petitioner's wife to testify against him over his objection. But the court did not think the error was so "glaring and persistent" as to constitute a denial of due process and thus deprive the court-martial of jurisdiction of the offense. Both the court-martial and the Military Court of Appeals undoubtedly gave full and fair consideration to the question of the admissibility of the testimony. The case was tried and decided in the military tribunals before Hawkins, and it may well be that in the light of that case, the tribunals would now hold the wife's testimony reversibly inadmissible. But even so, we cannot say that the admission of the testimony before Hawkins was so palpably erroneous and prejudicial as to destroy the jurisdiction of the military tribunals. Cf. Whelchel v. McDonald, supra.
9
The judgment is affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2524252/ | 953 N.E.2d 88 (2007)
352 Ill. Dec. 152
IN RE COMMITMENT OF HAUGE.
No. 3-05-0725.
Appellate Court of Illinois, Third District.
November 28, 2007.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611318/ | 55 Cal. App. 2d 417 (1942)
THE PEOPLE, Respondent,
v.
JOSEF ROBERT STEIN, Appellant.
Crim. No. 3603.
California Court of Appeals. Second Dist., Div. Two.
Nov. 6, 1942.
Alfred F. MacDonald and Carl B. Sturzenacker for Appellant.
Earl Warren, Attorney General, and Frank Richards, Deputy Attorney General, for Respondent.
McCOMB, J.
From judgments finding him guilty on each of five counts of violating section 266g of the Penal Code (a husband permitting his wife to remain in a house of prostitution) after trial before the court without a jury defendant appeals. There are also appeals from orders denying his motions for a new trial. *418
Defendant concedes that:
(1) Geraldine Stein was his wife on the dates mentioned in the information, to wit, on or about February 15, August 16, and September 21, 1940, March 5, 1941, and January 14, 1942;
(2) His wife practiced prostitution on or about the dates and at the places mentioned in the information; and
(3) His wife entered such places for the purpose of carrying on the business of prostitution.
The evidence further discloses that defendant met his wife in December, 1939, and that she was then known as Geraldine Rice or Terry Nailes. In January, 1940, they were married in Reno, Nevada. They then went to Fresno, California, where defendant remained with his wife for about a week. He then left her there and came to Los Angeles where he was arrested on a report that Geraldine Rice was a missing person. He was permitted to return to Fresno and bring her to Los Angeles, where they were questioned by the Federal Bureau of Investigation and she admitted that prior to her marriage to defendant she had practiced prostitution.
Being released by the authorities, defendant and his wife remained in Los Angeles. Patricia Evans, who conducted a house of prostitution in the 1200 block on North Cienega Street in Los Angeles, testified that in the latter part of 1939 or the early part of 1940 a man named Dago Frank came to her house accompanied by defendant and his wife and introduced the latter as Terry Nash; that a discussion then ensued between the four of them relative to Terry Nash's entering her house as a prostitute; that during the conversation either Dago Frank or defendant asked her how much a girl could make, to which she replied, "It is all up to the girl; some girls could make more than others." She further testified that Terry Nash (defendant's wife) worked as a prostitute for her during the months of February, March, and April, 1940; that while so employed the said Terry Nash averaged from $20 to $25 a day for herself, which was one-half of her earnings, the balance being paid to the witness; and that every night defendant came to her house of assignation, which closed at 2:00 or 2:30 in the morning, and took his wife home. On some occasions he would have to wait until his wife had finished entertaining a man who was in the house, to which defendant made no objection. The witness *419 testified that she did not know defendant or his wife prior to the time that she was introduced to them by Dago Frank, on which occasion defendant was introduced as Miss Terry Nash. There is no evidence in the record that the witness ever knew that defendant and Terry Nash were married.
Mrs. Frances Rosegarten, who conducted a bawdy house at 621 North Lillian Way, Los Angeles, testified that defendant and Terry Nash (defendant's wife) came to see her and discussed the matter of defendant's wife going to work for her and that one or the other inquired whether she could make $40 a day, $20 for herself and $20 for the house. Following the conversation defendant's wife remained in the house and practiced prostitution. On one occasion defendant came to the house and inquired of the witness where Terry was, and, when the witness stated to defendant that Terry was out, the defendant said that he would take the money due Terry. Whereupon the witness stated that she gave him $20 or $25 in cash for delivery to his wife. This was in the month of August, 1940. Later the witness moved her house of prostitution to 731 North St. Andrews Street, Los Angeles, where she conducted the business of prostitution and where defendant's wife worked for her. In September, 1940, this witness also testified, that while she was operating the last mentioned house defendant came to her place of business and visited with his wife. She also testified that she subsequently opened a house of ill repute at 1150 North Curson Street, where defendant's wife worked as a prostitute, and during the time that she was working there defendant visited his wife once or twice a week. The witness testified that she did not know that Terry Nash was defendant's wife.
The evidence further discloses that on July 26, 1941, defendant's wife under the name of Mrs. Dave Montrose rented a house at 8546 West Knoll Drive; that defendant appeared at the West Hollywood branch of the Southern California Edison Company and under the name of Dave Montrose contracted for electric service for said premises; that defendant's wife lived at the house with a maid until January 14, 1942, when a deputy sheriff, pursuant to an appointment with defendant's wife, went to the house and after waiting a short time was ushered into a bedroom where in response to a question to her as to the amount of her charge, she replied $10, whereupon she undressed and he took off his shoes and *420 necktie. Whereupon the officer disclosed his identity and placed her under arrest. At about 12:00 o'clock defendant came to the front door and was admitted to the house, whereupon he looked around and said, "Well, I guess this is the end of this house." Defendant had in his possession a key which fitted the front door and there was found on the premises a bathrobe that belonged to defendant. Defendant further stated to the officers that he didn't mind going to the penitentiary on a charge of robbery but he didn't want to be returned on a morals charge, for on such a charge he would be looked down upon by the inmates of the penitentiary.
[1a] Defendant urges reversal of the judgment on this proposition:
There is no substantial evidence to sustain the finding that defendant permitted his wife to remain in a house of prostitution, in the absence of the inferences which may be drawn from the testimony of the witnesses Evans and Rosegarten, which testimony defendant asserts must be disregarded because said witnesses were accomplices within the meaning of section 1111 of the Penal Code.
[2] This proposition is untenable and is governed by the following rule of law: Aside from the person who commits a criminal offense, no other party is guilty as a principal unless he aids and abets in the commission of the offense. ( 31 and 971, Pen. Code; People v. Dole, 122 Cal. 486, 492 [55 P. 581, 68 Am. St. Rep. 50].)
The word "abet" implies knowledge of the wrongful purpose of the perpetrator of the crime. (People v. Dole, supra.) [1b] In the present case there is no evidence that either of the witnesses knew that defendant and Terry Nash were husband and wife. Therefore it is obvious that neither of the witnesses could have aided and abetted in the commission of the crimes of which defendant was convicted, to wit, a husband permitting his wife to remain in a house of prostitution contrary to the provisions of section 266g of the Penal Code.
Therefore, viewing the testimony of these witnesses in the light most favorable to the People (respondent) it is evident that the trial court property found that the defendant knew that his wife was engaged in prostitution and permitted her in violation of section 266g of the Penal Code to remain in a house where this business was being conducted and also permitted and encouraged her to practice prostitution. *421
For the foregoing reasons the judgments and orders are and each is affirmed.
Moore, P. J., and Wood (W. J.), J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2897795/ | NO. 07-07-0376-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JANUARY 28, 2008
______________________________
HEATH JAMES GRIMES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE COUNTY COURT AT LAW NO. 2 OF RANDALL COUNTY;
NO. 2006-1659-L; HON. RONALD WALKER, JR., PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Heath James Grimes was convicted of misdemeanor theft of property
of the value of $50 or more but less than $500. On September 4, 2007, appellant filed
a notice of appeal. The State has filed a motion to permanently abate this appeal and
attached a death certificate stating that appellant died on January 5, 2008. At the time
of his death, no mandate from this appellate court had been issued.
If an appellant in a criminal case dies after an appeal is perfected but before the
mandate of the appellate court is issued, the appeal should be permanently abated. Tex.
R. App. P. 7.1(a)(2). The death of an appellant during the pendency of his appeal deprives
an appellate court of jurisdiction. Hanson v. State, 790 S.W.2d 646 (Tex. Crim. App.
1990). The appeal and any further proceedings are ordered permanently abated.
Brian Quinn
Chief Justice
Do not publish. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2608593/ | 621 P.2d 263 (1980)
In the Matter of W. Clark STUMP, Respondent.
No. 4998.
Supreme Court of Alaska.
December 5, 1980.
Charles L. Cloudy, Ziegler, Cloudy, Smith, King & Brown, Ketchikan, for respondent.
William W. Garrison, Bar Counsel, Anchorage, for the Alaska Bar Assn.
Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and BUCKALEW, Superior Court Judge.
OPINION
RABINOWITZ, Chief Justice.
The issue before us concerns determination of the appropriate disciplinary sanction to be imposed against W. Clark Stump.[1]
In proceedings before the Area Hearing Committee and the Disciplinary Board of the Alaska Bar Association, respondent W. Clark Stump admitted to all of the alleged acts of professional misconduct with which he was charged. More particularly, Stump admitted to violating the following provisions of Disciplinary Rule 1-102 of the Code of Professional Responsibility:
(A) A lawyer shall not:
.....
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.[2]
The uncontested facts clearly reveal that W. Clark Stump violated each of these subdivisions *264 of Disciplinary Rule 1-102.[3] More particularly, the record shows that Stump falsified an item of documentary evidence for use on his own behalf in civil litigation pending before the superior court in which he was named as a party defendant. Thereafter, in the course of that litigation, W. Clark Stump, while under oath, on three separate occasions falsely affirmed the authenticity of the document he had fabricated.
The Area Hearing Committee unanimously recommended that respondent W. Clark Stump be suspended from the practice of law in the State of Alaska for a period of one (1) year.[4] The Disciplinary Board of the Alaska Bar Association in turn unanimously recommended that W. Clark Stump be suspended from the practice of law for a period of five years commencing from the date of its recommendation (October 31, 1979).[5] The basis for the Disciplinary Board's recommendation is articulated in the following findings of fact which were formulated by the Disciplinary Board.
12. The falsification of evidence is one of the most serious acts of misconduct that an attorney can commit because it is an attack on the integrity of the adversary system which depends on full and truthful disclosure of facts to the decision maker.
13. When false evidence is presented not only the judicial system but also the legal profession, the client and the public suffer harm to varying degrees.
14. While respondent apparently believed he did not represent the client and while he was presumably under stress because of his involvement in a hotly contested custody action, nevertheless it is at just such times that the exercise of good judgment on the part of a lawyer is most critical.
15. While the Disciplinary Board recognizes that attorneys are capable of judgmental error, in this case the preparation of the false document while under stress, the later false swearing as to its authenticity is inexcusable.
16. Nevertheless, because Respondent has reimbursed the expenses to the client and has demonstrated deep remorse, the ultimate sanction mandated by the type of conduct herein demonstrated, namely disbarment, should not in this case be exacted.
17. By reason of the foregoing, the Disciplinary Board unanimously finds that the recommendation of the Hearing Committee is inadequate... .
Before this court, respondent has argued that there are two issues to be decided: first, whether the Disciplinary Board was justified in finding the Area Hearing Committee's recommendation inadequate, and second, whether the recommendation of the Disciplinary Board was "appropriately reflective of the character of the offenses and the attendant circumstances surrounding the offenses admitted by Stump." As indicated at the outset, each of these issues is subsumed under the more general question of the determination of the appropriate sanction to be imposed.
In arguing against adoption of the Disciplinary Board's recommendation, and in turn urging the imposition of less than five years' suspension, respondent contends that the Disciplinary Board failed to properly apply the following principle of the Code of Professional Responsibility:
The severity of judgment against one found guilty of violating a Disciplinary *265 Rule should be determined by the character of the offense and the attendant circumstances.[6]
In regard to his contention that the Board failed to properly weigh the attendant circumstances, respondent advances numerous mitigating factors. Respondent argues that the underlying civil litigation (the Lewis litigation) which led to this disciplinary proceeding was not instituted until four years after he had allegedly engaged in a conspiracy against Lewis; that at the time service of the Lewis complaint was effected upon him, respondent was engaged as counsel in a bitter and hotly contested custody dispute; that at that time respondent was emotionally disturbed over his wife's health and the demands of his law practice which were magnified by the retirement of his father, who was respondent's law partner; that respondent, on his own motion, notified Bar Counsel of his violations of the Disciplinary Rules; that the superior court ordered respondent to pay $25,000 to Lewis as costs relating to the former's falsifications in the Lewis litigation, which sum has been paid by respondent; that respondent has been indicted for violation of AS 11.30.290 (offering false evidence) and does not intend to contest this criminal charge;[7] and that respondent was admitted to the Alaska Bar in 1968 and has had no prior or subsequent record of misconduct.
Concerning the character of the offenses committed by Stump, it is argued that it is of some significance that these acts were carried out by respondent in his private capacity as a private party litigant, rather than in his capacity as a lawyer representing a client. Further, it is argued that the facts disclose that the content of the fabricated document "was essentially and substantially true, and that the falsification was limited to the dated existence of the Note-o-Gram and of its mailing by Stump to Lewis."[8]
Bar Counsel counters, in part, by arguing that the fact that respondent's misconduct was committed in his private capacity rather than in his capacity as an attorney is "of little merit" because "[i]n point of fact, Respondent was attempting to establish through the falsely dated Note-o-gram and the subsequent corroborating acts, that he had acted competently as an attorney." Concerning respondent's truthfulness argument, Bar Counsel points out that this overlooks the fact that, regardless of the truthfulness of the information contained in the document, the Note-o-gram was prepared to indicate that it was sent on a date when it was not. Bar Counsel further argues: "The Note-o-gram itself was a lie; a falsification prepared for the purpose of conclusively establishing a defense to an allegation contained in plaintiff's complaint."[9]
Regarding the attendant mitigating circumstances, Bar Counsel's position is that the Disciplinary Board did consider them in fashioning its suspension recommendation, and that respondent's claimed elements of emotional stress flowed from his initial misconduct and were subsequently exacerbated by respondent's continued misconduct.
In reaching a decision as to an appropriate disciplinary sanction in this case, we have considered the underlying violations of the Disciplinary Rules involved and the relevant surrounding circumstances.[10] The *266 facts alluded to previously[11] convincingly demonstrate that W. Clark Stump is guilty of serious violations of provisions of the Disciplinary Rules, which violations directly reflect upon his professional ability and competency to serve clients. Further, such conduct on the part of respondent reflects adversely on the legal profession, calls into question the public trust accorded respondent as an officer of the court, and is prejudicial to the administration of justice in the state of Alaska.
Thus, based upon our consideration of the facts pertaining to Stump's misconduct and all of the relevant surrounding mitigating circumstances, we have concluded that respondent's conduct warrants imposition of a disciplinary sanction. Concerning the appropriate sanction, we have given serious consideration to the recommendations of the Area Hearing Committee and the Disciplinary Board of the Alaska Bar Association and have determined that protection of the interests of society and the legal profession are best served by adoption of the recommendation of the Disciplinary Board.
It is therefore ordered that Stump's license to engage in the practice of law in Alaska shall be suspended for five years commencing from October 31, 1979.
BOOCHEVER, J., not participating.
APPENDIX
DISCIPLINARY BOARD
ALASKA BAR ASSOCIATION
AREA I
In the Disciplinary Matter )
Involving )
)
W. CLARK STUMP, ) No. 78-20
)
Respondent-Attorney. )
)
________________________________)
SOUTHEASTERN GRIEVANCE COMMITTEE CONCLUSIONS AND RECOMMENDATIONS
This matter was heard before the Area I, First Judicial District Disciplinary Hearing Committee on June 12, 1979, pursuant to a petition for formal hearing filed by Bar counsel, against the Respondent W. Clark Stump.
The Hearing Committee was composed of Gordon Evans (attorney member and chairman), Merle Bottge (lay member), and William Royce (attorney member).
The Petitioner was represented by William W. Garrison. The Respondent was present and represented by Charles L. Cloudy.
The Hearing Committee reviewed the pleadings and exhibits and heard the testimony of W. Clark Stump, together with the comments of counsel for Petitioner and Respondent. Upon such review of the entire written record and analysis of the testimony, the Hearing Committee makes the following Findings of Fact and Proposed Order:
FINDINGS OF FACT
1. This Hearing Committee has jurisdiction to make these Findings of Fact and Proposed Order.
2. W. Clark Stump, Respondent, is now and was at all times mentioned herein, an attorney, subject to the disciplinary rules in effect in this State. Mr. Stump was duly admitted by the Supreme Court of the State of Alaska on November 15, 1968. (Transcript, page 11, line 21) He has continuously engaged in the private practice of law since that date in a firm having its office and place of business in Ketchikan, First Judicial District, State of Alaska. (Transcript, page 11, line 21-25)
3. Mr. Stump's firm was originally composed of his father, Wilford C. Stump, and his uncle, Earnest Bailey, together with Respondent. This firm during the times relevant hereto changed with the retirement of Mr. Bailey in 1969, and the retirement of *267 Wilford Stump in 1975. (Transcript, page 11, lines 23-24; page 13, lines 10-11)
4. On November 28, 1975, Civil Action No. 75-758 was filed in Superior Court in Ketchikan. (Exhibit 1) Said complaint, as it related to W. Clark Stump, alleged:
a) That prior to entering into a contract on December 3, 1971, for the purchase of the stock of Marine View Apartment Building, purchaser (the plaintiff) retained and employed defendant W. Clark Stump as his attorney (Exhibit 1, paragraph V).
b) That defendant W. Clark Stump was negligent in the performance of his duties for plaintiff in not opening an escrow account (Exhibit 1, paragraph VIII), not attending to the proration of taxes (Exhibit 1, paragraph X), not dissolving the corporation in a timely fashion (Exhibit 1, paragraph XI), and in not rendering tax advice (Exhibit 1, paragraph XII).
c) That W. Clark Stump participated in a civil conspiracy in concert with the Sellers and the escrow holder. The alleged object of this conspiracy was to deprive the plaintiff of certain tax advantages and thus:
"... render defendant unable to meet his financial obligations as set forth in the Stock Purchase Agreement between the parties, thereby enabling defendant Moran and the other Sellers to declare plaintiff in default and thereby retain the stock and ownership of the corporation and the Marine View Apartment Building, as well as all payments made by plaintiff prior to said default." (Exhibit 1, paragraph XXVII)
d) Plaintiff demanded judgment against Respondent in excess of Seventy-five Thousand ($75,000.00) Dollars as damages related to increased tax liabilities, plus One Hundred Thousand ($100,000.00) Dollars for mental anguish and hardship occasioned by the alleged conspiracy (Exhibit 1, paragraph XXVIII)
5. Said complaint was served upon Respondent during a recess in a bitterly contested custody trial; Respondent had received no earlier communication from plaintiff regarding the alleged conspiracy and negligence (Transcript, pages 13, 14 and 20). After notifying his insurance carrier of the suit, Respondent in early 1976 manufactured a Note-o-Gram (Exhibit A to the petition) which bore an October 15, 1971, date and which recited that plaintiff was not represented by Respondent, W. Clark Stump (Transcript, page 15, lines 1-7). Said Note-o-Gram was given to Respondent's counsel and was produced together with other documents to plaintiff in the course of discovery.
6. On July 14, 1976, W. Clark Stump at his deposition testified under oath that said Note-o-Gram was typed and sent by Respondent to plaintiff on or about October 15, 1971. In fact and truth, said Note-o-Gram was not typed until 1976, after the above described litigation had commenced. Count I of the petition alleges, the Respondent admits, and your Hearing Committee finds that such conduct by Respondent is in violation of Disciplinary Rule 1-102(A)(4).
7. On or about May 12, 1978, Respondent W. Clark Stump signed an affidavit which was filed in the Superior Court in the above described Civil Action, 78-758, in which Respondent states that said Note-o-Gram was sent on or about October 15, 1971. Count II of the petition alleges, the Respondent admits, and your Hearing Committee finds that such conduct by Respondent is in violation of Disciplinary Rule 1-102(A)(5).
8. On or about June 26, 1978, at a subsequent deposition, Respondent W. Clark Stump, testified under oath that said Note-o-Gram was typed and sent to plaintiff on or about October 15, 1971. Count III of the petition alleges, the Respondent admits, and your Hearing Committee finds that such conduct by Respondent is in violation of Disciplinary Rule 1-102(A)(4).
9. The petition alleges in Count IV, that the conduct of Respondent in Counts I, II and III in the aggregate constitutes a violation of Disciplinary Rule 1-102(A)(3). Respondent admits this allegation and your Hearing Committee so finds.
*268 10. At the hearing, Mr. Garrison moved to amend the petition by striking the word "principal" in paragraph IV of said petition. This motion was unopposed and granted by the Hearing Committee chairman. Thereafter Respondent admitted the modified petition in its entirety. The facts as set out in said petition are conclusively established.
11. At the conclusion of the June 26, 1978, deposition, Respondent W. Clark Stump contacted Charles L. Cloudy and requested that Mr. Cloudy place the facts before the Alaska Bar Association so that the Bar could take appropriate action (Transcript, page 15, lines 18-22). Mr. Cloudy compiled all relevant records, and at Mr. Stump's request contacted Bar counsel William Garrison, which contact resulted in the institution of these proceedings. (Exhibit A, affidavit of C.L. Cloudy, page 2)
12. Mr. Stump is remorseful regarding his conduct and offers no excuses:
"I am sorry for what I've done, I am sorry for the shame that I have brought upon my profession and significantly for the shame that I have brought upon my family, my friends, and those who had confidence in me ... I made a costly mistake and I am ready to pay the penalty for it." (Transcript, page 16, lines 24 through page 17, line 6). (See also Transcript, page 23, line 10 through page 24, line 2)
Mr. Stump has been indicted and is presently facing charges of passing a forged document, which charges he indicates he will not contest. (Transcript, page 16, lines 21-24)
13. Respondent was required by Superior Court Judge Thomas Schulz to pay the sum of Twenty-two Thousand Five Hundred Eighty-two and 43/100ths ($22,582.43) as plaintiff's costs in developing the disclosure of the facts relating to the Note-o-Gram. (Exhibit D) This sum was increased to Twenty-five Thousand ($25,000.00) Dollars at the time of settlement of the litigation (Exhibit D). This amount has been paid (Transcript, page 16, lines 11-16). Restitution has been held relevant to the nature and extent of discipline; see In re MacKay, 416 P.2d 823 (Alaska, 1965).
14. The Note-o-Gram is viewed by your Hearing Committee as one transaction having component parts. The initial misconduct and fabricated Note-o-Gram was motivated by Respondent's desire as a party defendant to document falsely that which he believed to be the fact: namely that he in fact was not representing plaintiff in the sales transaction. The deposition testimony of plaintiff (Exhibit F, page 32, lines 6-15) and the deposition testimony of William Moran (Exhibit E, page 37, lines 5-7) tend to support Respondent's contention that in fact he did not represent plaintiff. Said fact does not excuse Respondent's conduct but is relevant on the issue of mitigation (see Mosesian vs. State Bar of California, 8 Cal. 3d 60, 103 Cal. Rptr. 915, 500 P.2d 1115).
15. The harm occasioned to date by the misconduct of Respondent has been chiefly born by Respondent himself. Mr. Stump was at the time of the original fabrication, under significant emotional and mental stress. (Transcript, page 13 and 14). This factor while not controlling, is considered relevant by your Hearing Committee (see In re Jones, 96 Cal. Rptr. 448, 487 P.2d 1016). Mr. Stump has apparently practiced responsibly with the exception of the misconduct giving rise to these proceedings. No evidence has been brought to the Bar or to your Hearing Committee of prior or subsequent misconduct.
16. W. Clark Stump makes no request for a particular kind or duration of discipline and indicated that the evidence offered by him was by way of mitigation, and in no fashion was intended to justify or excuse Respondent's misconduct.
Proposed Order
Your Hearing Committee having examined the testimony and written record before it, has two (2) goals in mind in fashioning a Proposed Order:
1. To protect the public and promote faith and confidence in our profession by strict adherence to our ethical canons, and
2. To tailor a penalty in a fashion which upholds those standards while recognizing *269 the ability of an individual attorney to reform and make worthwhile contributions to our society and our profession after admitted transgressions.
The unanimous recommendation of your Hearing Committee is that Respondent W. Clark Stump be suspended from the practice of law in the State of Alaska for a period of one (1) year.
/s/ Gordon Evans Chairman
/s/ Merle Bottge
/s/ William G. Royce
CONNOR, Justice, dissenting in part.
In disciplining attorneys it is possible, in demonstrating the zeal with which misconduct is condemned, to err on the side of undue severity.
In the case before us it should be kept in mind that punishments in addition to suspension from the practice of law have been and will be visited upon respondent. Among other things, he will be found guilty of a criminal offense. He has already made civil reparation by paying $25,000 to the person wronged by his misconduct. Additionally it must be recognized that suspending a lawyer from the practice of law stigmatizes him in the community. Even if he regains the privilege of practicing law, it may take many years before his misdeeds are expiated in the eyes of the community. In this sense the mere act of suspending an attorney, for any length of time, can amount to a substantial punishment. It is well known that after a long period of suspension the likelihood of an attorney reentering the practice of law is greatly diminished.
In the case at bar I am impressed by the recommendation of the Area Hearing Committee that respondent should be suspended for a period of one year. As that committee concluded, such a suspension amounts to a substantial punishment, and demonstrates that the ethical standards of the profession will be enforced. But such a period of suspension also holds out hope for rehabilitation of an erring attorney so that someday, when the period of suspension is served, he can take steps to re-enter the profession and make worthy contributions to the wellbeing of the community, and the legal profession as well. It is conceivable that after this chastening experience respondent may, if he re-enters the profession, adhere to ethical standards of a very high order. I fear, however, that an unduly long suspension can have such a demoralizing effect that any chance of rehabilitation may be lost.
Therefore, I agree with the recommendation of the Area Hearing Committee, and would impose a one-year suspension upon respondent.
BURKE, Justice, dissenting in part.
I respectfully dissent.
"Repeatedly it has been said that, by admitting an attorney to practice, a court endorses him to the public as worthy of their confidence in professional matters." Matter of Goldman, 588 P.2d 964, 983 (Montana 1978) (Harrison, J., dissenting). Thus,
The license to practice law in Alaska is, among other things, a continuing proclamation by the Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and counselor, and as an officer of the courts.
Rule 9, Alaska Bar Rules. "[I]f he becomes unworthy, it is the duty of the court to withdraw the endorsement." 588 P.2d at 983 (emphasis in original).
To be admitted to the practice of law in this state, one must demonstrate that he is "of good moral character." Rule 2, § 1(d), Alaska Bar Rules. If Mr. Stump were applying for admission to the bar at this time, his admitted falsification of documentary evidence and acts of perjury would undoubtedly cause this court to reject his application out of hand, on the ground that he lacks that essential quality. I know of no instance, at least, where a person known to be guilty of such conduct has been admitted to practice by this court, nor can I imagine such a case.
*270 Once admitted, the requirement of good character does not cease. It continues to be one of the requisites of bar membership. As one court has described this requirement,
No matter how learned in the law a man may be, nor how skillful he might be in the conduct of suits at law, or equity, he can never be admitted to the bar until he can satisfy the court that he possesses that first requisite for admission to the bar, a good moral character. Such character he must have when he knocks at the door of the profession for admission, and such character he must have while enjoying the privilege and right to remain within the fold. When he ceases to be a man of good repute, he forfeits his right to continue as a member of the bar.
588 P.2d at 985, quoting Ex Parte Thompson, 152 So. 229, 238 (Alabama 1933) (emphasis in original).
The purpose of this proceeding is not to punish Mr. Stump. It is to protect "the public, the courts and the legal profession itself." Matter of Preston, 616 P.2d 1, 6 (Alaska, 1980), quoting In Re Kreamer, 14 Cal. 3d 524, 121 Cal. Rptr. 600, 535 P.2d 728, 733 (Cal. 1975). As stated by Justice Harrison of the Supreme Court of Montana, "Unless we keep clean our own house ... we cannot expect the public to have confidence in the integrity of the bar and in our system of justice." 588 P.2d at 985.
For these reasons, I would order Mr. Stump disbarred.[1]
NOTES
[1] The range of disciplinary sanctions available to this court is found in Alaska Bar R. II-12, which provides:
Misconduct shall be grounds for:
(a) Disbarment by the Court; or
(b) Suspension by the Court for a period not exceeding five years; or
(c) Public censure by the Court; or
(d) Private reprimand by the Disciplinary Board; or
(e) Private informal admonition by the Administrator.
[2] Alaska Bar R. II-9 provides, in part:
The license to practice law in Alaska is, among other things, a continuing proclamation by the Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and counselor, and as an officer of the courts. It is the duty of every member of the bar of this State to act at all times in conformity with standards imposed upon members of the Bar as conditions for the privilege to practice law. These standards include, but are not limited to, the code of professional responsibility, and the code of judicial conduct, that have been, and any that may be from time to time hereafter, adopted or recognized by the Supreme Court of Alaska.
.....
Any attorney admitted to practice law in Alaska or any other attorney who appears, participates, or otherwise engages, in the practice of law in this State is subject to the supervision of the Supreme Court of Alaska ... and the Disciplinary Board hereinafter established.
[3] The relevant facts appear in full in the "Southeastern Grievance Committee Conclusions and Recommendations" which are found in Appendix "A" to this opinion.
[4] The Area Hearing Committee articulated two goals in making its recommendation, namely:
1. To protect the public and promote faith and confidence in our profession by strict adherence to our ethical canons, and
2. To tailor a penalty in a fashion which upholds those standards while recognizing the ability of an individual attorney to reform and make worthwhile contributions to our society and our profession after admitted transgressions.
[5] At oral argument Bar Counsel recommended that respondent be disbarred from the practice of law in Alaska.
[6] Preliminary Statement, Code of Professional Responsibility. See also § 7.1 ABA Standards for Lawyer Discipline and Disability Proceedings (Approved Draft 1979).
[7] At the time of oral argument, this court was advised that sentencing had not taken place in the criminal case.
[8] In this regard, it is further argued that Stump's falsification had only a cumulative, rather than a material, relationship to the issues involved in the Lewis suit.
[9] Bar Counsel notes that respondent "felt it was necessary to maintain the dissimulation by continued false statements over a period of approximately two and one-half years."
[10] discipline to be imposed should depend upon the specific facts and circumstances of the case, should be fashioned in light of the purpose of lawyer discipline, and may take into account aggravating or mitigating circumstances.
ABA Standards for Lawyer Discipline and Disability Proceedings § 7-1 (Approved Draft 1979).
[11] See appendix "A" in particular.
[1] My decision that Mr. Stump should be disbarred is reached with great reluctance. He is a young man who has apparently practiced law in his community without incident for a number of years. Disbarment would no doubt have a devastating effect on his future, and serious consequences for his friends and the members of his family. Nevertheless, our duty, as I perceive it, does not permit us to do otherwise. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608598/ | 27 Wash. App. 781 (1980)
621 P.2d 760
AUTOMOBILE CLUB OF WASHINGTON, Appellant,
v.
THE DEPARTMENT OF REVENUE, Respondent.
No. 4260-II.
The Court of Appeals of Washington, Division Two.
December 9, 1980.
Michael D. Young, for appellant.
Slade Gorton, Attorney General, and Karen Elledge, Assistant, for respondent.
REED, C.J.
Plaintiff Automobile Club of Washington (Auto Club) appeals an order dismissing its action for a refund of business and occupation taxes assessed on dues received by the Auto Club. We affirm.
The Auto Club is a nonprofit organization formed in the early 1900's to promote and facilitate the use and ownership of automobiles. In furtherance of its purpose, the Auto Club offers activities in three general categories: (1) those of a civic nature that benefit both members and nonmembers (e.g., safety programs, dissemination of traffic conditions); (2) services to members for which a charge might be made if supplied by a business operated for profit (e.g., emergency road service, bail certificates); and (3) services provided to members for which others would not customarily charge (e.g., travel information). Members pay a onetime enrollment fee and annual dues. The total dues paid by a member are not affected by the quantum of services that a member receives.
Prior to 1971, the Auto Club was allowed a deduction from its business and occupation taxes under RCW 82.04.430(2) for dues received. RCW 82.04.430(2), as then enacted, allowed such a deduction for bona fide dues unless *783 the dues were "for, or graduated upon, the amount of service rendered by the recipient thereof".[1] In 1971 the Department of Revenue (Department) changed its policy and refused to allow the Auto Club a deduction for dues received, claiming that the dues were related to services rendered by the Auto Club. The Auto Club paid its taxes for the years 1971-77 under protest and, after exhausting its administrative remedies, brought this suit for a refund. The trial court, relying on Group Health Coop. v. State Tax Comm'n, 72 Wash. 2d 422, 433 P.2d 201 (1967), found for the Department, and the Auto Club has appealed.
The Auto Club contends on appeal that the trial court erroneously interpreted RCW 82.04.430(2). In contesting the trial court's interpretation, the Auto Club claims that because the dues charged to Auto Club members did not vary depending on the amount of service each member *784 received, the dues are not "for ... the amount of service rendered" and thus are properly deductible. The trial court's interpretation, the Auto Club argues, effectively eliminates the words "amount of" from the statute. The Auto Club also contends that under rules of statutory construction the legislature had "silently acquiesced" in the Department's pre-1971 interpretation of RCW 82.04.430(2).[2]
[1] The crux of the Auto Club's position is that "amount of service rendered" refers to the amount of services each member receives, not the aggregate amount of services rendered by the Auto Club. This argument, however, was rejected in Group Health Coop. v. State Tax Comm'n, supra, a case also interpreting RCW 82.04.430(2). Group Health involved the issue of whether "medical dues" received by Group Health were deductible. In holding that the dues were not deductible under RCW 82.04.430(2), our Supreme Court stated:
The fact that respondent may choose to call the monthly payments "dues," or the fact that by the very nature of its operation some members receive more services than others, does not change the underlying fact that the totality of its services to its membership over a given period of time is financially geared to the aggregate of the monthly fees received or anticipated for operational expenses over a given period of time.
(Italics ours.) Group Health Coop. v. State Tax Comm'n, supra at 434. Consequently, the determining factor in deciding whether dues are "for ... the amount of service rendered" is whether a correlation exists between the totality of services and the aggregate of dues received.
The Auto Club attempts to distinguish Group Health on two grounds. First, Group Health members, unlike the Auto Club, were classified depending on age, sex, and *785 nature of coverage, with dues varying depending on the classification, indicating a graduation between dues and the quantum of services rendered to individuals. While Group Health did involve such a graduation of dues, the Supreme Court's opinion recognized that fact only as additional support for its holding; the graduation of dues was not essential to its holding that what is determinative is the correlation of the totality of services to the aggregate of dues received. Group Health Coop. v. State Tax Comm'n, supra. Second, the Auto Club claims that dues constituted virtually 100 percent of Group Health's revenue, whereas the Auto Club derives approximately 25 percent of its revenue from nondues income. We need not decide whether this is a distinction with a difference, however, as a close reading of Group Health indicates that Group Health, like the Auto Club, had significant nondues income. Group Health Coop. v. State Tax Comm'n, supra at 424.
Our analysis, then, is limited to whether the evidence supports the trial court's conclusion that "the totality of the services provided by the Club is geared financially to the aggregate of the dues." Although the Auto Club, based upon stipulated income and expense figures, claims that no such correlation exists, the evidence establishes that dues accounted for 75 percent of the Auto Club's total income. The cost of providing services and general administrative expenses accounted for approximately 82 percent of the Auto Club's expenses. The fact that some of the services benefited members only indirectly does not change the analysis. Red Cedar Shingle Bureau v. State, 62 Wash. 2d 341, 382 P.2d 503 (1963). The Auto Club has increased dues three times since 1959 and in publications has justified the increase because of increased costs of services. Consequently, evidence exists of a correlation between the total services provided and the aggregate dues received.
[2] The Auto Club also argues that because the legislature amended parts of RCW 82.04.430(2) in 1965 (when the Auto Club was allowed the deduction) but left the language *786 at issue in this case intact, the legislature "silently acquiesced" in the interpretation then given to the statute by the Department. State ex rel. Pirak v. Schoettler, 45 Wash. 2d 367, 274 P.2d 852 (1954).[3] We recognize the validity of cases holding that the administrative interpretation of an ambiguous statute is entitled to considerable weight in determining what the legislature intended. However, such an administrative interpretation is not determinative. The paramount consideration is that the statute be interpreted consistently with the underlying policy of the statute. Komm v. Department of Social & Health Servs., 23 Wash. App. 593, 600 n. 5, 597 P.2d 1372, 1376 (1979).
[3, 4] We are satisfied that by following Group Health we are interpreting RCW 82.04.430(2) consistently with the policy of Washington's business and occupation tax. That tax is designed to reach virtually all business activities carried on within the state. Time Oil Co. v. State, 79 Wash. 2d 143, 483 P.2d 628 (1971). The purpose of the dues deduction is to exempt from taxation only revenue exacted for the privilege of membership. See WAC 458-20-114. Further, where ambiguous, statutes allowing deductions from a tax are to be construed strictly against the taxpayer. Group Health Coop. v. State Tax Comm'n, supra. Accordingly, the broad scope of the business and occupation tax, when combined with a narrow construction of deductions, supports our holding.
Finally, as the trial court noted in its memorandum opinion, it is quite likely that a portion of dues received by the Auto Club covers expenses incident to providing the privilege of membership and are thus deductible. The Auto Club, however, has made no attempt to segregate these expenses. Absent such a segregation, the Department may *787 presume that the entire amount is taxable. RCW 82.32.180; Tidewater Terminal Co. v. State, 60 Wash. 2d 155, 372 P.2d 674 (1962).
The judgment is affirmed.
PETRIE and PETRICH, JJ., concur.
NOTES
[1] RCW 82.04.430 (currently codified as RCW 82.04.4281 et seq.) is a list of deductions allowed from the business and occupation tax. Subsection 2, as enacted at the time this case was decided, stated the following amounts were deductible:
(2) Amounts derived from bona fide initiation fees, dues, contributions, donations, tuition fees, charges made for operation of privately operated kindergartens, and endowment funds. This paragraph shall not be construed to exempt any person, association, or society from tax liability upon selling tangible personal property or upon providing facilities or services for which a special charge is made to members or others. Dues which are for, or graduated upon, the amount of service rendered by the recipient thereof are not permitted as a deduction hereunder;
Since the trial court's decision, the third sentence of RCW 82.04.430(2) has been amended and now states:
If dues are in exchange for any significant amount of goods or services rendered by the recipient thereof to members without any additional charge to the member, or if the dues are graduated upon the amount of goods or services rendered, the value of such goods or services shall not be considered as a deduction hereunder.
(Recodified as RCW 82.04.4282.) The effect of the amendment on this case has not been briefed by the parties and thus need not form the basis of our decision. RAP 12.1. Further, because no official legislative history on the amendment exists, it is unclear whether the amendment changes RCW 82.04.430(2) or merely clarifies it. Compare Home Indem. Co. v. McClellan Motors, Inc., 77 Wash. 2d 1, 459 P.2d 389 (1969) with Bowen v. Statewide City Employees Retirement Sys., 72 Wash. 2d 397, 433 P.2d 150 (1967). Consequently, we derive nothing from the amendment.
[2] The Auto Club also alleges that the Department enforced RCW 82.04.430(2) in a discriminatory fashion. Because it supports this argument for the first time in its reply brief, we need not consider it. Johnson v. Phoenix Assurance Co., 70 Wash. 2d 726, 425 P.2d 1 (1967).
[3] Conceivably, the legislature "silently acquiesced" only from 1965 to 1967, when Group Health Coop. v. State Tax Comm'n, 72 Wash. 2d 422, 433 P.2d 201 (1967), was decided. Because the legislature is presumed to be aware of judicial decisions, it is quite plausible the legislature, agreeing with Group Health, at that point saw no need to amend the statute. See Buchanan v. International Bhd. of Teamsters, 94 Wash. 2d 508, 617 P.2d 1004 (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608602/ | 621 P.2d 1389 (1980)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Stephen Vincent LIPIRA, Defendant-Appellant.
No. 79CA0242.
Colorado Court of Appeals, Div. II.
December 11, 1980.
J. D. MacFarlane, Atty. Gen., J. Stephen Phillips, Deputy Atty. Gen., Anthony Marquez, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Mitchell Benedict, III, Denver, for defendant-appellant.
ENOCH, Chief Judge.
This is an appeal by defendant, Stephen Vincent Lipira, of a judgment of conviction of third degree arson.
After the case was scheduled for oral argument, the attorney general advised the Court that since the filing of this appeal, the defendant had died, and therefore moved that the appeal be dismissed. The defendant's attorney has requested, on behalf of defendant's widow, that we proceed with the appeal and rule on the merits of the issues raised.
In a few states the courts, under the circumstances of this case, have ruled that the appeal should proceed to a determination of the issues on their merits. See, e. g., State v. Jones, 220 Kan. 136, 551 P.2d 801 (1976); People v. Columbo, 24 App.Div.2d 505, 261 N.Y.S.2d 836 (1965). In some states the courts have held that because of the death of the defendant, the issues on appeal have become moot and therefore the appeal should be dismissed. See, e. g., Neville v. State, 243 Ind. 28, 181 N.E.2d 638 (1962). In the majority of states, however, where this problem has been addressed, it has been decided that the appellate proceedings and the trial court proceedings should abate ab initio. See, e. g., People v. Mazzone, 74 Ill. 2d 44, 23 Ill. Dec. 76, 383 N.E.2d 947 (1978); State v. Blake, 53 Ohio App. 2d 101, 371 N.E.2d 843 (1977). See generally Annot., 83 A.L.R. 2d 864 (1962). Accordingly, those courts have held that there should be no determination of the issues raised on appeal, that the judgment of conviction should be set aside and that the indictment or complaint should be dismissed.
Colorado is in accord with the majority rule. However, under such circumstances as are present here, the Supreme Court has not been definitive in its direction to the trial court as to the final disposition of the case. In Overland Cotton Mills Co. v. People, 32 Colo. 263, 75 P. 924 (1904), where one of the defendants died pending appeal, the court held, without indicating whether it was referring to the total proceedings or just the appellate proceedings, that as to that defendant the proceedings were "abated by operation of law" and concluded that as to that defendant "the judgment is abated." In Crowley v. People, 122 Colo. 466, 223 P.2d 387 (1950), the court quoted from Overland, supra, in holding that the proceedings were "abated by operation of law." *1390 The court also quoted from United States v. Mitchell, 163 F. 1014 (C.C.D.Or.1908), that "the cause abated entirely." The court in Crowley then reversed the judgment.
The term "abate" means to render the entire proceedings a nullity. Black's Law Dictionary 15 (rev. 4th ed. 1969). Therefore, we conclude that it was the Supreme Court's intention and we so hold in a criminal case where the defendant has died pending appeal, that there should be no determination of the issues on appeal and that the judgment of conviction should be set aside and the indictment dismissed.
Accordingly, the cause is remanded to the trial court with directions to set aside the judgment of conviction and dismiss the indictment.
KELLY and STERNBERG, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610115/ | 5 Cal. 3d 119 (1971)
485 P.2d 1140
95 Cal. Rptr. 524
DOLORES MANTES ESTEYBAR, Petitioner,
v.
THE MUNICIPAL COURT FOR THE LONG BEACH JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Docket No. L.A. 29822.
Supreme Court of California. In Bank.
June 22, 1971.
*122 COUNSEL
Wise, Kilpatrick & Clayton and George E. Wise for Petitioner.
John D. Maharg, County Counsel, and Douglas C. Miller, Deputy County Counsel, for Respondent.
Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and Russell Iungerich, Deputy Attorney General, for Real Party in Interest.
OPINION
WRIGHT, C.J.
In this case of first impression we are called upon to decide whether a magistrate, pursuant to Penal Code section 17, subdivision (b)(5),[1] may determine that an offense is a misdemeanor without first obtaining the consent of the prosecuting attorney. Since a prosecutor may not be vested with authority to foreclose the exercise of a judicial power, we have concluded that requiring his consent to determine that an offense is a misdemeanor violates the doctrine of separation of powers set forth in article III, section 1, of the California Constitution.
Petitioner, Dolores Mantes Esteybar, was charged with possession of marijuana (Health & Saf. Code, § 11530), an offense which, in the absence of any prior felony convictions, may be treated as either a felony or a misdemeanor. After hearing the evidence at the preliminary hearing the magistrate attempted to hold petitioner to answer on a misdemeanor charge in the municipal court, but he was prevented from exercising his *123 discretion because the prosecuting attorney insisted that petitioner be held to answer on a felony charge in the superior court. Petitioner now seeks a writ of mandate to compel respondent, the Municipal Court for the Long Beach Judicial District, to proceed upon her case as if she had been arraigned on a misdemeanor complaint.
Petitioner was arrested at a Safeway supermarket in the City of Long Beach and was charged with petty theft, a violation of section 484 of the Penal Code. She was accused of having wrongfully taken a package of plastic forks, a bar of soap and a tube of shampoo, all of which had a total value of $1.58. During the booking procedure following petitioner's arrest, a search of her purse revealed a single hand-rolled marijuana cigarette. Petitioner was then charged with possession of marijuana, which charge is the subject of the instant proceeding.
At the preliminary hearing it was stipulated that petitioner had no criminal or arrest record. Because of the nature of the offense and the fact that petitioner had no prior record, the magistrate wished to determine that the offense was a misdemeanor and hold petitioner to answer in the municipal court, rather than holding her to answer in the superior court on a felony charge. The deputy district attorney, however, refused to consent. He stated that it was the policy of the district attorney's office not to consent to the prosecution of such offenses as misdemeanors unless the defendant first agreed to enter a plea of guilty. The magistrate then reluctantly concluded that he had no authority to hold the matter for trial in the lower court in the absence of the district attorney's consent. The case was continued, however, in order to permit the instant petition to be filed. The discussion of court and counsel at the preliminary hearing, which is quoted in its entirety in the margin, clearly sets forth the problems which arise if a prosecutor is permitted to foreclose the exercise of this judicial power.[2]
*124 In People v. Tenorio (1970) 3 Cal. 3d 89 [89 Cal. Rptr. 249, 473 P.2d 993], we dealt with Health and Safety Code section 11718, which prevented a court from exercising its power to strike prior convictions without *125 first obtaining the approval of the district attorney. We held that this section constituted an improper invasion of the constitutional province of the judiciary and was therefore violative of the California constitutional separation of powers. (1) As we stated in Tenorio, "The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise." (Tenorio, supra, at p. 94.) Although we are confronted with a different set of circumstances, nevertheless, the rationale underlying our decision in Tenorio applies with equal force to the instant case. (2) The judicial power is compromised when a magistrate, who in the interests of justice and in strict compliance with statutory requirements is of the opinion that an offense should be determined to be a misdemeanor, wishes to exercise his power to hold the defendant to answer in the municipal court but finds that before he may do so he must bargain with the prosecutor.
(3) In determining whether a defendant should be held to answer on a felony or a misdemeanor, a committing magistrate exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him. Nevertheless, section 17, subdivision (b)(5), purports to vest in the prosecutor, admittedly an advocate, a power which may be exercised in a totally arbitrary fashion without regard to the *126 circumstances of individual cases. Indeed, the prosecutor in the instant case admitted that it was a county-wide policy of the district attorney's office to refuse to consent to the prosecution of such offenses as misdemeanors unless the defendant first agreed to plead guilty.[3] (4) Under our system of separation of powers, we cannot tolerate permitting such an advocate to possess the power to prevent the exercise of judicial discretion as a bargaining tool to obtain guilty pleas. (5) A defendant is entitled to have an independent determination of whether he should be held to answer on a felony or a misdemeanor, and this is not possible when the exercise of judicial discretion depends on the "pleasure of the executive." (Tenorio, supra, at p. 93.)
The People contend that the judicial power exercised by a magistrate is not the kind of judicial power contemplated by Tenorio, and that this power is not judicial power within the constitutional meaning of separation of powers because the functions of a magistrate are legislatively determined rather than derived from the Constitution. The People rely on a long line of cases which hold that the system of prosecution by information is subject to control and regulation by the Legislature and that the functions of a magistrate at a preliminary hearing are solely those given by statute. (E.g., People v. Foster, 198 Cal. 112 [243 P. 667]; People v. Cohen, 118 Cal. 74 [50 P. 20]; People v. Superior Court, 249 Cal. App. 2d 727 [57 Cal. Rptr. 818].) They also rely on the differences between the powers of constitutional courts (those established in art. VI, § 1) and the powers of judges of constitutional courts acting solely in the capacity of magistrates. These arguments, however, are not persuasive. Article I, section 8 of the California Constitution provides that offenses formerly required to be prosecuted by indictment may now be prosecuted by information after examination and commitment by a magistrate. (6) Thus while the Legislature may prescribe the detailed duties of a magistrate, the magistrate's authority to conduct a preliminary examination is derived from the Constitution and not from the Legislature. (7) Furthermore, while the powers of a magistrate are not the same as those exercised by a court, his act of holding a defendant to answer a felony or a misdemeanor charge is a judicial act and involves an exercise of judicial discretion. (8) Contrary *127 to the People's argument, the fact that a particular power has been conferred on a magistrate by statute does not prevent the exercise of that power from being a judicial act for purposes of the doctrine of separation of powers. (9) Within the statutory framework, the magistrate at a preliminary hearing acts as an independent arbiter of the issues presented by the adversaries. He weighs evidence, resolves conflicts and gives or withholds credence to particular witnesses (Jones v. Superior Court (1971) 4 Cal. 3d 660, 667 [94 Cal. Rptr. 289, 483 P.2d 1241]), and just as these are judicial acts, so is the act of holding a defendant to answer. To accept the People's contention would be to reduce this function to an ex parte act and render meaningless the magistrate's independent determination.
The People also contend that since the Legislature was not required to give this power to the magistrates, the Legislature may therefore condition the exercise of the power in any manner it wishes. This argument is likewise not persuasive. Article III, section 1 of the California Constitution provides: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (10) The prosecution of a case by the district attorney involves an exercise of executive power, and as previously stated, the magistrate's act of holding a defendant to answer is a judicial act for the purposes of this section of the Constitution. (11) Since the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government, requiring the district attorney's consent in determining the charge on which a defendant shall be held to answer violates the doctrine of separation of powers. While it may be conceded that the Legislature in the first instance was not required to give the power to a magistrate to determine whether to hold a defendant to answer to a felony or a misdemeanor charge, having done so, the Legislature cannot condition its grant upon the approval of the district attorney.
The People contend that our holding constitutes an invasion of the charging process, an area traditionally reserved to the prosecutor, because we have abridged his discretion in deciding "what crime is to be charged or if any crime is to be charged." (People v. Sidener, 58 Cal. 2d 645, 658 [25 Cal. Rptr. 697, 375 P.2d 641].) This argument overlooks the fact that the magistrate's determination follows the district attorney's decision to prosecute. (12) As stated in Tenorio, "When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature." (Tenorio, supra, at p. 94.)
(13) Thus we have concluded that Penal Code section 17, subdivision (b)(5), violates article III, section 1 of the California Constitution insofar *128 as it requires the consent of the prosecutor before a magistrate may exercise the power to determine that a charged offense is to be tried as a misdemeanor.
Let a writ of mandate issue compelling respondent to proceed upon the case as if petitioner had been arraigned on a misdemeanor complaint.[4]
McComb, J., Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
The petition of the real party in interest for a rehearing was denied July 21, 1971.
NOTES
[1] The statute provides: "... (b), When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: ... (5) When, at or before the preliminary examination and with the consent of the prosecuting attorney and the defendant, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint." (Pen. Code, § 17, subd. (b)(5), as amended in 1969.)
[2] "THE COURT: I don't think the defendant should be held to answer to a felony in the Superior Court because under the circumstances here it seems clear that no judge would send this defendant to state prison even if she were found guilty at the time of trial or pleaded guilty to a violation of Section 11530.
"Of course this is one of those cases where the judge may treat it as a felony or a misdemeanor depending on the sentence imposed.
"Because of the nature of the offense and the lack of any prior record by the defendant I find that there is only probable cause to believe the defendant committed a misdemeanor by possessing a single marijuana cigarette; but that there is no probable cause to believe that she has committed a felony in respect to it.
"At this time I would like to hold her to answer in the Municipal Court for a violation of Section 11530 of the Health and Safety Code, a misdemeanor and prepare this case for trial in this court rather than hold her to answer in the Superior Court. For that reason I would ask the District Attorney's office if there is any objection to my holding her to answer here in the Municipal Court under Section 11530 of the Health and Safety Code, a misdemeanor rather than holding her to answer in the Superior Court on a felony.
"MR. PANTOJA [prosecutor]: Your Honor, there would be an objection. The People would argue that the judge's discretion in this matter would be under solely under Section 17, Subdivision 5 of the Penal Code which requires a consent of the District Attorney's office and prosecuting attorney. And the District Attorney's office will not consent in this matter, Your Honor, to anything less than holding Defendant to answer in the Superior Court on a felony.
"THE COURT: Will you tell me why the District Attorney's office will not agree to holding the defendant to a misdemeanor? Why will you not agree to that?
"MR. PANTOJA: For the specific reason behind the failure to agree I would not be capable of saying. What I could say is that it is the overall policy of the District Attorney's office that in this type of matter where a felony complaint has been filed that if there is any disposition to be made, Your Honor, it should be done at the Superior Court level, at which time if it is to be handled as a misdemeanor it should be handled as such by the sentencing.
"THE COURT: You haven't answered my question. Maybe you don't wish to. Let me put it this way: Isn't it a fact that it is the policy of the District Attorney's office not to agree or consent to the reduction of any felony to a misdemeanor, first of all, unless the defendant intends to plead guilty to the misdemeanor? Is that not the policy of the District Attorney's office under certain circumstances?
"MR. PANTOJA: As to policy, of course I am not free to speak because I don't make it. But I will say this: In the normal course of events a plea of guilty to a misdemeanor or the crime can be recategorized as a misdemeanor only in a plea of guilty.
"THE COURT: You correct me if I am wrong but I have seen a memorandum of the District Attorney's office and according to my best recollection it is a policy memo which states that the District Attorney's office will not consent to the reduction of any felony to a misdemeanor first of all unless the defendant agrees to plead guilty to a misdemeanor and then only in certain circumstances. And those situations are, for example, if there is no more than one marijuana cigarette involved and then it goes on to list various situations. Is that not correct?
"MR. PANTOJA: That is correct, Your Honor.
"THE COURT: All right.
"MR. WISE [defense counsel]: May I say something, your Honor? ... First let me say that under Section 17a, Subdivision 5 that I would prefer that this matter be arraigned on a misdemeanor rather than a felony.
"THE COURT: Let me get this straight: You would prefer this matter be treated as a misdemeanor, would you not, on behalf of the defendant?
"MR. WISE: That is correct. And I would believe that the Court has authority to do so despite Section 17a, Subdivision 5, in the light of the case of People versus [Tenorio].
"And the determination of whether a particular offense is a felony or a misdemeanor is purely a determination of the Court and is a judicial determination. I don't believe the District Attorney or any prosecuting attorney can be clothed with that judicial authority to bar the Court from doing what the Court has indicated he wants to do, and I would therefore ask the Court possibly over the objection of the District Attorney to proceed as though this case were based on a misdemeanor complaint.
"THE COURT: I would certainly like to do it and I think it is a shame that the Superior Courts are cluttered with cases of this type wherein we spend all this money for preliminary hearing transcripts and hearings at the Municipal Court level. And then, in the Superior Court as well as the Municipal Court we have the expense of appointing attorneys, and the defendant ends up invariably in such cases receiving a sentence for a misdemeanor and receiving a fine of a hundred dollars after the taxpayer has spent hundreds and hundreds of dollars unnecessarily in prosecuting it.
"I am sure the Legislature had in mind eliminating that expensive procedure and eliminating the necessity of cluttering up the Superior Court calendar with this type of case when they passed and adopted this Section 17 of the Penal Code.
"However, in view of the wording of that section I have grave doubt that I have a right to keep it here and reduce it without the consent of the District Attorney's office. So, I am going to reluctantly hold the Defendant to answer in the Superior Court. At least that is my feeling now.
"MR. WISE: If the Court intends to do so, your Honor, may I ask that the matter be held in abeyance by way of a continuance until such time I can obtain a writ from the California Supreme Court to see if the Court doesn't have such authority?
"THE COURT: I would appreciate it if you would do that. And unless I am restrained from doing so and unless the Appellate Court agrees that I have the jurisdiction to reduce it to a misdemeanor without the consent of the District Attorney then I intend to hold the defendant to answer to the Superior Court.
"And I hope you are successful in having it determined that I do have the right to reduce this to a misdemeanor even in the absence of consent from the District Attorney's office.
"So, for the purpose of giving you a chance of getting a writ I will continue this matter, if the defendant will consent to giving up her right to a speedy trial, and continue it for one month from today which will be November 20th."
[3] Such county-wide policies of the district attorney's office completely frustrate the purpose of the 1969 amendment to Penal Code section 17. The amendment was originally proposed in an attempt to have matters of a relatively minor nature prosecuted in municipal courts in order to speed their disposition, relieve overall congestion, and conserve the critically limited time and resources of the superior courts for more important matters. These goals cannot be achieved when the district attorney has the power to insist that all such cases be filed and prosecuted as felonies in the superior court. Our holding in this case removes the possibility of such county-wide policies and furthers the purpose of section 17, subdivision (b) (5).
[4] The People contend that the Municipal Court for the Long Beach Judicial District is not a proper party to this proceeding because the magistrate continued the case pending final determination of this petition and petitioner therefore has not yet been formally held to answer in respondent court. The magistrate, however, clearly wished to hold petitioner to answer in respondent court and would have done so but for the prosecutor's insistence on his right to concur in the decision. (See fn. 2, supra.) Since the prosecutor had no such right to object, we deem petitioner to have been held to answer in respondent court as if she had been arraigned on a misdemeanor complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903330/ | 873 A.2d 720 (2005)
COMMONWEALTH of Pennsylvania, Appellee
v.
John K. YOUNG, Appellant.
Superior Court of Pennsylvania.
Submitted July 6, 2004.
Filed April 21, 2005.
*721 John K. Young, appellant, pro se.
Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before: HUDOCK, MONTEMURO[*] and KELLY, JJ.
HUDOCK, J.:
¶ 1 This is a pro se appeal from the order denying Appellant's request for DNA testing pursuant to 42 Pa.C.S.A. section 9543.1. For the reasons that follow, we affirm.
¶ 2 The lower court summarized the pertinent facts and procedural history of the case as follows:
On the morning of March 11, 1975, the decedent, Marlene Mapp, was in her *722 house with her two young children when her next-door neighbor, Jaqueline Mack, heard the sounds of loud screaming and footsteps coming from Ms. Mapp's house. She also heard the decedent's young son crying out to someone to "leave his mother alone". Ms. Mack immediately called the police and then called over to the decedent's house. Her son, Larry Mapp, who was six years old at the time of the incident, answered the phone and stated to her that his mother had been stabbed.
Ms. Mack hung up the phone and went to the rear door of the Mapp residence and pushed the door open. She was met by Larry [Mapp] who was covered with blood. The police arrived shortly thereafter, and discovered Ms. Mapp lying wedged against her front door at the foot of the staircase that led to the second floor. There was a trail of blood from a bedroom on the second floor to the bottom of the staircase on the first floor. The decedent's purse was lying open on the living room sofa with its contents strewn about the room. A post-mortem examination revealed that Ms. Mapp died from a loss of blood that resulted from stab wounds that severed vital veins and arteries.
An examination of the decedent's home disclosed that entry had been gained by someone using a coat hanger to unlatch the door. The front door was still locked when the police arrived, and there was no other evidence of a forced entry.
After finding physical evidence in the backyard of the Mapp home, the police went to the house directly behind it and apprehended the defendant. Once he was in custody, he admitted to breaking into the home and killing Ms. Mapp when she attempted to disarm him. He also described how he entered the premises and the actions that he took immediately before and after he stabbed the decedent to death. That information was used to secure a search warrant for the house in which [Appellant] lived. Upon the execution of the warrant less than fifteen hours after the crime, the police seized a knife, shoes, pants, and a washcloth that contained [human blood.]
Larry Mapp testified at trial and told the jury that he was sleeping in his mother's bed when he was "awakened by voices" and saw [Appellant] on the bed on his knees. He stated that [Appellant] ordered the mother to tell Larry to take his five-year old sister out of the room. As Larry left the room, he saw [Appellant] pull out a knife. He then ran downstairs to get a knife so that he could attempt to defend his mother. As he was running back upstairs, he saw [Appellant] run down the stairs and out the back door. Larry testified that he recognized [Appellant] as a person who he had previously seen hanging up clothes in the backyard of the [house] directly to the rear of his own.
* * *
[Appellant] was charged with the murder of Marlene Mapp on March 11, 1975. [Appellant] was tried before the Honorable Theodore B. Smith, with a jury, and he was convicted of second-degree murder, robbery, burglary, and possessing an instrument of crime on August 26, 1975. He was later sentenced to a mandatory term of life imprisonment for the murder conviction and a concurrent ten to twenty years' imprisonment for the burglary conviction. Sentence was suspended on the two remaining convictions.
[Appellant appealed directly to the Supreme Court of Pennsylvania from the judgment of sentence imposed on the murder conviction. An appeal from *723 the judgment of sentence imposed on the burglary conviction was filed in the Superior Court and later certified in the Supreme Court.] In that appeal, his only claim for relief was his allegation that the prosecutor utilized improper remarks and innuendo in his closing argument to the jury. [The Supreme Court affirmed his judgment of sentence on March 23, 1978. See Commonwealth v. Young, 477 Pa. 212, 383 A.2d 899 (1978)].
On September 24, 1979 [Appellant] filed his first pro se Post Conviction Hearing Act ("PCHA") petition. Private counsel was appointed for him, and the amended petition included the claim that [Appellant's] inculpatory statement was obtained unconstitutionally and in violation of his rights as a juvenile at the time he was questioned by police personnel. The PCHA court dismissed the petition on April 13, 1982, and the dismissal was affirmed by the Superior Court on the grounds that his trial counsel could not have been "ineffective" because the confession was never introduced into evidence at trial. [See Commonwealth v. Young, 318 Pa.Super. 538, 465 A.2d 684 (1983).]
[Appellant] filed a second pro se PCHA petition on November 3, 1986, and that petition was dismissed without a hearing on May 31, 1989. In that petition, he argued that it was reversible error for the trial court to have allowed the introduction of the physical evidence that was seized from his residence because he contended that it was the "tainted fruit" of his involuntary confession. The Superior Court affirmed the dismissal of his second PCHA petition in a "memorandum opinion" that was dated August 20, 1993, and [the court] also held that [Appellant's] confession was, in fact, voluntary. [See Commonwealth v. Young, 432 Pa.Super. 693, 635 A.2d 209 (1993) (unpublished memorandum). Thereafter the Supreme Court denied Appellant's petition for allowance of appeal. See Commonwealth v. Young, 537 Pa. 632, 642 A.2d 485 (1994)].
Trial Court Opinion, 3/17/04, at 3-5, 1-3. On November 27, 2002, Appellant filed a motion pursuant to the Post-Conviction Relief Act[1] (PCRA) requesting the court to order DNA testing of the blood stained articles which had been removed from his home and which the Commonwealth introduced at trial as having on them blood which was consistent with the victim's blood type. The Commonwealth filed a brief in opposition on June 2, 2003. On that same date, the court sent a notice of its intent to dismiss the petition, pursuant to Pa.R.Crim.P. 907. Appellant filed a response on June 17, 2003, and on July 3, 2003, the court dismissed the petition without a hearing. This appeal followed. The court directed Appellant to file a concise statement of matters complained of on appeal, Appellant complied, and the court has filed an opinion addressing the claims.
¶ 3 Appellant now presents for our consideration the sole issue of whether the "lower court erred in dismissing [his] Motion for Post Conviction DNA testing under new amendment [42 Pa.C.S.A. section 9543.1] after treating such motion as [a PCRA] petition." Appellant's Brief at 3. Appellant's argument is two-fold. First, Appellant contends that the trial court erred in treating his request for DNA testing as a PCRA petition. Secondly, he asserts that he has satisfied the directives of section 9543.1 and, as such, is entitled to DNA testing.
¶ 4 With respect to Appellant's first argument that the trial court improperly treated his request for DNA testing *724 as a PCRA petition, we find it to be not only without merit but also non-dispositive of his request for DNA testing. Appellant claims that, although he used the standard form for PCRA petitions, the court erred in treating it as a PCRA motion because his petition clearly stated "Motion for Post Conviction DNA Testing." Appellant challenges the court and the Commonwealth's reference to his request for DNA testing as his third PCRA petition. Appellant argues that had the court truly treated his request as a PCRA petition, pursuant to the time requirements of the PCRA, his petition should have been considered untimely, and the court should have dismissed the petition without ruling on its merits. However, Appellant points out that while the court and Commonwealth refer to his request as a PCRA petition, they, in fact, treated it as a motion for DNA testing and addressed his request on the merits. Thus, Appellant requests that this Court "clarify the record by treating this appeal as an appeal from the denial of [his] Motion for Post Conviction DNA test and not as an appeal from [a] PCRA petition." Appellant's Brief at 8. While Appellant's argument is inartfully phrased, it is apparent that Appellant is concerned that we may treat his request for DNA testing as an untimely PCRA petition. Appellant's concerns, however, are unsubstantiated. In Williams v. Erie County District Attorney's Office, 848 A.2d 967, 969 (Pa.Super.2004), appeal denied, ___ Pa. ___, 864 A.2d 530 (2004), we found that a motion for DNA testing constitutes a post conviction petition under the PCRA "regardless of the title of the document filed." We further reiterated that "an appellant's `motion for DNA testing (filed in advance of utilizing the PCRA as a vehicle to obtain DNA results) avoids the one year time bar of 42 Pa.C.S.A. § 9545.'" Id. (quoting Commonwealth v. McLaughlin, 835 A.2d 747, 750 (Pa.Super.2003)). See generally, Commonwealth v. Heilman, 2005 PA Super. 19, 867 A.2d 542 (2005) (treating motion for DNA testing as timely PCRA petition pursuant to 42 Pa.C.S.A. section 9543.1). Thus, in this instance, both the PCRA court and the Commonwealth properly treated Appellant's request for DNA testing pursuant to section 9543.1 as a PCRA petition.[2] The PCRA court further correctly found that this request survived the one-year time bar proscribed by section 9545 and addressed Appellant's request on its merits.
¶ 5 Having determined the propriety of Appellant's petition for review, we must next address whether Appellant has satisfied the prima facie requirements set forth in section 9543.1 necessary to entitle him to the requested DNA testing. Section 9543.1 provides in relevant part:
§ 9543.1 Postconviction DNA testing
(a) Motion.
(1) An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment ... may apply by making a written motion to the sentencing *725 court for the performance of forensic DNA testing on specific evidence that is related to the investigation or prosecution that resulted in the judgment of conviction.
* * *
(c) Requirements.In any motion under subsection (a), under penalty of perjury, the applicant shall:
(1) (i) specify the evidence to be tested;
(ii) state that the applicant consents to provide samples of bodily fluid for use in the DNA testing; and
(iii) acknowledge that the applicant understands that, if the motion is granted, any data obtained from any DNA samples or test results may be entered into law enforcement databases, may be used in the investigation of other crimes and may be used as evidence against the applicant in other cases.
(2) (i) assert the applicant's actual innocence of the offense for which the applicant was convicted;
* * *
(3) present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by the perpetrator was at issue in the proceedings that resulted in the applicant's conviction and sentencing; and
(ii) DNA testing of the specific evidence, assuming exculpatory results, would establish:
(A) the applicant's actual innocence of the offense for which the applicant was convicted[.]
42 Pa.C.S.A. § 9543.1.
¶ 6 In this instance, Appellant contends that if DNA testing was performed on the bloodstained pants, shoes, knife and washcloth found in his home, the results of the test would prove that the blood was consistent with his blood and not that of the victim, as both he and the victim have type "O" blood. Appellant further alleges that, because the identity of the perpetrator was at issue in the proceedings, DNA testing of these items will prove his actual innocence. While Appellant acknowledges that the victim's son identified him as the assailant, Appellant argues that this identification was unreliable and, as such, the only evidence that linked him to the crime was the bloodstained articles upon which he now requests DNA testing be performed. Thus, Appellant contends that the PCRA court erred in dismissing his request for testing.
¶ 7 In finding that the facts of this case disqualified Appellant from the relief requested, the PCRA court stated:
[Appellant] never raised the issue of "identity" at trial nor does he allege any such facts in his PCRA petition. He merely asserts that he "is innocent of this crime and have been trying to prove it for the past 28 years". Even the most cursory review of the record in this case reveals that the only issues that ever existed were those of a procedural nature, and that "identity" and "actual innocence" were never real factors in the pre-trial or trial proceedings, direct appeal, post-conviction petitions, or the instant attempt to obtain the right to DNA testing.
First, [Appellant] gave a full confession to the murder in which he spelled out the circumstances surrounding the stabbing of Marlene Mapp. Though there is arguably some question as to its legal admissibility, given the unsettled state of the law at that time for juvenile *726 confessions,[3] there can be no question that it totally undermines [Appellant's] ability to avow "actual innocence". The confession was not introduced into evidence at [Appellant's] trial, but the Superior Court evaluated the circumstances surrounding it in their 1993 opinion, and held as follows[:]
No evidence can be found to suggest that appellant was subjected to physical or psychological abuse, nor were any threats or promises utilized to induce his inculpatory statement. Thus appellant's confession, when studied in the light of the Christmas standard, does not appear to have been an egregious violation of his rights. We conclude that the confession was voluntarily made. [Commonwealth v. Young, 432 Pa.Super. 693, 635 A.2d 209 (1993) (unpublished memorandum) (No. 3312 PHL 1992, filed August 20, 1993, at p. 7)].
In addition, the deceased's son testified at trial and positively identified [Appellant] as the assailant who pulled out a knife in his mother's bedroom, and then [ran] down the stairs to escape. Larry Mapp's testimony that he recognized [Appellant] as his "rear yard" neighbor erased any doubt that there were questions about his identification of him or the "identity" of the perpetrator of this gruesome murder.
Finally, the numerous items of physical evidence militate strongly against any contention that the identity of the accused was or is in issue, or that a rational claim of "actual innocence" could be asserted. The deceased's blood covered numerous items that were taken from [Appellant's] house within hours after the murder was committed. There was also a butcher knife with traces of human blood found in his kitchen, and blood was also detected on the kitchen sink drain board.
Trial testimony from expert witnesses confirmed that all of the blood in the house and on the items found in it matched the blood of the deceased. Even without the confession and the eyewitness identification, the physical evidence alone constituted overwhelming indicia of guilt and leaves virtually no doubt as to the identity of the perpetrator of this crime.
PCRA Court Opinion, 3/17/04, at 9-11.
¶ 8 Upon examination of the record, we disagree with the PCRA court's conclusion that Appellant did not raise the issue of identity at trial and/or in his current petition. *727 Clearly, at trial Appellant's counsel vigorously challenged the Commonwealth's witnesses on cross-examination regarding the evidence which linked Appellant to the crime and in the identification of Appellant as the perpetrator. Appellant's counsel further postulated in his arguments to the jury that the Commonwealth had failed to establish that Appellant had committed the crime and that the identification of Appellant by the victim's seven-year old son at trial was unreliable due to the boy not identifying Appellant until trial and then only after the police and district attorney's office suggested to him that Appellant was the man that had killed his mother. Similarly, in his PCRA petition requesting DNA testing, Appellant alleges that he was innocent of the offense and that his identity as the perpetrator of the crime has always been an issue. Thus, the PCRA court's findings in this regard are in error.
¶ 9 The PCRA court further mischaracterizes the evidence at trial when it states that expert witnesses at trial confirmed that all of the blood on the items found within Appellant's home matched the blood of the deceased. At trial, the Commonwealth's expert witness, Joseph A. Vorozilchak, a chemist for the Philadelphia Police Department, testified that he had performed analysis on the blood to determine whether the blood was human or animal. While Mr. Vorozilchak confirmed that the blood found on all items in Appellant's home was human, he further conceded that he did not perform any testing to determine blood type. Thus, the evidence presented at trial did not establish that the blood on the articles found in Appellant's home matched the blood type of the victim.
¶ 10 Notwithstanding these errors, we agree with the PCRA court's conclusion that Appellant has not met the prima facie requirements set forth in section 9543.1 necessary to entitle him to the requested DNA testing. Although Appellant has claimed his innocence in his motion, we find that his confession to the murder bars him from asserting a claim of actual innocence for the offense for which he was convicted. While a confession, in and of itself, generally would not bar such a request, an appellant cannot assert a claim of actual innocence where, as here, the validity of the confession has been finally litigated, found not to be coerced, and was knowingly and voluntarily given. See Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995) (providing that under the law of the case doctrine "a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of the same court or by a higher court in the earlier phases of the matter"). Compare Williams, 848 A.2d at 972 (holding that section 9543.1 did not apply to defendant who plead guilty to endangering welfare of children as defendant's guilty plea nullified any subsequent claim that the "identity of or the participation in the crime by the perpetrator was at issue").
¶ 11 Moreover, even if we would have found Appellant's confession did not bar recourse pursuant to Section 9543.1, Appellant would still not be entitled to the relief requested. As the PCRA court noted above, the victim's son unequivocally identified Appellant as the person who had broken into their home and who had ordered him and his little sister out of the bedroom while producing a knife and holding it toward his mother. Although Appellant challenged the credibility of Larry Mapp's testimony and his identification of Appellant as the perpetrator, substantial evidence of identification was presented to the jury for their consideration. Thus, even assuming that the DNA testing of the *728 pants, shoes, knife and washcloth produced exculpatory results, it would not be enough to establish Appellant's actual innocence of the offense for which he was convicted.
¶ 12 For the foregoing reasons, Appellant has failed to satisfy the requirement of 42 Pa.C.S.A. section 9543.1. Accordingly, we affirm the PCRA court's order denying Appellant's request for DNA testing.
¶ 13 Order affirmed.
NOTES
[*] Retired Justice assigned to Superior Court.
[1] 42 Pa.C.S.A. §§ 9541-46.
[2] Our decision today does not conflict with the holding in Commonwealth v. Weeks, 831 A.2d 1194 (Pa.Super.2003), wherein we recognized that a motion for DNA testing should be made separately from and before a PCRA petition is filed. While we are cognizant that a motion for DNA testing is a prerequisite to a PCRA petition requesting relief, the fact remains that a filing pursuant to section 9543.1 requesting DNA testing is a post conviction filing. Thus, while filing a motion for DNA testing is preferred, where as here, a pro se defendant's sole request in a PCRA petition is the equivalent of a section 9543.1 motion, we find that the trial court and this Court may address it on its merits. To consider a request for DNA testing as untimely based solely on the nomenclature used would merely elevate form over substance.
[3] At the time of Appellant's confession, our Supreme Court had articulated a rule in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), which provided that a juvenile could not "effectively waive his constitutional rights to remain silent and to have assistance of counsel without first being accorded an opportunity to consult with an adult who is interested in that juvenile's welfare[.]" Commonwealth v. Christmas, 502 Pa. 218, 222, 465 A.2d 989, 991 (1983). Subsequently, in Christmas, the Court explicitly overruled McCutchen and replaced the per se rule with a totality of the circumstances standard for judging a juvenile's waiver of rights as a voluntary and knowing one. Specifically, the Court in Christmas found that the circumstances to be considered in such a determination "include the manner in which the juvenile was treated by police authorities, as well as the juvenile's age, experience, background intelligence, capacities and prior record." Id. 502 Pa. at 224, 465 A.2d at 992. While we are cognizant that Christmas has since been overruled in part by Commonwealth v. Williams, 504 Pa. 511, 521, 475 A.2d 1283, 1287 (1984), in so far as Christmas created a rebuttable presumption that a juvenile is incompetent to waive his constitutional rights without first having an opportunity to consult with an interested and informed adult, our Supreme Court has retained the totality of the circumstances standard in determining whether a confession is knowing and voluntary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608611/ | 621 P.2d 612 (1980)
49 Or.App. 875
Myron C. WOODLEY, Respondent,
v.
W.W. ALLSTEAD, Appellant.
No. L-4265; CA 15904.
Court of Appeals of Oregon.
Argued and Submitted September 5, 1980.
Decided December 22, 1980.
*614 David C. Silven, Baker, argued the cause for appellant. With him on the briefs was Silven, Young & Schmeits, Baker.
John L. Jacobson, Baker, argued the cause and filed the brief for respondent.
Before RICHARDSON, P.J., and THORNTON and BUTTLER, JJ.
THORNTON, Judge.
Defendant appeals from a judgment declaring plaintiff owner of certain mining rights and holding that defendant had breached a lease agreement with plaintiff to mine a portion of plaintiff's claim. After viewing the area in question, the trial court ordered defendant to pay plaintiff $330 in damages, to account for ore mined and sold after plaintiff gave him notice to quit the premises and to cancel his claim to the extent it overlapped plaintiff's claim. Defendant assigns as error the following:
(1) Failure to set aside the judgment and grant a new trial on the basis of newly discovered evidence;
(2) Finding that plaintiff filed valid location notices;
(3) Finding that plaintiff had properly marked his boundaries;
(4) Finding that plaintiff had performed the necessary annual assessment work to maintain his mining rights;
(5) Ordering that defendant cancel his claims; and
(6) Awarding damages and ordering defendant to account for ore sold.
The essential facts are as follows:
In the summer of 1975, plaintiff discovered a vein of gold-bearing quartz on Forest Service land near Sumpter, Oregon, and placed a discovery post at the site. On August 2, 1975, he filed his notice of location for the Elkhorn-Oregon Quartz Mining Claim. The notice described the location of the claim as follows:
"Claim is located in Secs. 19 & 20, Twps. 9 S.R. 37-1/2 E., and about 1500' NE and 600' North of where pocket was found by loggers on Lake Cr., about 1963. And about 1 mile SW of Lime Quarry."[1]
By statute, a mining claim may extend along the vein 750 feet in each direction from the point of discovery and 300 feet perpendicular to the vein on each side at *615 the point of discovery. 30 U.S.C. § 23.[2] Plaintiff sought to claim a rectangle 1500 feet by 600 feet, the full area allowed by law. He located the corners of his claim and, according to his testimony, marked each one.[3] He then proceeded to mine at several different locations, mainly at the point of the initial discovery, near one of the two roads (referred to in testimony as the "upper road") which traverse plaintiff's claim. In 1976-78, plaintiff filed annual "proofs of labor" setting forth the improvements made and work done on the claim. Such proofs are required by law to perpetuate a claim-holder's exclusive right to mine a particular area. 30 U.S.C. § 28.
During the summer of 1977, defendant was prospecting in the area and found two ore deposits down the hill (generally south) from plaintiff's discovery. Defendant searched the records and noted plaintiff's claim but stated he did not believe from the location description that it was anywhere in the vicinity of his discoveries. He checked the area for evidence of other claims and, finding none, filed location notices for his "Long Eagle" and "Dubble Eagle" claims and staked his boundaries.
The central dispute in this case concerns an ore strike made at a point on the "C" Spur Road, the lower road on plaintiff's claim, which lies within defendant's claim. In late 1977, plaintiff discovered defendant's location notices and approached defendant about a possible conflict. On April 27, 1978, after a period of negotiation, the parties entered into a lease agreement whereby defendant was allowed to mine at that point on "C" Spur Road, in return for which defendant was to pay $10 and a 3 percent royalty on all ore removed by defendant from that location. Defendant signed the lease agreement at his home and mailed it to plaintiff, along with the $10 payment and a letter which reads as follows:
"I got your agreement have complyed [sic] with your wishes by sending you $10.00 money order inclosed.
"I hope I have not misunderstood this agreement. I understand it to be 150 ft. up hill from your center stake and 150 ft. up hill from S.W. corner and N.W. corner.
"I also want us to agree that I may go across on road about [sic] this to my claim to the south with cat so I can open up vain [sic] above the "C" Spur Road.
"Because you have a mill you may want to process your own ore that I take out if any; you may have a better recovery than I do. I hope that if I am not able to take out all that is there we can further this agreement for more time, possiable [sic] another 3 years.
"I do hope you and your friends do well up on your area and that you do find a good vain [sic] in place.
"I will call you when I get cat in up there and want to go across that area where the red quartz is about your center stake.
"Call me at anytime. I will always try to be cooperative and helpful."
A dispute developed as to whether the lease permitted defendant to mine above "C" Spur Road. The lease provided in part that defendant agreed to accept a
"* * * [c]onditional Mining Lease on the area 600 feet in length along the south end line of the Elkhorn-Oregon Quartz mining claim * * * up the hill 150 feet in a northeast direction from said south end line to a point approximately 50 feet above `C' spur road, and only that portion on a horizontal plane *616 below the existing roadbed of `C' spur road, `C' spur road being the first and lowest road that parallels Lake Creek to the east.
"In essence, to mine the mineral below the roadbed of `C' spur road." (Emphasis added.)
As defendant's letter indicates, he understood he was entitled to mine the lower 150 feet of plaintiff's claim, which would apparently include some land above the road. In any event, defendant did mine above the road. This led to a confrontation during which defendant and his partner allegedly blocked plaintiff's access to a portion of his claim. On September 20, 1978, plaintiff gave defendant notice of a breach of the lease agreement and ordered him off the premises. Defendant refused. On September 27, 1978, this action was filed and plaintiff was granted a restraining order enjoining defendant from interfering with plaintiff's access and from disposing of any ore taken from the disputed area during pendency of the action. The complaint also contained causes of actions for ejectment and trespass and a suit to compel cancellation of defendant's claims. Defendant contended that the lease was made under duress, challenged (by affirmative defense) the validity of plaintiff's claims, and sought a declaration that defendant had a valid claim to the mining rights in the area.
As mentioned, the trial court viewed the area prior to trial. The court concluded that, although the description in plaintiff's notice of location was probably insufficient to apprise an inexperienced person unfamiliar with the area of the precise location of the claim, defendant had actual knowledge of the boundaries of claimant's claim and was therefore not in a position to object to the sufficiency of the notice. The court declared plaintiff owner of the mining rights to the area in question and awarded him possession. Defendant was ordered to cancel his location notices and to account to plaintiff for any ore mined at that location after the notice to quit was given. The court awarded plaintiff damages of $320 on his first cause of action, representing lost wages paid by plaintiff to an employee for the period during which defendant blocked plaintiff's access and the cost of hiring a deputy sheriff employed to persuade defendant to vacate the premises. The court found plaintiff's other damages for trespass and wrongful withholding to be speculative and awarded $10 nominal damages on the trespass cause of action.
We turn first to defendant's assignments of error concerning the adequacy of plaintiff's notice of claim location, boundary markers and proofs of labor. If defendant were to prevail on any of these contentions, it would have the effect of defeating plaintiff's title to the mining rights on the property in dispute, and defendant would become the record owner of such rights by virtue of his claims filed in 1977. We need not detail further defendant's contentions on this score because we conclude he is estopped as a result of having entered into the lease from contesting plaintiff's title to those mining rights. ORS 41.350(5) provides as a conclusive presumption:
"A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation."
Defendant does not challenge the existence of the lease on appeal. At trial, his sole defense was that he had signed the lease under duress because he feared plaintiff's reprisal. The trial court found this contention ludicrous in light of the circumstances under which defendant signed the lease and the letter which accompanied the signed document.
Defendant seeks to avoid the force of this rule by a number of routes. First, defendant contends that the rule is inapplicable in proceedings in which the landlord's title is put in issue. Plaintiff's title was ostensibly at issue in this case as a result of defendant's challenge to the validity of plaintiff's location notice and boundary markers. The case cited by defendant does not support such an exception in this case. Collier v. Johnson, 79 Cal. App. 322, 249 P. 217 (1926). That case holds that a landlord may not have the benefit of the rule where he voluntarily places his title at issue as well as *617 suing for possession because then the tenant would be barred by res judicata from subsequently challenging the landlord's title without having had his day in court. It would defeat the purpose of the rule, however, if a tenant could obviate it merely by calling the landlord's title into question by affirmative defense.
Next, defendant contends that an exception to the rule lies where the tenant seeks to assert his own superior right to possession stemming from a claim independent of the lease. He cites Treadgold v. Willard, 81 Or. 658, 668, 160 P. 803 (1916), which quotes an Iowa case, Beck v. Grain Co., 131 Iowa 62, 64, 107 N.W. 1032 (1906), as follows:
"The landlord may not have any interest in the title to the demised premises, but whether he has or not cannot be questioned by the tenant before the expiration of his lease, and whilst in possession under it, unless based upon some distinct and independent claim to the land." (Emphasis added.)
Defendant asserts that his valid claim filings in 1977 constitute a "distinct and independent claim."
At first blush, defendant's argument appears supported by the quoted language. The holding, if it means what defendant claims it does, is dictum in both Treadgold and Beck, as well as in the case relied on in Beck for the proposition. Bowdish v. The City of Dubuque, 38 Iowa 341 (1874). In none of these cases was the tenant attempting to assert a right of his own to possession of the premises. The meaning of the language is clarified in Bobell v. Wagenaar, 106 Or. 232, 210 P. 711 (1922). That case involved an action in ejectment in which defendant attempted to show that plaintiff no longer had title to the premises because he had been divested of the property when it was sold at a sheriff's sale in satisfaction of a judgment against plaintiff held by a third party that subsequently quitclaimed the property to defendant. The court held (106 Or. at 244-45, 210 P. 711) that defendant was not estopped to assert that, subsequent to the time possession was surrendered to the tenant under the lease, the landlord transferred his title to another, either voluntarily or by operation of law.
"`* * * Were this not the case, the lessee, or person claiming under him, might be liable to separate suits for possession, or for rent, by both the original lessor and by a transferee of the latter, and be without any defense to either, since, as we have seen, the transferee of the lessor is entitled to the benefit of any rule of preclusion or estoppel to the same extent as the lessor himself.' 1 Tiffany of Landlord and Tenant, p. 493." 106 Or. at 244, 210 P. 711.
The court then cites the identical language from Beck quoted above. See also Haggerty v. Nobles, 244 Or. 428, 438-39, 419 P.2d 9 (1966). In this case, therefore, defendant is estopped to assert any alleged defect in plaintiff's title which antedates the making of the lease.
To the extent it might be contended that plaintiff performed inadequate labor on the claim during 1978 (and thereby forfeited his claim by operation of law), we find that his proof of labor filed in 1978 demonstrates that he expended more than the requisite $100 in labor and improvements.
Defendant contends that the lease does not cover the property in dispute and seeks to establish that fact by showing that the location description in the notice of claim puts the claim some distance from where plaintiff contends it lies. This is the identical argument defendant made to defeat plaintiff's location notice. Undoubtedly, the actual location of plaintiff's claim is the most difficult factual issue in this case, and the evidence and arguments of both parties in this regard generate a great deal of heat but very little light. The trial court took a view of the area and concluded that the lease in fact covered the point where defendant was mining above "C" Spur Road and that that point lay within the posted boundaries of plaintiff's claim. Even assuming, as the parties seem to, that our *618 review in this case is de novo,[4] we would defer to the trial court's obviously superior position in making this determination.
The lease covers the southernmost 150 feet of plaintiff's claim and permits defendant to mine on the portion below "C" Spur Road. There is some ambiguity as to whether the lease also permits defendant to mine above the road. In arguing here that the lease does not cover the area above the road, defendant is taking a position contrary to that which he asserted in his letter and upon which he relied to justify mining above the road. In any event, the lease does recognize that the area in question is a part of plaintiff's claim. As mentioned, there is no contention by defendant on appeal that the lease itself is invalid. We conclude that defendant is estopped to deny that plaintiff had title to the mining rights in the area in question.
Defendant next assigns as error the award of damages for wrongful withholding and the order to account for ore mined after delivery of the notice to quit.[5] No accounting was requested by plaintiff and the trial court apparently ordered such relief on its own motion. Defendant contends that there is no evidence that any ore at all was taken from the premises and therefore no basis for an order to account. We agree.
It is clear that plaintiff neither pleaded nor proved that defendant wrongfully removed ore nor withheld royalties to which plaintiff was entitled as damages.[6] Nor did plaintiff bring a suit for an equitable accounting nor plead fraud, breach of fiduciary duty or other allegation which would invoke the equitable jurisdiction of the court to compel an accounting. Smith v. Howell, 91 Or. 279, 301, 176 P. 805 (1919); Flaherty v. Bookhultz, 207 Or. 462, 467, 291 P.2d 221 (1955), 297 P.2d 856 (1956). Plaintiff did request and receive an order restraining defendant from mining or selling any ore during the pendency of the suit. An accounting may be available incident to other equitable relief. Smith v. Howell, supra, 91 Or. at 301, 176 P. 805. Absent a showing that defendant mined or sold ore in violation of this injunction, however, the accounting was erroneously ordered. See Phez Co. v. Salem Fruit Union, 103 Or. 514, 535-36, 201 P. 222, 205 P. 970 (1922).
In an action in ejectment, a successful plaintiff may also recover damages for wrongful withholding of the property. ORS 105.005. The wages paid to plaintiff's employe who was unable to work during the week defendant wrongfully withheld the land and the cost of the deputy to prevent further encroachment by defendant are recoverable. The fact that plaintiff may not have earned a profit from his employe's labor is immaterial.
Defendant next contends that the court erred in compelling cancellation of his claims because his Dubble Eagle claim does not overlap plaintiff's claim at all if plaintiff's southwestern end line is restricted to 600 feet. Apparently, the length of the line as marked by defendant's boundary stakes is 700 feet. The Lone Eagle claim only conflicts in the disputed area. The court *619 recognized this error, however, on defendant's motion to set aside the judgment and held:
"It does appear that the defendant should only be required to cancel his claims insofar as they overlap the plaintiff's claim with the southwesterly line thereof to be limited to 600 feet. The decree should be modified accordingly."
Defendant's assignment of error is moot.
Finally, defendant contends that his motion to set aside the judgment and grant a new trial should have been allowed because of newly discovered evidence namely, that during the summer of 1979, plaintiff was mining in an area which is consistent with the description in the original notice of claim and which is outside the boundaries of the claim as presently marked. This, defendant argues, supports the inference that plaintiff's "real claim" is not where the trial court found it to be. Such motions are not favored and rest largely in the discretion of the trial court. Lane County Escrow v. Smith, Coe, 277 Or. 273, 288, 560 P.2d 608 (1977). Miners are free to prospect outside their claims on other unclaimed property. We find no abuse of discretion here.
Affirmed in part; reversed in part.
NOTES
[1] The original notice of location stated the general orientation of the vein as southeast to northwest. On March 29, 1978, plaintiff filed an amended notice which corrected this orientation to southwest to northeast. Apparently, the claim, as marked on the ground, was consistent with the amended notice.
[2] 30 U.S.C. § 23:
"* * * A mining claim located after the 10th of May, 1872, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface * * *."
[3] Several of plaintiff's stakes were knocked over sometime in late 1976 or 1977 by Forest Service crews. Plaintiff testified that he replaced them as soon as he discovered the destruction. There was also evidence to support a finding that defendant or his partner pulled out certain of plaintiff's stakes.
[4] Plaintiff's actions for ejectment and trespass are actions at law which we do not review de novo. The suit which requested a temporary injunction during pendency of the lawsuit is not directly involved in this appeal. Whether the suit for cancellation is sufficient to bring the entire cause into equity for purposes of our review need not be decided in light of our deference to the trial court's disposition of this factual issue.
[5] We have considered on our own motion whether the judgment and decree in this case is appealable inasmuch as it orders an accounting for ore removed after notice to quit was given and such an accounting was not made. We conclude that it falls within the exception to the general rule that an order to account is not final and appealable because it is clearly incidental to the main rights to be adjudicated the validity of plaintiff's title to the mining rights and whether defendant breached the lease agreement particularly in view of the fact that defendant challenges plaintiff's very right to an accounting. Murphy v. Royce, 214 Or. 626, 627-28, 310 P.2d 623 (1958).
[6] Defendant did testify that he removed two or three tons of ore from the area in 1978, but it appears that this occurred prior to the notice to quit. As mentioned, plaintiff did not request any damages representing unpaid royalties for this ore. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608612/ | 5 Kan. App. 2d 596 (1980)
621 P.2d 443
BLANCHE E. SQUIRES, Appellee,
v.
PHIL WOODBURY, Appellant.
No. 51,765
Court of Appeals of Kansas.
Opinion filed December 24, 1980.
Petition for review denied February 20, 1981.
Robert E. Southern, of Great Bend, for the appellant.
Jerry M. Ward of Ward & Berscheidt, of Great Bend, for the appellee.
Before FOTH, C.J., ABBOTT and SPENCER, JJ.
SPENCER, J.:
This is an appeal from an order which reformed the terms of a written lease executed by the parties.
The evidence at trial disclosed that defendant owned a mobile radio communications business named Mobilfone of Kansas, and sought to acquire a lease on property in order to erect a radio tower. Defendant and one of his employees, William Koeller, discovered what they felt would be a suitable location for construction of the tower on plaintiff's land. Defendant and Koeller *597 approached plaintiff in June, 1977, and spoke to her at her house. Plaintiff was 79 years of age at the time.
Plaintiff told defendant and Koeller that she had leased tower space to Lane-Wells Company several years earlier. The Lane-Wells lease, which was introduced into evidence, was for a term of five years with an option to renew for five years. Plaintiff explained to defendant that the Lane-Wells tower was not rebuilt after it fell in an ice storm during 1973. Plaintiff expressed interest in defendant's proposal and suggested they come back with a lease similar to the Lane-Wells agreement. The term of the proposed lease between the parties was not discussed in their initial conversation. Defendant testified he was unaware of the provisions of the Lane-Wells lease.
The following day, June 24, 1977, defendant, Koeller, and Koeller's wife returned to plaintiff's residence with the written lease in question. According to defendant and the Koellers, defendant explained the lease in detail and read it to plaintiff word-for-word. Defendant suggested that plaintiff discuss the lease with someone else before signing it. Defendant and the Koellers testified plaintiff appeared to read the lease and that she appeared coherent during all discussions and conversations concerning it. At the conclusion of the discussion, plaintiff signed the lease and defendant thereafter incurred expenses in erecting the tower. The lease clearly provided for a term of fifteen years with an option to renew for fifteen years.
On February 16, 1978, plaintiff filed this action, seeking cancellation of the lease due to "the gross inadequacy of consideration, inability of the plaintiff to understand and comprehend the effect of the lease agreement, her weakness of mind, and the representations made to her...." A pretrial order was filed setting forth the following issues:
"VI. QUESTIONS OF FACT:
"A. Was there an impediment of the mental processes of the lessor at the time [that] the lease was taken?
"B. Is the consideration called for in the lease under all the circumstances inadequate and if so, the extent of the inadequacy?
"VII. QUESTIONS OF LAW:
"A. Is there such inadequacy of consideration that standing alone or coupled with something else, the lease should be canceled?
"B. Is whether or not there is such inadequacy of consideration coupled with some other circumstances such as some limited mental faculties of the lessor at the time the lease was entered into that the lease should be canceled?
*598 "C. If either A or B are so, what type of relief should the Court grant and if those things are so, then this Court becomes a Court of Equity?"
Trial was held August 30, 1979, at which time the evidence described above was adduced. In addition, plaintiff testified she was unable to read the lease due to her poor eyesight, and that she thought the parties had agreed to a term of the lease exactly like the Lane-Wells lease. She stated she did not remember defendant reading the lease to her and that she discovered the written term of the lease when a person approached her seeking to buy her property and read the provisions of the lease to her.
On December 6, 1979, the trial court filed its journal entry, finding in relevant part:
"1. That there was no impediment to the mental processes of the plaintiff at the time the lease agreement was executed.
"2. That there was a possibility of impediment of the plaintiff due to her physical condition that is, inadequate eyesight.
"3. That the consideration for the lease agreement was adequate.
"4. That there was a mistake on the part of the plaintiff as to the term of the lease agreement it being her understanding that it would be for five (5) years instead of the fifteen (15) years as provided; and
"5. That the lease agreement should be modified to a term of Five (5) years commencing from September 1, 1979 with the option of the defendant to renew for an additional five (5) years; and that the annual consideration for said lease agreement should be Three Hundred Dollars ($300.00) per year on the original term and any renewal thereof, with the annual payments of the defendant made since June 4, 1977, to date to be applied on the term of the lease commencing on September 1, 1979."
Defendant here contends the trial court's decision is inconsistent with its findings of fact and contrary to law. In particular, defendant attacks the court's finding as to plaintiff's mistaken belief of the term of the lease. We note that the other findings are supported by substantial competent evidence and cannot be disturbed on appeal. Schaefer & Associates v. Schirmer, 3 Kan. App. 2d 114, Syl. ¶ 4, 590 P.2d 1087 (1979).
The general rule is that competent parties may make contracts on their own terms, provided such contracts are neither illegal nor contrary to public policy, and in the absence of fraud, mistake or duress, a party who has entered into such a contract is bound thereby. Augusta Medical Complex, Inc. v. Blue Cross, 227 Kan. 469, Syl. ¶ 4, 608 P.2d 890 (1980). It has been held that one who signs a written instrument is bound by its terms, in the absence of fraud, undue influence or mutual mistake as to its contents, regardless of the person's failure to read and understand its terms. *599 Washington v. Claassen, 218 Kan. 577, Syl. ¶ 2, 545 P.2d 387 (1976). Our cases have recognized that a contracting party is under a duty to learn the contents of a written contract before signing it [Sutherland v. Sutherland, 187 Kan. 599, 610, 358 P.2d 776 (1961)], and if a person cannot read an instrument it is as much a duty to procure some reliable person to read and explain it before it is signed as it would be to read it before signing, if able to do so. Maltby v. Sumner, 169 Kan. 417, Syl. ¶ 5, 219 P.2d 395 (1950).
A long line of older decisions expressed the view that in the absence of fraud a unilateral mistake is insufficient to relieve the mistaken party from the terms of an agreement. Snider v. Marple, 168 Kan. 459, 465, 213 P.2d 984 (1950); Green v. Insurance Co., 112 Kan. 50, Syl. ¶ 2, 209 P. 670 (1922); Commission Co. v. Mowery, 99 Kan. 389, 397, 161 P. 634 (1916), modified 99 Kan. 399 (1917); Griffin v. O'Neil, 48 Kan. 117, 119,29 Pac. 143 (1892). Recently, the Kansas Supreme Court reaffirmed that, in the absence of fraud, a unilateral mistake will not excuse the nonperformance of a contract, as applied in a construction bid bond situation. Triple A Contractors, Inc. v. Rural Water Dist. No. 4, 226 Kan. 626, 603 P.2d 184 (1979). While the above cases appear to announce the general rule, in Geiger v. Hansen, 214 Kan. 83, 87, 519 P.2d 699 (1974), the court recognized that there is authority for the proposition that unilateral error may be a good defense to a contract where hardship amounting to injustice would be inflicted by holding a party to the agreement, and where it would be harsh and unreasonable to enforce the agreement. The Geiger case likewise indicated that in an action either legal or equitable in nature brought on a written instrument, either party is at liberty, under proper pleadings, to prove mistake and to have reformation of the contract. 214 Kan. at 87.
The Geiger decision appears to be in conformity with the modern rule that unilateral mistake will justify affirmative relief where the mistake was known to the other party to the transaction. 13 Williston on Contracts § 1573 (3rd ed. 1970). The following statement appears in 3 Corbin on Contracts § 607 (1960), p. 662:
"The case is materially different when a party signs or accepts a written instrument without reading it, thinking that he knows its contents. If the contents are not what he supposed, he is assenting under a mistake of fact. This case should be dealt with just as are other cases of unilateral mistake. If the other party has no *600 reason to know of the mistake, and has so materially changed his position that it can not be restored, the first party will be held bound. His conduct in signing without reading is certainly not to be recommended. Generally, it may properly be described as negligent. But it is not wrongful; and he should not be penalized as for a wrongful act. No more than in the case of other unilateral mistakes should the other party be permitted to reap a profit, if the mistake is convincingly proved and he can be restored to his original position."
In Coleman v. Holecek, 542 F.2d 532 (10th Cir.1976), the court relied on the above statements in finding that no contract had been made. In that case, Holecek explicitly informed his insurance agent that he wished to let his policy expire when his next installment came due. The agent handed Holecek a document which provided for immediate cancellation. Holecek signed the document without reading it. The Tenth Circuit concluded:
"[T]he agent permitted, if indeed he did not induce, Holecek to sign the contract knowing that its terms were materially different from what Holecek understood them to be. Under these facts no binding contract was created." 542 F.2d at 535-536.
Finally, it is to be noted that there is authority for the rule that a unilateral mistake may be a ground for rescinding, but not for reforming, a contract. Moffett, Hodgkins & C. Co. v. Rochester, 178 U.S. 373, 385, 44 L. Ed. 1108, 20 S. Ct. 957 (1900); Hearne v. Marine Insurance Company, 87 U.S. (20 Wall.) 488, 491, 22 L. Ed. 395 (1874). While numerous federal decisions have followed such rule, Professor Williston noted:
"`This distinction has been sometimes overlooked by courts in the application of the general rule, and some confusion and uncertainty thereby created. But it stands upon sound reason, and is inherent in the very nature of the different remedies.'" 13 Williston on Contracts § 1573 (3rd ed. 1970), pp. 489-490.
In the present case, the trial court found that plaintiff was mentally competent to contract with defendant and that the contract as executed was supported by adequate consideration. The trial court made no findings of fraud, undue influence or duress in the execution of the lease agreement and we find no evidence in the record to support such findings, especially in light of the court's conclusion that the contract was supported by sufficient consideration.
The court's finding that a mistake occurred as to the term of the lease is supported by substantial competent evidence. While the trial court did not designate it as such, it is clear that the mistake was unilateral. There is no evidence that defendant had a misun was unilateral. There is no evidence that defendant had a misunderstanding *601 as to the term of the lease. However, in order to justify relief from a unilateral mistake, as noted above, it must be shown that the mistake was known to the other party to the transaction.
In this case, there is no finding that defendant had knowledge of plaintiff's mistaken belief as to the term of the lease. The evidence disclosed unequivocally that defendant and plaintiff did not explicitly discuss the term of the lease at their initial conversation and that defendant was not aware of the term of the Lane-Wells lease. Although plaintiff testified she understood that the terms of the two leases would be the same, defendant indicated the parties agreed only that the size of the towers would be similar. At any rate, there is no evidence that plaintiff ever furnished defendant with a copy of the Lane-Wells lease or informed defendant of the term of that lease. Viewing the evidence most favorable to plaintiff, it is apparent that defendant was not aware of plaintiff's mistaken belief when the contract was signed.
Plaintiff admitted that defendant advised her to take the lease to someone else to read it over. While the trial court's finding concerning plaintiff's poor eyesight is supported by the evidence, there is no reason appearing of record which justifies plaintiff's alleged failure to read the instrument in question. Thus, while the trial court's factual findings appear to be sound, we conclude the trial court improperly reformed the lease where there was no evidence of fraud, duress, undue influence, unconscionability or the like, and where the record indicates that defendant was unaware of plaintiff's mistaken belief at the time the lease was executed. In view of the court's conclusion that the contract was supported by adequate consideration, we find no evidence indicating that enforcement of the contract as written will cause harsh or unreasonable hardship. On the other hand, in view of defendant's reliance on the contract, reformation or rescission of that agreement could cause substantial hardship.
Reversed and remanded with directions to enter judgment for defendant. | 01-03-2023 | 10-30-2013 |
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